[Peetwo]

SSCSDL: 'Dear Chair Connie' -   

I do believe that the 'Senate Standing Committee for the Scrutiny of Delegated Legislation' has rapidly become my new FAV Senate committee...  

Previous reference:

Exemptions – Friend or Enema?

As he often does – P2 has turned up a juicy bone and once again amazed us with his determined digging to get to real, honest facts. Modestly, he states  “Aw, just stumbled upon it”. Not 100% correct; he and I were both running down some ‘interesting’ anomalies. He just kept digging after I’d knocked off. It is well worth the time spent for any serious student of the near catastrophic mess our regulations have created; the clever ways CASA have milked the never ending ‘regulatory reform’ program; spent over a half a billion dollars and presented one of the most glorious piles of horse-pooh to the government. To make it worse, through the bi-partinsane top cover protection racket – all of the new law has been sanctioned without one single, solitary protest – or even a humble ‘please explain'. 

The whole thing is farcical – legally, operationally, financially and in contravention of world best practice for ‘safety’ (Whatever that may be). Let me introduce to you, (cue fanfare) –
- the Standing Committee on Regulations and Ordinances.

P2’s excellent posts – 272 and 273 will take you on a new journey. Essential reading. P7 and I both read the long posts through – twice – P7 “Well, I’ll be buggered”. I’ll not spoil the journey for you by paraphrasing; and anyway, you lazy lot would let it pass by without a “Whoa’. So I shall assume (ass – u – me) you’ve all done the homework and ready to move to the next step on the ‘exemptions’ snakes and ladder game.

In primus; what is an exemption? Good question, bravo. There are three separate ways to view ‘an exemption’ – poetic licence allowed here:-

(i) A rule says: before making a pass under the Sydney Harbour Bridge a pilot must hold an Agricultural rating and have completed at least 50 hours of operations in that role. Furry Muff – however – the Ace-O-Base company have been contracted to do just that on New Years eve. Their pilots are all top notch military pilots with many hours of ‘low-level’ experience etc. Equivalent safety standard? Oh yes. Qualified Oh yes: Insured to the max – Oh yes. But, the proposed operation is ‘technically’ against the law as writ. No problemo. Exemption issued to that company.

(ii) Another company can match Ace-O-Base and want the same thing – to compete in the market. Enter the exemption dragon. You see the Crop dusting outfit has been shunted out and now the New boy’s want a piece of the action. Instant legal conflict?

(iii) As the safety case has been demonstrated and proven – the ‘exemption’ should, before the next round of head banging, have been brought into law. Herein lies the rub.

Exemptions are bloody handy things; a sensible ‘suggestion’ on a different approach to that writ in stone in the regulation may well turn out to be beneficial to all. However, once an ‘exemption’ has grown whiskers – without the sky falling in – then it should be made available to all; brought into law and ‘promulgated’ (hate that word). If not; why not?

Clearly – if a better way (cost and operationally) to do thing, with an equivalent ‘level of safety’ which reduces costs and opens up markets then – democratically – it should become the ‘new’ version of ‘the law’.

There needs to be a very good reason to deny upgrading a law based on demonstrated equivalent safety. Tried, tested and proven sound.

Yet there, clear as crystal in P2’s efforts are the lengths CASA will go to in order to maintain the ‘law’ and not implement those very clever (safe) innovations which save time, trouble energy and - importantly – cost to the operator. Any reasonable man could be forgiven for asking why not?

Why not indeed? Would CASA play favourites? Surely not. Would CASA see an exemption as a control lever? Surely not. Wel then, what’s left? Does the volume of ‘exemption’ indicate a flawed rule set? Does the reluctance to consider amending a rule to incorporate a long standing exemption mean that pride, self delusion, lack of operational competence and the  overweening conceit of those who have NDI about the operations they manage prevent them saying – We ducked it up. Royally and have NDI how to fix it, but we’re too close to embarrassing a minister, so we couldn’t fix it – even if we knew how. Which – by-the-by – they don’t.

Kudos P2. Respect and bloody well done. There’s even another tick in Chester’s box, he did try – just not hard enough. No matter – On’ya Dazza. ‘A’ for effort; shame about the ‘advice’. At least he’s making McCoramck 5G’s look entirely useless for longer.

You do know of course why the outside toilet was brought inside; nothing to do with ‘dark of night’ and cold seats – ‘twas but dog pooh in the backyard. Nothing else.

Toot - toot.

Additional reference: https://auntypru.com/sbg-9-2-20-time-gentlemen-please/

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Okay so that was where the tale of CASA EX101/19 – Helicopter Aerial Application Endorsements Exemption 2019 [F2019L01132] was at prior to the New Year. This progress was highlighted on page 5 of the SDL committee's 1st DLM (Delegated Legislation Monitors) for the year:

..Awaiting implementation of ministerial undertaking made on 07/11/2019 to amend the Civil Aviation Safety Regulations 1998 in 2020...

And also under Appendix C - Undertakings for both the CASA EX101/19 and the CASA (DAMP) EX70/19 were recorded:

...The Minister for Infrastructure, Transport and Regional Development undertook to amend the Civil Aviation Safety Regulations 1998 in 2020 in response to the committee's concerns...

07/11/2019

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...CASA EX70/19 — Implementation of Drug and Alcohol Management Plans (Non-DAMP Organisations) Instrument 2019 [F2019L01414]

The Civil Aviation Safety Authority undertook to amend the instrument in response to the committee's concerns...

27/11/2019

 
This brings me back to the SDL committee notified disallowance motion for CASA EX101/19, where I refer to the Hansard from both the 12th and 13th of February:

Senator FIERRAVANTI-WELLS (New South Wales) (15:32): On behalf of the Standing Committee for the Scrutiny of Delegated Legislation, I give notice of my intention, at the giving of notices on the next day of sitting, to withdraw business of the Senate notice of motion No. 1 standing in my name for tomorrow, proposing the disallowance of the Helicopter Aerial Application Endorsements Exemption 2019, and... 

&..

Senator FIERRAVANTI-WELLS (New South Wales) (11:45): Pursuant to notice given yesterday, on behalf of the Standing Committee for the Scrutiny of Delegated Legislation, I withdraw:

Business of the Senate notice of motion number 1 standing in my name for today, proposing the disallowance of the Helicopter Aerial Application Endorsements Exemption 2019 [F2019L01132]; and..

From that it was obvious that something had changed? This led me back to the DLMs and in particular the 2nd DLM for 2020 where I found this under Appendix B - Concluded matters, subheading - Ministerial engagement (page 15): 

...Concluded following response from the minister on 03/02/2020.


The minister undertook to progress amendments the Civil Aviation Safety Regulations 1998 for completion in mid-2020.

'Protective' notice of motion to disallow was placed on 14/11/2019...

This of course led me to the 'Ministerial response' for 03/02/20: (reference pdf page 26 of 'Ministerial responses')

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Hmm..fascinating especially this bit...

"...These amendments will remove the requirement for the issuance of an exemption of this type in the future..."    

I then went back to the committee correspondence where I found this statement from the Chair:

Dear Minister,

CASA EX101/19 – Helicopter Aerial Application Endorsements Exemption 2019 [F2019L01132]
Thank you for your response of 31 January 2020 to the Senate Standing Committee for the Scrutiny of Delegated Legislation, in relation to the above instrument.

The committee considered your response at its private meeting on 12 February 2020. On the basis of your advice that the Civil Aviation Safety Authority is progressing amendments to Part 61 of the Civil Aviation Safety Regulations 1998 with a view to completing the amendments by mid-2020, the committee has concluded its examination of the instrument. The committee has also resolved to withdraw the 'protective' notice of motion to disallow the instrument. The committee will continue to monitor the implementation of this undertaking.

In the interests of transparency, I note that this correspondence will be published on the committee's website and recorded in the Delegated Legislation Monitor.

Thank you for your assistance with this matter.

Yours sincerely,

Senator the Hon Concetta Fierravanti-Wells
Chair
Senate Standing Committee for the Scrutiny of Delegated Legislation

P2 OBS & QON: Hmm...in the interests of transparency QONs for Mick Mack: Q1/ How many of the other 30 odd exemptions for Part 61, listed HERE , fall under the category of "this type in the future"? Q2/ How many of "this type in the future" exemptions (including under other CASR Parts) will be up for renewal in the following 6 months (mid-2020)? 

I wonder if it wouldn't be in the best interest of both the industry and the ScoMo Govt if perhaps the Minister was to encourage CASA to escalate that promised timetable? 

  

Finally I note that on the 2nd DLM (2 of 2020) the Chair has linked a 'Tabling statement' which IMO highlights the relevance of my posting on the Estimates thread...

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...Chapter 2 of the Monitor identifies instruments which the committee has resolved to draw to the attention of the Senate and relevant legislation committees under standing order 23(4), because they raise significant matters or matters otherwise of interest to the Senate. In practice, these may include instruments which contain significant policy matters or significant elements of a regulatory scheme, instruments which amend primary legislation, and instruments which have a significant impact on personal rights and liberties.

As a technical scrutiny committee, the committee does not express a view as to the policy merits or otherwise of these instruments. However, it has resolved to draw these instruments to the attention of the Senate in an attempt to promote greater scrutiny of the increasingly significant and complex matters contained in delegated legislation. It will, of course, remain a question for the Senate and the relevant legislation committees as to Senate Standing Committee for the Scrutiny of Delegated Legislation Parliament House, Canberra ACT 2600 02 6277 3066 | sdlc.sen@aph.gov.au www.aph.gov.au/senate_sdlc
whether they decide to further examine the instruments raised by this committee under standing order 23(4).

The committee has identified one such instrument in Chapter 2 of Delegated Legislation Monitor 2 of 2020. The Competition and Consumer (Industry Codes—Dairy) Regulations 2019 establish a mandatory Dairy Code of Conduct that sets out a regulatory scheme for enforceable minimum standards of conduct for business practices between dairy farmers and processors of milk. In doing so, the instrument appears to implement significant elements of a regulatory scheme, and addresses matters which have been subject to a number of significant external reviews. Accordingly, the committee has resolved to draw this instrument to the attention of the Senate and the Rural and Regional Affairs and Transport Legislation Committee under standing order 23(4).

The committee has also resolved to add a third chapter to the Monitor, to identify all legislative instruments which, in combination with their enabling Acts, authorise the Commonwealth to spend public money. Chapter 3 of Delegated Legislation Monitor 2 of 2020 contains 10 such instruments, which together specify expenditure in excess of $300 million. In the committee's view, the scrutiny of these instruments is an essential aspect of parliamentary scrutiny and control of Commonwealth expenditure.

The committee trusts that these additions to the Monitor, combined with the recent amendments to the committee's standing orders, will further promote parliamentary scrutiny of delegated legislation, in accordance with the findings and recommendations of the committee's 2019 inquiry...

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Hmm...Dear Chair Susan cc Chair Connie...L&Ks The IOS..

MTF...P2