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Senator Xenophon stops the CASA regulations

Senator Xenophon stops the CASA regulations:

And about time this happened with the disaster set of regs served up by CASA. $250m and counting.

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The Disallowance Alert lists all instruments subject to a notice of motion for disallowance (whether at the instigation of the committee or an individual senator or member). The progress and eventual outcome of any such notice is also recorded.

For more information regarding the disallowance process, please see the Brief Guide to Senate Procedure No.1 – Disallowance and House of Representatives Guide to Procedure, Chapter 14 – Delegated legislation – Disallowance and approval.

Instrument Notice given by Motion Outcome
Part 145 Manual of Standards Amendment Instrument 2014 (No. 1), made under regulation 145.015 of the Civil Aviation Safety Regulations 1998 [F2014L01316] Senator Xenophon on 9/2/2015 Senator Xenophon to move on 12/2/2015 that the instrument be disallowed.
Motion postponed on 12/2/2015 to 3/3/2015
Motion postponed on 2/3/2015 to 18/3/2015
The Senate disallowed the instrument on 18/3/2015

 

Senator XENOPHON (South Australia) (17:26): I move:

That the Part 145 Manual of Standards Amendment Instrument 2014 (No. 1), made under regulation 145.015 of the Civil Aviation Safety Regulations 1998, be disallowed [F2014L01316].

Six sitting days remain, including today, to resolve the motion or the instrument will be deemed to have been disallowed.

I am moving to disallow these regulations today for several reasons. Primarily, the impact of these regulations is to reduce the safety of Australia’s aircraft maintenance regime by transferring the authorisation to certify airworthiness of aircraft from licenced engineers to non-licenced and less-qualified people. The role of licenced aircraft engineers is vital. They have a thorough and sound knowledge of the aircraft as a whole—they know them nose to tail and back to front, and from wing tip to wing tip. And, while the other individuals who may work on specific areas of maintenance are undoubtedly experts in their particular field, I am concerned that they do not have the same comprehensive ‘big picture’ knowledge as licensed aircraft mechanical engineers.

This is an important issue about airline safety in this nation. We do not want to see airline safety being diminished. The regulations propose to have non-licensed aircraft engineers to do certain types of maintenance and to have certain powers. It is my view that they should not have the authorisation to sign off on the airworthiness or maintenance undertaken on aircraft. I am concerned that the changes in these regulations may put our aircraft maintenance systems below the minimum global standard. Clearly, this has significant implications not only in terms of safety but in terms of our international reputation, and may even put us at risk of being restricted or banned from international airspace.

I am also concerned that the impact of these regulations has not been fully understood or clearly communicated by the regulator to the parliament. Further, in an expert legal opinion to the Australian Licensed Aircraft Engineers’ Association, Mr Bret Walker SC, one of the nation’s most senior counsel, indicated that the regulation may possibly even go so far as to make it illegal for licensed aircraft engineers to continue to carry out the work they have done for many years without new and costly administration processes being established by maintenance organisations and airlines. If Mr Walker is right, and I believe he is, that is a shocking unintended consequence.

Aviation safety issues are particularly complex, especially so when it comes to our regulatory regime. In brief, the Australian Civil Aviation Act requires CASA to regulate safety by developing and promulgating appropriate, clear and concise aviation safety standards. The Civil Aviation Safety Regulations, known as the CASRs, parts 42, 145, 66 and 147 were passed by the parliament in December 2010 and came into effect on 27 June 2011. Part 42 relates to the continued airworthiness of aircraft, including what maintenance is done, where and by whom. It specifies that maintenance must be certified and who must certify it. Part 145 relates to organisations that carry out maintenance on airline aircraft. Part 145 is accompanied by a manual of standards, a MOS, that prescribes how the organisation conducts its activities—that is, what facilities, tools, procedures, manpower and certifying staff are required, and details their qualifications. Part 66 relates to the licensing of aircraft maintenance engineers. Part 66 also has a MOS, which prescribes the standards of training and experience required for the issue of an aircraft engineering maintenance licence. The standards in part 66 are based on the International Civil Aviation Organization, ICAO, standards for licensing. Part 147 relates to training organisations and the conduct of training licensed personnel. To aid interpretation of the regulations, CASA publishes guidance material that outlines in plain language how the regulations and accompanying MOS are to be understood and applied. The guidance material specifies in plain language the regulation’s policy intention.

The amendment to the part 145 MOS, which we are debating today, has the effect of significantly reducing safety oversight of Australian aircraft maintenance. That is not just my view and that of licensed aircraft engineers but also, effectively, the very powerful opinion of Bret Walker SC, who has looked at the issue of its legality. The effect of the amendment has been to introduce two fundamental changes. Firstly, they have transferred the internationally recognised authority of a part 66 aircraft maintenance engineering licence holder to certify for the airworthiness of maintenance tasks to non-licensed personnel, who do not meet minimum international requirements. Surely we in this place should all be concerned about that. Secondly, it invalidates the existing guidance material for part 145 that requires an airworthiness determination and certification to be conducted only by a part 66 licence holder following specialist maintenance tasks.

The standards put forward by ICAO specifically require that personnel who are providing airworthiness certifications and signing maintenance releases meet minimum training and experience requirements. These standards are the global minimum—I emphasise that they are the global minimum—requirements for aircraft maintenance safety. The government’s policy for the Australian aviation regulatory reform program is to align with these international standards wherever possible. Where this alignment is not able to be achieved a state difference must be notified to ICAO. It is my view that the changes outlined in these regulations do not align with ICAO and do not meet the minimum safety standards set out by it. Again, I refer to the very considered opinion of Bret Walker SC.

Further, if we look at the regulatory framework set out by the European Aviation Safety Agency, or EASA, which Australia is also aiming to align with, we see the same disconnect. The EASA regulations—what the Europeans do—allow for the use of specialised maintenance staff in maintenance organisations, provided they are qualified to specific standards. Apart from non-destructive testing, Europe does not identify in regulation what fields are considered as specialist maintenance. Specialist maintenance is a term used to describe maintenance tasks and processes, such as non-destructive testing and welding, that require training and skills that fall outside of the normal training undertaken by a licensed aircraft engineer, thereby rendering them to be designated as special. Importantly, the EASA regulations do not permit specialist maintainers to certify the airworthiness of maintenance tasks. Except in exceptional circumstances, they require all maintenance airworthiness certification to be carried out by persons qualified to the European licensing regulations. By doing this, Europe complies with ICAO annex 1 standards and practices.

The Australian regulations also allow for the use of specialist maintenance staff, but there are two distinct differences between Australia and Europe. Australia prescribes certain maintenance, in broad categories and terms, as being specialist maintenance and requires that people undertaking these tasks are qualified and authorised by the maintenance organisation. More importantly, Australia requires the specialist maintainer to certify the airworthiness of their work. But CASA have made this requirement without including the required training standards necessary to meet ICAO standards.

Further, by transferring airworthiness certification from licensed personnel to non-licensed personnel, these amendments have in essence removed the ability for the government to manage effectively the risks of aircraft maintenance. Effective risk management is absolutely fundamental in an industry where managing risk to the highest possible standard is absolutely critical. If a licensed aircraft engineer fails to exercise their privileges safely, the government may take administrative action by suspending or removing their licence in order to prevent that person carrying out further work or certification. That is a very significant penalty. However, the government cannot do that for a non-licensed person. That non-licensed person has the ability to move from organisation to organisation without sanction. This must create a further reduction in safety. It is also important to note that the guidance material that accompanies these regulations seems to be at odds with the regulations themselves. The guidance material clearly states that specialist maintenance is maintenance which is unable to be carried out by a licensed engineer. It states that maintenance that is normally performed by a licensed engineer is not to be classed as specialist. It further states:

Following Specialist Maintenance tasks, where an airworthiness determination is to be made regarding an aircraft, such an airworthiness determination and related Maintenance Certification should be made by the holder of an appropriate Part 66 Maintenance Certification Licence who is a Certification Authorisation holder—

that is, a licensed aircraft engineer. The guidance material gives a very clear reason for this requirement:

Specialist Maintenance personnel are trained and qualified in the specialist field and may not have a holistic understanding of the interrelationship of an aircraft’s systems, or airworthiness implications, such that a Maintenance Certification Licence holder should have. For this reason, the Maintenance Certification for Specialist Maintenance work will only be for the scope of the specialist maintenance and is not intended to cover work normally performed and certified for by a Part 66 Maintenance Certification Licence holder …

If I may, the emphasis needs to be on the words ‘holistic understanding of the interrelationship of an aircraft’s systems, or airworthiness implications’. You will not get that holistic understanding with unlicensed people, in my view.

The amendments to the Part 145 MOS, however, in a direct contradiction to this existing guidance material, reclassifies a large number of tasks that are normally and easily performed by licensed engineers as ‘specialist’ and thereby removes the requirement stated clearly in the existing guidance material. This amendment has had the direct effect thereby of invalidating the Part 145 Guidance material and transferring airworthiness certification from licensed personnel to non-licensed people who do not meet international standards. It is so important that these regulations be disallowed, for that reason alone—and there are many others. The net effect of this direct contradiction is that the regulations that apply to aircraft maintenance are in no way ‘clear and concise’, as they ought to be. In fact, to interpret any of the regulation relating to specialist maintenance, at least five separate documents are required to be accessed and read.

The Explanatory Memorandum for the Part 145 Manual of Standards Amendment Instrument 2014 (No. 1) makes a number of important claims that are critical for the assessment of the amendment instrument by the parliament. Firstly, the amendment states that:

The MOS amendment corrects, revises and clarifies certain aspects of the MOS. The MOS amendment does not significantly alter any existing policy of the MOS.

I will repeat that:

The MOS amendment corrects, revises and clarifies certain aspects of the MOS. The MOS amendment does not significantly alter any existing policy of the MOS.

These are key words. Further, it states:

There are a large number of amendments but their intent is essentially to clarify the existing operation of the MOS without departing in any significant way from the original purpose and intent of the MOS as in force before the amendments.

A reasonable person, when reading those statements, would be entitled to come to the logical conclusion that the existing policy and intent of the MOS had been preserved.

Sadly, this is very far from the case. The current published guidance material that instructs the reader on the policy intent and purpose of the MOS and regulation clearly describes a regime of specialist maintenance that is not consistent with these amendments. In short, I believe the explanatory statement is wholly inaccurate and misleading. It is simply unsatisfactory.

The Civil Aviation Safety Authority has provided information to the industry that the guidance material in relation to specialist maintenance was accurate at the time the amendment was made. This guidance material has been in place for four years and the provisions for how the specialist maintenance scheme was to be applied have not been altered in any significant way, despite the guidance material having undergone four reviews and amendments in this time. This guidance material was published prior to the regulations and MOS coming into force in 2011, and provided a holistic understanding of the intentions of the regulations that were approved by parliament.

CASA now says that the guidance material needs to be ‘fixed’—other people talk about people fixing things, but I will not talk about the education minister—to suit the amendments because the regulations no longer mean what the Guidance material says they mean. Therefore these amendments have been put before the parliament for approval either based on error—as one of Australia’s most eminent legal counsel Bret Walker SC has opined—or CASA has inadvertently issued misleading material or material that is substantially inaccurate. Mr Walker’s opinion supports the above view and also contends that further to the above concerns, there are additional problems around the ongoing legality of licensed aircraft maintenance engineers now certifying for maintenance they have been performing safely and legally for years, as well as their ability to actually release an aircraft back to service if a non-licensed person has provided an airworthiness declaration for a maintenance task.

In my view, there are simply too many concerns around these regulations to allow them to stand. The amendments do not deliver clear and concise regulation. The amendments do not support the existing MOS policy, and fundamentally alter both Australia’s long-established safety philosophy and processes. The guidance material does not seem to accurately reflect the regulations. The regulations do not improve alignment with EASA and ICAO standards—the stated object of Australia’s aviation sector—and in fact move us further away. The regulations do not strengthen safety outcomes and instead remove a critical layer of licensed oversight. The regulations increase costs for the industry through increased administrative requirements. The regulations do not reduce complexity in the regulatory environment, and in fact seem to make it more complex. In short, these amendments do not meet CASA’s functions under the Civil Aviation Act and are not an appropriate use of CASA’s delegated legislation powers. They are bureaucratic, complex and ineffective. They reduce safety and increase cost. The amendments do not support our aviation industry and should be disallowed.

However, I do want to acknowledge Mr Mark Skidmore, the relatively new Director of Aviation Safety at CASA, who has spent significant time with me and industry representatives to try to come to a satisfactory conclusion. I must say that I am incredibly impressed by Mr Skidmore, as is the entire industry. He has been a terrific appointment by this government; he is someone who has been welcomed in a bipartisan and a cross-party fashion. I look forward to working with him, and I understand that this is a legacy issue that Mr Skidmore has taken on. I understand that because he must rely on advice from senior members within his organisation, given that this is something he has inherited.

Unfortunately, a compromise has not been reached. As such, the best and most appropriate way to resolve these issues and to ensure Australia’s high level of safety and maintenance is maintained is to disallow these regulations. In the case of disallowance, we will simply go back to what was in place, and something that worked, previously. There may be scope for compromise and there may be scope to improve the previous regulations, but these regulations are not the solution. If they are disallowed, CASA can then address these concerns in redrafting and ensure the best outcomes can be achieved. I trust our licensed engineers and I think it is important that we listen to them. Steve Purvinas does have a national reputation as a moderate union leader; he is highly respected; he works constructively with airlines; and he is someone who takes safety incredibly seriously. A fundamental error has been made here

I urge my colleagues on all sides of this chamber, for the sake of airline safety, to heed the advice of the licensed aircraft engineers—those who keep our aircraft in the safest possible condition—and also to listen to the very considered opinion of Bret Walker SC and to disallow these regulations.

Senator CASH (Western AustraliaAssistant Minister for Immigration and Border Protection and Minister Assisting the Prime Minister for Women) (17:45): The government does not support this disallowance motion. The motion would wind back the clock on regulatory principles which have been in place since 2011. If successful, the disallowance motion would prevent important safety measures being incorporated into the Part 145 Manual of Standards, or MOS, and impose additional regulatory burdens on the Australia’s approved maintenance organisations without any demonstrated improvements in aviation safety. It cannot be supported without setting back the process of modernising Australia’s aviation safety maintenance regulations, introduced by the previous government and supported by this government. The Civil Aviation Safety Authority, or CASA, has after extensive consultation with both industry and the unions developed this MOS amendment to implement important safety and oversight measures on approved maintenance organisations, whilst at the same time adding four extra tasks to the list allowed to be performed by specialist maintenance personnel. The concept of specialist maintenance has been in place in the Australian Civil Aviation Safety Regulations since 2011. It is acknowledged that the union representing licensed aircraft maintenance engineers, the Australian Licensed Australian Engineers’ Association, is opposed to the use of specialist maintainers. I am advised that the Australian Licensed Australian Engineers’ Association does not want the list of specialist maintenance activities expanded to include on-wing engine maintenance or inferior furnishing roles such as carpet laying. I also advised that the Australian Licensed Australian Engineers’ Association argues that the continued monopoly provision by licensed aircraft maintenance engineers for maintenance service certifications for all aircraft maintenance is the only safe situation, and that outcome should continue.

However, the position CASA has taken is consistent with International Civil Aviation Organization standards and recommended practices. CASA’s position is also consistent with that which is being applied by overseas aircraft maintenance organisations in other major aviation jurisdictions, such as Europe, the United States, Canada and New Zealand. That position is that an approved maintenance organisation is responsible for providing the safe outcome on the maintenance of an aircraft. This concept is included in the Part 145 Manual of Standards amendments which are the subject of Senator Xenophon’s disallowance motion. While the government appreciates that Senator Xenophon’s motion was put forward with good intentions, and we certainly acknowledge Senator Xenophon’s longstanding interest in aviation policy matters, the government will not be supporting the disallowance motion and urges other senators to also not support the disallowance motion.

Senator CONROY (VictoriaDeputy Leader of the Opposition in the Senate) (17:48): Labor will support this disallowance. Labor’s position is that air safety is a paramount consideration in regulation and management of their operations and including maintenance. We appreciate the hard work undertaken by CASA in overseeing safety in civil aviation. Australia retains one of the safest air safety regimes in the world. Generally Labor believes that CASA regulations should be allowed by the parliament.

The issues surrounding this regulation are highly complex and technical. This includes concerns about matching with international standards set by International Civil Aviation Organization, legislation, regulations and guidance. As we understand the issue, this regulation adds to the list of specialist maintenance tasks in a way that potentially conflicts with ICAO standards, and potentially removes a level of checking on maintenance that forms part of a safety regime. We are concerned that the system of checks and the chain of qualification is at least confused by the regulatory change. Where there is a legitimate question raised about safety concerns, Labor favours a precautionary approach. Labor believes that a clearly understood system of checks and crosschecks is an important element of good safety practice, and that this regime should be clearly delineated and understood by all involved in the system. It is clear to us that if the system is indeed clear to CASA, it is not well appreciated or understood by those at the coalface. There are concerns about the legal effect of this change, as expressed in a legal opinion from Bret Walker SC.

We note that this regulation has been in place since October 2014. Since that time a new CEO has been appointed to CASA: the opposition has had the opportunity to meet Mr Skidmore, the Director of Aviation Safety, and we acknowledge his new approach centred on five key principles, including on safety, clear communication, reducing complexity, measuring regulatory impact, and consistency. At this point, the opposition believes that there are sufficient questions around the regulation of safety arising from this regulation to urge the parties to reconvene and clearly articulate a safety framework around these changes. The parliament needs to be assured that safety standards remain—and at least some are arguing that this is not the case. The opposition has taken considerable time and a number of meetings to listen closely to CASA’s rationale and to the views of the workers at the coalface in the industry. Through that process, it is clear that the benefits to industry from these changes are on the low side, although uncosted at this point. Further, the consequences of disallowing are not characterised as major by CASA. For these reasons, Labor favours a precautionary approach on this occasion.

The ACTING DEPUTY PRESIDENT ( Senator Lines ): Senator Xenophon, do you wish to have a right of reply?

Senator XENOPHON (South Australia) (17:51): Very briefly; thank you Madam Acting Deputy President. I am grateful both to the government and to the opposition for their responses. With respect to the government, if you look closely at Bret Walker SC’s opinion, there are real issues in respect of this. This is a minefield, in terms of how this will be interpreted. I have outlined this highly complex technical issue in terms of the problems with these regulations. I am very grateful to the opposition for their support in respect of this. I think Senator Conroy has hit the nail on the head: there needs to be a precautionary approach in relation to this. Let us not in any way compromise airline safety. There are legitimate questions that need to be asked about this issue. I want licensed aircraft engineers to maintain the aircraft that I and everyone in this place, and indeed millions of Australians, fly on each year. So let us get this right. I do not blame Mr Skidmore, who I think is an outstanding appointment. But disallowing these regulations will mean we go back to the previous system, which has served us well for a number of years. There could be scope for improvement. But these changes are very, very problematic.

I do want to pay particular tribute to the shadow minister for transport, the Hon. Anthony Albanese, who has supported this by taking that sensible precautionary approach. I do not know if there are the numbers for this to be disallowed, but I hope it will be, for the sake of aviation safety in this country.

The PRESIDENT: The question is that the disallowance motion moved by Senator Xenophon be agreed to.

The Senate divided. [17:57]

(The President—Senator Parry)

DIVISION:AYES 34 (4 majority) NOES 30 PAIRS 5
AYES NOES PAIRS
Bilyk, CL (teller) Bullock, J.W.
Cameron, DN Collins, JMA
Conroy, SM Dastyari, S
Di Natale, R Gallacher, AM
Hanson-Young, SC Ketter, CR
Lambie, J Lazarus, GP
Lines, S Ludlam, S
Ludwig, JW Madigan, JJ
Marshall, GM McEwen, A
McLucas, J Moore, CM
O’Neill, DM Peris, N
Polley, H Rhiannon, L
Rice, J Siewert, R
Singh, LM Sterle, G
Urquhart, AE Wang, Z
Waters, LJ Whish-Wilson, PS
Wright, PL Xenophon, N
Bernardi, C Birmingham, SJ
Bushby, DC Canavan, M.J.
Cash, MC Colbeck, R
Day, R.J. Edwards, S
Fawcett, DJ (teller) Fierravanti-Wells, C
Fifield, MP Heffernan, W
Johnston, D Leyonhjelm, DE
Macdonald, ID Mason, B
McGrath, J McKenzie, B
Muir, R Nash, F
O’Sullivan, B Parry, S
Payne, MA Reynolds, L
Ronaldson, M Ruston, A
Ryan, SM Seselja, Z
Smith, D Williams, JR
Brown, CL Scullion, NG
Carr, KJ Sinodinos, A
Lundy, KA Abetz, E
Milne, C Back, CJ
Wong, P Brandis, G

Senator Cormann did not vote, to compensate for the vacancy caused by the resignation of Senator Faulkner.

Question agreed to.

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