[Peetwo]

Miniscule McDo'Naught WOFTAM amendment to the Civil Aviation Act -   

Senate thread reference:

A hopeful Hansard -  

Addendum to last:  Answer to QON addressed to Norton White at 15/02/19 Senate Spring Hill public hearing (see: https://www.aph.gov.au/DocumentStore.ash...d54d50078a )

Judicial decisions requiring urgent legislative attention

In this paper we outline:

• two judicial decisions that have, in the opinion of the aviation industry, had significant and
unintended consequences on air operators and require urgent legislative attention; and
• our recommendation as to how the Commonwealth Government can remedy the issues
created by these decisions.

1. Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2

---

This case concerned the prosecution of Outback Ballooning, a hot air balloon operator based in Alice
Springs, under sections 19 and 32 of the Work Health and Safety (National Uniform Legislation) Act (NT)
(the NT WHS Act).

A passenger was unfortunately killed when her scarf was caught in an inflation fan as she was boarding
the balloon. The NT Work Health Authority alleged that Outback Ballooning breached its duty of care
under the NT WHS Act through its failure to eliminate or minimise risks to embarking passengers.
The question before the High Court was whether or not the NT WHS Act was inconsistent with the
Commonwealth Civil Aviation Act 1988 (which imposes its own very specific regulatory regime
conformably with the Chicago Convention for the safety of air navigation) and therefore inapplicable.

The Court, by majority, found that sections 19 and 32 of the NT WHS Act are not inconsistent with the
Commonwealth civil aviation regime. The effect of this decision is that aircraft operators and airlines
are now subject to both:

• Commonwealth laws in relation to aviation safety; and
• State and Territory laws (including occupational health and safety laws).

Aviation safety worldwide depends on uniformity. This is recognised by the Chicago Convention,
which sets out international standards and practices for the safety of civil aviation. Australia is a
signatory to the Chicago Convention. The importance of international uniformity in safety standards
for civil aviation is recognised in the Commonwealth Civil Aviation Act, which by section 11 requires
that CASA perform its functions in a manner consistent with the Chicago Convention. The High Court
majority decision undermines Australia’s obligations pursuant to the Chicago Convention and also
uniformity of safety standards. State and Territory Workplace Safety Regulators, unlike CASA, are not
obliged by legislation to act in a manner consistent with the Chicago Convention.

The risk of subjecting air operators to a multitude of non-uniform laws was addressed by Justice
Edelman in dissent:

“…it would be surprising, confusing, and potentially dangerous if the Civil Aviation Law were
to have the effect that the rules of the air on a flight from Darwin to Melbourne, via Sydney,
could be regulated not merely by the comprehensive and uniform rules policed by the
Commonwealth Civil Aviation Safety Authority ("CASA"), but also, depending upon the
airspace, by separate and different rules policed by the Work Health Authority and its
inspectors in the Northern Territory, or regulators in New South Wales and Victoria.”

Justice Edelman argued that an exclusive civil aviation regime is necessary to achieve a uniform
national safety regime and rules of the air.

The decision is also likely to add to costs for air operators who will be required to comply with up to 9
sets of safety laws (that may not be consistent) and deal with safety regulators in each State and
Territory in addition to CASA. The maximum penalty for a corporation for a breach of workplace health
and safety legislation can be up to $1.8 million in Western Australia and $1.5 million in other States
and Territories.

Recommendation: As this is a decision of the High Court, it can only be rectified if the
Commonwealth Parliament amends the Civil Aviation Act 1988 (Cth) to include an express statement
of legislative intention that the Civil Aviation Act and its Regulations are intended to cover the field in
respect of the safety of civil aviation.

2. Civil Aviation Safety Authority v Caper Pty Ltd (2012) 207 FCR 357

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In Civil Aviation Safety Authority v Caper Pty Ltd, CASA cancelled Caper’s AOC on the basis that Caper
was providing regular passenger transport (RPT) when its AOC only permitted charter and aerial work
operations. Caper appealed to the Federal Court.

The case turned on the classification of air operations as either charter or RPT under regulation 206 of
the Civil Aviation Regulations 1988 (the Regulations):

• Charter operations are defined in regulation 206(b) as:

(i) the carriage of passengers or cargo for hire or reward to or from any place, other than
carriage in accordance with fixed schedules to and from fixed terminals;
(ii) the carriage, in accordance with fixed schedules to and from fixed terminals, of
passengers or cargo or passengers and cargo in circumstances in which the
accommodation in the aircraft is not available for use by persons generally.

• RPT operations are defined in regulation 206© as: transporting persons generally, or
transporting cargo for persons generally, for hire or reward in accordance with fixed schedules
to and from fixed terminals over specific routes with or without intermediate stopping places
between terminals.

Caper’s AOC authorised charter flights between Darwin and Bathurst Island. Caper had an
arrangement with a tourist operator (AAT Kings) who chartered Caper’s aircraft for AAT’s tours from
Darwin to Bathurst Island. Only people on the AAT tour were permitted to travel on the aircraft. The
flights operated to fixed schedules between fixed terminals and persons seeking transport on the
flights were referred by Caper to AAT. CASA cancelled Caper’s authorisation to conduct the flights on
the ground that the flights were, in reality, RPT flights and not charter flights.

The Federal Court looked at the concept of ‘closed charters’ in Regulation 206(b)(ii) and found that
the words ‘persons generally’ referred to the general public, so the test for a closed charter was
whether or not travel on the flight was offered to the public at large. In other words - if the flight was
available to the general public then it was an RPT operation.

The Court found that the Caper air operation was available to the general public because the
advertised offer of the flight, albeit bundled with the tour, was made to any member of the public who
wished to join the tour.

This decision had significant ramifications for the use of charter flights to access remote locations for
tourism flights as well as essential services such as regular medical appointments. It created confusion
over the classification of operations which had long been operated safely as charter flights. The fact
that these operations now required RPT authorisation meant that many could not meet the stringent
regulations governing RPT operations and had to withdraw flight services.

The distinction between charter and RPT operations will be removed from the Civil Aviation Safety
Regulations 1998 when the new Part 119 (which deals with the issuing of Air Operator’s Certificates
to Australian operators) and the suite of regulations that set the minimum acceptable standards for
large aeroplanes (Part 121) and small aeroplanes (Part 135) come into effect into effect in 2021. These
regulations include a new classification of operations as Air Transport Operations, dispensing with the
distinction between charter and RPT and creating a single standard for carriage of passengers and
cargo for hire or reward.

CASA has stated that the new regulations are intended to provide graduated requirements
proportionate to the risk.

Recommendation: It is critical that CASA consults and works closely with industry on the
development of the Manual of Standards for the new classification to:

• ensure appropriate levels of regulation apply to each type of flight operation; and
• avoid adverse impacts on air access to remote communities.

In light of the above Norton White recommendations it is a 'passing strange' coincidence that today our absolutely useless, NFI, non-identity miniscule McDo'Naught has seemingly rushed through a total wet lettuce amendment to the Act...  

 

5CIVIL AVIATION AMENDMENT BILL 2019

Mr McCormack (Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development), pursuant to notice, presented a Bill for an Act to amend the law relating to civil aviation, and for related purposes.

Document

Mr McCormack presented an explanatory memorandum to the bill.

Bill read a first time.


- 10:57:49 AM
Mr McCormack moved—That the bill be now read a second time.


- 11:00:36 AM
Debate adjourned (Ms O’Neil), and the resumption of the debate made an order of the day for the next sitting.

  

Reference link: https://parlinfo.aph.gov.au/parlInfo/sea...t:billhome

Overview of the Bill

The main object of the Civil Aviation Act 1988 is to establish a regulatory framework for
maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on
preventing aviation accidents and incidents.

Section 9A(1) of the Act instructs that in, exercising its powers and performing its functions,
the Civil Aviation Safety Authority (CASA) must regard the safety of air navigation as the
most important consideration. This bill does not affect the primacy of safety.

The Bill incorporates existing regulatory practice and certain guiding principles from
Australian Government’s Statement of Expectation issued to the CASA Board on 21 March
2017 into legislation. Subject to section 9A(1), the Bill proposes that in developing and
promulgating aviation safety standards, CASA must consider the economic and cost impact
on individuals, businesses and the community of such standards; and take into account the
differing risks associated with different industry sectors.

The Bill does not create any requirements on individuals or organisations.

Hmm...while he has the Act out on the table, perhaps the miniscule should be seriously considering the first Norton White recommendation (from above)?  

Recommendation: As this is a decision of the High Court, it can only be rectified if the
Commonwealth Parliament amends the Civil Aviation Act 1988 (Cth) to include an express statement
of legislative intention that the Civil Aviation Act and its Regulations are intended to cover the field in
respect of the safety of civil aviation.

- Just saying...P2