As a Commonwealth statutory agency, CASA is subject to scrutiny by the Australian Parliament. CASA’s activities may be subject to investigation or consideration by administrative agencies or the courts. In addition, CASA receives informal feedback on its performance through media coverage and through complaints received from industry or members of the public.
CASA welcomes external scrutiny as a means to confirm what it is doing well, and to identify ways to better meet its statutory obligations and achieve its vision in the future.
On 16 October 2012, CASA appeared before the Senate Rural and Regional Affairs and Transport Committee Inquiry into Aviation Accident Investigations. Matters discussed included CASA’s regulatory actions, CASA’s employment of the former chief pilot of Pel-Air, interaction with the ATSB and regulations covering fuel carriage to remote islands.
In October and November 2012, CASA responded to orders for documentation from the committee, providing a significant amount of material relating to the operator, the accident, the pilot and the aircraft. CASA made two submissions to the inquiry addressing the terms of reference and submissions made by other parties. CASA also provided responses to 48 questions from the committee.
On 15 February 2013, CASA appeared again before the inquiry. Matters raised included the release of an internal CASA report analysing CASA’s overall surveillance of Pel-Air and whether that report would have influenced the ATSB report findings, the handling of the ‘critical safety issue’ in the ATSB Pel-Air report and the application of the MoU between CASA and the ATSB.
On 16 October 2012, 12 February 2013 and 29 May 2013, CASA appeared before the Senate Rural and Regional Affairs and Transport Legislation Committee Estimates hearings.
Matters discussed in October 2012 included the progress of regulatory reform, staffing at CASA regional offices, feedback from industry and staff, Polar Aviation legal costs, Casino aerodrome and the CASA review of Airservices Australia.
At the February 2013 hearing, matters raised included wind turbines, budget savings, registration of aircraft by Recreational Aviation Australia, communication with operators, an update on the International Aviation Safety Assessment audit conducted by the US FAA, authorised testing officers and the conduct of flight tests by CASA staff.
At the May 2013 hearing, committee members canvassed taxi costs, fatigue rules, staffing, the Sky Sentinel acquisition, allegations of ‘retribution’, mobile phones on aircraft, unmanned aircraft systems, the Pel-Air report, aerial firefighting and changes to CASA.
During the reporting period, CASA took action on 72 ministerial responses and responded to 35 questions from Estimates hearings directed to CASA, as well as providing input to a substantial number of questions addressed to the portfolio.
In Civil Aviation Safety Authority v Caper Pty Ltd (2012) 131 ALD 79, the Federal Court of Australia dealt with an appeal by CASA from a decision of the Administrative Appeals Tribunal that concerned the operation of subregulations 206(1)(b) and (c) of the Civil Aviation Regulations 1988 (CAR).
Caper Pty Ltd (Caper) held a charter Air Operator’s Certificate (AOC), that did not authorise it to conduct regular public transport (RPT) operations. Caper conducted scheduled flights for a tour company, AAT Adventure Kings (AAT Kings), between Darwin and Bathurst Island to transport tour groups organised by AAT Kings to and from those places.
CASA determined that since these flights were regular scheduled flights open to members of the public generally, they were RPT flights as defined in subregulation 206(1)(c) of the CAR and were not authorised by Caper’s AOC. Accordingly, CASA varied Caper’s AOC to prevent it from conducting flights between Darwin and Bathurst Island.
Caper sought a review of CASA’s decision in the Administrative Appeals Tribunal, which decided that the flights were closed charter flights and set CASA’s decision aside.
In the Federal Court, Caper submitted that since there was an entity (AAT Kings) interposed between Caper and the general public (who were passengers on the aircraft), the flights were closed charter flights as defined in subregulation 206(1)(b) of the CAR, because carriage on the aircraft was only available to customers of AAT Kings, which chartered the aircraft from Caper. CASA submitted that since the customers of AAT Kings were members of the public generally, the flights conducted by Caper transported persons generally in accordance with fixed schedules between fixed terminals. As such, the flights were RPT operations.
In accepting CASA’s submission and setting aside the decision of the Administrative Appeals Tribunal, the Federal Court held that Caper’s air operation provided accommodation in the aircraft for use by the general public. The advertised offer of the flight, albeit bundled with the tour, was made to any member of the public. Caper’s air operation was not a closed charter under subregulation 206(1)(b)(ii), but an RPT operation under subregulation 206(1)(c).
This was an important judgment that made clearer the distinction between closed charter operations and RPT operations, particularly where a third party was interposed between the aircraft operator and the general public.
CASA applied to the Federal Court for one prohibition order during the year. In Civil Aviation Safety Authority v Barrier Aviation Pty Ltd (2013) FCA 227, the Federal Court dealt with an application by CASA for a prohibition order pursuant to section 30DE of the Civil Aviation Act 1988, to prevent Barrier Aviation Pty Ltd (Barrier) from doing anything authorised under its AOC for a set period on the basis that Barrier had engaged in, was engaging in, or was likely to engage in conduct constituting a serious and imminent risk to air safety.
On 24 December 2012, CASA suspended Barrier’s AOC under section 30DC of the Civil Aviation Act on the basis that Barrier had engaged in, was engaging in, or was likely to engage in conduct constituting a serious and imminent risk to air safety. This action was taken after an investigation by CASA revealed that Barrier was systematically circumventing the airworthiness control obligations imposed on it by the aviation legislation and routinely operating aircraft with major defects in commercial passenger carrying operations under its AOC.
In granting CASA’s application, the Court held that, upon its review of the evidence filed by CASA, it was satisfied there were reasonable grounds to believe that Barrier had, in the past, engaged in conduct that either constituted, contributed to, or resulted in a serious and imminent risk to air safety.
No decisions made by the Australian Information Commissioner during the reporting period had a significant effect on CASA’s operations.
CASA’s legal costs for 2012–13 are outlined in Table B.14.
Coroners have the authority to investigate deaths, identify other injuries and make recommendations that may prevent deaths and non-fatal injuries. Coroners’ findings vary from brief descriptions about the place of death, the identity of the deceased and the cause of death, through to detailed descriptions of the circumstances leading to the death and detailed recommendations concerning what could be done to prevent similar deaths and injuries.
Such recommendations may deal with the administration of aviation safety by CASA.
Table B.5 in Appendix B shows the number of coronial inquiries that involved CASA in each year from 2008–09 to 2012–13.
Reports by the Auditor-General
In 2012–13, no reports involving CASA were tabled by the Australian National Audit Office.
Investigations by the Commonwealth Ombudsman
Two investigations were begun by the Commonwealth Ombudsman’s office during 2012–13 and three investigations from the previous financial year were closed by the office. The Ombudsman decided that no further investigations were warranted in all cases and made no findings of administrative deficiency.
Reviews of regulatory decisions
Certain types of regulatory decisions made by CASA are subject to merits review by the Administrative Appeals Tribunal. Merits review involves the reconsideration of an administrative decision. On the facts before it, the tribunal decides whether the correct decision (or, in a discretionary area, the preferable decision) has been made in accordance with the applicable law.
A person who is the subject of a CASA decision may apply directly to the Federal Court for a review of the decision under the Administrative Decisions (Judicial Review) Act 1977. In some cases, a decision of the Administrative Appeals Tribunal may be reviewed in the Federal Court.
Tables B.6 to B.8 in Appendix B show Administrative Appeals Tribunal merits reviews of regulatory decisions from 2008–09 to 2012–13, the categories of CASA decisions appealed to the tribunal in 2012–13, and applications to the Federal Court for judicial review of regulatory decisions from 2008–09 to 2012–13.
The Industry Complaints Commissioner (ICC) offers industry a transparent and accessible mechanism for making complaints about the conduct of CASA officers. The ICC operates within terms of reference that support a complaint-handling process aimed at resolving problems between members of the industry and CASA officers and ensuring that any deficiencies in CASA’s processes and procedures are identified and rectified.
Complaints in 2012–13
During 2012–13, the ICC investigated complaints from 142 complainants about the conduct of CASA officers, compared with 100 complaints in the previous financial year. In addition, the ICC received 52 complaints about the aviation industry that were not within CASA’s jurisdiction.
Complaint numbers for the Operations and Industry Permissions divisions increased significantly in 2012–13: Operations Division increased from 32 complaints to 53 complaints and Industry Permissions from 33 to 78. The majority of complaints about the Industry Permissions Division related to the processing of medical certificates.
Complaints about medical certificates were approximately evenly divided between complaints about the administration of the application (including lost paperwork, delays and the quality of information provided) and medical decision-making. In relation to the latter, applicants complained that insufficient weight was given to the views of their designated aviation medical examiner (DAME) or treating physician, particularly in cases where those medical practitioners supported the issuance of a non-restricted medical certificate, or that too many additional medical reports were required before a decision could be made by CASA.
A range of strategies is in place to address the issues raised through the complaints. In particular, the introduction of a new medical records system in the next 12 months is a key initiative to improve the standard of service delivery and to manage the function.
New guidance material has been published to help DAMEs and applicants understand the policies that apply to aeromedical decisions in relation to some particular medical conditions.
The number of out-of-jurisdiction complaints declined from 172 in 2011–12 to 52 in 2012–13. It is likely that this reduction is attributable to changes in the CASA complaint form, which now provides greater clarity on the role of the ICC, and the creation and profile of the Airline Customer Advocate with a mandate to resolve issues that previously came to CASA as out-of-jurisdiction complaints.
The previously implemented system for transferring incorrectly made complaints to the correct government organisation is working effectively. Rather than requiring complainants to lodge fresh complaints with the correct organisation, government agencies involved in the aviation sector transfer complaints to the correct organisation, or contribute to a whole-of-government response to the issues raised. This provides a better service to the complainant and reduces complaint fatigue.
Figure 11 shows the complaints received by CASA in 2012–13 and the categories into which those complaints fell.
In 2013–14, a more sophisticated complaint-handling database is expected to be introduced, allowing earlier identification of complaint trends and a quicker response to emerging issues.