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A long one for a Sunday read.

Apologies for the long post. I am endeavouring to trace the origins of the why’s and wherefore’s of how Australia ended up with the dogs breakfast of regulation we are dealing with today and how we got so out of step with the rest of the world. I felt I needed to go back to the origins to seek some insight. Still researching part 2 hopefully have it ready for next Sunday

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A Short History of Australian Aviation Regulatory Development PART 1

On the 17th of December 1903, Orville and Wilbur Wright, got it right and are credited with making the first controlled, sustained flight of a powered, heavier-than-air aircraft they designed and built themselves.  Though many others were attempting to achieve the same goal, the Wright brother’s invention of the three axis control system, enabling a pilot to steer the aircraft effectively and maintain its equilibrium, was the key to success, which remains the standard on all fixed wing aircraft to this day.

Their day job, while fiddling about with a homemade wind tunnel to devise more efficient wings and propellers, was manufacturing and flogging bicycles. Humble men from humble beginnings, their dad was a bishop, hence their nickname “the Bishop’s Boys, they had a passion for the enigma of flight.

Little did they know that their “Fiddling about” but in reality a highly structured process, would set in motion what lead to the biggest single industry in the world today. Their invention process remains exactly the same process used by NASA engineers today to solve problems. They also did not know that their invention would set in motion what has become the most heavily regulated industry in the world.

The Wright brothers worked in a vacuum of regulation; they were free to pursue their dream without bureaucratic interference or impediment, in today’s incredibly regulated world of aviation one wonders if they would ever have got off the ground.

Less than 7 years after the Wright Brothers first tentative flight, moves began to regulate Aviation in Europe. In the USA aviation went largely unregulated until 1925 but in contrast to Europe and the Commonwealth countries where aviation regulation was seen as the responsibility of the Defence Departments, US regulations were to a large part civilian in origin.

In Australia there was some talk about regulation mainly from a defence point of view, but nothing was done until the outbreak of war in 1914. The defence act was amended to give the defence department the power to require all aircraft to be registered and restricted flight over certain areas, this power however lapsed at the end of the war.

Australia’s first Commonwealth Aviation legislation was enacted in 1920. Based mainly on a British model. The Australian regulations were placed under the Defence Act, administered by the Department of Defence.  It was quite simple in appearance doing little more than mirroring matters decided at the Paris ‘International convention for the regulation of Aerial navigation’ in 1919.

As most people are aware, there was intense opposition by Australian states to any encroachment by the Commonwealth on what was considered States rights.

Up until federation in 1901 the ‘Colonies’ were essentially separate countries.

Constitutionally there were all sorts of impediments to the Commonwealth powers to legislate. After The Commonwealth Air navigation act 1920 came into force, it was expected that the States would pass complimentary legislation.

The States were however somewhat tardy only Tasmania passed and proclaimed legislation exactly as envisioned, the rest with a hodgepodge of variation to avoid any inference that might increase the Commonwealths powers.

The Commonwealth forged ahead assuming it had full power over civil aviation and formed a civil aviation Authority as a branch of the Department of defence.

Given the European experience of world war one those responsible for defence paid very close attention to civil aviation policies to ensure defence matters held precedence over civilian matters.

So began Australia’s aviation existence in a regulated aviation environment and almost immediately criticism began, mainly through editorials in the ‘Aircraft’ magazine and  from the newly forming aero clubs.

Through the twenties we saw the era of ‘those magnificent men in their flying machines’, pushing boundaries by undertaking “record breaking flights’ which spawned many of our aviation hero’s, while the Civil Aviation branch did their best to prevent them.

Through the thirties the Authority was often criticised as having a too restrictive nature. Also, as new landing grounds were established, the authorities connection with defence saw many of them taken over by the Air force with attendant restrictions on air space. Even today huge swaths of airspace in Australia, under the control of the military are restricted for civilian use.

The States were also not happy bunnies in respect to aviation development. The growth of air services was competing against State owned rail services for passengers and mail, resulting in some cases to state intervention in an endeavour to restrict air services.

By the mid thirties, unease within the aviation community and the press regarding defence controlling aviation grew. The general consensus was that the strict discipline and secrecy attached to defence matters was having a detrimental affect on aviation development. It could be said that same military ethos resides within today’s regulator.

An attempt was made in 1936 to mitigate the growing discontent by appointing a board, the head of which would report directly with the minister, still the minister for defence, so the same constraints of operating within the defence department remained.

A constitutional challenge regarding Commonwealth power to legislate aviation was made in a court case. It was agued that after passing the Air Navigation Act in 1920 the states had been expected to pass complementary Acts handing the agreed aviation regulation powers to the commonwealth. The court case was heard in NSW, which had passed no such legislation so the charges against the defendant were deemed invalid, the offence occurred in NSW.

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The case ended up in the High court, who ruled that the 1920 legislation was a valid exercise in External affairs power of the constitution but as the regulations were in conflict with the 1919 Paris convention, on which they were supposedly based and were in fact in conflict with the fundamental principles of the convention displaying a rather wide departure from its purpose, they were ruled as invalid.

The government immediately hurried to amend the Air Navigation Act and new regulations came into force in November 1936. They were limited to controlling aviation only in areas which the Commonwealth was constitutionally competent to legislate, at the same time a referendum bill was introduced for a constitutional change to refer power over control of Civil aviation to the Commonwealth.

The referendum held in 1937 failed to gain a majority thus limiting Commonwealth powers over intrastate air navigation. The States were then left with having to enact legislation and administration of their own, a rather the costly option.

A conference was called between the Commonwealth and the States and it was agreed to produce a code of uniform regulations. The Commonwealth was given the task of drafting the legislation. All existing regulations were to be consolidated into one set of regulations. The commonwealth was limited to policing international matters. The States enacted the “Uniform Air navigation Acts of 1937-38 and the legal control adopted in 1937 between the Commonwealth and the States in so far as it related to safety continued without substantial change until 1963. Notwithstanding, for several decades after, there were continued constitutional issues that affected the control of aviation.

As so often happens, about the same time, a crash of a DC2 Kyeema and public outcry triggered an enquiry that was very critical of the CAA and rather embarrassing for the government. This resulted in the establishment of the Department of Civil Aviation, (DCA) completely independent of the Department of defence.  A new portfolio was established with a minister for works and civil Aviation. This significantly raised the status of civil aviation and a new era for regulation.

It should be noted that the many staff of the CAA transferred to the new DCA and brought with them the same Authoritarian and secretive Ethos. The military remained the primary source for employees for DCA, which continued until the mid 1980ies.

The Kyeema crash enquiry also highlighted the difficulties faced by the old board in its dealings with government. The CAA needed a suitable aircraft to flight test newly installed radio navigation aids. The government policy, a holdover from colonial days limited the choice of aircraft to British only manufactured. At the time Britain produced nothing that would suit, the Americans did however.
While government stuck tenaciously to its ethos of “Empire first and foremost”, radio navigation aids continued to be installed but un-flight tested, essentially they were unusable.

The ‘Must buy British’ policy remained right into the 1960ies. Which to a certain extent left Australia a tad spoiled for choice as the USA was powering ahead with civil aviation development while Great Britain struggled to keep up.

The end of the Second World War set the stage for a rapid expansion in civil aviation. The war had spawned tremendous advances in technology and aircraft design. There was also a considerable pool of trained pilots engineers and other technicians available for peacetime aviation.

In America, domestic aviation had been largely untouched by the war, however in Great Britain their passenger services had been totally disrupted which severely impeded their development of civil aircraft. The USA emerged from the conflict as the strongest aviation power in the world.

As the war came to its conclusion the question of Freedom of the air against airspace sovereignty was a question at the forefront of allied countries minds.

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The US took the lead in 1944 by inviting delegates from 55 allied and neutral nations to meet in Chicago to discuss these issues.

That meeting was known as the Chicago Convention. Amongst agreement on five freedoms of the air from a traffic rights point of view, it also gave birth to what we know today as ICAO  ‘The International Civil Aviation Organisation’, which became an agency of the United Nations in 1947, and thereafter set the agenda for a worldwide common set of standards for all technical and operational aspects of civil Aviation with the objective of safety in the air.

ICAO in effect became the regulatory authority for most of the world’s civil aviation. Its Achilles heel however was that it lacked enforcement powers. Any signature State could opt out of any ICAO ‘standard’ requirement by notifying ICAO of differences.

It is interesting to note that Australia had a quite large presence at the Chicago conference and embarrassingly, perhaps influenced by the socialist bent of its current government, put forward that there should be international ownership and operation of International transport. This notion was overwhelmingly voted down, as it was in effect the exact opposite of the general freedoms of international flight the conference was trying to achieve.

I wonder if this was the antithesis of  our regulators ‘All the rest of the world is wrong, only we are right’ attitude?

Perhaps the most important safety functions of ICAO, in an endeavour to attempt some form of standardisation across the aviation world, was to develop practices and procedures concerning the safety, regularity and efficiency of air navigation. Known as SARPS (Standards and recommended practices) they are contained in 18 annexes to the Chicago convention.

All member states were widely consulted and encouraged to express their opinions during the development and the continuing development of the SARPS. Australia was heavily involved in this process.

SARPS contain all operational and technical aspects of aviation and provide the road map for the safe development of civil aviation. That should have lead to a standardised system of regulation across the world, where each member state could be confident in the others level of oversight and standards, where recognition of each other’s certification and licencing could improve efficiencies and regulatory cost burdens.

The irony of SARPS, given they are constructed from contributions of leading experts from around the world, in much the same way as jealousy between the Australian States and the commonwealth government lead to much confusion in regulatory matters, Sovereignty issues between countries impedes the standardisation  ICAO was meant to achieve.

Unfortunately without enforcement powers each state still went their own way to a large extent, the common theme around the world  “Our standard is much higher than anyone else” prevails, for example, the world cannot even agree on a common medical standard for pilots, which for multiple licence holders amongst the pilot fraternity, renewal each year can be a very costly exercise.

Australia is very high on the world list of differences notification to ICAO.

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Reference link for latest Australian notified differences to ICAO SARPs :…19-h37.pdf

The following excerpts illustrate the ICAO philosophy behind the SARPS:

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Article 37

Adoption of international standards and procedures 

Each contracting State undertakes to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation. 

To this end the International Civil Aviation Organization shall adopt and amend from time to time, as may be necessary, 
International standards and recommended practices and procedures dealing with: 

a) Communications systems and air navigation aids, including ground marking; 
b) Characteristics of airports and landing areas; 
c) Rules of the air and air traffic control practices; 
d) Licensing of operating and mechanical personnel; 
e) Airworthiness of aircraft;
f) Registration and identification of aircraft; 
g) Collection and information; exchange of meteorological information
h) Log books;
i) Aeronautical maps and charts;
j) Customs and immigration procedures;
k) Aircraft in distress and investigation of accidents; 
and such other matters concerned with the safety, regularity, and efficiency of air navigation as may from time to time appear appropriate. 

About ICAO

The International Civil Aviation Organization (ICAO) is a UN specialized agency, established by States in 1944 to manage the administration and governance of the Convention on International Civil Aviation (Chicago Convention).

ICAO works with the Convention’s 193 Member States and industry groups to reach consensus on international civil aviation Standards and Recommended Practices (SARPs) and policies in support of a safe, efficient, secure, economically sustainable and environmentally responsible civil aviation sector. These SARPs and policies are used by ICAO Member States to ensure that their local civil aviation operations and regulations conform to global norms, which in turn permits more than 100,000 daily flights in aviation’s global network to operate safely and reliably in every region of the world.

In addition to its core work resolving consensus-driven international SARPs and policies among its Member States and industry, and among many other priorities and programmes, ICAO also coordinates assistance and capacity building for States in support of numerous aviation development objectives; produces global plans to coordinate multilateral strategic progress for safety and air navigation; monitors and reports on numerous air transport sector performance metrics; and audits States’ civil aviation oversight capabilities in the areas of safety and security.

Why are Standards Necessary?

Civil aviation is a powerful force for progress in our modern global society. A healthy and growing air transport system creates and supports millions of jobs worldwide. It forms part of the economic lifeline of many countries. It is a catalyst for travel and tourism, the world’s largest industry. Beyond economics, air transport enriches the social and cultural fabric of society and contributes to the attainment of peace and prosperity throughout the world.

Twenty four hours a day, 365 days of the year, an aeroplane takes off or lands every few seconds somewhere on the face of the earth. Every one of these flights is handled in the same, uniform manner, whether by air traffic control, airport authorities or pilots at the controls of their aircraft. Behind the scenes are millions of employees involved in manufacturing, maintenance and monitoring of the products and services required in the never-ending cycle of flights. In fact, modern aviation is one of the most complex systems of interaction between human beings and machines ever created.

This clock-work precision in procedures and systems is made possible by the existence of universally accepted standards known as Standards and Recommended Practices, or SARPs. SARPs cover all technical and operational aspects of international civil aviation, such as safety, personnel licensing, operation of aircraft, aerodromes, air traffic services, accident investigation and the environment. Without SARPs, our aviation system would be at best chaotic and at worst unsafe.

P2 comment: Thorny to the rescue –   Rolleyes 

AP followers may have gathered by now that this week’s SBG has gone MIA??? This is due to the fact that our EAL (P9 – aka Kharon) has also gone MIA??? 

Rumours currently running are that “K” is either sunning his ass in some Caribbean backwater, or he has ass firmly strapped to some 50 year old piston twin somewhere in the Never..Never?? 

Fortunately Aunty Pru has made it mandatory for all river Styx Ferry crew members to have an EPIRB chip inserted into their posteriors. Therefore it is only a matter of a satellite pass (or two) before we eventually track down our wayward MIA K –  Rolleyes 

In the meantime Thorny has been doing some research on the origins of the mystique of aviation safety that is embuggering the General Aviation industry as we currently know it – Part II to follow…  Wink