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Old 7th Feb 2014, 05:43
  #308 (permalink)  
Join Date: Apr 2007
Location: Go west young man
Posts: 1,732
TASRR (WLR) & the legal perspective...??

Have been reliably informed that there is a number of submissions, some requested by the panel themselves, from some very heavy hitters in the Aviation legal fraternity. Here is a couple of publicly available submissions that I have been able to find thus far...:

Submission of the Australian Lawyers Alliance

In brief, the Australian Lawyers Alliance recommended that the Panel should advise Government that:

1. Guidance material on CASA’s enforcement policy which guides CASA decision makers should be legally binding and itself enforceable under an Ombudsman-type arrangement akin to the Aircraft Noise Ombudsman.
2. Strict adherence to AAT expert evidence guidelines and procedural rules be demanded of all litigants in aviation administrative matters (both CASA and represented applicants).
3. Australia’s fatigue risk management system rules should be further developed by CASA in light of the merits of the US FAA approach which came into effect on 14 January 2014.
4. Australian aviation drug and alcohol management (DAMP) policy should be clarified by adding an “Objects” section to either Part 99 of the Civil Aviation Safety Regulations 1998 (Cth), or Part IV of the Civil Aviation Act 1988 (Cth), to reflect Parliament’s intention that DAMP rules operate to minimise harm in aviation, not punish.
5. In light of the Pel-Air and Transair air disasters, Australia should update its State Safety Program in recognition and reflection of Australia’s adherence to safety management standards set out in Annex 19 to the Chicago Convention which entered force on 14 November 2013, to assure the public of confidence in future regulator oversight and surveillance of operators.
6. CASA should undertake as a priority, a review of the need for regulations on cockpit automation and adapt and implement relevant recommendations of the FAA in its comprehensive September 2013 report on this subject including, in particular, a proposed requirement for Australian AOC holders to create explicit flight path management policies.
And from a solely victims perspective..:

Shine Lawyers submission
In turn, Shine Lawyers recommended to the ASRR Panel that it should advise the Government to:

1. Extend the concession Commonwealth employees travelling on Commonwealth business enjoy under Part III of the Air Accidents (Commonwealth Government Liability) Act 1963 (Cth) (AACL Act) to all Australians, or repeal Part III of the AACL Act; or
2. Review the AACL Act’s consistency with the policy behind the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (CACL Act), and update the AACL Act to reflect its original intent as expressed by Parliament in 1963; and
3. Remove all references to the term “personal injury” in s.12 of the AACL Act (or return that term to the wording of the CACL Act for consistency); and
4. Legislate for the imposition of adherence to the IATA (or some other suitable) intercarrier agreement as a condition for non-Australian airlines which service Australia (as recommended at Preliminary Finding 4 of the 2009 DOIRD Discussion Paper).
Just can't go past supplying a couple of cherry picked quotes from the ALA submission...

On Fort Fumble in the AAT:
"...Anecdotally, confidence in decision making by CASA is at an all-time low. Furthermore, there have been several indications from Administrative Appeals Tribunal (AAT) members indicating that the AAT has been the (erroneous) venue for criticisms of CASA’s investigative or decision making processes.20 Unless an independent alternative forum for such critique is available, Tribunal resources and CASA resources will be wasted in the pacification of litigants who claim misfeasance or similar civil wrongs, and/or decide to use particular decisions of CASA as springboards to attack CASA policies. This assists no-one.

It is recommended that the decision making processes and considerations outlined therein be reduced into a legislative instrument to ensure accountability by CASA decision makers as a matter of right, and that this oversight be the responsibility of an independently established Ombudsman in the vein of the Aircraft Noise Ombudsman (ANO).

We submit that the EM is so precise that it lends itself to independent oversight for contravention. This would reassure aviation stakeholders that potentially incorrect or “not preferable” decisions would not just be reviewable in the case of individually affected or aggrieved stakeholders, by virtue of an application to the Administrative Appeals Tribunal (AAT).

Thus, independent oversight as proposed here is not intended to supplant proper access to administrative review in the AAT. Rather, the mechanism proposed below or any variation of it, has the capacity to reduce costly litigation in the AAT and Federal Court which can sometimes be motived by allegations of erroneous or misapprehended decision making, to a forum of its own, where compliance by CASA officers with the EM can be addressed practically and openly to ensure future adherence with the policies underpinning it...

"...3. In our opinion the CASA Industry Complaints Commissioner is not a suitable entity for such oversight, given its strictly limited and dissimilar roles under its own Terms of Reference.22 Rather the oversight of regulatory decision making should lie with an entity which is particularly charged with the singular and unfettered role of examining regulatory decision making by reference to CASA’s own policy, and setting suitable penalties for noncompliance in instances where the policy has not been adhered to…"

On Fort Fumble MLR obligations:
"...A matter which has bolstered aviation operators’ lack of confidence in administrative decision making, which criticism has been relayed to the ALA, together with our own examination of decisions on CASA decisions reaching the AAT, results in the identification of a further issue which should be considered by the Panel.

The AAT recently set aside the decision of CASA to cancel the medical certificates of a Queensland commercial pilot who was alleged to have no longer met medical standards after suffering an attack while out with friends in March 2013: Daniel Bolton and Civil Aviation Safety Authority [2013] AATA 941 (23 December 2013).In this decision what is remarkable is that this conclusion could have been jeopardised by seemingly minor procedural omissions by the representatives of the parties who were prosecuting the action…"

“…The relevant CASA surveillance which resulted in the requests for corrective action predated the existing FRMS requirements, but post-dated the commencement of CASA’s original Civil Aviation Order 48.1 which prescribes duty flight time limitations.36 This means that minimum rest time for pilots was set by CAO 48.1 and not strictly the subject of a formal risk management system as it might be argued might now applies to such an operator. The issue then becomes less one of FRMS per se, but one of FRM regulatory oversight. Is a prescribed duty time limit easier to enforce and better than a FRMS which leaves such decisions to pilots and operators in the high demand environment of commercial aviation?...

…In our submission the criticism for the Panel to note is that the FRMS rules now applicable by virtue of the commencement of the Civil Aviation Order 48.1 Instrument 2013 (No. 1)38 on 30 April 2013 are not only subject to major contrary views but this view was acted upon by a motion to disallow in the Senate which lapsed when the Parliament was prorogued on 5 August 2013 prior to the Federal Election. Since that time, and following the opening of submissions to the present ASRR, a second motion to disallow was made, and is presently pending for resolution in the Senate by 24 March 2014. These indications of public discontent must not be forgotten in determining a way forward for resolving the debate on flight time limitations…”

On systemic oversight beyond LHR..:
“…No submission to a review of aviation safety regulation would be complete without addressing the regulatory safety factors identified by the ATSB in its investigation report of Australia’s worst modern air crash disaster, the collision with terrain of a Fairchild Aircraft Inc aircraft operated by Transair north west of Lockhart River in Queensland on 7 May 2005.

In the report, just as with the Pel-Air report, 43 deficiencies with industry surveillance and consistency of oversight activities with CASA’s policies, procedure and guidelines were implicated in relation to the lack of detection of fundamentalproblems associated with Transair’s management of regular public transport flights operations (such as pilot training, checking, supervision of line flight operations, standard operating procedures, risk management processes etc).44…

….The ALA’s submission is that while there is now a proactive aviation atmosphere with respect to safety risk management for aviation service providers, as evidenced by CASA’s reliance on such principles in preparing its own responses to SARPs on fatigue risk management and drug and alcohol risk management in aviation, these principles should also not be forgotten in the broader context of the results which can eventuate in the absence of such principles in guiding surveillance or oversight of AOC holders (such as the crash at Lockhart River).

Thus, the ALA recommends and endorses updating of the Australian State Safety Program, as published on the Department of Infrastructure and Regional Development’s website, as this was last considered in April 2012, well before the commencement of Annex 19.52 The benefit of this would be to demonstrate to the public the Government’s continuing adherence to regulatory oversight and surveillance at a national level and inspire confidence in smaller air operators to embrace safety risk management principles in the management of their aviation businesses…”

I could cherry pick more but then I would destroy the intrigue for the avid IOS readers..

IMO it is well worth the time....more to follow K2 (Sarski)
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