02-15-2019, 11:16 AM
Angel Flight embuggerance update: 15/02/19
In the HoR yesterday the Angel Flight Embuggerance legislative instrument was finally tabled:
Instrument link: https://www.legislation.gov.au/Details/F.../Html/Text
; & Explanatory Statement: https://www.legislation.gov.au/Details/F...ement/Text
Via the Shame or Fame for McCormack thread:
Via the AOPA Oz thread:
This brings me to the possibility of there being a disallowance motion; or being legally challenged through the Parliamentary processes - ref: https://www.aph.gov.au/About_Parliament/...dure/No_19
The disallowance process
The Act provides the framework for the standard disallowance regime, which is reflected in the standing orders. The key features are as follows:
![[Image: Brief-Guide-19_Disallowance.jpg?la=en]](https://www.aph.gov.au/~/media/05%20About%20Parliament/52%20Sen/Practice%20and%20Procedure/Brief%20Guides%20to%20Senate%20Procedure/Brief-Guide-19_Disallowance.jpg?la=en)
Also of interest from the above Parliamentary reference link are these sections:
4. Regulations and Ordinances Committee
This committee, established in 1932, scrutinises all instruments of delegated legislation to ensure that they:
5. Human Rights Committee
Statements of compatibility with human rights must be included in the explanatory statements for legislative instruments (s15J). The Joint Committee on Human Rights examines all instruments against seven specified international human rights conventions and reports its findings to both Houses. For further information, see the committee's web pages.
From the explanatory statement this is the blurb on the Human Rights (s15J) requirements:
[b]Statement of Compatibility with Human Rights[/b]
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
[b]CASA 09/19 — Civil Aviation (Community Service Flights — Conditions on Flight Crew Licences) Instrument 2019 [/b]
This legislative instrument is compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
[b]Overview of the legislative instrument[/b]
A community service flight is defined in the instrument as one that transports a person (the patient) for the purpose of receiving non-emergency medical treatment. There is no charge to a patient or persons accompanying the patient to provide support or assistance. The flights are coordinated, arranged or facilitated by an entity for a charitable or community service purpose.
Community service flights are conducted by volunteer pilots under conditions that can be challenging. Pilots can operate from a variety of unfamiliar locations in varying weather conditions with no organisational oversight or safety support from a certificated air operator.
CASA has assessed that community service flight operations have a higher risk of an accident or incident due to the existence of risk factors that are not usually present in baseline private operations. The purpose of the instrument is to mitigate this risk by placing conditions on flight crew licence holders that relate to requirements on the pilot (licence requirements, aeronautical experience, recency and medical fitness), operational and notification requirements and aircraft maintenance requirements.
In essence, the conditions introduce safety measures in relation to pilot licensing and medical fitness, aeronautical experience and recency of experience. The conditions also impose operational requirements and enhanced aircraft maintenance requirements for certain aircraft. Among other things, a pilot of a community service flight is required to submit a flight notification to Airservices Australia.
Human rights implications
The instrument engages the right to protection against arbitrary and unlawful interference with privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR).
Right to protection against arbitrary and unlawful interference with privacy
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, or to unlawful attacks on honour and reputation. It further provides that everyone has the right to the protection of the law against such interference or attacks.
Section 10 makes it a condition on a flight crew licence that the pilot must not pilot an aeroplane operated for a community service flight unless the pilot submits a flight notification that identifies the flight as a community service flight. A flight notification involves the provision to AA of the name of the pilot. Flight notification information is required for safety regulatory purposes so that the pilot of an aircraft can be identified if necessary. Flight notification information is also used for search and rescue and recovery operations in the event of an incident, and to investigate incidents.
Reasonableness, necessity and proportionality
The requirement to submit a flight notification involves activities of one or more of the collecting, recording and storing of personal information. This is reasonable as it relates to data and information that is required to promote the safety of persons on a community service flight for search and rescue purposes in the event of an incident. The flight notification requirement also upholds the integrity of the safety regulatory scheme that protects the individuals on a flight by ensuring that information is available about who is performing activities affecting safety and demonstrating that they are appropriately authorised.
There are no other sources of the information available that will adequately and efficiently serve the regulatory purposes.
The requirements are also proportionate as they operate to ensure the fulfilment of safety objectives which are required to ensure the protection and safety of the individuals on the flight, and seek only the minimum information to identify persons with safety-related responsibilities.
The protections afforded by the Privacy Act 1988 continue to apply.
To the extent that the instrument limits the privacy-related rights in Article 17 of the ICCPR, those limitations are reasonable, necessary and proportionate for safety purposes, consistent with the objects of the Act.
Conclusion
This legislative instrument is compatible with human rights and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to ensure the safety of aviation operations and to promote the integrity of the aviation safety system.
Civil Aviation Safety Authority
Not so sure about compliance with the Human Rights requirements, the CASA statement does seem somewhat contrived and cherry picked to suit a (their) purpose?? However the section under'Regulations and Ordinance Committee' I would of thought is of interest from a legal perspective?? Especially when you consider the bollocks and misleading statement under the sub-heading of 'consultation':
Rumour is that there is a small but growing conga line of concerned HoR independent pollies that are prepared to submit a motion for disallowance in next week's sitting of the House of Reps, so I guess there will be much MTF..P2
In the HoR yesterday the Angel Flight Embuggerance legislative instrument was finally tabled:
Quote:Title - Civil Aviation Act 1988—Civil Aviation Safety Regulations 1998—Civil Aviation (Community Service Flights - Conditions on Flight Crew Licences) Instrument 2019—CASA 09/19—F2019L00134
Source - House of Reps
Date - 14-02-2019
Parliament No.45
Tabled in House of Reps - 14-02-2019
Ref: https://parlinfo.aph.gov.au/parlInfo/sea...nt=Default
Instrument link: https://www.legislation.gov.au/Details/F.../Html/Text
; & Explanatory Statement: https://www.legislation.gov.au/Details/F...ement/Text
Quote:Purpose
The Civil Aviation Safety Authority (CASA) has assessed that community service flight operations have a higher risk of an accident or incident due to the existence of risk factors that are not usually present in baseline private operations. The purpose of the instrument is to mitigate this risk by placing conditions on flight crew licence holders conducting such operations that relate to requirements on the pilot (licence requirements, aeronautical experience, recency and medical fitness), operational and notification requirements and aircraft maintenance requirements.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR) and Civil Aviation Regulations 1988 (CAR).
Regulation 11.068 of CASR allows CASA, for subsection 98 (5A) of the Act, to issue a legislative instrument that imposes a condition relating to a matter mentioned in that subsection on a specified class of authorisations. Authorisations include flight crew licences, ratings and endorsements.
Overview of instrument
The main object of the Act 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.
Community service flights are non-emergency flights that primarily transport people to specialist medical treatment and are coordinated, arranged or facilitated by an entity for a charitable purpose or community service purpose. These flights are conducted by volunteer pilots under conditions that can be challenging. Pilots can operate from a variety of unfamiliar locations in varying weather conditions with no organisational oversight or safety support from a certificated air operator. Pilots conducting such operations might become subject to self-induced pressure to start or complete a flight because of a passenger’s medical condition.
The lack of organisational safety risk mitigators and the reliance on individual pilot assessments regarding a pilot’s acceptance of a volunteer flight, and the flight’s commencement or continuance, results in an increased need for pilots in command to be experienced and operationally recent. CASA has assessed that persons travelling on aircraft conducting community service flights are subject to flight operations of increased risk compared to charter or regular public transport flights. Although such persons are informed that these flights are not charter or regular passenger transport flights, there remains doubt regarding whether a non-aviation professional adequately understands the specific risks posed by this kind of operation.
Since 2011, community service flight accidents have resulted in 6 fatalities. To take account of the elevated risks, CASA considers it is appropriate to establish a regulatory baseline that provides clarity regarding an appropriate minimum safety standard. The instrument is intended to introduce reasonable and proportionate additional safety measures.
The instrument places conditions on the licences of flight crew members that conduct community service flights. The conditions introduce safety measures in relation to pilot licensing, medical fitness, and aeronautical experience. Operational requirements include that community service flights at night must be conducted using instrument instead of visual procedures. A community service flight can only be conducted in an aeroplane, and aeroplanes with a lower standard of airworthiness are excluded. There are also enhanced maintenance requirements for some aircraft.
Via the Shame or Fame for McCormack thread:
(02-12-2019, 09:11 PM)Gobbledock Wrote: CAsA NON-COMPLIANT WITH THE MINISTERS STATEMENT OF EXPECTATIONS
The CAsA v Angel Flight issue can no longer be swept under the carpet. The CAsA DAS and Board have failed to deliver on the Ministers SOE, a very serious and legal non-compliance.
I have copied this directly from Miniscule Chester, his Statement of Expectations for the Board of the Civil Aviation Safety Authority for the Period 27 March 2017 to 30 June 2019, and I am highlighting these sections;
1. “I also expect the Board to facilitate effective interaction between CASA and the industry”. As Ben Morgan succinctly pointed out - FAIL
2. “CASA consider the economic and cost impact on individuals, businesses and the community in the development and finalisation of new or amended regulatory changes” - FAIL
3. “CASA undertake effective and ongoing engagement with the aviation industry to create a collaborative relationship between CASA and industry based on a foundation of mutual understanding and respect” - FAIL
The CAsA DAS, Board Chair and current Minister for Infrastructure must be removed immediately!!!!!
Via the AOPA Oz thread:
(02-14-2019, 07:02 AM)Peetwo Wrote: Via the ABC News yesterday: https://www.abc.net.au/news/2019-02-13/s...e/10799654
...Disallowance still possible in Federal Parliament
Today's announcement is not a change of regulation.
CASA said it was a "licence condition" of the sort for pilots volunteering to fly medical patients.
The changes will come into effect on March 19 but must also follow an approval process through both houses of Federal Parliament.
If any MP raises a motion of disallowance against it, a debate and vote will be brought on which would decide whether the new conditions would continue.
So far, Queensland MPs Bob Katter and Lachlan Millar have voiced their concerns over the new standards...
This brings me to the possibility of there being a disallowance motion; or being legally challenged through the Parliamentary processes - ref: https://www.aph.gov.au/About_Parliament/...dure/No_19
The disallowance process
The Act provides the framework for the standard disallowance regime, which is reflected in the standing orders. The key features are as follows:
- within 15 sitting days after tabling a senator or member of the House of Representatives [but in practice usually the former] may give notice of a motion to disallow the instrument (in whole or in part) (s42);
- if the motion is agreed to, the instrument is disallowed and it then ceases to have effect;
- if a notice of motion to disallow the instrument has not been resolved or withdrawn within 15 sitting days after having been given, the instrument is deemed to have been disallowed and it ceases to have effect;
- disallowance has the effect of repealing the instrument – if the instrument repealed all or part of an earlier instrument then disallowance also has the effect of reviving that part of the earlier instrument;
- an instrument 'the same in substance' cannot be made again (s46–48):
- within 7 days after tabling (or, if the instrument has not been tabled, within 7 days after the last day on which it could have been tabled) (unless both Houses approve);
- while it is subject to an unresolved notice of disallowance; and
- within 6 months after being disallowed (without the approval of the House that disallowed the regulation).
- within 7 days after tabling (or, if the instrument has not been tabled, within 7 days after the last day on which it could have been tabled) (unless both Houses approve);
Also of interest from the above Parliamentary reference link are these sections:
4. Regulations and Ordinances Committee
This committee, established in 1932, scrutinises all instruments of delegated legislation to ensure that they:
- are made in accordance with the enabling Act, the Legislation Act and other applicable Acts;
- do not trespass unduly on personal rights and liberties;
- do not make rights and liberties of citizens unduly dependent on administrative decisions that are not subject to independent merits review;
- do not contain matter more appropriate for an Act of Parliament.
5. Human Rights Committee
Statements of compatibility with human rights must be included in the explanatory statements for legislative instruments (s15J). The Joint Committee on Human Rights examines all instruments against seven specified international human rights conventions and reports its findings to both Houses. For further information, see the committee's web pages.
From the explanatory statement this is the blurb on the Human Rights (s15J) requirements:
[b]Statement of Compatibility with Human Rights[/b]
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
[b]CASA 09/19 — Civil Aviation (Community Service Flights — Conditions on Flight Crew Licences) Instrument 2019 [/b]
This legislative instrument is compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
[b]Overview of the legislative instrument[/b]
A community service flight is defined in the instrument as one that transports a person (the patient) for the purpose of receiving non-emergency medical treatment. There is no charge to a patient or persons accompanying the patient to provide support or assistance. The flights are coordinated, arranged or facilitated by an entity for a charitable or community service purpose.
Community service flights are conducted by volunteer pilots under conditions that can be challenging. Pilots can operate from a variety of unfamiliar locations in varying weather conditions with no organisational oversight or safety support from a certificated air operator.
CASA has assessed that community service flight operations have a higher risk of an accident or incident due to the existence of risk factors that are not usually present in baseline private operations. The purpose of the instrument is to mitigate this risk by placing conditions on flight crew licence holders that relate to requirements on the pilot (licence requirements, aeronautical experience, recency and medical fitness), operational and notification requirements and aircraft maintenance requirements.
In essence, the conditions introduce safety measures in relation to pilot licensing and medical fitness, aeronautical experience and recency of experience. The conditions also impose operational requirements and enhanced aircraft maintenance requirements for certain aircraft. Among other things, a pilot of a community service flight is required to submit a flight notification to Airservices Australia.
Human rights implications
The instrument engages the right to protection against arbitrary and unlawful interference with privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR).
Right to protection against arbitrary and unlawful interference with privacy
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, or to unlawful attacks on honour and reputation. It further provides that everyone has the right to the protection of the law against such interference or attacks.
Section 10 makes it a condition on a flight crew licence that the pilot must not pilot an aeroplane operated for a community service flight unless the pilot submits a flight notification that identifies the flight as a community service flight. A flight notification involves the provision to AA of the name of the pilot. Flight notification information is required for safety regulatory purposes so that the pilot of an aircraft can be identified if necessary. Flight notification information is also used for search and rescue and recovery operations in the event of an incident, and to investigate incidents.
Reasonableness, necessity and proportionality
The requirement to submit a flight notification involves activities of one or more of the collecting, recording and storing of personal information. This is reasonable as it relates to data and information that is required to promote the safety of persons on a community service flight for search and rescue purposes in the event of an incident. The flight notification requirement also upholds the integrity of the safety regulatory scheme that protects the individuals on a flight by ensuring that information is available about who is performing activities affecting safety and demonstrating that they are appropriately authorised.
There are no other sources of the information available that will adequately and efficiently serve the regulatory purposes.
The requirements are also proportionate as they operate to ensure the fulfilment of safety objectives which are required to ensure the protection and safety of the individuals on the flight, and seek only the minimum information to identify persons with safety-related responsibilities.
The protections afforded by the Privacy Act 1988 continue to apply.
To the extent that the instrument limits the privacy-related rights in Article 17 of the ICCPR, those limitations are reasonable, necessary and proportionate for safety purposes, consistent with the objects of the Act.
Conclusion
This legislative instrument is compatible with human rights and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to ensure the safety of aviation operations and to promote the integrity of the aviation safety system.
Civil Aviation Safety Authority
Not so sure about compliance with the Human Rights requirements, the CASA statement does seem somewhat contrived and cherry picked to suit a (their) purpose?? However the section under'Regulations and Ordinance Committee' I would of thought is of interest from a legal perspective?? Especially when you consider the bollocks and misleading statement under the sub-heading of 'consultation':
Quote:Consultation
CASA published a Discussion Paper in December 2014 that sought responses from the aviation community and public to assist CASA in its consideration of non-regulatory and regulatory options for enhancing the safety of community service flights. CASA did not proceed to publish a Notice of Proposed Rulemaking at that time, but decided to continue to monitor the operation of community service flights.
Formal consultations on a draft of the instrument were conducted by CASA from 18 December 2018 through to 31 January 2019. CASA received 233 responses from this consultation. All comments were read and assessed to determine areas of agreement and disagreement with the draft proposal, and the justifications provided for changes to the draft. This feedback highlighted that the proposal as consulted did not in all cases reflect requirements that were necessary, proportionate and cost-effective to mitigate the risks presented by the conduct of community service flights as private operations.
In response to the feedback CASA made significant modifications to its proposal in relation to the kinds of aeroplanes that may be used to conduct a community service flight, multi‑engine aeroplane pilot experience requirements and aircraft maintenance requirements. With respect to the latter, the proposal that aeroplane engines must be maintained in accordance with the standards applicable in commercial charter operations was removed. Other changes intended to improve and clarify the intent of the instrument were also made. CASA has also published a Summary of Consultation document that identifies and categorises the comments received, and how CASA has responded to these.
Rumour is that there is a small but growing conga line of concerned HoR independent pollies that are prepared to submit a motion for disallowance in next week's sitting of the House of Reps, so I guess there will be much MTF..P2