Hitch – "Are we overlooking that, as CAAPs are advisory only, no-one needs to comply with CASA's advice and everyone can do their own thing anyway? That doesn't sound safe either.
CAAP and compliance with. This is one of the many 'issues' which will 'test' the resolve, probity, integrity and probably the patience of the Skidmore regime. And, it will have to be a 'true' consult with industry, the greatest good for the greatest number, in the 'true' sense of accepting the umpires decision at the end of it all.
The great debate of whether a two tier or a three tier system needs to be employed. There is serious support for both propositions, valid argument for and against, there is even a school of thought which would like to see a 'spilt system', three layers for 'engineering' two layers for 'operations'. If Skidmore allows a 'fair dinkum' debate it will be as fierce as it will be entertaining.
OMO – but one of the 'elements' missing is a phrase something like "a method of compliance, but not the only method" which implies that the 'Advisory' as provided by the 'third' tier is 'preferred' but an alternative method may be approved; bit like a MEL, equivalent safety standard if you like. Where in theory you believe you can disregard a CAAP, you can; but do so at your own peril. Say you run out of noise and you have been operating a system which does not comply with the CAAP; if there is no approval for the 'difference' then the CAAP will be viewed as 'the law' by a judge and CASA. Even if there is a two tier system and you propose an alternative means of compliance, it must be a formally accepted and approved 'difference'.
The above is a potted version and not legally nice, but it's one of the 'big' decisions industry will have to form an opinion on; if industry wants to have a say that is. I have provided (with permission) below part of one of the many opinions on the matter for discussion. It's a worthy, important topic, even if as dry as dust. It is one of the many reasons why Truss must publish the industry response to the WLR and is failing industry by not doing so; the issue needs to be addressed, in full, consultation between industry and CASA essential.
It is not the only argument, nor is it the necessarily a right one, but it is food for thought; and, if we are to regain some semblance of 'say' in how industry is managed, your point of view must be considered. FWIW:-
Items 30 and 31.
Officially, Australia has, since 1998 operated in a two tier legislative structure. The two tier structure has worked well for over 15 years, the recently introduced third tier has not. Participants involved with a CASR Part 42/145 organisation for example will confirm and define exactly what the problems are, even to a simple, routine matter such as negotiating a 'variation'.
To have 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 from an industry already enraged, disadvantaged by and burdened with the cost of regulation, combined with an aggressive, obsessive culture of micro management.
The premeditated, deliberate CASA manipulation of 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 (1) advisory) can be changed within days of a requirement becoming known.
(1) 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.
Thanks P7 a.k.a. TOM....
