[Peetwo]

Part II: It gets worse - 

Chair: "...The exemptions in the present instrument were initially introduced by CASA EX120/17, which commenced on 10 October 2017. In November 2017, the committee raised concerns that CASA EX120/17 had been used to make 'improvements' to the CASR, rather than directly amending those regulations. The committee sought the minister's advice as to why that approach was taken, and whether the government proposed to amend the CASR to address the matters covered by CASA EX120/17.2 In response, the (then) Minister for Infrastructure and Transport advised that CASA would amend the CASR to address the
matters covered by CASA EX120/17, with amending regulations to be made in 2019...."

The 'then' Minister was Chester - JUST by about two weeks before Barnaby briefly took over for 68 days. The Chair at the time was John 'Wacka' Williams, who was also an 'active' participating member of the Senate RRAT committee. Conveniently Wacka has also departed the fix, retiring from the Senate prior to the last election.

So continuing to follow the trail, I referred to the '2017 Delegated Legislation Monitor' webpage, where I firstly discovered the following for the 15 November 2017: (ref: Ch1 pg 5)

Matters more appropriate for parliamentary enactment: exemptions

Scrutiny principle 23(3)(d) of the committee's terms of reference requires the committee to consider whether an instrument contains matters more appropriate for parliamentary enactment (that is, matters that should be enacted via principal rather than delegated legislation). This may include instruments that grant or extend exemptions from compliance with principal or enabling legislation.

The Civil Aviation Safety Regulations 1998 (CASR) require applicants for helicopter aerial application ratings and endorsements to have at least 15 hours of dual flight in a helicopter while receiving training in aerial application operations, and at least 10 hours direct supervision within the first 110 hours of aerial application operations.

CASA EX120/17 exempts an applicant from these requirements, subject to the applicant having at least 10 hours of dual flight in a helicopter while receiving training, and 20 hours direct supervision within the first 110 hours of aerial application operations (the alternative requirements).

In relation to these matters, the ES states:

[The requirements in the CASR] have been reviewed and it has been concluded that it would be more effective if the person has 10 hours of dual flight in a helicopter while receiving training but, within the first 110 hours of aerial application operations, has 20 hours of operations under direct supervision.

It appears that the exemption granted by CASA EX120/17 has been used to introduce these improvements, rather than amending relevant provisions of the CASR to remove the less effective requirements and replace them with the alternative requirements. The ES does not provide a justification for this approach.

CASA EX143/17 exempts organisations required to have a drug and alcohol management plan (DAMP) from compliance with reporting obligations in subregulations 99.100(1) and (2) of the CASR, subject to certain conditions.

The instrument extends, until 30 September 2020, a previous three-year exemption from compliance with those reporting obligations provided by CASA EX39/15 [F2015L00225]. The ES for CASA EX143/17 states that the continuing exemption is necessary because:

CASA continues to consider that the reporting requirements in those subregulations are not necessary and their removal will have no identifiable impact on safety. Consistent with this policy, the instrument exempts DAMP organisations from compliance with those reporting requirements.

The ES further states, under the heading of consultation, that:

Prior to the making of instrument CASA EX39/15 CASA received substantial feedback from industry about the burdensome nature of the DAMP reporting requirements.

No explanation is provided in the ES as to why an exemption continues to be used to effectively amend the DAMP reporting requirements, rather than amending regulation 99.100 of the CASR.

In cases such as those outlined above (i.e. in relation to both CASA EX120/17 and CASA EX143/17), the committee's general preference is that exemptions are not used or do not continue for such time as to operate as de facto amendments to principal legislation (in this case to the regulations).

The committee requests the minister's advice as to:
• why it is considered more appropriate to establish or extend exemptions to the CASR in each of the above instruments, rather than making amendments to the regulations; and
• whether and when government proposes to introduce amendments to the CASR to address the matters covered in the two instruments above.

From the 'ministerial correspondence' for the 6 December 2017, I then tracked down the former Minister Chester's reply...

(Ref: Pg 9 - dated 29 November 2017, ironically the day he finished and Barnaby took over as Minister)

...Thank you for your letter of 16 November 2017 regarding a number of instruments
included in the Standing Committee on Regulations and Ordinances Delegated
Legislation Monitor No 14 of 2017.

Civil Aviation Safety Exemption Instruments
I have sought advice from the Civil Aviation Safety Authority (CASA) about the concerns
raised by the Committee in relation to these instruments.

CASA has utilised exemptions in this case as a means to provide more timely relief to
industry for provisions that are intended to be implemented through regulation
amendment.

However, CASA agrees that it is preferable to amend regulations rather than make
exemptions. The process for making regulation amendments that will cover these
exemptions is underway with CASA expecting to bring forward amending regulations in
either 2018 or 2019. More specific information is included below relating to each
exemption instrument.

CASA EX120/17 - Exemptions- requirements for helicopter aerial applications
endorsements [F2017L01332]
Since Civil Aviation Safety Regulation 1998 (CASR) Parts 61, 141 and 142 commenced in
September 2014, CASA has identified various issues or unintended consequences that
were then the subject of general exemptions. CASA proposes to amend these Parts
(in particular Part 61) to deal with these issues with drafting instructions for an
amendment regulation expected in 2018, for making of the regulation in 2019.

CASA EX143/17 - Exemption - DAMP organisations to provide information to CASA
[F2017L01300)
CASA has been intending to progress regulation amendments to deal with this
exemption but the work has been delayed in order to address higher profile safety
critical regulation amendments.

However, CASA has worked with the Office of Parliamentary Counsel during 2016 and
2017 to finalise an amendment package to CASR Part 99 relating to drug and alcohol
management, and proposes to introduce the amendment package in early 2018
(together with a Part 99 Manual of Standards). The amendments will deal with the
reporting requirements that are the subject of the exemption...

Now go back to the nearly 2 year later response from Mick Mack to the present Chair of the committee: 

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Yes I know the implications are disgusting?? Probably won't happen because Mick Mack is totally captured and spineless; however IMO this should be evidence enough to supply at least a St Commode HEAD on a Platter and probably the Minister's ( Plus: former St Commode and Chester's) aviation adviser as well...   

MTF...P2