To Hell With The Rules.
I believe in minimum regulation: a solid foundation of key whats with few hows – I just don't think FAR 91 is adequate for all the flights conducted under it.
If the safety outcomes are a measure of effective regulation, the US/FAA wins, hands down.
I happen to think that a combination of reasonable safety outcomes plus encouraging the aviation community is the balance.
The US must be getting something right, the world's best air safety outcomes, plus encouraging the growth of the whole aviation community ---- and what a contrast to the Australian approach.
Comparing apples and apples, we have about double the FAA accident rate for GA, about 3 times for airlines, hardly a case for the inadequacy of the US approach. All the statistics are publicly available.
You are stuck in the mindset that "everything must be regulated --- just in case", if anybody is dumb enough to try a zero/zero takeoff without adequate training, why will they "comply with the rules". Even Australia's normal penchant for over regulation generally doesn't usually go as far as Australian aviation regulation, in seeking to "regulate" every possible combination and permutation in the finest detail --- just in case.
The US "rules" are a progressive set of rules, with increasing demands as the risk increases ---- not the damned fool Australian approach of "one size fits all", with a few limited exemptions for "private operations".
The FARs do have a bit of historical dross, to see what they would look like cleaned up/updated, have a look at the NZ rules (as now used in a number of countries).
The new Canadian rules are another complete contrast to the Australian approach (their old rules weren't to bad, but they still updated them, very effectively) --- Australia is thoroughly out of step with the rest of the aviation world.
The only answer in Australia is a political answer, and given the inability of the waring factions in Australian aviation to see beyond their own short term "perceived" interests (just like politicians), and get together for their mutual interests, aviation in Australia will continue down the chute.
The airlines will be OK, they can move most of their operations offshore ( have a really close look at QF/Jetstar --- including on other pprune threads)
but you can't take a local charter operation offshore.
The latest stats. are sobering, with the number of operators who have disappeared in the last two years.
Tootle pip!!
LEADSLED,
Bloody well said.
The FARs different sections cover an increasing amount of regulation and apply depending on the class of operation and the size of the aeroplane etc.
There is some overlap, say between 91 and 125 for certain ops/aircraft as has been discussed.
Private is 91, Charter is 135, RPT 121 and Fractional Ops 91K ( from memory) Ag is something else again.
The basics of 91 are general flight operations and as such apply to ALL operations with the more specific requirements of each other applicable part then applying over certain parts of 91.
Australia would be very well served to do a complete rewrite and follow suit of the FARs with maybe a few minor variations.
We certainly can lose all the legalese and strict liability penalty crap after each sub, sub part. etc
Compared to the USA we have no real high terrain to speak of, few airports, very little traffic, little severe extreme wx in a country the size of the USA alone yet CASA, the lawyers, bureaucrats etc continually try to reinvent the bloody wheel all over again for all our "special Australian conditions" etc.
Basically there are more aircraft and air traffic in CA alone than in all of Australia on any given day. If the FAA and ATC tried to use some of our Aussie rules and procedures it would be a nightmare in a few hours.
We have many of the same outmoded regs from the 50s, 60s &70s still on the books and then try to tweak them to meet the conditions of an aviation world almost totally different than when they were conceived.
After seeing all this crap from the early 80s I doubt very much anything will ever change to any significant degree.
Our industry and Australia are the global losers as a result.
Bloody well said.
The FARs different sections cover an increasing amount of regulation and apply depending on the class of operation and the size of the aeroplane etc.
There is some overlap, say between 91 and 125 for certain ops/aircraft as has been discussed.
Private is 91, Charter is 135, RPT 121 and Fractional Ops 91K ( from memory) Ag is something else again.
The basics of 91 are general flight operations and as such apply to ALL operations with the more specific requirements of each other applicable part then applying over certain parts of 91.
Australia would be very well served to do a complete rewrite and follow suit of the FARs with maybe a few minor variations.
We certainly can lose all the legalese and strict liability penalty crap after each sub, sub part. etc
Compared to the USA we have no real high terrain to speak of, few airports, very little traffic, little severe extreme wx in a country the size of the USA alone yet CASA, the lawyers, bureaucrats etc continually try to reinvent the bloody wheel all over again for all our "special Australian conditions" etc.
Basically there are more aircraft and air traffic in CA alone than in all of Australia on any given day. If the FAA and ATC tried to use some of our Aussie rules and procedures it would be a nightmare in a few hours.
We have many of the same outmoded regs from the 50s, 60s &70s still on the books and then try to tweak them to meet the conditions of an aviation world almost totally different than when they were conceived.
After seeing all this crap from the early 80s I doubt very much anything will ever change to any significant degree.
Our industry and Australia are the global losers as a result.
Australia would be very well served to do a complete rewrite and follow suit of the FARs with maybe a few minor variations.
That is what we started doing in 1996, see CASR's 21 to 35. Those involved would argue that (in theory -- without the resistance of CASA to any use of the new rules) our Part 21 is more flexible ---- see the "intermediate" category, one up from the Primary Category, and Part 21.189, Limited Category.
By 1999, a Part 91, 61, 137 and 43 were complete in draft form, then the wheels fell off. Enter a new CASA CEO, and a Minister who couldn't control his ministry, and the rest, as they say, is history, along with a good proportion of the Australian aviation industry.
Have a look at the FAA Part 137 (Ag) (the CASR 1997 draft was almost identical) and what we have now.
It is not just the fault of CASA, there are too many in industry who see vastly complicated regulations as industrial protection --- they have an AOC or CAR 30 Approval, and it is too expensive, in time and $$$$ with no necessarily positive outcome, for a potential new entrant/operator.
Year ago, now, the RAAA shouted down a Part 135, "they" all "operated to much higher standards" -----which was rubbish, the charter operators have been paying the price of not having a Part 135 ever since, have a look at the steady decline in AOC numbers.
Now we are going to finally have a Part 135, but nothing like US, NZ, PNG or the Canadian equivalent, regulatory overkill.
The newest "new" maintenance regulations are another nightmare, of the various objectives in the project goals (all good aims, like internationally harmonized an competitive blah blah blah) it is very clear that NOT ONE of the goals has been achieved, god help any LAME who doesn't follow his "exposition" line by line, word by word, any deviance is a criminal offense.
Literally, if the manual requires spark plugs be taken out of your IO-540 in a particular sequence (it does) to take them out in a different order --- and get caught ---- cop an administrative fine and a few points.
Can you find this sort of thing elsewhere --- certainly not US/NZ/CA/EASA land.
But this will continue until one of two things happens ---- the aviation community develops a collective backbone, or shrinks into invisibility.
Tootle pip!!
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Lads, give up, accept the fact that you are dealing with Sir Humpfrey Appleby, I have seen it from both sides, and never the twain shall meet. I spent 40 Years trying to make sense of it. I am still waiting. I went into BASI (stupidly) trying to keep my young family in Australia after THAT year. I soon learnt that civil pilots, and BASI had absolutely nothing in common, in fact they came from two different planets. There has been no reason for me to ever change my mind.
The only way to clean up this mess is to have a full blown parliamentary inquiry!
What happened to that famous percussionist Senator Xylophone waving his little drumsticks and changing the world? Wasn't early action the major tune he was playing? Obviously, lost the sheet music on the way to the Qantas Business Class Lounge in Canberra.
Or is it because everything is tied up in the same bureaucratic proce$$e$ to keep everyone in government in job$.
As someone said to me in 2009, if you want to see somewhere that the GFC forgot then go to the hollowed halls of Canberra.
Leadsled, the CEO may have changed when many of the new regs were ready slowing them down but hasn't he been gone for some time?
When is a new boy no longer a new boy and has to take the responsibility for his organisation?
Time for 'THE MAN' (just ask him) to step up to the plate methinks.
What happened to that famous percussionist Senator Xylophone waving his little drumsticks and changing the world? Wasn't early action the major tune he was playing? Obviously, lost the sheet music on the way to the Qantas Business Class Lounge in Canberra.
Or is it because everything is tied up in the same bureaucratic proce$$e$ to keep everyone in government in job$.
As someone said to me in 2009, if you want to see somewhere that the GFC forgot then go to the hollowed halls of Canberra.
Leadsled, the CEO may have changed when many of the new regs were ready slowing them down but hasn't he been gone for some time?
When is a new boy no longer a new boy and has to take the responsibility for his organisation?
Time for 'THE MAN' (just ask him) to step up to the plate methinks.
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I wonder
Just how deeply set in the rot is.
No one seems (justifiably) to trust the Politicians to even break wind properly on "Air Safety" issues. They will run a mile when they get told "Well minister, on your head be it". The old chestnut dragged out to scare children and technical NFI 's. The ICAO and FAA audit would scare the crap out of me if I was remotely publicly (politically) connected at ministerial level, yet, that small ticking bomb seem to have been swept under the rug. We won the prize for the best crash comic didn't we, It's a bit tragic really.
It is sadly impossible for anyone to trust the Administrator any longer. Rules which were written in good faith, years ago to serve an industry and provide guidance to "wise men' seem to be being used as a weapon of destruction, rather than a starting point for safety compliance. . Particularly in the face of world best practice which everyone else seems to be able to manage. It's a bit tragic really.
Could the ATSB be an answer to the pagans prayer, possibly, but where are the resources coming from. The ATSB report to the Senate beggars belief. They only had resources available to investigate 70 issues out of some (from memory) 8000 odd. That, stand alone, is a political hot potato. The public should be screaming for answers. "Oh we had the report m' lud, but we just couldn't get off the Big Q case in time to discover that Bloggs died because of a major design fault. It's a bit tragic really.
Perhaps, there is a voice of reason somewhere out there, I know there is a toof fairy, had a beer with Santa Christmas Eve and cuppa with the Queen only last Tuesday, so perhaps it's possible. Next week I'm going to afternoon tea with an honest, caring politician who promises to bring the mad dogs to heel.
Selah.
No one seems (justifiably) to trust the Politicians to even break wind properly on "Air Safety" issues. They will run a mile when they get told "Well minister, on your head be it". The old chestnut dragged out to scare children and technical NFI 's. The ICAO and FAA audit would scare the crap out of me if I was remotely publicly (politically) connected at ministerial level, yet, that small ticking bomb seem to have been swept under the rug. We won the prize for the best crash comic didn't we, It's a bit tragic really.
It is sadly impossible for anyone to trust the Administrator any longer. Rules which were written in good faith, years ago to serve an industry and provide guidance to "wise men' seem to be being used as a weapon of destruction, rather than a starting point for safety compliance. . Particularly in the face of world best practice which everyone else seems to be able to manage. It's a bit tragic really.
Could the ATSB be an answer to the pagans prayer, possibly, but where are the resources coming from. The ATSB report to the Senate beggars belief. They only had resources available to investigate 70 issues out of some (from memory) 8000 odd. That, stand alone, is a political hot potato. The public should be screaming for answers. "Oh we had the report m' lud, but we just couldn't get off the Big Q case in time to discover that Bloggs died because of a major design fault. It's a bit tragic really.
Perhaps, there is a voice of reason somewhere out there, I know there is a toof fairy, had a beer with Santa Christmas Eve and cuppa with the Queen only last Tuesday, so perhaps it's possible. Next week I'm going to afternoon tea with an honest, caring politician who promises to bring the mad dogs to heel.
Selah.
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The rise and rise of the regulators
The rise and rise of the regulators
• Robin Speed
• From:The Australian
• January 15, 2010 12:00AM
• 33 comments
IN 2009, more than 50,000 pages of new laws were enacted at the federal, state and territory levels. These were in addition to the 100,000s of pages of existing laws.
The consequences are serious. The first is that Australia will cease to be a world leader in being governed in accordance with the rule of law, and instead become ruled by law (there being a fundamental difference). Secondly, the rule of law will be progressively replaced by the rule of the regulator, the antithesis of the rule of law.
As the number and complexities of laws increase, there is a corresponding decrease in knowing and voluntarily observing the laws by the community. And, as it becomes practically impossible for the community to know, let alone apply the law, ensuring compliance is passed to the persons charged with administering the laws - such as ASIC, ACCC, ATO - the regulators. However, it is not practical for the regulators to enforce the mass of laws against everyone, nor even against one person, all the time. They therefore announce how they will apply the law, impose penalties on those who act otherwise, and reward those who act in accordance with their blessings. A few are prosecuted as a warning to the rest of the community. In this way, the rule of the regulator begins.
The result is a fundamental shift in the relationship between the individual and the law. Increasingly, the relationship is not of the individual knowing and complying with what the law states, but of knowing and complying with what the regulators state the law states, and then knowing the extent to which the regulators will apply the law as stated by them.
For many, the new relationship focuses on not being seen by the regulators; keeping the lowest possible profile on those matters that the regulators prioritise for enforcement. What is of practical importance is the relationship of the individual with the regulators. For in such an environment few have the time, fortitude or money to be visible to the regulators and to apply the law in a way that differs from the one taken by the regulators. This new relationship can also be readily observed by the practical necessity of going cap in hand to the regulators for approval to carry out many transactions. For example, in the last eight years the ATO has issued more than 80,000 private rulings on what it says the law says (these rulings became law to the applicant, regardless of what the High Court might declare the law to mean for the rest of the community). No new law administers itself. More and more people are required to be employed by regulators to enforce an increasing number of laws. This becomes difficult, and the next stage in the shift to regulator rule begins.
One of the first signs of this shift is the conferral on the regulators of more and more powers of search, access to private property, detention, telephone tapping, together with the increase in penalties. This happens not because a material number of Australians have suddenly become terrorists or members of organised crime. Rather, the intimidation of existing powers is believed insufficient to obtain compliance, so greater powers and harsher penalties are deemed necessary. Yet the futility of forcing compliance in this way was seen centuries ago by the penalty of hanging for stealing a loaf of bread. Further, the regulators increasingly find it difficult before an independent court to obtain a conviction. The regulators know that a crime has been committed but are frustrated because they have not the powers to get the evidence or get the court to agree with their view of the law. For those who doubt whether Australia is at this stage, they need look no further than the recent unsuccessful prosecutions by ASIC.
One of the other signs of the rule of the regulator is the attempt to reverse the onus of proof so that the regulators can get convictions to send a clear message to the rest of the community. The Australian courts are a real impediment to regulators in this regard as they insist that no one is presumed to be guilty unless proved so. However, if an Act reverses the onus of proof a court can do nothing. The legislative attempts to reverse the onus of proof come in several forms, often behind a government announcement (regardless of political persuasion) that it is "streamlining" or "codifying" the existing laws. This is often accompanied by government publicity demonising the group to be subject to the new law. It is fundamental to the Australian way of life that everyone, whether an alleged terrorist or member of organised crime group, or an ordinary Australian, is presumed to be innocent until the prosecution proves otherwise. Any attempts to weaken that principle must be strongly and loudly resisted.
Robin Speed is president of the Rule of Law Association of Australia.
33 comments on this story
COMMENTS ON THIS STORY
• Paul Phelan of Mount Beauty Posted at 6:16 PM January 16, 2010
Congratulations! Almost every word of Mr Speed's article had relevance to the activities of the legal and compliance/enforcement offices of our aviation regulator. Their success rate in court and in the AAT is deservedly appalling, yet the organisation's track record in shutting down or damaging businesses and destroying the jobs of individuals through "administrative decisions" is awesome. With an aviation industry background and more recently as an aviation writer, I have followed and documented many dozens of such cases, and the most concerning aspect is the ability of wrong-doers at the regulatory body to evade scrutiny and retribution. One reason for this is the legal adventurism that is enabled by an apparently bottomless budget, and another is the lack of external legal oversight. I had literally no idea this malaise was so endemic across so many industries. Is there an acceptable end in sight?
• Robin Speed
• From:The Australian
• January 15, 2010 12:00AM
• 33 comments
IN 2009, more than 50,000 pages of new laws were enacted at the federal, state and territory levels. These were in addition to the 100,000s of pages of existing laws.
The consequences are serious. The first is that Australia will cease to be a world leader in being governed in accordance with the rule of law, and instead become ruled by law (there being a fundamental difference). Secondly, the rule of law will be progressively replaced by the rule of the regulator, the antithesis of the rule of law.
As the number and complexities of laws increase, there is a corresponding decrease in knowing and voluntarily observing the laws by the community. And, as it becomes practically impossible for the community to know, let alone apply the law, ensuring compliance is passed to the persons charged with administering the laws - such as ASIC, ACCC, ATO - the regulators. However, it is not practical for the regulators to enforce the mass of laws against everyone, nor even against one person, all the time. They therefore announce how they will apply the law, impose penalties on those who act otherwise, and reward those who act in accordance with their blessings. A few are prosecuted as a warning to the rest of the community. In this way, the rule of the regulator begins.
The result is a fundamental shift in the relationship between the individual and the law. Increasingly, the relationship is not of the individual knowing and complying with what the law states, but of knowing and complying with what the regulators state the law states, and then knowing the extent to which the regulators will apply the law as stated by them.
For many, the new relationship focuses on not being seen by the regulators; keeping the lowest possible profile on those matters that the regulators prioritise for enforcement. What is of practical importance is the relationship of the individual with the regulators. For in such an environment few have the time, fortitude or money to be visible to the regulators and to apply the law in a way that differs from the one taken by the regulators. This new relationship can also be readily observed by the practical necessity of going cap in hand to the regulators for approval to carry out many transactions. For example, in the last eight years the ATO has issued more than 80,000 private rulings on what it says the law says (these rulings became law to the applicant, regardless of what the High Court might declare the law to mean for the rest of the community). No new law administers itself. More and more people are required to be employed by regulators to enforce an increasing number of laws. This becomes difficult, and the next stage in the shift to regulator rule begins.
One of the first signs of this shift is the conferral on the regulators of more and more powers of search, access to private property, detention, telephone tapping, together with the increase in penalties. This happens not because a material number of Australians have suddenly become terrorists or members of organised crime. Rather, the intimidation of existing powers is believed insufficient to obtain compliance, so greater powers and harsher penalties are deemed necessary. Yet the futility of forcing compliance in this way was seen centuries ago by the penalty of hanging for stealing a loaf of bread. Further, the regulators increasingly find it difficult before an independent court to obtain a conviction. The regulators know that a crime has been committed but are frustrated because they have not the powers to get the evidence or get the court to agree with their view of the law. For those who doubt whether Australia is at this stage, they need look no further than the recent unsuccessful prosecutions by ASIC.
One of the other signs of the rule of the regulator is the attempt to reverse the onus of proof so that the regulators can get convictions to send a clear message to the rest of the community. The Australian courts are a real impediment to regulators in this regard as they insist that no one is presumed to be guilty unless proved so. However, if an Act reverses the onus of proof a court can do nothing. The legislative attempts to reverse the onus of proof come in several forms, often behind a government announcement (regardless of political persuasion) that it is "streamlining" or "codifying" the existing laws. This is often accompanied by government publicity demonising the group to be subject to the new law. It is fundamental to the Australian way of life that everyone, whether an alleged terrorist or member of organised crime group, or an ordinary Australian, is presumed to be innocent until the prosecution proves otherwise. Any attempts to weaken that principle must be strongly and loudly resisted.
Robin Speed is president of the Rule of Law Association of Australia.
33 comments on this story
COMMENTS ON THIS STORY
• Paul Phelan of Mount Beauty Posted at 6:16 PM January 16, 2010
Congratulations! Almost every word of Mr Speed's article had relevance to the activities of the legal and compliance/enforcement offices of our aviation regulator. Their success rate in court and in the AAT is deservedly appalling, yet the organisation's track record in shutting down or damaging businesses and destroying the jobs of individuals through "administrative decisions" is awesome. With an aviation industry background and more recently as an aviation writer, I have followed and documented many dozens of such cases, and the most concerning aspect is the ability of wrong-doers at the regulatory body to evade scrutiny and retribution. One reason for this is the legal adventurism that is enabled by an apparently bottomless budget, and another is the lack of external legal oversight. I had literally no idea this malaise was so endemic across so many industries. Is there an acceptable end in sight?
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aiglet is on a roll ! 3 out of 4 posts are exactly the same.
I am surprised the MODS haven't spotted that yet !
I am surprised the MODS haven't spotted that yet !
