Long, complex post warning: but so very worth the time:::::
CEO DIRECTIVE – 01/2007
From CEO Bruce Byron to (then) Deputy CEO Shane Carmody, May 18 2007
DAS DIRECTIVE 01/2015
Directive from Director Mark Skidmore, May 29, 2015
This Directive replaces CEO Directive 016/2004, which is hereby repealed. It updates CASA’s Guiding Principles for the development of the regulatory framework and proposed aviation safety regulations This Directive reaffirms CASA’s commitment to ensure that regulatory changes are justified on the basis of safety risk and do not impose unnecessary costs or unnecessarily hinder participation in aviation and its capacity for growth.
The aviation safety regulations must take into account CASA’s Classification of Civil Aviation Activities policy and the priority given under the policy to passenger-carrying activities It also extends the principles underlying this commitment to the application and administration of the regulations by CASA, to the fullest practicable extent consistent with the interests of safety.
Comment: This appears to be a major change, as it seems CASA still bows to the imperative of S.9A (2) of the Act as defined by John McCormick, who cancelled the “Classification of Operations” process after all the years of work on that controversial concept, on the basis of his interpretation of S.9A (2). Mr Skidmore’s version has not changed direction at all on this aspect..
Aviation safety regulations must be shown to be necessary. They are to be developed on the basis of addressing known or likely safety risks that cannot be addressed adequately by non-regulatory means. Aviation safety regulations must be shown to be necessary. They are to be developed with a view to addressing known or likely safety risks that cannot be addressed effectively by non-regulatory means alone
Comment: Neither of the above appears to go far enough. Any transparent process that delivers valid cost/benefit analysis must by definition contain a transparent cost/benefit justification and if the likely cost of regulation exceeds the cost of reduced risk, the regulations should not be implemented.
Each proposed regulation must be assessed against the contribution it will make to aviation safety. Consistent with CASA’s obligations under the Civil Aviation Act and other Commonwealth laws and Government policies, every proposed regulation must be assessed against the contribution it will make to aviation safety, having particular regard to the safety of passengers and other persons affected or likely to be affected by the activity involved.
Comment: Here’s S.9A (2) again — again with no cost/benefit justification.
If a regulation can be justified on safety risk grounds, it must be made in a form that provides for the most efficient allocation of industry and CASA resources.. If a regulation can be justified on safety -risk grounds, it must be made in a form that provides for the most efficient allocation of industry and CASA resources.
Identical wording in both Directives. However there is no evidence in any of the published legislation thus far, that the vital cost/benefit justification process has been observed and documented.
The regulations must not impose unnecessary costs or unnecessarily hinder high levels of participation in aviation and its capacity for growth Regulations must not impose unnecessary costs or unnecessarily hinder levels of participation in aviation and its capacity for growth.
Comment: Chop logic* in both cases. Once you have decided that regulation is necessary, the compliance costs of the regulation, by definition, become “necessary” costs
*Chop logic: (of an argument): “Characterised by equivocation or by overly complex or specious argumentation, improperly reasoned.”
Where appropriate, the aviation safety regulations are to be aligned with the standards and practices of leading aviation countries, unless differences are required to address the Australian aviation environment and these differences can be justified on safety risk grounds. Aviation safety regulations should be aligned with the standards and practices of the International Civil Aviation Organization and leading aviation countries, unless differences are necessary to address particular features peculiar to the Australian aviation environment and those differences can be justified on safety-risk grounds.
Comment: Again, see previous comments re. cost/benefit. Reasons for the addition of the words “features peculiar to” the Australian aviation environment may be worthy of some research .
Recognising that international standards and practices vary, CASA will align its regulations with those that effectively address identified safety risks in the most cost-effective manner.Comment: If this were taken literally, it would be necessary to drop all the “EASA-like” nonsense and Part 61, just for a start.
Where appropriate, the aviation safety regulations are to be aligned with the standards and practices of leading aviation countries, unless differences are required to address the Australian aviation environment and these differences can be justified on safety risk grounds. Where it is appropriate to do so, aviation safety regulations are to be drafted to specify intended safety outcomes. Where known or likely safety risks cannot be addressed effectively utilising an outcome-based approach (in whole or in part), more prescriptive requirements will be specified.Comment: This appears to be a justification for “no change”, because outcome based regulation would require a whole new way of thinking. There is no evidence in the documentation thus far that CASA as a whole, or most of the CASA people, even have a basic understanding of what performance (outcome) based regulation means.
In developing aviation safety regulations, CASA must consult appropriately with industry in an open and transparent manner ensuring that all communication is clear, timely and effective.
The aviation safety regulations must be drafted to be as clear and concise as possible. Subject to the applicable drafting requirements, CASA will strive to ensure aviation safety regulations are drafted as clearly and concisely as possible.Comment: Another cop-out to justify CASA’s “preferred drafting style.” Strict liability when it should not be imposed, and maximum allowable penalty points, to maximise the administrative fine penalties. CASA should be required to provide a reference to the “applicable drafting requirements.”Also the reference to “applicable drafting requirements fails to cite a documentary reference which details the “requirements.”
Wherever possible, the aviation safety regulations are to be developed within a two tier regulatory framework comprising the Civil Aviation Act and the Civil Aviation Safety Regulations (CASRs), supported by advisory material that details acceptable means of compliance with the CASRs, together with appropriate guidance material. Where practicable, aviation safety regulations should be developed within a three -tier framework, comprising the Civil Aviation Act, the Civil Aviation Safety Regulations and Manuals of Standards.Comment: Which is where we are now, and what a mess it is! What “the industry” has been calling for is in reality a fourth tier, to “explain” the first three!!!!!
Manuals of Standards (MOSs) are to be developed only where there is a clear requirement, on the basis of safety, to specify standards that for the purpose of clarity and effective administration should not be contained in the regulations.The content of proposed MOSs must also be assessed against the contribution it makes to aviation safety.A MOS must only contain such standards as are clearly authorised by a particular regulation and must not be used as a vehicle for promulgating advisory material and other information. (our emphasis) Supportive advisory and guidance materials, including other acceptable means of compliance with regulatory requirements, will be promulgated and disseminated in conjunction with new and amended regulations, having regard to the time when compliance with new or amended regulations will be required.Comment: This illustrates the confused thinking as to what an acceptable means of compliance is – if acceptable means of compliance are not already in the MOS. If the content of the MOS doesn’t represent acceptable means of compliance, there appears to be no reason for having a MOS
Byron Directive 1/2007 ends at this point. The following comments represent the remainder of Directive 1/2015 and our comments on these additions, which appear to emanate from CASA’s legal services office.
In accordance with the Civil Aviation Act, the safety of air navigation as [sic] the most important consideration for CASA in performing its functions and exercising its powers.
Comment: This is the same recurring theme which promotes the concept that S.9A (2) overrides everything else.
Consistent with that obligation, the principle of legality and the explicit requirements of the civil aviation legislation in any particular case, CASA must always have regard to all relevant considerations when exercising discretionary powers, including the cost and other burdens involved in the application of regulatory requirements.
Comment: It in unclear what this means, but it appears to put forward that CASA should use what it thinks is the cheapest means of enforcement. This interpretation is consistent with CASA’s track record of bypassing due process wherever possible, preferring the well-worn path of making a subjective opinion-based decision that an individual is not a “fit and proper person” and grounding the person or company simply by suspending or cancelling the “approvals” upon which they rely to continue operating.
This cannot and does not mean that CASA must demonstrate that, in exercising its discretionary powers under the regulations in any given case, it has adopted or will adopt a course of action involving the lowest cost to, or least adverse impact on, the person or persons affected by that action.
Comment: Why should it not mean exactly that? The continuing absence of transparency and accountability in compliance/enforcement procedures must be high among the list of reasons for what the ASRR observes to be a breakdown of trust between industry and regulator.
What it does mean is that, where a person who is or will be affected by CASA’s exercise of discretionary powers under the regulations convincingly demonstrate, on evidence, that:
the same safety outcome contemplated by the applicable regulatory requirement can be achieved on another, more cost-effective and/or otherwise less onerous basis;
the person is able and willing to adopt and give meaningful effect to that alternative approach to compliance;
the alternative approach proposed can be implemented fully and effectively in a timely fashion, having regard to the interests of safety;
the adoption and implementation of such an alternative approach by CASA would not involve unreasonable additional oversight or administrative responsibilities on CASA’s part; and;
no other persons would be adversely or unfairly affected by the adoption of that alternative approach,
CASA will entertain a reasonable proposal for the adoption of another approach and, in the absence of good reason not to do so, CASA will adopt such an alternative approach.
Comment: In ProAviation’s view, this is a conceptual mess, which when simplified, appears to be promoting the view that CASA can do whatever it likes. In numerous well-documented compliance/enforcement events, there is evidence which at least warrants an independent assessment; preferably by the Australian Law Reform Commission and the Productivity Commission that many of CASA’s regulatory adventures tend to display more than one of the following features:
An alleged infringement is identified. This may or may not be based on valid observations and assessments; or it may take the form of an incorrect assessment by a CASA official, assertions by a disgruntled former employee, a commercial competitor or a dissatisfied customer. (Naturally we acknowledge that there are instances where an actual infringement does exist.)
On the basis of the allegations, often untested to any evidentiary standard, it appears the primary impetus becomes focused on freezing the certificate holder’s ability to continue earning revenue as an operator or wages as an employee. There are examples were adverse certificate action has been based on claimed “reason to believe” and initiated without written advice,
Having cancelled or suspended the certificate, the regulator then uses “reason to believe” to support ongoing regulatory activity including exhaustive searches of records, apparently engineered delays, postponements of proceedings and/or failure to meet obligatory commitments to provide documents within specified time-frames. AAT appeals often prove pointless because the process has already caused irrevocable harm.
An operator’s client base becomes aware that the certificate holder is under investigation for alleged breaches. This information commonly becomes widely circulated and the suspension/cancellation causes the cancellation or suspension of existing contracts with irreparable damage to the business. If the operator has government contracts (which many of them do) the news appears to travel even faster,
The commonest outcome of these sequences of events is the closure of the business with major disruption and distress to all employees or the departure from aviation by an individual by means which appear to avoid legal due process. The advantages of this conduct are reduced legal costs to CASA.
CEO DIRECTIVE – 01/2007
From CEO Bruce Byron to (then) Deputy CEO Shane Carmody, May 18 2007
DAS DIRECTIVE 01/2015
Directive from Director Mark Skidmore, May 29, 2015
This Directive replaces CEO Directive 016/2004, which is hereby repealed. It updates CASA’s Guiding Principles for the development of the regulatory framework and proposed aviation safety regulations This Directive reaffirms CASA’s commitment to ensure that regulatory changes are justified on the basis of safety risk and do not impose unnecessary costs or unnecessarily hinder participation in aviation and its capacity for growth.
The aviation safety regulations must take into account CASA’s Classification of Civil Aviation Activities policy and the priority given under the policy to passenger-carrying activities It also extends the principles underlying this commitment to the application and administration of the regulations by CASA, to the fullest practicable extent consistent with the interests of safety.
Comment: This appears to be a major change, as it seems CASA still bows to the imperative of S.9A (2) of the Act as defined by John McCormick, who cancelled the “Classification of Operations” process after all the years of work on that controversial concept, on the basis of his interpretation of S.9A (2). Mr Skidmore’s version has not changed direction at all on this aspect..
Aviation safety regulations must be shown to be necessary. They are to be developed on the basis of addressing known or likely safety risks that cannot be addressed adequately by non-regulatory means. Aviation safety regulations must be shown to be necessary. They are to be developed with a view to addressing known or likely safety risks that cannot be addressed effectively by non-regulatory means alone
Comment: Neither of the above appears to go far enough. Any transparent process that delivers valid cost/benefit analysis must by definition contain a transparent cost/benefit justification and if the likely cost of regulation exceeds the cost of reduced risk, the regulations should not be implemented.
Each proposed regulation must be assessed against the contribution it will make to aviation safety. Consistent with CASA’s obligations under the Civil Aviation Act and other Commonwealth laws and Government policies, every proposed regulation must be assessed against the contribution it will make to aviation safety, having particular regard to the safety of passengers and other persons affected or likely to be affected by the activity involved.
Comment: Here’s S.9A (2) again — again with no cost/benefit justification.
If a regulation can be justified on safety risk grounds, it must be made in a form that provides for the most efficient allocation of industry and CASA resources.. If a regulation can be justified on safety -risk grounds, it must be made in a form that provides for the most efficient allocation of industry and CASA resources.
Identical wording in both Directives. However there is no evidence in any of the published legislation thus far, that the vital cost/benefit justification process has been observed and documented.
The regulations must not impose unnecessary costs or unnecessarily hinder high levels of participation in aviation and its capacity for growth Regulations must not impose unnecessary costs or unnecessarily hinder levels of participation in aviation and its capacity for growth.
Comment: Chop logic* in both cases. Once you have decided that regulation is necessary, the compliance costs of the regulation, by definition, become “necessary” costs
*Chop logic: (of an argument): “Characterised by equivocation or by overly complex or specious argumentation, improperly reasoned.”
Where appropriate, the aviation safety regulations are to be aligned with the standards and practices of leading aviation countries, unless differences are required to address the Australian aviation environment and these differences can be justified on safety risk grounds. Aviation safety regulations should be aligned with the standards and practices of the International Civil Aviation Organization and leading aviation countries, unless differences are necessary to address particular features peculiar to the Australian aviation environment and those differences can be justified on safety-risk grounds.
Comment: Again, see previous comments re. cost/benefit. Reasons for the addition of the words “features peculiar to” the Australian aviation environment may be worthy of some research .
Recognising that international standards and practices vary, CASA will align its regulations with those that effectively address identified safety risks in the most cost-effective manner.Comment: If this were taken literally, it would be necessary to drop all the “EASA-like” nonsense and Part 61, just for a start.
Where appropriate, the aviation safety regulations are to be aligned with the standards and practices of leading aviation countries, unless differences are required to address the Australian aviation environment and these differences can be justified on safety risk grounds. Where it is appropriate to do so, aviation safety regulations are to be drafted to specify intended safety outcomes. Where known or likely safety risks cannot be addressed effectively utilising an outcome-based approach (in whole or in part), more prescriptive requirements will be specified.Comment: This appears to be a justification for “no change”, because outcome based regulation would require a whole new way of thinking. There is no evidence in the documentation thus far that CASA as a whole, or most of the CASA people, even have a basic understanding of what performance (outcome) based regulation means.
In developing aviation safety regulations, CASA must consult appropriately with industry in an open and transparent manner ensuring that all communication is clear, timely and effective.
The aviation safety regulations must be drafted to be as clear and concise as possible. Subject to the applicable drafting requirements, CASA will strive to ensure aviation safety regulations are drafted as clearly and concisely as possible.Comment: Another cop-out to justify CASA’s “preferred drafting style.” Strict liability when it should not be imposed, and maximum allowable penalty points, to maximise the administrative fine penalties. CASA should be required to provide a reference to the “applicable drafting requirements.”Also the reference to “applicable drafting requirements fails to cite a documentary reference which details the “requirements.”
Wherever possible, the aviation safety regulations are to be developed within a two tier regulatory framework comprising the Civil Aviation Act and the Civil Aviation Safety Regulations (CASRs), supported by advisory material that details acceptable means of compliance with the CASRs, together with appropriate guidance material. Where practicable, aviation safety regulations should be developed within a three -tier framework, comprising the Civil Aviation Act, the Civil Aviation Safety Regulations and Manuals of Standards.Comment: Which is where we are now, and what a mess it is! What “the industry” has been calling for is in reality a fourth tier, to “explain” the first three!!!!!
Manuals of Standards (MOSs) are to be developed only where there is a clear requirement, on the basis of safety, to specify standards that for the purpose of clarity and effective administration should not be contained in the regulations.The content of proposed MOSs must also be assessed against the contribution it makes to aviation safety.A MOS must only contain such standards as are clearly authorised by a particular regulation and must not be used as a vehicle for promulgating advisory material and other information. (our emphasis) Supportive advisory and guidance materials, including other acceptable means of compliance with regulatory requirements, will be promulgated and disseminated in conjunction with new and amended regulations, having regard to the time when compliance with new or amended regulations will be required.Comment: This illustrates the confused thinking as to what an acceptable means of compliance is – if acceptable means of compliance are not already in the MOS. If the content of the MOS doesn’t represent acceptable means of compliance, there appears to be no reason for having a MOS
Byron Directive 1/2007 ends at this point. The following comments represent the remainder of Directive 1/2015 and our comments on these additions, which appear to emanate from CASA’s legal services office.
In accordance with the Civil Aviation Act, the safety of air navigation as [sic] the most important consideration for CASA in performing its functions and exercising its powers.
Comment: This is the same recurring theme which promotes the concept that S.9A (2) overrides everything else.
Consistent with that obligation, the principle of legality and the explicit requirements of the civil aviation legislation in any particular case, CASA must always have regard to all relevant considerations when exercising discretionary powers, including the cost and other burdens involved in the application of regulatory requirements.
Comment: It in unclear what this means, but it appears to put forward that CASA should use what it thinks is the cheapest means of enforcement. This interpretation is consistent with CASA’s track record of bypassing due process wherever possible, preferring the well-worn path of making a subjective opinion-based decision that an individual is not a “fit and proper person” and grounding the person or company simply by suspending or cancelling the “approvals” upon which they rely to continue operating.
This cannot and does not mean that CASA must demonstrate that, in exercising its discretionary powers under the regulations in any given case, it has adopted or will adopt a course of action involving the lowest cost to, or least adverse impact on, the person or persons affected by that action.
Comment: Why should it not mean exactly that? The continuing absence of transparency and accountability in compliance/enforcement procedures must be high among the list of reasons for what the ASRR observes to be a breakdown of trust between industry and regulator.
What it does mean is that, where a person who is or will be affected by CASA’s exercise of discretionary powers under the regulations convincingly demonstrate, on evidence, that:
the same safety outcome contemplated by the applicable regulatory requirement can be achieved on another, more cost-effective and/or otherwise less onerous basis;
the person is able and willing to adopt and give meaningful effect to that alternative approach to compliance;
the alternative approach proposed can be implemented fully and effectively in a timely fashion, having regard to the interests of safety;
the adoption and implementation of such an alternative approach by CASA would not involve unreasonable additional oversight or administrative responsibilities on CASA’s part; and;
no other persons would be adversely or unfairly affected by the adoption of that alternative approach,
CASA will entertain a reasonable proposal for the adoption of another approach and, in the absence of good reason not to do so, CASA will adopt such an alternative approach.
Comment: In ProAviation’s view, this is a conceptual mess, which when simplified, appears to be promoting the view that CASA can do whatever it likes. In numerous well-documented compliance/enforcement events, there is evidence which at least warrants an independent assessment; preferably by the Australian Law Reform Commission and the Productivity Commission that many of CASA’s regulatory adventures tend to display more than one of the following features:
An alleged infringement is identified. This may or may not be based on valid observations and assessments; or it may take the form of an incorrect assessment by a CASA official, assertions by a disgruntled former employee, a commercial competitor or a dissatisfied customer. (Naturally we acknowledge that there are instances where an actual infringement does exist.)
On the basis of the allegations, often untested to any evidentiary standard, it appears the primary impetus becomes focused on freezing the certificate holder’s ability to continue earning revenue as an operator or wages as an employee. There are examples were adverse certificate action has been based on claimed “reason to believe” and initiated without written advice,
Having cancelled or suspended the certificate, the regulator then uses “reason to believe” to support ongoing regulatory activity including exhaustive searches of records, apparently engineered delays, postponements of proceedings and/or failure to meet obligatory commitments to provide documents within specified time-frames. AAT appeals often prove pointless because the process has already caused irrevocable harm.
An operator’s client base becomes aware that the certificate holder is under investigation for alleged breaches. This information commonly becomes widely circulated and the suspension/cancellation causes the cancellation or suspension of existing contracts with irreparable damage to the business. If the operator has government contracts (which many of them do) the news appears to travel even faster,
The commonest outcome of these sequences of events is the closure of the business with major disruption and distress to all employees or the departure from aviation by an individual by means which appear to avoid legal due process. The advantages of this conduct are reduced legal costs to CASA.