Aviation Law Association of Australia and New Zealand - Victorian Division
Melbourne – 1 March 2013
I’m sure you are aware that the regulation of aviation safety in Australia is moving from being governed by the Civil Aviation Regulations 1988 (CARs) and Civil Aviation Orders (CAOs) to being governed by the Civil Aviation Safety Regulations 1998 (CASRs).
Rules cannot remain static
Updating our regulations is part of the continual improvement of aviation safety. Rules cannot remain static – as safety knowledge and understanding improves, the rules must evolve to reflect better safety practices, new technology and science.
We are in the midst of transitioning to new operational regulations, flight crew licensing regulations and airworthiness and maintenance regulations.
CASA seeks to align any new regulations as closely as practicable with International Civil Aviation Organization standards and recommended practices, and to harmonise where appropriate with the standards of leading aviation countries, unless differences are justified on safety risk grounds.
Naturally, some aviation people are asking why change the regulations and what are the benefits? The overarching aim is, of course, to create a safer aviation system in Australia.
It is important to understand that the current rules are old and in some cases out-dated. Many were first drafted more than 30 years ago and the origins of some go back even further. The current rules do not properly fit with a modern aviation system and latest technologies.
To make them work CASA has been issuing exemptions to allow the aviation industry to meet ongoing operational needs. Right now there are more than 1,700 exemptions on the books, meaning the regulation of aviation activities is not necessarily a level playing field and some of the rules are not fit for purpose. In addition, our current rules have not kept pace with international developments in aviation safety.
For the aviation industry there will be a range of benefits flowing from the new regulations. The CASRs are logically organised into clear parts. This will make it much easier for the industry to find and apply the relevant requirements. For example, under the current system, requirements and standards are spread across the CARs, CAOs and the myriad of exemptions. This means the current rule set can be hard to access, to follow and to use.
Specific aspects of the regulations are designed to address known and likely safety risks, and aim to further strengthen the current regulatory structure to deliver improved safety outcomes.
Wherever possible regulations are being drafted to specify the safety outcome, unless in the interests of safety, more prescriptive requirements need to be specified. This objective, however, is not always easy to achieve or implement. While outcome based regulations may be easier to write, their implementation is a challenge in terms of determining whether regulated individuals and organisations are doing enough to ensure that the desired outcomes are achieved, and that there is a standardised approach adopted by our inspectors in all regions of Australia.
In addition, where non-compliance with a regulation is an offence, we are constantly pressed by the legislative drafters at the Attorney-General’s Department to ensure that the regulation is clear and unambiguous in its intent, so that persons will know what action to take or avoid, in order not to be subject to criminal sanctions. These drafting considerations can, of course, result in regulations that are more prescriptive than we would prefer.
Drafting the regulations – it’s a long and arduous process
A taskforce approach has been adopted to facilitate completion of CASA’s regulatory reform program. To expedite the drafting of the regulations a Task Force was formed with the Attorney-General's Department. This has proved successful in terms of providing additional and dedicated legal drafting resources to the reform program.
New regulations are typically developed through the combined effort of CASA and expert industry working groups with an aim to address known safety risks in a cost effective manner.
Operational regulations (CASR Parts 91, 119, 121, 129, 132, 133 and 135)
Each new CASR part covers a particular group of aircraft operators and builds from the foundation parts – Part 91 and Part 119.
The current distinction between Regular Public Transport (RPT) and Charter operations will be removed. The two will be dealt with in an integrated fashion as Air Transport operations. Part 121 will deal with large aeroplane operations while Part 135 will set the standards for small aeroplane operations in this category.
The intent is to narrow the gap that currently exists between the current RPT and Charter categories while at the same time recognising that some of the RPT provisions may not be directly transferrable to an on-demand Part 135 operation.
It is expected that most of the Operational (Air Transport) suite of CASRs (Parts 119, 129,133,135), other than Parts 121 and 131, will be close to being finalised by the middle of the year, with commencement likely at the end of 2014. The drafting of Parts 121 and 131 is lagging a bit behind, but we also expect these to be finalised and commence at the end of 2014.
Legal drafting and industry/public consultations of the Aerial Work CASR Parts will be on-going through the first half of 2013 followed by three Sport and Recreational Aviation Operations CASR Parts.
Recognising that some of the envisaged changes will be significant, CASA will ensure that the transition period to the new rules gives operators adequate time to allocate resources and make changes to their operations and other relevant manuals.
Flight crew licensing regulations (CASR Parts 61, 64, 141 and 142)
Many of you would know that Australian aviation has a new set of modern and improved regulations covering flight crew licensing and training. The new regulations were made in early February, although they do not take effect until 4 December 2013. This means pilots and flying training organisations do not need to take any immediate action at this time.
Pilots will have their licences moved across to new Part 61 over a four-year period. All pilots will retain their current flying privileges during and after the transition.
Flying training organisations will have three years from December 2013 to move across to the new Parts 141 and 142:
- Part 141 covers ‘simple' flying training – that is for recreational, private and commercial training in single pilot aircraft. It does not include intensive integrated training for private and commercial licences.
- Part 142 covers integrated and multi-crew pilot training, such as training for an air transport pilot licence, as well as contracted training and checking activities.
The new suite of licensing regulations also includes Part 64, which deals with approvals for people other than pilots to taxi aircraft and use aircraft radios.
The introduction of the new licensing rules will bring a range of benefits to Australian aviation. Safety standards will be lifted in a number of key areas. There is a closer fit with international licensing standards. Training standards will be more clearly defined. In addition, the new suite of rules addresses important lessons learnt from past accidents in the areas of low level flying and night visual flying.
The new Part 61 also includes a recreational pilot licence, with medical standards based on the Australian road transport driver licensing medical requirements, along with some additional aviation specific standards. Pilots with a recreational licence will be able to operate smaller aircraft under day visual flight rules for private purposes, with some operational limitations.
There is a new minimum age of 15 years for a student pilot licence, a move we hope will encourage more young people to enter the aviation industry.
CASA will be providing comprehensive information and education on the new licensing rules to help everyone in aviation make the transition as smoothly as possible. Our aim is to minimise disruption to everyday operations, while ensuring new requirements are properly met by individuals and organisations.
Continuing Airworthiness and maintenance regulations (CASR Parts 42, 66, 145, 147 and Subpart 21.J)
The new continuing airworthiness regulations in Parts 42, 66, 145 and 147 of the CASRs have been made and Parts 42 and 145 are being progressively implemented from June 2011 to June 2013 for aircraft that are used in RPT operations.
All CAR31 LAME licences have been transitioned to the CASR Part 66 licence arrangements and, under the transitional arrangements, the old and new qualification arrangements are operating in parallel until June 2015.
Standards development and consultation work is now expanding into the second phase of the reform, to establish the continuing airworthiness and maintenance requirement for other sectors of the aviation industry, e.g. aircraft currently used for charter, aerial work and private operations.
The future expanded application of CASR Parts 42 and 145 to cover all other classes of aircraft operations, is dependent on the finalisation of the proposed amendments to the CASR operational regulations, which as I have mentioned previously, will combine RPT and Charter operations.
Finalisation of the policies related to expanded application of Parts 42 and 145 are also contingent on a review of the proposed CASA policies in comparison to other major aviation countries, such as the United States.
The future expanded application of the continuing airworthiness legislation will be fully consulted with the industry and the public.
A series of five discussion papers was released at the end of last year. These papers present options related to the following key elements of the continuing airworthiness suite of regulations as they apply to non-RPT aircraft and maintenance providers, these include:
- Maintenance providers
- Continuing Airworthiness Management Requirements
- Maintenance Programs
- Airworthiness Reviews
- Maintenance Personnel Licensing for Small Aircraft.
These discussion papers are still available for your comments, but you will have to be quick – comments officially close today!
Also a new Subpart 21.J (Approved Design Organisations) has been consulted publicly and we expect these regulations to be made in the next few months.
Misconceptions by some sections of the industry
Recently there has been some disturbingly misinformed debate within sections of the general aviation community about the still to be developed new maintenance regulations. It is clear some people believe all of the new maintenance regulations currently covering the regular public transport sector are to be directly applied to general aviation, as is.
Let me make it very clear – this is not the case. As I have said before, the new suite of maintenance regulations that came into effect in late June 2011 apart from licensing Parts, only applies to operators and maintainers of RPT aircraft.
At the time CASA clearly and publicly stated that ‘revised maintenance regulations for other sectors of aviation such as charter, aerial work and private operations will be developed at a later date, after wide consultation with these sectors’. This position and CASA’s commitment to it have not changed.
Over the last year, CASA has been working with expert representatives from the aviation industry on proposals for new maintenance regulations for the general aviation sector. The Discussion Papers have been published and will be followed up by Notices of Proposed Rule Making. Everyone will have ample opportunity to have their say.
In summary, no matter what you may have heard or from whom you have heard it, and contrary to some of the ill-informed statements in the aviation press, the new maintenance requirements for the non-RPT sectors have not been determined.
We fully recognise the RPT maintenance regulations cannot simply be applied across the board. Each sector of aviation is different and the new regulations will reflect those important differences.
However, if aspects of the RPT maintenance regulations are relevant and appropriate to some other sectors of the industry, then, subject to the outcome of the consultation process, those provisions may be incorporated into the proposed new rules.
CASR Part 13 Enforcement Procedures
It is proposed that in the first half of 2013, CASR Part 13 will be amended to consolidate and largely replace certain parts of the CARs (Parts 16 to 19, and regulations 33, 5.38, 5.39, 107 and 117).
These provisions will be simplified and modernised, and brought into line with current Commonwealth law enforcement policies and the Criminal Code Act 1995. The Part enhances and supports the enforcement provisions in Part III of the Civil Aviation Act 1988.
CASR Part 13 will provide for such matters as:
- CASA's powers to cancel, suspend or vary authorisations for cause (subject to Part III of the Civil Aviation Act 1988)
- the issue of infringement notices for regulatory breaches
- administration of the demerit point scheme
- CASA's powers to require testing and examination of authorisation holders
- routine audit and surveillance powers of CASA inspectors
- general matters in relation to enforcement processes, such as, identification of aircraft operators and pilots, surrender of authorisation and aviation documents, protection of persons providing information to CASA and detention of aircraft etc.
The development of new rules is not a process done in isolation by CASA. I encourage all of you to play an active role in providing feedback when our Discussion Papers, Notice of Proposed Rule Making and draft regulations are out for industry consultation. Each of you individually – and collectively in bodies such as this represented here today – can provide valuable input to the successful development of new rules.
We will carefully consider the views of all interested sectors of the industry and the wider aviation community, and we will take all reasonable comments and submissions into account before any rules are finalised.
Implementation of new regulations
CASA recognises that there are constraints on the ability of sections of the industry to absorb extensive and rapid changes to regulations, and this is a factor CASA will carefully consider in the development of timelines for regulatory implementation.
CASA has established a dedicated team to ensure the smooth implementation of new regulations.
The team has been tasked with developing implementation plans for each of the new CASR parts as they are developed.
When new regulations are made there will be an appropriate transition period for individuals and organisations to move across to the new rules.
CASA understands the aviation industry must be able to get on with normal business while taking the necessary steps to adopt the new regulations.
During the implementation phase, CASA will provide information, support, training and advice to make the change as smooth as possible.
Aviation safety is never static – we must be ready to meet the challenges of the future and strive for better outcomes. CASA’s intention is for the rules to be part of a living set of aviation safety standards that evolve as the aviation industry further matures and grows.
As we move into this new stage of regulatory change, I can assure you it is not CASA's intention to disrupt the smooth operations of aviation. We are striving to deliver an aviation safety system that performs even better, with risks identified and managed to minimise accidents and incidents.
Everyone in Australia is rightfully proud of the aviation industry and our safety record. Orderly and progressive change to the regulations will mean we can hold our heads even higher.
Thank you. I’m now open for questions.