Phelan –"Also there’s considerable disparity between contributors to the ASRR on key specific issues, much of which is not fully resolved by the Panel’s recommendations, and needs early resolution. A good example (but far from the only one) is the question of whether two-tier or three-tier regulation represents the more effective model, and there are credible and well-regarded supporters for both scenarios."
This paragraph from the recent Phelan offering is (IMO) an important one. Conversations with folk about Part 61 usually invoke "ah, but there is no manual of standards" (MOS). The academic subject matter is way beyond my feeble grasp of 'law', but determined to explore it, I sought advice. AMROBA supports 'three tiers' other learned colleagues do not. So more digging and research, I figured the IOS would be affected by the decisions made, so best we know what it's all about.
Before I get jumped on by 'experts' let me say the following is only my take on what I have been able to glean; I expect Leadsled, Creampuff and the more legally savvy to add more erudite information on an important subject.
A third tier of legislation (by whatever name, Manuals of Standards, Aviation Standards, CAO etc.) which require no less than full parliamentary process for each operational change is a significant impost; but, it is the built in rigidity, the 'inflexibility', which raises objections.
The “Manuals of Standards” (MOS) has been designed in such a way that Australia has, to all intents and purpose, been returned to a third tier structure; this without the benefit of industry consultation, consideration or acceptance. The “manual of standard” terminology was originally used to describe certificates issued under CASR Part 21 such as aircraft TC, STC, APMA, ATSO. etc.
It was never intended to meet 'aviation safety standards' specified in 9(1)(c).
Simply put, there is no risk reduction (safety benefit) in the current
interpretation of 'third tier' of legislation. Arguably the reverse is true, due to regulator inability to act or respond 'quickly' to rapidly changing aviation circumstance. Indeed, it could be reasonably argued that the inflexibility of three tier regulation increases operational and accidental breech risk levels.
Under the Acts Interpretation Act 1901(Cth), the Legislative Instruments Act 2003 (Cth); and, due process to create/enact/change a legislative instrument, change can take years, while an AC/AMC (*) advisory) can be changed within days of a requirement becoming known.
(*) An incorrect, although commonly made statement is "Advisory Circulars (AC) are not enforceable". This is a complete misrepresentation of the legal position. The preamble to every AC states: “A way but not the only way to comply with Regulation ABC; (the regulation which raises the AC). However
"not the only way” clearly releases the operator to 'negotiate' an alternative Acceptable Means of Compliance (ACM) with CASA.
Three tier legislation, modelled on the Canadian system would be acceptable, provided changes the current two-tier regulatory framework evolved to where the third-tier
standards are drafted in plain, easy to understand language and
Regulations are drafted in a clear succinct style, defining provisions for enabling standards and necessary legislative provisions, including offences.
Third tier ‘standards’; provided as either 'legislation' or Advisory (Acceptable Means of Compliance) - must comply with CASA function under Sec 9 (1)( c) of the Act to develop and promulgate appropriate, clear and concise aviation safety standards. Amending
‘standards’ specified in the regulations to “
aviation safety standards” specified in regulations, to be provided in either Operational Specification or as an Instrument. Section 98 5AB of the Act states that a legislative instrument can be issued. An instrument must not prescribe a penalty.
I know; it's a bugger to get your head around it all; but in five years time when everyone is moaning about crappy regulations, I shall smile and say two or three sugars in your tier. So FWIW, have a think about what you would like to happen and have a say......
Handing over to the grown ups..