CASA CEO, Bruce Byron speech on Australian Safety Regulatory Developments - Aviation Law Association of Australia and New Zealan
CEO on Australian Safety Regulatory Developments
Keynote address - Aviation Law Association of Australia and New Zealand
Firstly, may I thank you for inviting me here today. It’s pleasing to see that there is interest in the changes we are making at CASA.
I would like to talk about a couple of things, not least of all my views on the role of an aviation safety regulator, because that is central to work we have embarked on at CASA since November last year. However, before that I know there is considerable interest relating to new aviation safety regulations, in particular the requirements I have placed on both industry and CASA on how they are to be developed. So I’ll kick off with that issue.
Getting it right
As many of you will know, a lot of activity has been taking place on re-writing Australia’s aviation rules. Those of you who have been in aviation as long as I have will know that there have been a number of regulatory re-write initiatives over the last decade or so, and each has failed to reach fruition, for a variety of reasons. And I suppose the current initiative is itself developing a bit of a history.
After a few years of mixed progress, a major effort was made to complete the bulk of the program by the end of 2003. The target date was set and quite a bit of blood, sweat, and tears were expended to try achieve it.
Unfortunately, the effort to get it done in the time-frame meant there was a risk of a reduced focus on the quality of the rules that were emerging, whether the goal of ‘Safety through Clarity’ was really being met, whether there were things still in the new rules which were less to do with safety outcomes and more to do with control or prescription.
There were doubts, particularly from some parts of industry, as to whether there had been appropriate consultation. Not so much the volume of consultation, because our aviation regulatory development does involve extensive consultative processes. Consultation by exhaustion is one phrase I have heard used.
It was rather the quality of the consultation about which there were questions, whether everyone who had an interest had been given enough time and opportunity to fully consider the large volume of material that was being produced, and more particularly whether enough serious consideration had been given by CASA to changes that had been suggested by interested parties, especially the aviation industry.
Some said it was just ‘lip-service’ and CASA would implement the regulations in the way that it wanted, irrespective of other professional input. It is almost irrelevant whether the concerns had substance or not. Perception plays a big part in attitude formation in the aviation world, and I suppose in most fields of human interaction.
There was a perception among a sufficiently significant group of players that there were problems with the way the regulatory development process was going. On top of that, having watched this process from the sidelines for a couple of years, I was not convinced that regulation development was adequately focused on issues that relate to safety risks.
So, soon after arriving at CASA, I issued a series of directives, which some of you may have seen. Part of the reason for formalising them as edicts, rather than just picking up the phone and telling someone to get on with it, is firstly that there should be no doubt as to what is required and the time-line in which it is required.
But it is just as important that everyone, not just the relevant staff, but all CASA staff, the industry, and other stakeholders such as yourselves know what is going on, or at least have ready access to the information.
Transparency is one of those buzz words that appears in governance statements, but it is actually quite important. It seems to be the case, particularly in regulatory development in Australia, that if you let people know what you are doing, they are much happier, even if they don’t like it, rather than if you keep them in the dark. This is hardly rocket science, it is basic common sense, but we all risk forgetting it from time to time. It is easy to slip into the ‘information is power’ mode, and that is not healthy.
The directives I issued in February 2004 effectively put ‘on hold’ the so-called ‘operational’ package of the new regulations, pending a review to be undertaken by the Standards Consultative Committee, a body whose members are drawn largely from industry to advise CASA on regulatory issues.
For those of you who are familiar with these things, the review included examining Part 91 (flight operations) and evaluating the need for each proposed rule from a safety risk viewpoint, as well as looking at the option of having a Part 135 ( air transport-small aircraft) in addition to the planned Parts 121A and B. The Part 91 review went well and the version that emerged from the process is a better document by most objective tests.
All that was a little over a year ago. It is not an easy thing for people to confront, to have the momentum taken out of the regulatory re-write process, which to that point was on ‘fast-forward’, and to have to cope with the knock- on effects. I know many of our people had the wind taken out of their sails, and had to re-group and take on a new focus.
We had a carefully orchestrated program to introduce the new rules as they emerged, including transition education and training for our people and for industry. That had to be put on hold to some extent. We had IT support programmed to kick in at certain times and that program had to be adjusted.
So just as it is not easy to slow down the super tanker, or change its course once it has a head of steam, it was not an easy thing to do with a stream of regulation coming through a pipeline, but it was a necessary thing to do. This is arguably the last chance we have to get the rules right and I make no apology for slowing the process, and even suspending it, until we can get it right.
As some of you will be aware, I have recently added an additional level of review to the regulations still in the previously mentioned pipeline. This was also initiated by formal Directive, in this case Directives 16 and 17 for those of you who want to look them up.
Directive 16 establishes new guiding principles for the Australian aviation regulatory framework.
- Based on known or likely safety risks, and the contribution the regulation will make to safety
- Drafted to specify the safety outcome required, rather than detailed requirements to achieve that outcome
- Within a two tier framework – the Civil Aviation Act, and the Civil Aviation Safety Regulations, supported by advisory and guidance material where appropriate.
- Manuals of Standards to be established only where there is a clear safety requirement, containing only standards authorised by a Regulation.
The objectives of these ‘guiding principles’ should be quite clear now. We want to get our regulations back to a clear safety focus.
Also, I am interested in safety outcomes, not necessarily in the way those outcomes may be reached, which can be many and varied. Where possible, I want the rules to spell out the outcome to be achieved and not be excessively prescriptive. The regulations should then be supported by an advisory method of compliance.
In other words, if you adopt this method you will satisfy the regulatory requirement (and satisfy CASA). But other methods may well produce the required outcome, and may therefore be an acceptable means of compliance.
A further point to Directive 16. It has for a long time been intended that there be a two tier framework for aviation safety regulation, the Civil Aviation Act, and the Civil Aviation Regulations. This is established policy. But then the Manuals of Standards crept in. These were a combination of regulatory type requirements, and advisory material, and in some quarters were looked upon as regulation by stealth.
The situation was brought to a head by the passage of legislation that meant that the regulatory elements of a MOS were in fact legislative instruments, and as such subject to parliamentary disallowance. It therefore made a lot of sense to remove what was arguably a third tier of legislation by deciding that regulatory elements of a MOS, providing they pass the ‘safety-related’ and other tests I have mentioned, be moved to the mainstream regulations.
Any necessary guidance or advisory material will take the form of Advisory Circulars, removing any doubt as what are statutory requirements, and what is optional advisory information.
Partnership with industry
Directive 17 supports the guiding principles by establishing a new set of review bodies, the Regulatory Advisory Panels, in addition to existing consultative arrangements. Membership will be a mix of CASA and industry representatives, plus a representative from the Department of Transport and Regional Services. There will be five distinct panels to work through some 30 new Regulation Parts or sub Parts. Some delay? Unfortunately, yes. But I believe it will be worth the cost.
This approach is designed the get the right product achieved through a partnership between CASA and the industry. And whilst I am keen to achieve a working level partnership, this does not translate to a diminution of CASA’s independent role as a regulator.
At the end of the day CASA has to sign off on the rules and be accountable for them. I want CASA to have a strong professional relationship with the industry, not a ‘cosy’ one. But if we can get better rules by involving the industry in the development process, then I am all for it.
The regulators role
Having said something about the current state of aviation regulation development in Australia, can I move now to the second general issue on regulatory development I wanted to raise with you. And that is where the regulator sits in the scheme of things – the role of the aviation safety regulator.
I have thought very long and hard about this fundamental issue during my ‘discovery’ phase in CASA – the first six to eight months – where I examined what it is that we do, how we do it and what effect it has.
Some would say this is not an issue that needs analysis – they would say CASA is the aviation safety policeman and of course the Civil Aviation Act gives us functions that are of a policing nature, such as surveillance activities and where necessary, enforcement – so just get on with it. Without question these are core functions of an aviation safety regulator and CASA will continue to give a focus to these functions.
However the issue we are currently addressing is whether that is all CASA should focus on in the execution of our role. The simple answer to that question is of course ‘no’ – and for two simple reasons.
Firstly, the Civil Aviation Act gives us other functions such as conducting reviews of the System of Civil Aviation Safety and also ‘to assist industry satisfy it’s safety obligations’ through various means, including of course education.
The second reason is probably the more important – and that is that if we are to make a real contribution, we have to go far beyond the issue of compliance with aviation safety regulations and look at the myriad of industry activities not controlled by regulation that years of analysis have shown have a link to aviation safety outcomes.
To bring effect to this change in emphasis, I have asked our operational areas to develop a range of surveillance tools and industry contact that go well beyond the formal compliance audit. The audit will remain a strong element of our surveillance activities, but it is administratively intensive and doesn’t give me enough ‘time on the tarmac’ or ‘face time’ with industry. By relying excessively on audit surveillance we don’t know enough about what really goes on out there – and that has to change.
Effectively, we are progressively changing what it is that we do – to my mind what it is that we should have been doing all along, as a careful study of the Civil Aviation Act would show.
To support these changes to what we do, we are in the initial stages of a substantial restructuring, the broad basis of which is to organise CASA into industry-facing Groups aligned with industry segments. As part of the process we had to decide whether to retain the Standards group, the group that among other things develops the Regulations, as a single entity within CASA, or whether it would be better to spread that talent to the particular operational areas for which they write the rules.
The case for keeping them together, and somewhat at arms length to the policing side of things, was strongly argued. But as an organisation we have had a bit of a reputation, not unique to CASA, for developing ‘silo’ mentalities within the organisation, with individual areas tending to do their own things, without a lot of reference to other areas. This can lead, for example, to inconsistency of interpretation and application of rules.
So in this case we have decided to link the standards developers to the relevant operational areas, with the final regulatory products pulled together by regulatory development specialists within, as some in this audience may be interested to know, a Legal Services Group which will include the current Office of Legal Counsel.
I also hope that this re-structure will take us away from the ‘silo’ approach and will be the basis of a ‘one CASA’ mentality. I want to see a CASA position on regulations and their application, not a ‘Standards’ view, or a ‘Compliance’ view, or an “Enforcement’ view. It is necessary to divide up an organisation of 700 people into administratively convenient units, but there is nothing to say there should not be active cooperation, information sharing and cross cultural interchange, and that is the way I want things to go.
Part of the process of changing what we do and how we are organised to do it, will involve a careful evaluation of the allocation of resources in line with an industry sector policy I announced last November. At CASA we owe it to the aviation industry and the travelling public, who pay a large part of my salary and the salary of CASA staff, and to the taxpayer, who pays the balance, that we should get the best safety outcome from the resources we have.
At the end of these change processes, including the development of new regulations, I want a regulatory environment that will give the industry maximum scope to manage its own safety. Why? Because the reality is that is where the daily controls that impact on safety are exercised and it is where the ultimate duty of care for flying, fixing, controlling and handling the planes resides.
It should also provide CASA with increased opportunity to perform some of those non-policing functions that, properly managed, can assist industry satisfy it’s safety-related obligations.
Chief Executive Officer
16 March 2005