12-14-2018, 06:25 AM
(This post was last modified: 12-14-2018, 07:10 AM by Kharon.
Edit Reason: Text went all 'funny' - don't care.
)
The legendary Paul D Phelan wrote and presented this report eighteen years ago. It is a masterful, accurate analysis of the situation between CASA and industry at the time. There are 104 pages detailing industry operational concerns and the long term effect of those concerns on safety.
In 2014, Phelan provided a submission to the Aviation Safety Regulation Review (ASRR). This, like the 2000 submission provided detailed, accurate, supportable information and analysis clearly identifying not only the increasingly fraught, tense relationship between the CASA and the industry, but the almost unbelievable mess the regulations have become. Once again, his forecasts have proven accurate.
Senator O’Sullivan has challenged industry to provide ‘proof’. I say let him stir his bones, find his reading glasses and spend an hour or so with Phelan. There is the only ‘proof’ he should ever need.
Has government failed aviation?
That boys and girls is a no brainer.
Will the government continue to fail aviation and ignore the blindingly obvious?
It certainly seems to be that answer will be in the affirmative – going on O’Sullivan’s less than impressive performance at Estimates and a wool blind minister who can't seem to tie his boot laces without 'expert' advice.
No matter; if you have an idle hour or two over the Christmas break; take some time to read Phelan. It may bring some clarity, although history clearly shows there is little hope of sanity.
EXECUTIVE SUMMARY (2000 AD).
1. The Civil Aviation Safety Authority’s handling of its enforcement responsibilities has already seriously degraded Australia’s air safety climate by generating mounting mutual distrust and antipathy between industry and regulator. There is now more confrontation, and less mutual respect and cooperation, than has ever existed between the regulatory body and an industry which now considers itself to be under siege from its own regulator.
2. Every certificate holder is continually faced with the threat that it can be shut down almost at the whim of a single CASA decision maker through the continued exploitation of apparently unintended provisions of the Civil Aviation Act and Regulations – some would describe these as loopholes:
3. The confrontation has been worsened by gross and growing deficiencies in the delivery of regulatory services, which shackle the conduct of aviation businesses; and the fear that the apparent abuse of regulatory processes by CASA can shut them down immediately without recourse to due process.
4. At the centre of these problems appears to be the absence of effective management, training, defined and uniform policy, guidance, and prioritisation.
5. This has resulted in an appalling degradation of morale amongst operators, industry employees, and the diminishing number of individuals within CASA who still subscribe to the principles of fairness, due process, and the rule of law.
6. CASA has apparently elected to circumvent normal and available legal avenues, due process, natural justice and procedural fairness in pursuit of the policy goal of reducing the number of air operator certificate holders. This is demonstrated by the application and the apparent abuse of administrative procedures available to it under the Act, as an alternative to available remedies offered by proper investigation, legal process, and prosecution.
7. CASA now says it intends to apply identical treatment to major air carriers, in order to be seen to be equitable in its application of what it perceives to be its regulatory functions. This will naturally have even more serious implications for Australia’s international reputation, with a demonstrably negative impact on the industry’s safety performance and image.
8. Declining to acknowledge the impropriety of its actions, CASA’s Office of Legal Counsel makes it clear that while Government allows it, CASA will continue to pursue its goals through the application of administrative decisions rather than through proper and available legal channels and the legal processes by which other regulatory bodies in Australia are bound.
9. This has resulted, in an unacceptable number of cases, of air operators (and significant employers) being forced out of business by the weight of their financial burdens, without CASA’s allegations against them ever having faced the scrutiny of a court or without according the victim the opportunity to face and cross-examine its accusers.
10. CASA is clearly acting contrary to legal advice it obtained from the Attorney General’s department which states that “there is a high risk of liability for defamation under current legislation.” CASA is now apparently defaming certificate holders by publishing unsubstantiated allegations against them. Its Office of Legal Counsel has asserted that he believes it has a government mandate to continue with this course of action.
11. The above tactics are apparently necessary because CASA, which has a dismal record in the investigation and prosecution of alleged rule breaking, has a fear that the use of normal legal processes would expose the inadequacy of its rule structure, and its investigation and surveillance procedures.
In 2014, Phelan provided a submission to the Aviation Safety Regulation Review (ASRR). This, like the 2000 submission provided detailed, accurate, supportable information and analysis clearly identifying not only the increasingly fraught, tense relationship between the CASA and the industry, but the almost unbelievable mess the regulations have become. Once again, his forecasts have proven accurate.
Senator O’Sullivan has challenged industry to provide ‘proof’. I say let him stir his bones, find his reading glasses and spend an hour or so with Phelan. There is the only ‘proof’ he should ever need.
Has government failed aviation?
That boys and girls is a no brainer.
Will the government continue to fail aviation and ignore the blindingly obvious?
It certainly seems to be that answer will be in the affirmative – going on O’Sullivan’s less than impressive performance at Estimates and a wool blind minister who can't seem to tie his boot laces without 'expert' advice.
No matter; if you have an idle hour or two over the Christmas break; take some time to read Phelan. It may bring some clarity, although history clearly shows there is little hope of sanity.
EXECUTIVE SUMMARY (2000 AD).
1. The Civil Aviation Safety Authority’s handling of its enforcement responsibilities has already seriously degraded Australia’s air safety climate by generating mounting mutual distrust and antipathy between industry and regulator. There is now more confrontation, and less mutual respect and cooperation, than has ever existed between the regulatory body and an industry which now considers itself to be under siege from its own regulator.
2. Every certificate holder is continually faced with the threat that it can be shut down almost at the whim of a single CASA decision maker through the continued exploitation of apparently unintended provisions of the Civil Aviation Act and Regulations – some would describe these as loopholes:
3. The confrontation has been worsened by gross and growing deficiencies in the delivery of regulatory services, which shackle the conduct of aviation businesses; and the fear that the apparent abuse of regulatory processes by CASA can shut them down immediately without recourse to due process.
4. At the centre of these problems appears to be the absence of effective management, training, defined and uniform policy, guidance, and prioritisation.
5. This has resulted in an appalling degradation of morale amongst operators, industry employees, and the diminishing number of individuals within CASA who still subscribe to the principles of fairness, due process, and the rule of law.
6. CASA has apparently elected to circumvent normal and available legal avenues, due process, natural justice and procedural fairness in pursuit of the policy goal of reducing the number of air operator certificate holders. This is demonstrated by the application and the apparent abuse of administrative procedures available to it under the Act, as an alternative to available remedies offered by proper investigation, legal process, and prosecution.
7. CASA now says it intends to apply identical treatment to major air carriers, in order to be seen to be equitable in its application of what it perceives to be its regulatory functions. This will naturally have even more serious implications for Australia’s international reputation, with a demonstrably negative impact on the industry’s safety performance and image.
8. Declining to acknowledge the impropriety of its actions, CASA’s Office of Legal Counsel makes it clear that while Government allows it, CASA will continue to pursue its goals through the application of administrative decisions rather than through proper and available legal channels and the legal processes by which other regulatory bodies in Australia are bound.
9. This has resulted, in an unacceptable number of cases, of air operators (and significant employers) being forced out of business by the weight of their financial burdens, without CASA’s allegations against them ever having faced the scrutiny of a court or without according the victim the opportunity to face and cross-examine its accusers.
10. CASA is clearly acting contrary to legal advice it obtained from the Attorney General’s department which states that “there is a high risk of liability for defamation under current legislation.” CASA is now apparently defaming certificate holders by publishing unsubstantiated allegations against them. Its Office of Legal Counsel has asserted that he believes it has a government mandate to continue with this course of action.
11. The above tactics are apparently necessary because CASA, which has a dismal record in the investigation and prosecution of alleged rule breaking, has a fear that the use of normal legal processes would expose the inadequacy of its rule structure, and its investigation and surveillance procedures.