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Clear call for proper change to #casa rules and application – regulatory philosophy??

Clear call for proper change to #casa rules and application

Sunfish calls well for clear changes Mr. Skidmore, not soon, but now and before more damage to #ozaviation.

The recent “10-point statement of regulatory philosophy” as reproduced below, can only be called an absolute rubbish. It is compromised of a series of half-truths and mis-representations.


Old 22nd Sep 2015, 08:50   #251 (permalink)
Join Date: Aug 2004
Location: Melbourne, Australia
Posts: 5,892
I want:

  1. Plain English common sense rules such that any reasonable person can determine what is required to comply;
  2. A clear set of policy guidelines on how such rules are to be enforced – including the degree of any discretion available to an investigator;
  3. The final arbiter to be the judicial system where rules of evidence apply;
  4. To be afforded procedural fairness, natural justice and the principle of equity and proportionality to be applied and always in the interests of the accused. Including the right to cross examine accusers and witnesses.

 I do not want:

  1. Some Two bit, corrupt, biased, Kangaroo court [AAT] (show cause notice) run by CASA which is both rule writer, rule interpreter and rule enforcer to have anything to do with punishment.
  2. A system where we are told what does NOT comply, leaving us to crystal ball prognosticate what MIGHT satisfy CASA, even then CASA won’t “approve” it just “accepts”.

To put that another way:

Exactly how long do you think the general public would put up with the situation if the road traffic police were allowed to behave like CASA in writing rules, interpreting those rules to their own advantage and enforcing them capriciously like CASA does?


Last edited by Sunfish; 22nd Sep 2015 at 09:41.


Regulatory Philosophy

Purpose

Consistent with CASA’s obligation to comply with the laws governing its regulatory activities, this statement of regulatory philosophy sets out the principles that guide and direct CASA’s approach to the performance of its regulatory functions and the exercise of its regulatory powers.

Fidelity to these principles will be reflected in CASA’s regulatory policies and practices, and will extend to the fullest extent possible to all aspects of CASA’s engagement with the wider aviation community.

1. CASA is committed to maintaining the trust and respect of the aviation community

CASA is committed to maintaining the trust of the Australian aviation community and regaining that trust where it has been shaken or compromised. CASA is likewise committed to fostering mutual respect between itself and the aviation community in every aspect of our engagement with members of that community.

2. Mindful of the primacy of air safety, CASA takes account of all relevant considerations, including cost

Although safety must always be CASA’s ‘most important consideration’, this does not mean that safety is the only consideration CASA takes into account when performing its regulatory functions and exercising its regulatory powers. CASA is required to take all relevant considerations, including cost, into account.

Where reasonable alternative approaches to the fulfillment of a regulatory requirement-

  • satisfy applicable legal requirements; and
  • do not unacceptably compromise safety,

CASA will readily entertain such alternatives if they are proposed, and accept them in the absence of compelling reasons not to do so.

3. CASA takes risk-based approaches to regulatory action and decision-making

CASA will adopt a regulatory approach based on a sound assessment of the level of risk associated with particular aviation operations. In doing so, the highest safety priority will be afforded to passenger transport operations, and operations in which passengers and others exposed to higher levels of risk are not in a position to make informed judgements and effective decisions about the risks to which they are exposed.

4. CASA performs its functions consistently with Australia’s international obligations

Except where a difference to a standard specified in an Annex to the Chicago Convention has been properly notified to the International Civil Aviation Organization (ICAO) by Australia, CASA will strive to ensure its regulatory requirements, policies and practices:

  • are consistent with ICAO standards; and
  • harmonise with best international regulatory practice, having particular regard to aviation jurisdictions with features similar to Australia’s.

Harmonisation does not necessarily mean replication, and where it is appropriate to do so, CASA’s regulatory requirements, policies and practices should reflect considerations that are distinctive to the Australian aviation environment.

5. CASA approaches its regulatory functions consultatively and collaboratively

CASA will develop and implement appropriate, and appropriately inclusive, consultative and collaborative policies and practices with a view to:

  • understanding the nature and practical implications of existing and potential aviation safety issues and problems;
  • deciding whether, and if so the extent to which, CASA should be involved in addressing such issues and problems; and
  • identifying the most appropriate contributions CASA can make to addressing such issues and problems, recognising that a regulatory response will not always necessarily be the most appropriate contribution.

Correspondingly appropriate consultative and collaborative policies and processes will be developed to guide and direct the way in which CASA carries out its distinctive responsibilities (regulatory and otherwise) in addressing the aviation safety issues and problems in respect of which CASA’s responsibilities have been identified.

6. CASA communicates fully and meaningfully with all relevant stakeholders

At every stage of the regulatory activities in which CASA engages-from contemplating the need to make a rule or impose a requirement, to the application of a rule or requirement-and to the fullest extent possible in the circumstances, CASA will ensure that everyone whose rights, interests and legitimate expectations will, or are likely to, be affected by CASA’s contemplated actions has access to information and advice about:

  • what it is CASA proposes to do;
  • why CASA is proposing to do so;
  • what considerations CASA has taken into account in forming its view on the matter to hand
  • what alternatives (if any) had been considered and why those alternatives had been ruled out;
  • what the effects of the proposed actions are expected to be; and
  • what recourse is available to persons who are, or are likely to be, affected by the proposed action.

CASA will ensure that the information and advice it provides to the aviation community, generally and in individual cases, is:

  • clear and concise, using plain language and concepts wherever possible;
  • correct and complete, authoritatively informed and fully informative;
  • responsive to the questions or issues to hand; and
  • timely.

7. CASA fairly balances the need for consistency with the need for flexibility

CASA will consistently employ the same processes, and have regard to the same criteria, in all cases involving the consideration of particular facts and circumstances for the purposes of determining whether, and if so how, a regulatory requirement should be interpreted or applied in any given situation. In this way, everyone may be confident that they are receiving the same advice about the general meaning and application of any regulatory requirement.

CASA will also ensure that all relevant facts and circumstances peculiar to an individual situation have been fully and fairly considered on their merits, and will provide advice about, or decide the outcome of, a particular matter governed by a regulatory requirement on that basis. In this way, everyone may be confident that, within a regulatory framework that consistently employs the same processes and assesses facts against the same criteria, their individual circumstances will be fully and fairly considered.

8. CASA embraces and employs rational ‘just culture’ principles in its regulatory and related actions

CASA embraces, and encourages the development throughout the aviation community of, a ‘just culture’, as an organisational culture in which people are not punished for actions, omissions or decisions taken by them that are . commensurate with their experience, qualifications and training, but where gross negligence, recklessness, wilful violations and destructive acts are not tolerated.

Requiring a person to undertake further training and, where necessary in the interests of safety, to refrain from exercising the privileges of a relevant authorisation pending the successful demonstration of competence where deficiencies have been identified, shall not be regarded as discipline or punishment.

Appropriate polices will be developed and implemented to ensure the integrity of this approach, and to guard against any inappropriate punitive action by CASA, or disciplinary action by a service provider, in a manner inconsistent with this principle.

9. CASA demonstrates proportionality and discretion in regulatory decision-making and exercises its powers in accordance with the principles of procedural fairness and natural justice

CASA will seek optimal safety outcomes in the exercise of its regulatory powers. On that basis and to that end, CASA will ensure that its actions and responses are appropriate and proportional to the circumstances.

In the first instance, and in the absence of demonstrable safety-related reasons for doing otherwise:

  • CASA will adopt an approach to regulatory compliance based on the encouragement of training and education, with a view to remedying identified shortcomings and correcting specified deficiencies.
  • Where the interests of safety require that a person’s aviation-related privileges need to be limited, curtailed or suspended pending the rectification of identified shortcomings or specified deficiencies (including the satisfactory demonstration of requisite levels of skill or competence), voluntary mechanisms to achieve those objectives will be developed and employed.
  • Where it is necessary in the demonstrable interests of safety for CASA to exercise discretionary powers in order to achieve a specified safety-related outcome, CASA will employ the least intrusive and least disruptive means consistent with the achievement of that outcome.
  • CASA will not utilise its discretionary powers to vary or suspend a civil aviation authorisation for punitive or disciplinary purposes, but only for purposes reasonably calculated to achieve specified safety-related objectives, including the protection of persons and property pending the satisfactory demonstration by the person whose privileges have been, or are to be, varied or suspended, that the shortcomings or deficiencies giving rise to CASA’s action have been effectively addressed.

In determining whether and how to exercise its regulatory discretion in a particular matter, CASA will have regard to:

  • the seriousness of the safety-related implications of the instance of noncompliance under scrutiny;
  • mitigating or aggravating circumstances impacting on the appropriateness of the responsive regulatory action(s) contemplated;
  • the history and background of the person whose acts or omissions are under scrutiny, in relation to that person’s demonstrated ability and willingness to comply with regulatory requirements;
  • the passage of time since the acts or omissions under scrutiny occurred, and when they were discovered by, or otherwise came to the attention of, CASA;
  • the degree of responsibility of the individual(s) whose acts or omissions are under scrutiny;
  • the effect on the wider aviation community (including the general public) and confidence in CASA’s administration of the civil aviation legislation in the interests of safety;
  • the obsolescence or obscurity of the law;
  • whether the a contemplated regulatory response would be perceived as counter-productive, for example, by bringing the civil aviation legislation or CASA into disrepute;
  • the availability and efficacy of appropriate alternatives to a particular regulatory response;
  • whether the consequences of the regulatory action contemplated would be unduly harsh or oppressive;
  • whether the matter is one of considerable public concern;
  • the actual or potential harm occasioned to an individual or the damage to property; and
  • whether the person whose acts or omissions are under regulatory scrutiny is (or has been) willing to co-operate with CASA in the efforts to address the particular matter to hand and/or to address relevant safety-related issues more generally.

The applicability of and weight to be given to these and other factors will depend on the particular circumstances of each case.

Beyond its legal obligation to do so in most cases, in all cases in which CASA exercises discretion in determining whether, and if so to what extent, a requirement will be imposed on a person, except where the interests of safety prevent it or it is otherwise demonstrably impracticable to do so, CASA will afford persons affected, or likely to be affected, by a decision with an appropriate measure of procedural fairness and natural justice.

10. CASA has a legitimate, but limited, role in pursuing punitive action for breaches of the civil aviation legislation

CASA has a legitimate, but limited, role in the pursuit of punitive action against a person for alleged breaches of the civil aviation legislation. CASA will not pursue regulatory administrative action to vary, suspend or cancel a civil aviation authorisation for punitive purposes.


 

 

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