[Kharon]

> Caution: there will be some ‘long’ reads on this thread; but, it is, at least initially, a necessary evil. In short, many have expressed grave concern that through Legislative Instruments CASA have been given a ‘carte blanche’ and may do pretty much as they please, without check or balance. The Angel Fight fiasco as an example. Well, it turns out there is some scrutiny provided though the SSCRO, furthermore, the committee can and actually does elicit a response from the minister.
 
The rule through ‘exemptions’ (lots and lots of); the reluctance to reform a regulation to incorporate exemption and the almost unbelievable list of amendments to the 61/141/142 shambles and other ‘parts’ of the CASR has dragged on almost as long as the ‘reform’ process – thirty years and counting. Perhaps there is some light at the end of the mine shaft. We shall see.
 
“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, etc.
 
Quite the title ain’t it -  “Standing Committee for the Scrutiny of Delegated Legislation”. We only stumbled over it through P2’s digging about for answers; so we took a look at the work and results of that committee’s work. Not too shabby at all, worth a thread here and further examination. For an intro and to whet the appetite- Post 840.  A start point.

MTF -

[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/

---

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

---

...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')

---

---

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...

---

...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...

---

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

MTF...P2 

[thorn bird]

K,
I have a bit of a leaning towards the USA's use of sunset clauses in bills whereby there is a
time limit on legislation, after which it must be legislated again. If it works out as not fit for purpose
its amended or simply let lapse.

I cast my memory back to the old reg 206, if you recall it was rather an absurd piece of legislation.
Enacted to protect the airline duopoly from competition, but used unmercifully to stifle legitimate businesses.
Many a business was crushed after seeing an opportunity that had nothing to do with RPT, making a business case,
investing money, then having it pulled out from under them because one of the two duopolist's saw a quid in it for themselves. Some really ridiculous claims were made. Remember Ansett demanded the first Lear jets into the country
had to be operated by their crew as they were transport category aircraft.
In those days DCA could deny an import licence for almost anything, and they did, at one stage prior to the sixties only British made aircraft were allowed, even for themselves, despite the Poms not producing anything much that was suitable.
The old reg 206 still exists in legislation today, no longer fit for purpose and completely redundant, but still available for CAsA to use as a weapon on anyone as pleases.

Legislation should be fit for purpose, unfortunately what CAsA has served up is not even close, nor does it achieve what was intended "Safety". So what was the point of it all?

Dick Smith is dead right when he said "Copy the Best", China has made itself a leading power by doing just that, The Kiwi's did just that for aviation which has become third biggest contributor to GDP.

There has been much in the media about the cost burden of red tape on the Australian economy, in the red tape Stakes CAsA would have to be a world leader.

In China the "party" rules by fear and intimidation, is it much different in Australia?

Is "democracy" dying in Australia?

We elect politicians to do the "peoples" bidding, but just how much power do they have?

In recent times we have seen what happens when a minister goes against their mandarins recommendations.
The leaks begin until eventually, politically, their tenure becomes unsustainable.If they just sit Mum and let the bureaucrats get on with it all remains calm, unless of course there is a major stuff up, but all good, the minister is the sacrificial lamb, their throat gets cut and the Mandarins continue with their derry do.

The Mandarins live inside the Cant'Berra bubble, a privileged quarantined world remote from reality, there they play their game of thrones, is it much different in China?

[Peetwo]

Ref: Strict liability, strictly enforced. & http://auntypru.com/a-cabaret-in-the-temple-of-doom/


Prima facie; primarily facile, or Piss take?

“Accepted as correct until proved otherwise”. A perfect, nutshell description of the regulatory process. We, in Australia have paid for and sat (miserably) through many ‘Senate Inquiries’ into the antics of the ‘regulator’ – CASA, despairing of the questions asked. I’d even bet we hold a world record for the sheer volume of questions asked and answers given; (word count beyond human understanding) - non of which have made the slightest bit of difference as the wider aviation businesses, medium to light weight operations devolve into isolated cottage industries. Well all except for the huge, profitable ‘sausage factories’ that is; churning out ‘qualified’ clones of some scripted qualification regime which ensures all the boxes are ticked – nice and legal like. Which is fine until the airline HR model is hired and the cost of ‘training’ a clone to ‘do the job’ is passed on through exorbitant regional airfares. Why is this so? A question any reasonable man )yes, yes or woman( - Uhmm-  (human being) may ask. Phew.

Many believe it has to do with ‘the regulatory burden’. To a point, there is a case to answer on that score. The three decade endless ‘change’ has not, not by any measure, fiscal or operationally been a stellar success. Why is this so?



Well, we dragged P2 out of the deep basement shredder bins, brushed him off and retrieved his find; slightly mangled but nonetheless readable for all that. He toddles off to share his Choc Frog with his best mate (a rabbit he rescued – long story don’t ask) leaving us with the gubbins. 

“Senate standing order 23(4) also requires the committee to scrutinise each instrument to determine whether the attention of the Senate should be drawn to the instrument on the ground that it raises significant issues, or otherwise gives rise to issues that are likely to be of interest to the Senate”.

Agency engagement. 4.2 The committee is engaging with the relevant agencies via its secretariat to seek further information about potential scrutiny concerns raised by the instruments listed below.

> Terms of reference

> The committee's scrutiny principles are set out in Senate standing order 23(3) which requires the committee to scrutinise each instrument as to whether:

> (a) it is in accordance with its enabling Act and otherwise complies with all legislative requirements;

> (b) it appears to be supported by a constitutional head of legislative power and is otherwise constitutionally valid;

> © it makes rights, liberties, obligations or interests unduly dependent on insufficiently defined administrative powers;

> (d) those likely to be affected by the instrument were adequately consulted in relation to it;

> (e) its drafting is defective or unclear;

> (f) it, and any document it incorporates, may be freely accessed and used;

> (g) the accompanying explanatory material provides sufficient information to gain a clear understanding of the instrument;

> (h ) it trespasses unduly on personal rights and liberties;

> (i) it unduly excludes, limits or fails to provide for independent review of decisions affecting rights, liberties, obligations or interests;

> (j) it contains matters more appropriate for parliamentary enactment; and

> (k) it complies with any other ground relating to the technical scrutiny of delegated legislation that the committee considers appropriate.

Blind Freddy (G’day mate) can see the potential here for serious questions to be asked by  ‘the committee secretariat’. But it all turns to worms when :-“Seeking advice from the agency” is the response of choice. Then, it all gets to be a little ‘circular’. For example:-

Aviation Transport Security Amendment (Security Controlled Airports) Regulations 2019 [F2019L01656]

Principle (g) adequacy of explanatory materials
Principle (h) privacy
Principle (k) parliamentary oversight
Seeking advice from the agency.

Or:-

>Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019 [F2019L01621]
Principle (i) availability of independent review
Principle (h) reversal of evidential burden of proof
Principle (h) privacy
Seeking advice from the agency.



Principle (h) - reversal of evidential burden of proof. Consider the ridiculous proposition posed. In all ‘criminal’ cases (real ones) as defined, the burden of proof falls where? Mens Rea and all that – denied, without a whimper from the protectors of democracy? WTD. Then, they refer it back to the agency ‘for advice’. Gods spare me…

Principals’ (i) through (h) as they relate to CASA enforcement demand immediate attention and close scrutiny – followed by immediate bipartinsane repeal. Unconstitutional? – Just a bit. Should the Senate ever want to resolve and save the time and money an Inquiry costs – perhaps they could just consider the outrage they’d feel at being guilty – without hope of defence for a misdemeanour? Even a clerical error or anything else CASA choose to whip up into a case against; – presented in the AAT – without the rules of evidence the police must rely on to prosecute? Not bloody funny. And yet here we are again – “seeking advice from the agency”. “Did you rob the bank?” – “Oh no M’lud was two other fellah’s”.  “Fair enough – off you go then”.

Question without notice Madam Chair – What exactly do you expect in response to your question – “to the Agency”. I suggest you refer to the 9,000 odd answers provided by ‘the agency’ for a quick answer. It’s like watching a duckling Ping-Pong match. The committee Pings it to the agency – they Pong it back. No one even considering the travesty inflicted on the ‘rule of law’ – which by the way - Parliament enshrined in our democracy. Want to know why the aviation industry is hacked off and scared to speak out? See the explanation – above.

Chair – So Doctor Aleck, do you think it is reasonable to give Bloggs a criminal record, which will affect his future career for making an arithmetical error on the technical log?

Lost Marbles – “Oh yes Madam chair” – “Safety is our prime concern”.  “He may pay the fine and forget the matter entirely; but we will keep the offence on record and will use it as ‘background’ to prove him not able to be rehabilitated and to pad our ‘catch rate’ of these offenders, committing heinous crimes against my tricky one way rules.”

Aye, just when you thought here was a beacon of hope, you discover the Senate oversight of our civil liberties, under homemade law rely on the ‘advice’ of those who penned the law; now under Senate ‘scrutiny’. Brilliant; stellar, world class – how ducking spectacular.



No matter. The grandfather clock saga (serious stuff now). We have a cutting list (finally). These billets must be hand cut, according to my letter. I measured up with a 1900 vintage cabinet makers wooden ruler. Just for fun, TOM used the latest ‘laser’ measuring gizmo to compare. Beers were bet; I have half a fridge full now. 98% accuracy (half a thou) on 87% of measurements; no discernible difference in the remaining 13%. Not too shabby I’d say. Grandpapa's ruler had the right of it – carpenters are sundials – cabinet makers are Rolex.

But, do enjoy the workings of the Senate and your tax dollar while I slip through the orchard into a cool evening; no option, the dogs only wake up once the temperature drops “Out! – take me out” they bark. So I oblige ‘em – pretending it’s a lot of bother and trouble; but they know who woke ‘em from slumber. ‘Twas me and the biscuit tin. Shhhh!   

Selah.

P2 comment: Sorry "K" just thought you'd like to know what I have discovered in my latest foray through the APH cyber dustbins...  

To begin here is a link - HERE & or PDF version - for the committee report and recommendations that came out of their 2019 Senate Inquiry into 'Parliamentary Scrutiny of Delegated Legislation'.

Extract from the report:    

Chair and Deputy Chair's foreword

A fundamental principle of parliamentary democracy is that the law should be made by the elected representatives of the people in Parliament. However, despite this, around half the law of the Commonwealth is delegated legislation; that is, law made by or on behalf of the executive government. Too little is known about the role delegated legislation plays in the Australian legal landscape. Parliament routinely delegates its law making powers to ministers, agency heads and senior public servants. While it is often necessary for Parliament to delegate these powers, as it doesn't always have the time or expertise to deal with the technical details underpinning the law, it is essential that Parliament scrutinise such legislation to guard against the inappropriate exercise of executive power.

The Senate Standing Committee on Regulations and Ordinances (the committee) has performed this role on behalf of the Parliament for almost 90 years. It is one of the oldest standing committees in the Australian Parliament and has spawned numerous similar parliamentary scrutiny committees across Australia and internationally. The committee has always adopted a non-partisan commitment to principles of technical scrutiny, setting aside party politics and policy considerations to focus on issues of general principle affecting the rights of people and Parliament.

While the committee has been one of the Commonwealth Parliament's most active and important committees, after almost 90 years of operation it is important to inquire into the committee's continuing effectiveness and future direction. The significant work of the committee can be undermined by a lack of understanding of the role Parliament plays in exercising control over delegated legislation and the essential role the committee plays. When the committee draws its concerns about delegated legislation to the Senate's attention it is high time that all parliamentarians and the government of the day listen to those concerns and take action to resolve them.

Part II of this report makes a number of recommendations to improve the committee's existing scrutiny practices – including updating its terms of reference, bringing its powers in line with other standing committees and updating and expanding the principles by which it scrutinises delegated legislation. Currently around three-quarters of the committee's comments fall under one of its scrutiny principles – whether delegated legislation 'is in accordance with the statute'. This general description does not indicate the vast range of matters the committee considers. Additional principles should be adopted to clarify the scope of the committee's existing scrutiny functions and to provide clearer guidance as to its role. Additionally, the committee's current approach to reporting to the Senate may not be the most effective way of highlighting its scrutiny concerns. The report therefore sets out a number of actions the committee will take to improve its work practices and highlight its important work.

Part III of the report considers the adequacy of the existing framework for parliamentary control and scrutiny of delegated legislation. Unlike many other parliaments, the Australian Parliament has considerable control over delegated legislation (through its power to veto, or disallow, legislative instruments made by the executive). Yet, in practice, it is difficult for parliamentarians to keep abreast of the hundreds of instruments tabled each year, and all too often significant matters of policy are left to be determined by delegated legislation (despite the warnings of the Senate Standing Committee for the Scrutiny of Bills). While the committee draws its technical scrutiny concerns about delegated legislation to the Senate's attention, there is no consistent scrutiny of its policy implications. Therefore, where delegated legislation gives rise to significant issues, policy committees should be notified and consider whether to conduct an inquiry into its policy merits.

In addition, parliamentary control over delegated legislation is undermined when delegated legislation is exempted from disallowance or sunsetting. It is particularly concerning when this exemption is itself provided for in delegated legislation. There should be strict limits on when delegated legislation can be exempted from disallowance or sunsetting, to ensure adequate parliamentary control. In addition, the law should be publicly available and understood before it comes into force. As a general rule, delegated legislation should commence 28 days after registration (rather than the day after registration), to allow people affected by the law to foresee the legal consequences of their actions.

As parliamentarians, we owe it to the Australian people to act independently, and to remove from the statute book delegated legislation which does not respect individual rights and liberties or the right of Parliament to control the content of the law. The committee will continue to maintain its non-partisan commitment to scrutinising delegated legislation on behalf of the Parliament. It is up to all parliamentarians and the government to ensure that significant matters are not left to be determined by delegated legislation, and to listen and act on the concerns raised by the committee.

You will note that under Part III the committee will now notify policy committees (ie Legislative committees) and/or the Senate when the SDL committee has significant concerns about certain pieces of delegated legislation/instruments. 

The first example of this was listed under 'Matters of Interest to the Senate' and in the latest DLM 2of 2020 and somewhat ironically involves the Senate RRAT Legislative Committee. The explanatory correspondence to the Chair Senator Susan McDonald can be read on page 1 HERE.

Under Part II of the report the committee has resolved to increase and improve the principles/terms of reference (see SBG above) for proper more effective scrutiny of delegated legislation. This is underpinned by newly minted reference guidelines for Ministerial departments and government agencies to refer to when responding to the committees identified concerns with a piece of delegated legislation.

This brings me back to the "K", understandably pessimistic, concern that the SDL committee is 'Seeking advice from the agency'??   

In fact I have it from the Horse's mouth (ie the committee Secretariat) that the agency concerned (ie CASA) will be obliged to respond to the committee with a 'please explain' why it is necessary for there to be 'strict liability' provisions imposed on those particular CASR Parts (Parts 103, 105 and 131) and also the committee's concerns with the delegated legislation..

...unduly excluding, limiting or failing to provide for independent review of decisions affecting rights, liberties, obligations or interests...

...so this is what Dr Jonathon (I've lost my marbles) Aleck will actually have to respond to when addressing the committee's concerns: 

Reference - https://www.aph.gov.au/Parliamentary_Bus...Guidelines

Guidelines on technical scrutiny principles

The committee examines the technical qualities of all instruments subject to disallowance, disapproval or affirmative resolution by the Senate, and assesses whether they comply with the committee's non-partisan scrutiny principles. The committee's scrutiny principles are set out in Senate standing order 23(3). These guidelines provide information on the committee's approach to applying its scrutiny principles, including:

• Principle (a): compliance with legislative requirements;
  
  
• Principle (b): constitutional validity;
  
  
• Principle ©: scope of administrative powers;
  
  
• Principle (d): adequacy of consultation;
  
  
• Principle (e): drafting;
  
  
• Principle (f): access and use;
  
  
• Principle (g): adequacy of explanatory materials;
  

• Principle (h): personal rights and liberties;
  

• Principle (i): availability of independent review;
  
  
• Principle (j): matters more appropriate for parliamentary enactment; and
  
  
• Principle (k): other technical scrutiny grounds.
  

MTF? - Yes much...P2 

[Peetwo]

Sic'em'Rex sounds the regional aviation drum for Estimates - 

Sen Patrick adjournment speech, from 27/02/20 Senate Hansard:

Aviation

Senator PATRICK (South Australia) (17:52): The federal coalition government have introduced regulations into the parliament that will require security screening at regional airports. They've offered to pay for the equipment but not for the much more significant cost of the ongoing employment of security guards and, indeed, maintenance. I'm quite happy for there to be security screening at regional airports. If that's what Home Affairs says is required then that is what is required, but it must be the government that pay the cost. National security is a national responsibility, not a local council responsibility. It is the local councils that own the airports and will be charged this cost, and they, of course, will have to pass it on to passengers.

The former Department of Infrastructure, Transport, Cities and Regional Development did a case study on Whyalla—I'll just point out that Whyalla is serviced by both Rex Regional Express and Qantas—and found that the new requirement will increase a per person flight by $53 or $69. If the screening is only carried out on the Qantas passengers, the cost will be an extra $69. Now, clearly, if it costs an extra $69 to fly Qantas, fewer people are going to accept that option and, in fact, Qantas will end up pulling out of that route. If it's carried out on both Rex and Qantas passengers, the cost will be $53. This will just reduce people's willingness to fly. They'll go back on the roads.

In this instance, it'll reduce loadings on the aircraft and it will reduce the viability of the routes and again will result in flights being cut. So the two best options are that flights are cut or routes are cut completely. The government have botched this up. They've failed to do proper due diligence from the beginning and they're only now discovering what devastating impacts this proposal will have on regional communities. Whyalla and Port Lincoln will be seriously affected by this bungle. However, it is the thin end of the wedge—Kangaroo Island and Mount Gambier will likely be next.

When bureaucrats in the Canberra bubble first dreamed up this policy, they thought the annual operating costs of the equipment would be somewhere between $530,000 and $760,000. They were wrong. We now know that the numbers are something around $1.2 to $2 million. How do we know that? Because the RRAT committee conducted an inquiry and caught on to the idea that this was going to happen and asked a lot of questions. Amazingly, again, the government had done no analysis on the effect. I can tell you that regional air travel is the lifeblood of these regional cities. It's how people get to education services. It's how they get to medical services. It's how medical locums get into a local community. It's how we support agriculture, business and tourism. And it just allows families to travel to see one another. It is their lifeblood. If you start taking away flights, it will have an impact on communities. In the analysis, the department actually claim that the increased costs might not be passed directly on to ticket pricing. That just shows how hopelessly out of touch the government is. I can assure you that the costs will get passed on.

I have moved to disallow this regulation. The Senate will get to vote on this on 12 May this year. It's not just Whyalla that will be affected, and it is not just Port Lincoln. The department conducted case studies into other airports—Rockhampton, Geraldton, Wagga, Longreach and, indeed, Kangaroo Island, which is not even on the list. They're looking at that, and I'm now trying to get some more information on that. When this disallowance motion is voted on, it will be a real test for coalition senators who often claim to represent regional Australia. So I'm going to give them the opportunity to buck the system and vote with me on the disallowance.

Plus from the SDL committee 'Disallowance Alert 2020' I note that Sen Patrick's DM is listed at item 2:

Aviation Transport Security Amendment (Security Controlled Airports) Regulations 2019 [F2019L01656]

Senator Patrick on 04/02/2020

To move that on the next day of sitting that the instrument be disallowed. Motion postponed on 05/02/2020 to 12/05/2020.
To be resolved.

    
However from the latest DLM (ref: 3 of 2020 )  it would appear that the SDL committee has already ticked and flicked this particular instrument: (ref - page 14 under para 5.3)

"..Concluded following response from the agency on 17/02/2020.."

This probably means that Sen Patrick will have an uphill battle trying to get his DM over the line??

MTF...P2  

[Peetwo]

Under the cover of COVID-19: Dr A response -  

Reference from 21/02/20 - 50 days ago before all hell broke loose with COVID19:

Ref: Strict liability, strictly enforced. & http://auntypru.com/a-cabaret-in-the-temple-of-doom/


Prima facie; primarily facile, or Piss take?

“Accepted as correct until proved otherwise”. A perfect, nutshell description of the regulatory process. We, in Australia have paid for and sat (miserably) through many ‘Senate Inquiries’ into the antics of the ‘regulator’ – CASA, despairing of the questions asked. I’d even bet we hold a world record for the sheer volume of questions asked and answers given; (word count beyond human understanding) - non of which have made the slightest bit of difference as the wider aviation businesses, medium to light weight operations devolve into isolated cottage industries. Well all except for the huge, profitable ‘sausage factories’ that is; churning out ‘qualified’ clones of some scripted qualification regime which ensures all the boxes are ticked – nice and legal like. Which is fine until the airline HR model is hired and the cost of ‘training’ a clone to ‘do the job’ is passed on through exorbitant regional airfares. Why is this so? A question any reasonable man )yes, yes or woman( - Uhmm-  (human being) may ask. Phew.

Many believe it has to do with ‘the regulatory burden’. To a point, there is a case to answer on that score. The three decade endless ‘change’ has not, not by any measure, fiscal or operationally been a stellar success. Why is this so?



Well, we dragged P2 out of the deep basement shredder bins, brushed him off and retrieved his find; slightly mangled but nonetheless readable for all that. He toddles off to share his Choc Frog with his best mate (a rabbit he rescued – long story don’t ask) leaving us with the gubbins. 

“Senate standing order 23(4) also requires the committee to scrutinise each instrument to determine whether the attention of the Senate should be drawn to the instrument on the ground that it raises significant issues, or otherwise gives rise to issues that are likely to be of interest to the Senate”.

Agency engagement. 4.2 The committee is engaging with the relevant agencies via its secretariat to seek further information about potential scrutiny concerns raised by the instruments listed below.

> Terms of reference

> The committee's scrutiny principles are set out in Senate standing order 23(3) which requires the committee to scrutinise each instrument as to whether:

> (a) it is in accordance with its enabling Act and otherwise complies with all legislative requirements;

> (b) it appears to be supported by a constitutional head of legislative power and is otherwise constitutionally valid;

> © it makes rights, liberties, obligations or interests unduly dependent on insufficiently defined administrative powers;

> (d) those likely to be affected by the instrument were adequately consulted in relation to it;

> (e) its drafting is defective or unclear;

> (f) it, and any document it incorporates, may be freely accessed and used;

> (g) the accompanying explanatory material provides sufficient information to gain a clear understanding of the instrument;

> (h ) it trespasses unduly on personal rights and liberties;

> (i) it unduly excludes, limits or fails to provide for independent review of decisions affecting rights, liberties, obligations or interests;

> (j) it contains matters more appropriate for parliamentary enactment; and

> (k) it complies with any other ground relating to the technical scrutiny of delegated legislation that the committee considers appropriate.

Blind Freddy (G’day mate) can see the potential here for serious questions to be asked by  ‘the committee secretariat’. But it all turns to worms when :-“Seeking advice from the agency” is the response of choice. Then, it all gets to be a little ‘circular’. For example:-

Aviation Transport Security Amendment (Security Controlled Airports) Regulations 2019 [F2019L01656]

Principle (g) adequacy of explanatory materials
Principle (h) privacy
Principle (k) parliamentary oversight
Seeking advice from the agency.

Or:-

>Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019 [F2019L01621]
Principle (i) availability of independent review
Principle (h) reversal of evidential burden of proof
Principle (h) privacy
Seeking advice from the agency.



Principle (h) - reversal of evidential burden of proof. Consider the ridiculous proposition posed. In all ‘criminal’ cases (real ones) as defined, the burden of proof falls where? Mens Rea and all that – denied, without a whimper from the protectors of democracy? WTD. Then, they refer it back to the agency ‘for advice’. Gods spare me…

Principals’ (i) through (h) as they relate to CASA enforcement demand immediate attention and close scrutiny – followed by immediate bipartinsane repeal. Unconstitutional? – Just a bit. Should the Senate ever want to resolve and save the time and money an Inquiry costs – perhaps they could just consider the outrage they’d feel at being guilty – without hope of defence for a misdemeanour? Even a clerical error or anything else CASA choose to whip up into a case against; – presented in the AAT – without the rules of evidence the police must rely on to prosecute? Not bloody funny. And yet here we are again – “seeking advice from the agency”. “Did you rob the bank?” – “Oh no M’lud was two other fellah’s”.  “Fair enough – off you go then”.

Question without notice Madam Chair – What exactly do you expect in response to your question – “to the Agency”. I suggest you refer to the 9,000 odd answers provided by ‘the agency’ for a quick answer. It’s like watching a duckling Ping-Pong match. The committee Pings it to the agency – they Pong it back. No one even considering the travesty inflicted on the ‘rule of law’ – which by the way - Parliament enshrined in our democracy. Want to know why the aviation industry is hacked off and scared to speak out? See the explanation – above.

Chair – So Doctor Aleck, do you think it is reasonable to give Bloggs a criminal record, which will affect his future career for making an arithmetical error on the technical log?

Lost Marbles – “Oh yes Madam chair” – “Safety is our prime concern”.  “He may pay the fine and forget the matter entirely; but we will keep the offence on record and will use it as ‘background’ to prove him not able to be rehabilitated and to pad our ‘catch rate’ of these offenders, committing heinous crimes against my tricky one way rules.”

Aye, just when you thought here was a beacon of hope, you discover the Senate oversight of our civil liberties, under homemade law rely on the ‘advice’ of those who penned the law; now under Senate ‘scrutiny’. Brilliant; stellar, world class – how ducking spectacular.

This brings me back to the "K", understandably pessimistic, concern that the SDL committee is 'Seeking advice from the agency'??   

In fact I have it from the Horse's mouth (ie the committee Secretariat) that the agency concerned (ie CASA) will be obliged to respond to the committee with a 'please explain' why it is necessary for there to be 'strict liability' provisions imposed on those particular CASR Parts (Parts 103, 105 and 131) and also the committee's concerns with the delegated legislation..

...unduly excluding, limiting or failing to provide for independent review of decisions affecting rights, liberties, obligations or interests...

...so this is what Dr Jonathon (I've lost my marbles) Aleck will actually have to respond to when addressing the committee's concerns: 

Reference - https://www.aph.gov.au/Parliamentary_Bus...Guidelines

Six days after I made the above post ScoMo declared the COVID-19 virus had 'pandemic potential' and set about putting in place a COVID-19 emergency plan: ref - https://www.abc.net.au/news/health/2020-02-28/what-coronavirus-emergency-plan-means-for-you/12010056

 Amid fears the coronavirus outbreak will soon be declared a global pandemic, the Australian Government has pulled the trigger on its emergency response plan and is now operating on the basis the virus is a pandemic.

Meanwhile in Aviation Hearse Dr A was (fill in the blank) still working on; suddenly felt inspired to start working on; put the final touches on his response; to the..SENATE STANDING COMMITTEE FOR THE SCRUTINY OF DELEGATED LEGISLATION's..concerns for...Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019 [F2019L01621] ??

According to the last SDL DLM, 13 days after ScoMo announced the Govt's emergency response plan for COVID-19, Dr A sent his response to the committee's concerns and committee subsequently accepted that response -   

Ref page 12: 

Concluded following response from the agency on 10/03/2020.

Hmmm...dodgy? 

More curious now I decided to actually have a look at the actual amendment (see link above). This was when I realised that the amendment to those particular Parts is actually a enabler to align the Parts for applicable administration under the now in force Part 149 ie approved Authorised Self Administrating Aviation Organisations.

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Ref: http://auntypru.com/and-thus-i-clothe-my...-villainy/ & Duck 149 a catalyst perhaps? & https://auntypru.com/may-the-fool-ask-a-question/

 

 

  

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 Hint: Given the bone of contention 'Duck 149' has created in several Senate RRAT committee outings, would it not now be wise for the good committee to request a copy of the Dr A response to the Senate SDL committee? Either that or perhaps Sic'em'Rex could put in a well worded FOI request for the document, after all what would the CASA LSD head Dr A possibly have to hide? -   

MTF,,,P2 

[Peetwo]

Dots and dashes on the road to GA industry redemption??

Dots so far...

St Commode's last 'UP YOURS' to the IOS?? 

Putting this post here because if the good Senators ever wanted a better example of the totally corrupt, self-serving, morally moribund culture that exists within the CASA executive management and Board you can't go past the following -   

Via the UP: 

 CASA CEO - Carmody - request your support via this survey

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Following is a request from CASA's CEO and Director of Aviation Safety Shane Carmody:

We're conducting a short survey of the aviation community to see how we're performing.

Your members' feedback will help us identify whether we've improved since our last survey two years ago, and where we still have work to do. It will focus our efforts on the things most important to our clients.

Please lend your support by encouraging your members to participate.

If you like, you could simply forward the following to your members.

CASA is conducting a 10-minute online survey of the aviation community to see how we're performing.

The survey is being conducted by an independent company, Faster Horses Consulting, so you can be perfectly frank in sharing your views. Your feedback will never be connected to you. Only de-identified aggregate survey results will be published (see the previous results on our website, for example).

Start the survey...

https://fasterhorses.au1.qualtrics.com/j...dium=Email

We strongly encourage you to provide your feedback on this survey, on behalf of all of our members. If you have any other questions please email feedback@casa.gov.au

Thanks for taking a moment to support your aviation community at this difficult time.

Shane Carmody

Chief Executive Officer and Director of Aviation Safety

And...

Report and recommendation to continue with delegated legislation?? -   

Via the APH website I note that the RRAT Legislative committee has effectively 'tick and flicked' the UAV/Drone levy amendment bill: Report
   

2.43 The committee recommends the Senate pass the bills.

Senator Susan McDonald
Chair

Before we move on I note perhaps a significant point in time (even though it comes from the Greens) - 

Additional Comments - Australian Greens

Additional Comments - Australian Greens


The Australian Greens support a drone registration levy, to fund and support appropriate regulation of a rapidly expanding and changing sector. However the reliance of delegated legislation for this framework reflects a concerning pattern. As the main Committee report notes, the Scrutiny of Bills Committee has highlighted questions around “the appropriateness of leaving virtually all of the details of the operation of the proposed unmanned aircraft levy scheme to delegated legislation.”

The Senate Standing Committee for the Scrutiny of Delegated Legislation is currently undertaking an inquiry into the Exemption of delegated legislation from parliamentary oversight. In a submission to that inquiry, the Centre for Public Integrity stated that: 

Accountability measures that ensure policy decisions made via delegated legislation are in the public interest and follow proper process are limited. These decisions are not given detailed deliberation in Parliament and are not transparent to public scrutiny.

… the increasing use of delegated legislation puts individual power in the hands of Ministers who do not face independent accountability outside of Parliamentary scrutiny.

We are concerned that the increasing exemption of delegated legislation from disallowance threatens democratic decision making and the constitutional role of Parliament.1

We welcome the Government’s decision to use disallowable instruments for this scheme, rather than exempting them from disallowance. However the Australian Greens share the concerns of the Centre for Public Integrity at the expanding use of delegated legislation. 

Senator Janet Rice
Participating Member

"The Senate Standing Committee for the Scrutiny of Delegated Legislation is currently undertaking an inquiry into the Exemption of delegated legislation from parliamentary oversight.."

Hmmm...now that is interesting    - over to the 'Scrutiny of delegated legislation thread me thinks??

Now the dashes...

Via the Scrutiny of Delegated Legislation committee's webpage: https://www.aph.gov.au/Parliamentary_Bus...moversight

Terms of reference

The committee has resolved, under standing order 23(12), to inquire into and report on the exemption of delegated legislation from parliamentary oversight, with particular regard to:

a. the appropriateness and adequacy of the existing framework for exempting delegated legislation from parliamentary oversight, including:
i. the amount and nature of delegated legislation currently exempt from parliamentary oversight;
ii. the grounds upon which delegated legislation is currently made exempt from parliamentary oversight;
iii. the manner in which delegated legislation is currently made exempt from parliamentary oversight; and
iv. the appropriateness of exempting delegated legislation made in times of emergency, including in response to the COVID-19 pandemic, from parliamentary oversight; and

b. whether the existing framework for exempting delegated legislation from parliamentary oversight should be amended, and, if so, how, including:
i. the grounds upon which it is appropriate to exempt delegated legislation from parliamentary oversight; and
ii. the options available to ensure appropriate and adequate parliamentary oversight of delegated legislation in times of emergency.

Now lets flick through to page 2 of the 'submissions':

29 Australian Airline Pilots' Association (AusALPA) (PDF 319 KB) 
CASA response - 9 October 2020 (PDF 179 KB) 

30 Australian Federation of Air Pilots (PDF 332 KB) 
Response from CASA - 6 October 2020 (PDF 65 KB) 

Focusing on the AFAP submission 30, the following is an extract: 

Necessary Oversight Through Freedom of Information - Genuine Community Based Oversight

7. The AFAP believes that the appropriateness and adequacy of the existing framework for
exempting delegated legislation is insufficient without a viable FOI mechanism to support the
community and industry based experts to hold relevant Government agencies to account. This is
especially so when and where parliamentary oversight is insufficient to do so alone, such as in the
case of delegated legislation and decision outcomes based upon delegated legislation.
8. In certain highly technical fields, such as aviation, it isn’t possible or appropriate for those without
specific expertise to develop the necessary technical regulations and standards. However, it is
also equally inappropriate for there to be insufficient oversight of the work of our public servants.
The work and function of Government agencies, such as Civil Aviation Safety Authority (CASA),
must be accessible to an alternative supplementary oversight mechanism when delegated
legislation mechanisms are used.
9. The Civil Aviation Act (1988) (“the Act”) tasks and permits CASA to develop and promulgate
appropriate safety standards for the civil aviation sector. The Act also requires CASA to consult
with stakeholders when performing these functions. In spite of these requirements and functions,
CASA is still able to maintain a high degree of obfuscation and avoid accountability from
parliamentary oversight, aviation stakeholders and the general public. More concerning though,
is that there are examples where obfuscation is openly based on reasons of self-interest. In citing
reasons for not disclosing requested documents, CASA FOI Officers have informed the AFAP that
(in part) their decision is because:
“…disclosure of the information would reduce the public’s confidence in CASA and would also
have an adverse effect on the receipt and quality of information that CASA needs to perform its
aviation safety role.”
10. The AFAP considers this a significantly self-serving position, not in the public’s interest and
contrary to both the intent of FOI legislation and to that of CASA’s priorities, as stated in the Act.
Section 9A of the Act outlines the performance of functions of CASA and the highest priority is for
aviation safety, certainly not reputational self-interest. S9A (1) states:
“In exercising its powers and performing its functions, CASA must regard the safety of air
navigation as the most important consideration.”
11. Given that the parliament cannot perform an oversight function on all technical regulations
developed through delegated legislation mechanisms, nor the decisions based on these
regulations, the AFAP believes it absolutely essential that FOI mechanisms are sufficiently robust
to allow genuine industry sector and community-based oversight and accountability to occur. This
must occur to supplement the reduced parliamentary oversight that occurs as a symptom of the
achieving the delegated legislation advantages.
12. Strengthening of FOI provisions is a critical means to increase oversight of the appropriateness of
CASA’s functions and performance but it is not the only means. Amendment to the Act can also
provide necessary delegated legislation enhancements too.

 Embed Delegated Legislation Expectations in Legislation – Amendment to the Civil Aviation Act

13. The AFAP believes that the parliament can enhance the appropriateness of delegated legislation,
enacted by the Civil Aviation Act for the civil aviation sector, through a relatively simple
amendment to s9A of the Act. This would provide a necessary counterbalance to the negative
effects of a lack of parliamentary oversight on delegated legislation and their outcomes.
14. Section 9A of the Act sets out the performance and function priorities that CASA must regard and
consider, which necessarily includes that CASA must regard safety as the most important
consideration. In 2019, the parliament amended the Act to create a mechanism to better align
CASA’s performance and functions to the parliament’s expectations and requirements. However,
these changes only addressed risk and cost-based considerations, not systemic safety based
outcomes and expectations.
15. Whilst the AFAP considers the 2019 amendment to be a positive step to address some of the
shortfalls created by delegated legislation, we also strongly believe that it is incomplete and that
critical flaws remain. To resolve this, the AFAP proposes that s9A(3) be amended with an
additional mechanism for delivering parliamentary expectations for when CASA develops and
promulgates aviation safety standards under s9(1)©. Specifically, we propose that s9A(3) must
oblige that CASA must also:

“….take into account that civil aviation is a system of safety.”

16. Statements that CASA must consider aviation safety as its highest priority currently are without
nuanced direction and leave too much scope for interpretation without the necessary context.
Aviation is a complex and dynamic safety sensitive industry where no one party or individual can
maintain a watch over all of its interrelated parts. The safety of this system is reliant upon the
 parts of the system working with each other in a coordinated and effective manner. This is
sometimes referred to as a systems-approach to safety.
17. The Act does not specifically require CASA to perform its regulatory development and
implementation functions in a manner that considers civil aviation safety as a system. Nor does
the Act require CASA to conduct its own internal functions in a coordinated or systemic manner.
We believe that the absence of these core requirements means there is an insufficient focus or
accountability for coordinating reforms with industry to avoid undue burden and unnecessary cost
imposts, which originate from an uncoordinated regulatory reform process.
18. We strongly believe that the development and implementation of reforms should necessarily
occur in a systemic manner too.
19. It is our view that all aviation stakeholders -including the general public- would benefit from an
amendment to the Act that requires CASA to conduct their own processes and regulatory reform
functions in a manner that involves specific considerations for coordinating its functions and
reforms with regard to the aspects of the system that the reforms would interact with.


Case Study Example: Community Service Flight Regulations

A current hot topic example of a lack of systems-based consideration in regulatory development
is that of Community Service Flight (CSF) regulation.

An ATSB investigation found that the CSF sector of the industry had an unacceptably heightened
risk profile compared to how it was regulated, and that ongoing issues existed regarding a lack of
systems and support from organisations in this sector (such as Angel Flight) to their operating
pilots. I.e. the investigation found systemic, human factors, and organisational issues to address.
CASA acknowledged these findings and progressed changes to the CSF regulations (delegated
legislation). However, CASA provided apple solutions for oranges problems. That is, CASA
provided increased minimum standards for individual pilots and for aircraft maintenance, whilst
at the same time failing to address the core issues which are systemic and organisational in nature.

These remain largely unmitigated risks.

The CSF sector, and other aviation stakeholders, have remained opposed to the changes
introduced by CASA. Although, without identifying the nuanced remedy that we propose.

A change to the Act may not prevent CASA from doing such things again in the future however, it
would certainly encourage an increased focus on systemic risks that remain unmitigated and help
avoid creating relatively unnecessary change imposts on the aviation community. Such a change
to the Act, as we propose, would provide a much more useful means of accountability and
rectification when CASA does not consider regulatory reform on a systemic basis, as they have
done in this example.

Now note that the AusALPA and AFAP submissions (unlike any other submissions) received response submissions from the relevant Govt regulatory agency ie CASA?? The following is CASA (Dr A's) response correspondence to the AFAP submission -  :

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Hmm..love to see the email chain on where that response emanated from - 

MTF...P2 

[Peetwo]

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Ref: https://auntypru.com/sbg-8-11-20-of-p2-a...dust-bins/

Just as a matter of interest, the following is a list of legislative instruments tabled under the Civil Aviation Act 1988 on Monday with the start of the Parliamentary sitting week:
 

Civil Aviation Act 1988—
Civil Aviation Regulations 1988 and Civil Aviation Safety Regulations 1998—
Incendiary Dropping Operations (Aerial Application Rating) Instrument 2020—
CASA EX136/20 [F2020L01349].
Civil Aviation Safety Regulations 1998—
Drug and Alcohol Testing by CASA under Subpart 99.C of CASR Instrument
2020—CASA 39/20 [F2020L00983]—Replacement explanatory statement.
Materials Flammability Airworthiness Standards (Medical Isolation
Transportation Devices) Instrument 2020—CASA EX92/20
[F2020L00796]—Replacement explanatory statement.
Part 138 (Aerial Work Operations) Manual of Standards 2020
[F2020L01402].
Part 139 (Aerodromes) Manual of Standards Amendment Instrument 2020
(No. 1)—Rectified authorised version [F2020L00931].
Repeal of Airworthiness Directive AD/A109/61—CASA ADCX 012/20
[F2020L01346].
Repeal of Airworthiness Directives AD/AMD 10/27, AD/AMD 50/46 and
AD/F2000/31—CASA ADCX 010/20 [F2020L01298].
Repeal of Airworthiness Directives AD/CESSNA 170/57 Amdt 4,
AD/CESSNA 180/75 Amdt 2, AD/CESSNA 205/21 Amdt 2, AD/CESSNA
206/48 Amdt 2, AD/CESSNA 207/32 Amdt 2, and AD/CESSNA 210/66
Amdt 3—CASA ADCX 011/20 [F2020L01331].

Next I want to come back to the AusALPA submission...  

Extracts:

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Dr A CASA was again given the opportunity to respond: https://www.aph.gov.au/DocumentStore.ash...bId=692270

Note that the response did not debate or challenge the opinions of AusALPA to why the joint pilot association felt it important to make what is a worthy submission to this inquiry. Rather CASA (Dr A) default to their normal and attack the example of the FRMS CAO 48.1 delegated legislation - 

MTF...P2 

BRILLIANT - Gold star, choc frogs and unlimited TimTams. Bravo

[Peetwo]

Footnote to last - 

Referring to Delegated Legislation Monitor 11 of 2020 - https://www.aph.gov.au/-/media/Committee...B9CF809D31 - I note the following under subtitle 'Implemented undertakings -

CASA EX101/19 — Helicopter Aerial Application Endorsements Exemption 2019 [F2019L01132] The Minister for Infrastructure, Transport and Regional Development amended the Civil Aviation Safety Regulations 1998 in response to the committee's scrutiny concerns. 21/08/2020

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F2020L01051 (1)

29  Paragraphs 61.1130(2)(a) and (b)
Repeal the paragraphs, substitute:
(a) for a helicopter aerial application endorsement:
(i) for the first 10 hours—direct supervision; and
(ii) for the next 100 hours—direct and indirect supervision, at least 10 hours of which must be direct supervision; and
(b) for any other endorsement:
(i) for the first 10 hours—direct supervision; and
(ii) for the next 100 hours—direct or indirect supervision.

F2020L01051ES (2)

Items 28 and 29 in Schedule 1 of the Regulations amends regulation 61.1120 (table 61.1120, item 2, column 3) and paragraphs 61.1130(2)(a) and (2)(b) to require an applicant for a helicopter aerial application endorsement to have at least 10 hours of dual flight in a helicopter while receiving training in aerial application operations and have a combination of direct and indirect supervision for the first 110 hours of aerial application operations. The Regulations enhance the right to work as a relevant applicant will have greater flexibility in meeting aeronautical experience requirements, thereby promoting the right to work by enabling a person to apply for an endorsement earlier than otherwise available.

A bit like pulling teeth, as it has taken nearly 18 months for the miniscule Mick Mack to get off his beam end and actually follow through with his promised undertaking to ensure CASA amended Part 61. However this is a clear example of what can be achieved when there is a willingness to ensure non-partisan parliamentary scrutiny/oversight of the 30+ year behemoth of regulations contained within the CASR 1998...  

Hmm...one down how many thousands millions to go? 

MTF...P2 

[Peetwo]

DLM 13 of 2020 - Implemented undertakings? 

A point of interest from the latest 'Delegated Legislation Monitor' was under the 'implemented undertakings' sub-heading, where it would appear that the Department of Infrastructure etc has come in over the top of a recently amended and approved CASA delegated legislative instrument:

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Here is the link for the instrument: https://www.legislation.gov.au/Details/F2020L00796

Yet to track the Department's amendment to the explanatory statement? However I did note the following text with particular interest?

 Although the instrument would provide a similar exemption for an additional 3 years, the following information is relevant:
(a)   for the reasons mentioned under the heading “Purpose”, MITDs continue to be unable to comply with materials flammability requirements contained in applicable airworthiness standards;
(b)   because of the COVID-19 pandemic, there is an increased need for aircraft to be able to carry MITDs for the transport of infectious patients;
©   CASA intends to amend Part 21 of CASR in a way that will avoid the need for ongoing exemptions of the same kind (see https://www.casa.gov.au/rules-and-regulations/changing-rules/rule-development-projects/project-cs-1312-post-implementation-review-casr-subparts-21m-and-21j-and-associated-part-21).

Hmm...my question is why stop there (part in bold)?? - 

MTF...P2 

[P7_TOM]

A lost ideal.

I wonder, dare we hope that this committee along with the DoIT have begun to reel in a long standing 'bug-bear' of the aviation fraternity – 'rule by exemption'. An exemption from a rule set held by one operator, gives an unfair advantage over the similar operator who cannot, for 'some' reason gain the same latitude.

An exemption also beggars the spirit and intent of a rule set. Should a rule need to have exemptions made, then it is reasonable to amend that rule to reflect the 'exemption' granted. There will be times when a 'one-off' is required, that is acceptable; but to have a fairly lengthy list of exemption granted to various (even selected)operators is fundamentally wrong.

One of the few 'good' things of the John McCormack tenure as DAS was his intention to be rid of 'exemption' and the imbalance they created. It would be a fine thing to put on the industry 'wish-list' for the new DAS to attend to. Of course a new rule set would; or should (in an ideal world) do away with the need to issue an exemption in all but the most unique of cases. Banged this drum many times – I know.

[Peetwo]

Delegated Legislation Monitors 2 of 2021

Ministerial responses  Committee correspondence

Part 138 (Aerial Work Operations) Manual of Standards 2020 [F2020L01402]

Principle (e) drafting
Seeking advice from the minister.

Dear McDonaught....L&Ks Connie - 

Dear Minister,


Part 138 (Aerial Work Operations) Manual of Standards 2020 [F2020L01402]

The Senate Standing Committee for the Scrutiny of Delegated Legislation (the committee) assesses all disallowable legislative instruments against scrutiny principles outlined in Senate  standing order 23. The committee has identified scrutiny concerns in relation to the above instrument, and the committee seeks your advice in relation to this matter.

Drafting

Senate standing order 23(3)(e) requires the committee to scrutinise each instrument as to whether its drafting is defective or unclear.

Part 138 (Aerial Work Operations) Manual of Standards 2020 [F2020L01402] (the instrument) provides for the operational, procedural and safety risk management standards in relation to aerial work operations for aeroplanes and rotorcraft.

Sections 3.01 and 5.02 appear to be incomplete and use the word 'reserved' to indicate parts of the sections for which the law has not yet been provided for in the instrument. In addition to  these specific sections, the word 'reserved' is also used as a placeholder for the entirety of Chapters 10, 19 and 20.

The instrument's explanatory statement explains that section 3.01 is reserved for future use. The explanatory statement also explains that provisions in Chapter 5 are reserved for future safety management systems rules, and that Chapters 10, 19 and 20 are reserved for future provisions that may be required.

The committee is particularly concerned that the use of the placeholder ‘reserved’ in sections 3.01 and 5.02 may create uncertainty about the law, and notes that the explanatory statement does not adequately address why it is necessary for the content of these sections to be completed at an unspecified later date.

In light of the above, the committee requests your advice as to:
• why it is considered necessary and appropriate for the substantive terms of the law in sections 3.01 and 5.02 to be provided at a later, unspecified date;

• why it is considered necessary and appropriate for Chapters 10, 19 and 20 of the instrument to be reserved in case they are needed for future provisions, and
• whether a clearer explanation for the approach can be set out in notes to the relevant provisions of the instrument.

The committee's expectation is to receive a response in time for it to consider and report on the instrument while it is still subject to disallowance. Noting that the 15th sitting day after the instrument was tabled in the Senate is 15 February 2021, the committee has resolved to give a notice of a motion to disallow the instrument on that day as a precautionary measure to allow additional time for the committee to consider information received.

Noting this, and to facilitate the committee's consideration of the matters above, the committee would appreciate your response by 18 February 2021.

Finally, please note that, in the interests of transparency, this correspondence and your response will be published on the committee's website.

If you have any questions or concerns, please contact the committee's secretariat on
(02) 6277 3066, or by email to sdlc.sen@aph.gov.au. Thank you for your assistance with this matter.

Yours sincerely,

Connie

   
- 

MTF...P2 

[Sandy Reith]

If it wasn’t so serious it would be funny. Sounds like Connie is not for conning, this is refreshing.

The playbook of CASA is being exposed, writing into it’s latest batch of extremely prescriptive rules the follow up make work program. CASA can’t help itself, thirty three years of impossibility, ever more fee garnering permissions to be embedded in more and more unworkable suites of regulatory gobbledygook is not only implicit, but actually foreshadowed.

They know no bounds because Parliament has abrogated it’s responsibility for aviation to an unelected independent monopoly corporate known as CASA.

[Peetwo]

DLM 4 & IPA - Regulatory Dark Matter?? 

Via the SSCDL webpages:

---

Link: https://www.aph.gov.au/-/media/Committee...902D823E7B

Page 26:

Part 138 (Aerial Work Operations) Manual of Standards 2020 [F2020L01402]

Principle (e) drafting

Seeking advice from the minister.

Notice of motion to disallow placed on 15/02/2021.

Note: To move 15 sitting days after 15/2/21 that the instrument be disallowed.

Next referring to the 'Additional Docs' page for the ongoing 'EXEMPTION OF DELEGATED LEGISLATION FROM PARLIAMENTARY OVERSIGHT' inquiry; I noted the following IPA paper: 

5  Institute of Public Affairs - 'Regulatory dark matter: How unaccountable regulators subvert democracy by imposing red tape without transparency,' Kurt Wallace (received 11 September 2020)

Hmm...some extracts that highlight parallels to our very own 'Law Unto Themselves' big R-regulator CASA...

Ref Exec Summary - pg 3:

..For the first time in Australia this report analyses and develops a methodology for
measuring a category of red tape that to date has been ignored. This category of
red tape is described as ‘regulatory dark matter’ which refers to publications by
government agencies that seek to influence the behaviour of regulated actors (such
as businesses) but lack adequate democratic oversight. These publications are not
necessarily bound by law, but nonetheless have a regulatory effect which results in a
greater red tape burden faced by individuals and businesses...

‘Regulatory dark matter’ is defined as “regulatory actions taken by departments and
agencies that are subject to little scrutiny or democratic accountability.” This broad
definition includes two commonly used categories in the Australian context: legislative
instruments and quasi-regulation. Regulatory dark matter, particularly quasi-regulation,
is also often referred to as “soft law” in the Australian context...

...For every page of enabling legislation passed by Parliament, there are another eight
pages of regulation imposed on the Australian economy by the regulatory state. This
8-to-1 ratio of “dark” to “light” regulation is a concerning aspect of the red tape
burden. While regulation passed by Parliament is subject to a transparent democratic
process, regulatory dark matter is being imposed by the regulatory state with little
democratic oversight...

..From these five agencies there are 75,976 pages of regulatory dark matter currently in place, including 19,011 pages of legislative instruments, while quasi-regulation (such as guidance material) added 56,965 pages. For purposes of comparison, regulatory dark matter is more than 52 times greater than Tolstoy’s famous War and Peace and eight times larger than the original enabling legislation for these agencies passed by Parliament...

Ref page 14:

..Although the Senate has a process by which they can disallow legislative instruments, 
in practice the scrutiny is highly delegated and does not adequately evaluate the 
economic impact of regulation. Quasi-regulation is further removed from the democratic
 process of accountability. Agencies are able to use various publications for regulatory
 purposes without going through the processes and checks involved in passing 
legislation or regulation.

When rules can be made and implemented by unelected bureaucrats there are
perverse incentives for regulatory expansion. The institutional structure allows
bureaucrats to expand the power and influence of their agency without direct
democratic accountability...

MTF...P2 

[Peetwo]

DLM 6 and the McDonaught (Iron Ring) response to threatened DM of Part 138 MOS??

Reference: 

DLM 6 links:

6 of 2021 
14 April 2021
Monitor
Ministerial responses
Committee correspondence

Plus:

DLM 4 & IPA - Regulatory Dark Matter?? 

Via the SSCDL webpages:

---

Link: https://www.aph.gov.au/-/media/Committee...902D823E7B

Page 26:

Part 138 (Aerial Work Operations) Manual of Standards 2020 [F2020L01402]

Principle (e) drafting

Seeking advice from the minister.

Notice of motion to disallow placed on 15/02/2021.

Note: To move 15 sitting days after 15/2/21 that the instrument be disallowed.

Apparently the committee was happy with the Mick Mack reply:

Concluded following response from minster on 14/03/2021.

Notice of motion to disallow placed on 15/02/2021.

The Minister for Infrastructure, Transport and Regional Development amended the explanatory statement to the instrument in response to the committee's scrutiny concerns.

Referring to the Miniscule responses link, I note that at page 20 McDonaught (Village Idiot), again reverts to form and defers to his 'experts' at CASA: 

"...(CASA) has provided the following answers to the questions posed by the Committee..."

 Hmm...and by deferring to the CASA Iron Ring he now automatically takes ownership of the biggest load of (Dr A scribed) legal gobbledygook your ever likely to lay eyes on...  :

---

---

 

---

UFB! - How could any sane and responsible aviation advisor allow a Minister of the Crown to regurgitate and simply tick&flick such bollocks as a formal response to a Senate Standing committee - 

Also from the DLM:

Page 12:

CASA EX16/21 — CASR Subpart 99.B DAMP Requirements for Foreign Air Transport AOC
Holders Exemption 2021 [F2021L00149]
Principle (d) adequacy of consultation
Principle (h) privacy: collection, use and disclosure of personal information
- Seeking advice from the agency.

---

Civil Aviation Order 95.55 (Exemption from provisions of the Civil Aviation Regulations 1988 — certain ultralight aeroplanes) Instrument 2021 [F2021L00073]
Principle (a) compliance with Legislation Act 2003 - incorporation
Principle (d) adequacy of consultation
Principle (i) availability of independent merits review
- Seeking advice from the agency.

From page 15:

Part 133 (Australian Air Transport Operations—Rotorcraft) Manual of Standards 2020 [F2020L01614]
Principle (a) compliance with Legislation Act 2003 - incorporation
- Seeking further advice from the agency.

Hmm...could we be up for some more comedic moments over the next couple of months?? 

MTF...P2 

[Peetwo]

DLM 7 of 2021 - 12 May 2021 (ref: https://www.aph.gov.au/-/media/Committee...6A689BB3A0 )

Point of interest under Appendix A - New Matters: 



Here is a link for the bollocks 79 page, 33196 word amendment: 

CIVIL AVIATION LEGISLATION AMENDMENT (FLIGHT OPERATIONS--CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS) REGULATIONS 2021 (F2021L00200)

Yawn -    - extract from the Explanatory Statement: 

EXPLANATORY STATEMENT

Issued by the authority of the Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development

Civil Aviation Legislation Amendment (Flight Operations - Consequential Amendments and Transitional Provisions) Regulations 2021

The Civil Aviation Act 1988 (the Act) establishes the regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.

Subsection 98(1) of the Act provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Subsection 98(1) also provides that the Governor-General may make regulations for the purpose of carrying out and giving effect to the provisions of the Convention on International Civil Aviation (the Chicago Convention) relating to aviation safety, and in relation to the safety of air navigation, being regulations with respect to any other matters to which the Parliament has power to make laws.

Subsection 9(1) of the Act specifies, in part, that the Civil Aviation Safety Authority (CASA) has the function of conducting the safety regulation of civil air operations in Australian territory by means that include developing and promulgating appropriate, clear and concise aviation safety standards and issuing certificates, licences, registrations and permits.

Parts 91, 119, 121, 133, 135 and 138 of the Civil Aviation Safety Regulations 1998 (CASR) were made on 6 December 2018. Parts 103, 105 and 131 of CASR were made on 12 December 2019. Related amendments to the CASR Dictionary were made in a separate regulation on 4 April 2019. Miscellaneous amendments to various CASR Parts were made on 1 October 2020. Collectively these Parts comprise the flight operations regulations (FOR). The FOR replace the old flight operations rules contained in the Civil Aviation Regulations 1988 (CAR) and Civil Aviation Orders (CAOs). The FOR regulate the safety of flight operations, including the rules by which all pilots operate aircraft and detailed requirements for the conduct of certain commercial and other operations.

The FOR do not in themselves contain a transition period. Except where CASA defers requirements as mentioned below, aircraft operators, pilots and other crew members are required to comply with the FOR on and from 2 December 2021.

The purpose of the Civil Aviation Legislation Amendment (Flight Operations - Consequential Amendments and Transitional Provisions) Regulations 2021 (the Regulations) is to provide for a smooth transition from the old rules to the FOR for operators, pilots, crew members and others. It does this primarily by:

*        making consequential amendments to CAR and CASR to:

o  repeal CAR provisions that are being replaced by the FOR

o  move the content of some CAR provisions and definitions that are being retained from the CAR into the CASR, and

o  update CAR and CASR provisions to refer to the new rules contained in, and concepts used by, the FOR;

*        making minor technical amendments to CAR and CASR provisions as necessary or appropriate to ensure the proper functioning of the regulations; and

*        amending Part 202 of CASR to insert transitional, application and savings provisions that provide for the transition from the old rules to the FOR.

UDB - 


MTF...P2 
   

[Peetwo]

Delegated Legislation Monitor - Monitor 8 of 2021: https://www.aph.gov.au/Parliamentary_Bus...on/Monitor

Extract in follow up to last post: (ref - DLM 8 page 30)






"Committee Secretariat considering (Dr Aleck) response.." - Hmm...I wonder if the Secretariat needs a hand with that consideration?? 



Also from the DLM 8: (pg 36-37)











In regards to these exemptions I note the following from Lead Balloon & co off the UP:



Ref: https://www.pprune.org/australia-new-zea...st11064067

Duck Pilot

Leadie, CASA will not issue exemptions against the new rules - I have tried however CASA will no longer entertain exemptions based on the recent feedback that I have received from CASA.

---

Lead Balloon

Originally Posted by [b]Duck Pilot[/b] 
Leadie, CASA will not issue exemptions against the new rules - I have tried however CASA will no longer entertain exemptions based on the recent feedback that I have received from CASA.

Just goes to show they’re living on another planet. The ‘new rules’ are shit and will require many exemptions to enable operations in the real world.

This looks very much like a very recent exemption against a new rule: https://www.legislation.gov.au/Details/F2021L00196.

As does this one: https://www.legislation.gov.au/Details/F2021L00532.

And this one as well: https://www.legislation.gov.au/Details/F2020L01248.

And most of the rest of the page of search results I have in front of me…

---

Car RAMROD

That was exactly the same with the fatigue rules.


But because so many operators were getting shafted, CASA now have a process to apply for minor variations to the prescriptive rules.

so, basically we are back to exemptions.

---

Lead Balloon

And let me guess: They’ve wangled it so that the “minor variations” don’t have to be published and tabled, so we won’t know who’s getting what?


Back to behind closed doors favouritism (which is exactly why CASA was made to publish and table exemptions in the first place).

---

Roj approved

In the webinar they said “just because one operator gets a Variation, doesn’t mean another doing the same work can have the same”.


So, as you say, CASA playing favourites again.

On the subject of delegated legislation and exemptions, I note the following was tabled in the Senate on the 1st sitting day this week (15th of June):

Civil Aviation Act 1988—Civil Aviation Safety Regulations 1998—
AD/JABIRU/4 Control Surface Hinge – Inspections [F2021L00589].
Flight Instructors and Part 141 Operators (Flight Training – Certain Solo
Cross-country Flights) Exemption 2021—CASA EX20/21 [F2021L00196]—
Replacement explanatory statement.
Operation of Aircraft with Defect Beyond Designated Rectification Interval
Exemption 2021—CASA EX55/21 [F2021L00630].
Part 61 Manual of Standards Amendment Instrument 2021 (No. 2)
[F2021L00588].
Part 66 Manual of Standards Amendment Instrument 2021 (No. 1)
[F2021L00568].
Prescription of Aircraft and Ratings — CASR Part 61 (Edition 8) Instrument 2021
[F2021L00622].
Repeal of Airworthiness Directive AD/CON/63 Amdt 2—CASA ADCX 006/21
[F2021L00600].
Repeal of Airworthiness Directive AD/JBK 117/25—CASA ADCX 005/21
[F2021L00599].
 

Hmm...remember this statement from the former DAS McCormick?? 




How things have changed...err NOT! 

Finally a point of interest from the SDL committee's inquiry into...

 Inquiry into exemption of delegated legislation from parliamentary oversight

...On 16 June 2021 the Senate is scheduled to consider the adoption of the three recommendations of the final inquiry report that were directed to the Senate. In summary, these recommendations are:

• that the Senate adopt a resolution emphasising the importance of disallowance and sunsetting of delegated legislation to parliamentary scrutiny (recommendation 8);
  
  
  
• that the Senate order the Attorney-General to table a statement setting out the rationale for specifying instruments as non-legislative, and the rationale for the exemptions from disallowance or sunsetting in Parts 2, 4 and 5 of the Legislation (Exemptions and Other Matters) Regulation 2015 (recommendation 9); and
  
  
  
• that the Senate agree to amend standing order 23 to clarify the committee’s scrutiny principles in relation to exemptions from sunsetting and instruments that amend or modify the operation of primary legislation (Henry VIII clauses), and to allow the committee to scrutinise instruments that are exempt from disallowance (recommendation 10).
  

Further information is available in the briefing note, which outlines the background to and nature of each of these recommendations and cites the relevant discussion in the final inquiry report.

Hmm, again.."the time has come the Walrus said"...

MTF...P2 

[Peetwo]

AMEN to AMENDING the AMENDMENT?? - 

Remember this?


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

It has taken nearly 4 years and a name change but it would appear that the penny has finally dropped inside of the
SCRUTINY OF DELEGATED LEGISLATION committee on the self-serving behemoth of regulations that CASA are needlessly (for zero safety benefit) inflicting on the hapless, already overburdened, GA industry. 

 Reference the latest DLM:

Monitor 9 of 2021.pdf Size: 271.08 KB  Downloads: 0

Civil Aviation Legislation Amendment (Flight Operations—Consequential Amendments and Transitional Provisions) Regulations 2021 [F2021L00200]

---

Principle (a) compliance with authorising legislation
Principle © conferral of discretionary powers
Principle (h) reverse evidential burden of proof
Principle (j) matters more appropriate for parliamentary enactment

---

Concluded following response from the agency on 08/06/2021.

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

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

Hmm...amending an amendment even before the regulation (Part 91) comes into effect, now that's gotta be a first for Dr Aleck?? - his legacy grows...    



MTF...P2 

[P7_TOM]

First principals Clarice.

Scrutiny of Delegated Legislation Committee and their important work. It probably seems unimportant to many, dry as dust to others and beyond the understanding of the mere mortals affected by 'the Rools'. But its not - it is a committee vital to rescuing aviation from not only an appalling set of rules, but also for releasing industry from 'fear' of taking on CASA in a court, or in the workplace.

Principle (a) compliance with authorising legislation

Principle © conferral of discretionary powers

Principle (h) reverse evidential burden of proof

Principle (j) matters more appropriate for parliamentary enactment

The principals stated above have IMO been severely compromised within the aviation Acts and operational law. There is no better example of this than the long list of ICAO differences on record. There is also just a whiff of outright disregard for the base tenets under which CASA authorised to operate.

Firstly, CASA are only empowered by the Commonwealth to 'administer' a rule set which complies with the ICAO - nothing else. That is the only 'brief' the Commonwealth can enforce. For many reasons consecutive governments and responsible ministers have failed to keep CASA 'honest'. Many reasons for this - few excuses, and a history which supports this as fact.

Discretionary powers - another area where liberties and a creeping take over have occurred. Bit by bit - this power has been abused. Parliament cannot possibly deal with every minor adjustment to aviation law; and, quite rightly - in principal - they should be able to rely on the 'administrator' to operate within their remit and trust in that notion. Cats away - what do you reckon the mice are doing?

Reverse evidential burden of proof. This is the one that gets me going - every time. It needs to be eradicated. This abomination has been slid in under the very nose of our parliamentarians; and, allowed to become the 'norm' due to shiftless, lazy, incompetent ministers. Time to revert to the 'Rule of Law' not the amplified, often hysterical haystack of words CASA use to retain fear and control.

"The legal principle placing the burden of proof on accusers rather than the accused can be traced back to Second and Third Century Roman jurist, Julius Paulus Prudentissimus. Yet, this ancient concept, which forms the legal and moral cornerstone of the American judicial system, is quickly being undermined in the name of 'national security."

The last principal is a delicate matter of balance and resource. It costs a small fortune to run the parliament and its fair to say that much aviation law, particularly of the ICAO type does not require a debate involving both houses. Once the 'principals' have been agreed - like compliance with ICAO - then the parliament should be able to sit back and rely on the administrator. That's where, for aviation at least, the wheel comes off and the cart collapses. What has occurred over the past decades is so far removed from parliaments good intentions and trust beggars belief.

But you may believe it - our hope must lay with the SDL committee - if they can return aviation law to ICAO compliance and first principals; they will have done very well for this land. So, fingers crossed then for our delivery from a power mad, out of control administration which is has slithered it's way beyond the reach of the law, parliament and the poor sod who has to rein them in. Make no mistake - someone has to draw a line and regain control.

Tout de suite and the tooter the sweeter.-

[thorn bird]

It has always seemed incongruous to me that Australia has always punched above its weight in its dealings with ICAO.
I have heard senior FAA officials mention that they would really prefer they did'nt but they do, or try to.

I wonder why Australia has expended so much treasure time and effort into ICAO?

They were there at the beginning, sat through all the development of policy and most notably ICAO SARPS that map out the framework for operational standards and practices in aviation regulation.

Along with most of the worlds regulators Australia contributed to the SARPS.

Yet here we are today at odds with what ICAO set out to do.

Seems we wasted an awful lot of money and time on that little exercise if we were going to go it alone in the first place.