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How CASA meets the government best practice principles for policy makers
CASA's standards development activities are subject to the Government's regulatory best practice principles for Australian Government policy makers:
- Regulation should not be the default option for policy makers: the policy option offering the greatest net benefit should always be the recommended option.
- Regulation should be imposed only when it can be shown to offer an overall net benefit.
- The cost burden of new regulation must be fully offset by reductions in existing regulatory burden.
- Every substantive regulatory policy change must be the subject of a Regulation Impact Statement.
- Policy makers should consult in a genuine and timely way with affected businesses, community organisations and individuals.
- Policy makers must consult with each other to avoid creating cumulative or overlapping regulatory burdens.
- The information upon which policy makers base their decisions must be published at the earliest opportunity.
- Regulators must implement regulation with common sense, empathy and respect.
- All regulation must be periodically reviewed to test its continuing relevance.
- Policy makers must work closely with their portfolio Deregulation Units throughout the policy making process.
CASA incorporates a range of processes and procedures into each standards development project to ensure the greatest possible compliance with these best practice principles.\
Principle 1: Regulation should not be the default option for policy makers
The Government's approach to policy making seeks to ensure that regulation is never adopted as the default solution, but rather introduced as a means of last resort. The government requires policy makers to seek practical solutions, balancing risk with the need for regulatory frameworks that support a stronger, more productive and diverse economy. Every policy option must be carefully assessed, its likely impact costed and a range of viable alternatives considered in a transparent and accountable way against the default position of no new regulation.
This best practice principle is reflected in CASA's Guiding Principles (DAS Directive - 01/2015):
Aviation safety regulations must be shown to be necessary. They are not to be developed with a view to addressing known or likely safety risks that cannot be addressed effectively by non-regulatory means alone.
In practice, CASA addresses this requirement through the Standards Development process, during both the Project Initiation and Planning stages. Standards Division Managers review each standards development proposal, assessing whether the proposal requires legislative action or can be addressed by non-legislative means. During the Planning stage of a Standards Development project, the Project Leader again reviews non-regulatory options as part of the safety risk analysis.
The Standards Development Procedures Manual includes procedures for assessing non-regulatory approaches to treatment of safety risks and instructs
When identifying available options, the Project Leader should consider non-regulatory approaches in preference to regulatory intervention.
Principle 2: Regulation should offer an overall net benefit
CASA's Standards Development process requires that proposals for new and amended regulation be subjected to safety risk analysis during the Project Planning stage. This analysis includes, amongst other assessments, impact assessments on the aviation community and CASA and on occasion a formal cost-benefit analysis (CBA) to estimate the associated costs and benefits—measured in terms of financial, time and safety impacts—of the proposed regulations. The complexity of the analysis is commensurate with the significance of the proposal.
CASA only proceeds with regulatory change when it can be established that such a change would offer a net benefit to society.
It is important to note that the Office of Best Practice Regulation (OBPR) oversights CASA's cost-benefit estimates through their review of each Preliminary Impact Assessment (PIA) and Regulation Impact Statement (RIS) submitted by CASA.
Principle 3: Cost of new regulations should be offset by reduction in existing regulatory burden
For new regulations that are assessed to have a significant impact (see Principle 4) on business, community organisations or individuals, CASA must prepare a RIS to be approved by OBPR. OBPR will only approve the RIS if CASA has adequately demonstrated that the cost burden of the new regulation is fully offset by reductions in the existing regulation burden.
CASA's policy, in the first instance, is to look for cost offsets that would provide relief for the same sector(s) of industry affected by the new regulations, to ensure that regulatory burdens are not unduly shifted across sectors. This is not possible in all cases and on occasion new costs for one sector must be offset by savings for the entire aviation community or for a sector different than the one subject to the new cost burden.
CASA reports to the Department of Infrastructure, Regional Development and Cities, detailing the cost burden of legislative instruments previously made. The Department is responsible for ensuring that the cumulative cost burden of the new regulations made within a year is offset by cost reductions in existing regulation and/or administrative procedures.
Principle 4: Substantive regulatory policy change must be the subject of a Regulatory Impact Statement
Regulation impact analysis is a process for assessing the impacts of regulation—from an economic and financial perspective—on business, individuals and other stakeholders.
A preliminary assessment must be undertaken for all regulatory proposals in order to determine the appropriate level of analysis. The Government requires policy makers to prepare a preliminary assessment for:
- all reviews of existing regulation
- development of proposed new or amended regulation.
Changes to the CAA, CASR, MOS, CAR, CAOs, and other legislative instruments not subject to a 'carve out' agreement with OBPR, all require a PIA. When OBPR identifies, on the basis of the PIA, that a proposal is likely to have a significant impact on businesses/individuals or the economy—in the form of increased compliance costs or other operational impacts—a more detailed analysis must be undertaken and documented in a RIS. The decision to require a RIS is made by OBPR, not CASA. In instances where the impacts include medium or significant business compliance costs, the RIS should include a full (quantitative) assessment of those costs, prepared using the Regulatory Burden Measure.
Principle 5: Consult in a genuine and timely way with affected stakeholders
The Best Practice Consultation guidance note describes best practice consultation as meeting the following criteria:
- not burdensome
- consistent and flexible
- subject to evaluation and review
- not rushed
- a means rather than an end.
Related to this policy are four consultation options:
- full public consultation
- targeted consultation
- confidential consultation
- post-decision consultation.
CASA endeavours to address these criteria at all consultation stages—from the policy proposal stage through to post-implementation review.
Consultation Plans provide stakeholders with an early indication of potential legislative changes. These plans contain information about proposed regulatory activities, including a description of the issue, information about consultation opportunities and an expected timetable. In meeting the requirement for a Consultation Plan, CASA maintains a web page that provides information about standards development projects and consultation.
Aviation Safety Advisory Panel
CASA established the Aviation Safety Advisory Panel (ASAP) to serve as the principal consultative body for the provision of advice and recommendations to CASA on standards issues.
The ASAP brings together CASA staff and representatives from a range of aviation community organisations to work jointly during the development phase of standards and advisory material.
Consultation documents and exposure drafts
CASA undertakes an iterative process of consultation with industry, involving the release of:
Discussion Papers (DPs) - Initial consultation takes place at the early stages of standards development; at this stage a DP is prepared and circulated for consideration and comment. The DP essentially meets the Government's 'green paper' requirements by exposing proposal concepts, ideas or options for stakeholder awareness and consideration.
Notices of Proposed Rule Making (NPRMs) - Formal consultation takes place once policy and technical options have been assessed more thoroughly and recommendations for legislative (and non-legislative) change have been identified. The NPRM may include the draft regulations, if available.
Consultation Drafts (CDs) - Provide an opportunity for CASA to consult on the draft regulations, if the regulations were not available at the NPRM stage or if the regulations make minor/low impact changes that do not require a more comprehensive consultation.
Draft advisory publications - AMC/GMs, CAAPs and ACs are released in draft form for public comment before final publication.
The Government's best practice guidelines require that, prior to finalisation, the details of complex regulations should be tested with relevant business interests, including through exposure drafts for significant matters. CASA fulfils this obligation by releasing exposure drafts, as appropriate, in the form of an NPRM Annex or CD. Our implementation planning and other activities also include direct consultation with elements of industry to 'road test' the new provisions.
1.1.1 Communication of consultation activities
Publications - For high profile projects, dedicated pamphlets may be produced. Articles on high profile projects may also be featured in CASA's online Flight Safety Australia magazine.
Internet - All CASR Parts and projects are featured on CASA's changing the rules web page.
Advertisements - CASA notifies consultation details through newspaper advertisements, generally by way of The Australian newspaper - Aviation Supplement.
Subscriber mailing list - CASA issues notifications via CASA's mailing lists. Registered subscribers to the Rules development / amendment and Final rules amendment / new rules list receive direct email notification of all standards development consultation activities.
- enables registration of relevant stakeholders prepared to be consulted on particular regulations
- automatically notifies stakeholders, including businesses and Government agencies, of consultation processes in areas where they have registered an interest
- provides information on the Government's public consultation objectives and policies
- provides links to current and past consultation processes
- includes information about new and upcoming changes to regulation.
1.1.2 Consultation periods
The publication of a MOS or amendment to a MOS is subject to a full consultation process and impact analysis in the same general way as regulations and CAOs. Part 11 of CASR prescribes that the consultation period for a new or amended MOS shall be a minimum of 28 days, or a minimum 14 days for minor/machinery amendments, unless the DAS approves a variation in accordance with Subpart 11.J of CASR.1
1Refer to regulation 11.280 of CASR for details on MOS consultation requirements.
Principle 6: Consult with other policy makers
As the primary regulator of aviation safety in Australia, there is minimal scope for CASA's policies to create cumulative or overlapping burden. CASA's consultation with other policy makers is focused on broader aviation policy—CASA liaises with the Department of Infrastructure, Regional Development and Cities to ensure that policies are aligned with the high level strategic concerns of the Department's Aviation Industry Consultative Council.
The Aviation Safety Regulation Review (2014) recommended that the Department of Infrastructure, Regional Development and Cities and the Department of Defence establish in agreed position on safety oversight of civil operations into joint user and military airports (Recommendation 13). In response, the Government reaffirmed the need for CASA and the Department of Defence to maintain their commitment to the 'Agreement on the Promotion of Aviation Safety and Airworthiness', which was agreed in 2010. This agreement aims to better coordinate regulation of Australian aviation safety across civilian and military operations.
Principle 7: Publish the information used as the basis for decision-making
CASA publishes an NFRM to notify industry of the outcome of consultation and formal rulemaking activities. NFRMs serve to finalise the consultation process by advising affected parties of the changes being made by CASA. This includes CASA's response to the comments received during the consultation process and a statement of CASA's disposition—against individual comments and as a summary of amendments made to the proposed regulation as a consequence of consultation feedback.
Principle 8: Implement regulation with common sense, empathy and respect
The Aviation Safety Regulation Review Report (2014) recommended that CASA changes its regulatory philosophy to build a more effective collaboration with industry, built on a foundation of mutual understanding and respect (Recommendation 14).
CASA released its Regulatory Philosophy in September 2015.
Principle 9: Periodically test regulations for continuing relevance
OBPR defines the circumstances under which a post-implementation review (PIR) is required. In general, if a proposal proceeds without an adequate RIS, the regulation must be the subject of a PIR with 1-2 years of the regulation being implemented. This requirement is not waived by the Prime Minister having granted an exemption from the RIS requirements when the regulation was being developed.
CASA initiates PIRs in accordance with OBPR's requirement and otherwise as it becomes evident that a review is needed to harmonise with the ICAO SARPs, keep pace with industry developments, address changes in technology or because the regulation has had unintended consequences. Each PIR is project managed through the Standards Development process and subject to the same rigour of proposal review and safety risk analysis as the original regulatory development.
The continuing relevance of CASA's safety regulations is ensure through:
- industry feedback gained from industry and public consultations
- industry participation in Standards Development project teams.
CASA's policies regarding project teams and industry involvement are detailed in Appendix A.
Principle 10: Work closely with the Department of Infrastructure, Regional Development and Cities on deregulation
In addition to reporting on all new regulations made within the previous quarter, CASA provides the Department of Infrastructure, Regional Development and Cities with a forward work program. CASA meets regularly with Department representatives to discuss the progress of new and amended regulations that are proposed within the relevant reporting period.