CASA unable to Regulate

[Niles Crane]

The latest court case regarding Aerotropics opens a can of worms for CASA and the government.

In regards to Aerotropics now flying again, who is responsible if they have an incident?

CASA, I think not as they tried to shut them down.
The Judge, I think not as they cannot be held reposnisble.
The Government, I think not because they have CASA in place as the regulator.

This puts CASA as an organisation into serious question as they cannot perform their regulatory obligations.

I can only see one outcome for CASA.

BB needs to inform the government that they cannot perform their function as a regulator and withdraw all delegations until the Aerotropics case has been finalised because they cannot operate with their hands tied behind their back.

At the moment, the court has rulled that NO ONE iIS RESPONSIBLE FOR AVIATION REGULATION.

[zalt]

Can we assume that CASA did not get a 40 day extension?

[Torres]

Niles.

The Court stay does not absolve the operator from it's responsibilities under the Act and Regulations, nor does it absolve CASA from it's regulatory responsibilities.

The stay relates to that specific suspension and circumstances. Theoretically, if CASA had new evidence it could again suspend the operator's AOC on new grounds.

"New regulations might be a top priority now...hopefully without much industry consultation until after implementation. I won't hold my breath."

Should be - but I doubt it. As it should be. I wouldn't hold my breath either! :*

[shadowoneau]

The fact is CASA have been investigating Aero Tropics for 12months or so.

This would indiciate there is no hurry to ground the operator. If CASA had something concrete that compromises safety it would have been bought up at the hearing - and the stay would have been denied.

It looks as though CASA needed to be seen to be doing something in light of the senate inquiry.

[crashdummy]

This case proves CASA have no power anymore and a bunch of Grange drinkers rule the skies.

[PLovett]

Alternatively, CASA could put together a workable set of aviation legislation that removes the train crash of unworkable and often contradictory legislation that applies at present.

Then it could go about establishing a guide for its FOIs' so that they could give a common answer to a question rather than the subjective approach that applies at present.

Then when everyone understands clearly what is required CASA would have a much easier job in prosecuting those who refuse to comply.

[bushy]

Crashdummy
The grange drinkers have always ruled the skies.

[bilbert]

CASA UNABLE TO REGULATE - So since when has CASA ever made a regulation? Thats what the Parliament does. They are supposed to enforce the regulations and are subject to legal review process like everyone else.

Take a look at Paul Phelans' and Bill Hamiltons' submissions to the Senate enquiry and then look at Byrons' and Carmodys' comments on AeroTropics on the ABC tonight.

Grave and imminent danger. It almost made me laugh. Exactly to script.

They are now into the - 'How much money does Ric have for legal fees phase'.

Interesting to note that CASA also stated publically that the two other charter companies in the FNQ can cope with the passenger loads with AeroTropics out. Is that an equivalent safety determination by CASA that lives are no more at risk in Charter than RPT? Sort of makes a farce of the whole RPT Class A maintenance Ck & Trg etc requirements doesn't it.

[crashdummy]

Bushy....good point you are right!:D

[max1]

ATC are currently in a position where ASA have a directive that non-endorsed controllers are allowed to give short-term breaks at consoles.

This seems to breach a number of the CARs, CASA are taking weeks to answer and then only saying that they are referring it to ASA.

All we are asking is for CASA to say it is okay and legal when applied against the regulations.All we get is buck passing and stalling.

Either the procedure is legal and the controller is absolved from blame if anything happens, or it is against the regs and the directive needs to be amended.

[Dick Smith]

If Aerotropics has been breaking the rules for the last 12 months, why hasn’t there been an administrative fine?

I understood that the plan of the administrative fine system was to give people a chance, then fine them if they didn’t comply, and this worked together with a point system. Then rather than having to go through the discredited system of closing an airline down as the first action, at least CASA could say to the court and to the media, “This company has already had 6 fines and has accumulated so many points.”

Could it be that no administrative fines have been given because it would open up such a can of worms (in relation to the lack of regulatory reform) that CASA still goes to the old discredited Seaview and Monarch system of doing nothing for a year or so, then attempting to close the whole operation down?

[Niles Crane]

bilbert,


Parliament Legislates, that is, makes Legislature, the law.

CASA Regulates those laws, that is, the Regulator!

CASA does write regulations, they are then passed to the Parliment, voted on and become law. CASA then regulates and inforces the "Law". Exactly like most other government departments.

Quite simple really! Except now they are unable to Regulate, because the Federal Court Knows best!

Interesting that AT can operate with Training and Checking Restrictions, but they still do not have a Chief Pilot!

[sling load]

Hi Dick,
Did you make a submission to the Senate hearing on the Administration of CASA?

Cheers
SL

[PLovett]

bilbert and Niles Crane

With legislation the only thing Parliament will normally vote on is changes to an Act of Parliament. In aviation that means the Civil Aviation Act.

Regulations and amendments to them are formulated by the controlling authority as named in the specific Act. The Civil Aviation Act gives CASA the power to formulate regulation in accordance with the Act. The actual regulation or amendment to one is drafted by the Commonwealth Parliamentary Counsel's Office, a sort of legal advice and drafting office for the Parliament, but on instructions from CASA. CASA tells the PCO want it wants to achieve and then the PCO tries to draft something that will achieve that aim.

A new regulation or amendment to one is then tabled in Parliament for a number of sitting days (I forget now just how many) and if in that time no Member of Parliament wants to question or debate the new regulation then it will pass into law. The vast majority of regulations are never debated by Parliament.

Now under our administrative law system decisions by administrative bodies, such as CASA, are subject to review by the court system. If this were not the case you would get a dictatorial system totally out of control and unanswerable.

That is what has happend in this case, a court has said that CASA has got the law wrong or has misapplied its powers. There is nothing in that that says CASA is unable to regulate just that if it wants to then it must do it according to the law. To say it is anything more is mere hyperbole.

[FlexibleResponse]

PLovett,

Your post certainly assisted and added to my understanding...thanks!

[bilbert]

"tabled in parliament" - isn't that what I said?.

"dictatorial system totaly out of control and unanswerable" - isn't that what we've got?.

[PLovett]

bilbert

No and No.

[wallysworld]

CASA can regulate, but only if they apply the law. CASA shut aero tropics down because it says they were an "imminent and serious threat to the safety of aviation" - but when they were dragged by aero tropics into court on Wednesday, they could not put the evidence up to support their contention. They were required to seek a 40 day extension on Friday, they filed an application, but agreed to put it over until 18 July, because they still didnt have the evidence.

If they have been investigating for 12 months - where is the evidence?:rolleyes:

[RadioSaigon]

Whatever the truth of the current situation with Aero Tropics, it strikes me that we have a pretty clear case of the regulator exercising power via the proxy of media.

As far as the travelling public is concerned, the 'fix' is already in -they're most likely to avoid AT or any subsidiaries like the plague now. CASA have effectively achieved their aim, simply by making public statements of their "concerns". That's all it takes. No customers = no business.

CAA-NZ are pretty adept at this form 'regulation' to boot.

A ****ty trick IMO. Neatly absolves them of even the necessity of justifying/defending/testing their actions in a court of law, when the business has already failed due no punters. The court of public opinion does the job probably even more effectively.

[Dick Smith]

Sling Load, you asked if I made a submission to the Senate hearing on the administration of CASA. You probably know that I like to spend my time efficiently – i.e. allocate my limited resources to where they are most effective. Sending in a submission to a Senate hearing is, in my view from experience in the past, a complete waste of resources.

It is true that I did send in a copy of Unsafe Skies, however that took about 30 seconds, and that 30 seconds was probably wasted as I doubt if the Senators have even read Unsafe Skies. By the way, here (http://www.dicksmithflyer.com.au/the_book.php) is a link to it.

I (and others) despair to see the quality of our politicians these days.

[SIUYA]

Dick........

...the quality of our politicians these days.

With the present 'shower' in Canberra, an oxymoron I'm afraid! :ugh:

[clapton]

Plovett

Regulations and amendments to them are formulated by the controlling authority as named in the specific Act. The Civil Aviation Act gives CASA the power to formulate regulation in accordance with the Act. The actual regulation or amendment to one is drafted by the Commonwealth Parliamentary Counsel's Office, a sort of legal advice and drafting office for the Parliament, but on instructions from CASA. CASA tells the PCO want it wants to achieve and then the PCO tries to draft something that will achieve that aim.

A new regulation or amendment to one is then tabled in Parliament for a number of sitting days (I forget now just how many) and if in that time no Member of Parliament wants to question or debate the new regulation then it will pass into law. The vast majority of regulations are never debated by Parliament.


Not quite right. CASA does not have any power to make regulations.

Under the Civil Aviation Act, the regulation making power is vested in the Governor-General. Only the Governor-general in Council can make Civil Aviaton Regulations - on the advice of the Minister for Transport (or whatever his new title is these days).

The regulations are not drafted by the Parliamentary Counsel's Office (which only drafts Acts of Parliament) - regulations are drafted by the Office of Legislative Drafting and Publishing in the Attorney-General's Department. They are quite separate from the PCO.

Once regulations are made by the Governor-General they must be registered on the Federal Register of Legislative Instruments. If they aren't registered they have no effect.

They also have to be tabled in both Houses of Parliament within 6 sitting days of registration. Parliament then has 15 sitting days within which to disallow them - BUT they do NOT have to wait until the disallowance period ends before they become law. They become law once the are registered (unless a later date is specified in the regulations themselves). Parliament can subsequently disallow them - and sometimes this can occur months after they become law. See the Legislative Instruments Act 2003.

CASA can of course make Civil Aviation Orders - and these are drafted by CASA itself. They are subject to the same registration and tabling requirements as regulations.

[Lodown]

Of course a pat on the back, a first class seat for a fact finding tour, an invitation to the backyard barbecue, a re-election donation, covering travel, phone and printing expenses, and a weekend invite on the Harbour yacht may greatly assist in expediting and smoothing the wrinkles from the law making process.

[PLovett]

Clapton, I will bow to your knowledge of Federal drafting, I only did it in Tasmania for a time where the PCO did the lot. No wonder Fed drafting is such a mess.:}

However, you are being pedantic (but then again, if you are a lawyer then that is what it is all about) about the GG making regs. Yes S.98 of the Act says that the GG will make them but do you really think he/she gets up one morning and says, "I think I will draft a regulation about aviation today." I think not. It is still CASA who puts the idea together, the GG is merely a formality.:ok:

[SIUYA]

PLovett..........

...do you really think [the GG] gets up one morning and says, "I think I will draft a regulation about aviation today."

Well, maybe the GG ought to have a shot at making some regulations!

It couldn't hurt, and surely the GG couldn't do it any worse than CASA have been doing over the past 20 or so years, particularly if it results in some meaningful regulatory reform? :}

[PLovett]

SIUYA

Given the quality of most of the past GGs' in comparison with what we have had out of CASA lately you might well be right.:ok::}