[Peetwo]

Submission 28 - AIPA. 

Via APH:

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 28 Australian & International Pilots Association (PDF 514 KB) 

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The politics of aviation safety regulation

In his submissions3 to this and other Inquiries, Clinton McKenzie makes a number of
statements about the characterisation of safety regulation decisions with which we
agree. In particular, he makes the point that:

…the setting of the standards to be enforced by the regulator in the first place is
essentially a political decision, not a technical decision…

AIPA considers that characterisation to be as valid now as it was when made to the
ASRR.

It often seems to AIPA that Ministers in governments of all persuasion strenuously
avoid any direct involvement in safety-related decision-making on the apparent basis
that such involvement is open to criticism of political interference with an independent
technically-expert agency. It seems to us that DITRDC has displayed similar
symptoms to the various Ministers, although we cannot determine whether that is as
the chicken or the egg. Unfortunately, the unpalatability of greater political involvement
with aviation safety policy setting invariably results in the emergence of a relatively
unrestrained technocracy. This ‘independence’ is a double-edged sword: on one hand,
the Minister is largely insulated from CASA’s activities, while on the other, CASA is
largely isolated from political support.

The insulation is aided by a preference for seeking multi-layered advice. Apart from
the traditional source of advice from DITRDC, the Minister has industry advisory panels
as well as the CASA Board. The Director of Aviation Safety (DAS) also has his
Aviation Safety Advisory Panel (ASAP) and the related Technical Working Groups
(TWGs). However, the isolation aspect comes from the legislated empowerment of the
DAS alone – a responsibility that no amount of advice or delegation can diffuse.
The biggest problem from these advisory structures is the implied power and thus the
endemic political pressure that comes with them. That political pressure is distinctly
different from the politics of elected representatives, in that it is the politics of special
interest groups. It would be more tolerable if all parts of the aviation industry had
relevant input, but unfortunately each advisory structure is wholly or predominantly
representative of vested commercial interests with minimal balance from those in the
front line who are directly conducting the very aviation activities that we want to remain
safe.

AIPA firmly reiterates that it is a complete misapprehension for anyone involved in
aviation safety to believe that the commercial entities involved in aviation properly
represent the interests of their workforces. There is abundant evidence, particularly in
the fatigue management space, of the risks that those commercial entities are prepared
to tolerate in order to protect their profit margins.

In many ways, the most direct special-interest political pressure applied to the DAS
comes from the CASA Board. It is not clear to us what specific value having a Board is
supposed to bring to CASA, at least in the normal sense of corporate governance,
since it is incapable of making the political decisions required of government and
seems to have failed to prevent the excesses of regulatory overreach or the imposition
of unnecessary costs.

In any event, it has been suggested that the Board harbours two main dangers: one,
the potential for the Chair to attempt to usurp the DAS’ authority; and two, the number
of Board members at various times who have held senior positions or are otherwise
affiliated with the RAAA.

To be very clear, AIPA has no governance concerns with the current Chair - our
observation relates to past and, potentially, future Chairs. It has been suggested that
at least two previous Chairs have tried inappropriately to act as if they were the DAS
and we are not convinced that an activist Chair could not repeat that failure in the
future.

We are concerned about the apparent regular over-representation of RAAA-affiliated
members on the Board. Based on our observations of the RAAA in various CASA
consultations and more generally, AIPA has come to the view that the organisation has
a regressive agenda aimed at preventing any change in safety regulation that may
impact on the current compliance imposts on their members. While we are opposed to
the imposition of unnecessary or excessive costs, we also consider that there are some
costs that are justified on safety grounds but have heretofore been avoided by the
acceptance of excessive risk – a balance that we see as lacking in the RAAA
representations, no more so than in the fatigue management space.

The RAAA modus operandi that deliberately confuses the absence of evidence as
evidence of the absence of risk is most concerning. AIPA considers that an excess of
political influence in support of RAAA imperatives has led to the continual deferral of
the fatigue management rules published by CASA in 2013 in order to perpetuate
decades-older rules that CASA confirmed as potentially unsafe. Australia’s 2013 rules
demonstrated a world-leading respect for fatigue science that was subsequently
acknowledged by a number of international regulators as a benchmark, yet they have
since been traduced by commercial interests. Additionally, CASA’s reputation for
political independence has been squandered by activist Boards and a compliant public
service DAS.

Good people generating bad outcomes

Another important point made by Clinton McKenzie in his submissions is that
a safety regulator is fundamentally conflicted if it is made or left to run the process
that determines the substance of the regulator's own role in the regulatory regime it
administers.4

AIPA agrees with that assessment in the context of the bureaucratic propensity to feed
itself, noting that this conflicted role has continued unabated for many decades without
any obvious signs of intervention by DITRDC as the oversight agency. However, we
see CASA’s ever increasing entry control activities as being an accidental by-product of
that conflict, since there is little evidence in CASA’s performance history that would
suggest any capability to manage a conspiracy.

We also strongly support the following observation:

The weight of evidence demonstrates that continuing to 'leave it to the
professionals in CASA' will result in ever-increasing complexity with corresponding
ever-increasing costs, as each incident and each exaggerated risk results in
harmful regulatory overreactions, as each year and decade of the regulatory reform
program rolls past and yet more pages of rules are imposed on the practically
powerless.5

The imposition by government of the “user pays” requirement has the propensity to
magnify the impact of well-meaning decisions to require a range of approvals,
permissions, variations and the apparently endless range of statutory authorisations.
AIPA has no doubt that the CASA people developing the rules have the best of
intentions in trying to solve what they consider safety problems or trying to mitigate
risks to existing safety standards. However, the standards development culture within
CASA means that hundreds of individually developed solutions for minor problems may
be thrown into a regulatory bucket so large that apparently no CASA executive can
sufficiently distance themselves from it to see the enormity of the regulatory nightmare
that often results.

Part 61 is a classic example.

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