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Tuesday, 20 March 2007
Page: 98


Senator O’BRIEN (7:56 PM) —I did not catch the first part of the speech. I do not know how much of my contribution has been gazumped in a very effective way by Senator Conroy. Senator Conroy tells me he has not spoken about the opposition’s position on this legislation. I can say that the opposition will support this legislation. That probably encapsulates our position in a nutshell.

The purpose of the Airspace Bill 2006 is to ensure that Australian administered airspace is administered and used safely, taking into account protection of the environment, efficient use of that airspace, equitable access to that airspace for all users of that airspace and national security. Clause 8(1) establishes the requirement for the minister to make a statement of national airspace policy. The purpose of this statement is to define the basis for Australia’s airspace architecture, to outline the government’s objectives for airspace and air navigation services, to describe a process for airspace change, including a risk assessment, and to provide clear guidance to airspace regulators of the policy frameworks under which they operate. The statement is also to set out a strategy for the administration and use of Australian administered airspace.

The minister’s power to make the statement is not to be delegated. The details relating to this statement are set out in the remainder of clause 8. In general, the Civil Aviation Safety Authority must exercise its powers and perform its functions in a manner consistent with the minister’s statement. Under the Airspace (Consequentials and Other Measures) Bill 2006, the Civil Aviation Act 1988 will be amended to include a new section stipulating that, subject to the Aviation Act 1988, which requires CASA to regard the safety of air navigation as the most important consideration, CASA must exercise its powers and perform its functions in a manner consistent with the statement. This amendment to the Civil Aviation Act 1988 will also require that CASA notify the minister in writing if it is proposed to exercise a power or perform a function in a manner that is inconsistent with that statement and to provide reasons for doing so. Some of the matters described in the statement are to be covered by regulations as well.

Clause 8(2) sets out the items that must at a minimum be included in that statement. This list requires that the statement must specify and describe the classifications to be used to administer Australian administered airspace, and these must be consistent with the International Civil Aviation Organisation’s classification system for airspace described in the Chicago convention or with differences lodged by Australia under article 38 of the Chicago convention and specify and describe the designations to be used for the purpose of restricting access to or warning about access to particular volumes of Australian administered airspace.

The equivalent provisions to these designations in the current regime are the volumes of airspace above areas of Australian territory declared by Airservices to be prohibited, restricted or danger areas under part 2 of the Air Services Regulations. These volumes of airspace currently include the airspace above prohibited, restricted and danger areas defined in the Air Services Regulations, to be transferred to the Civil Aviation Safety Authority.

Further, the statement will describe the processes to be followed by CASA as the airspace regulator when changing the classifications or designations of particular volumes of Australian administered airspace. The statement will describe a robust risk based decision-making process for major changes to the classification and designation of airspace. It is intended that the process to be followed for such changes will require at least the following three elements: a risk assessment, a cost-benefit analysis and consistency with government policy objectives. The statement will also ensure that major changes to the administration of airspace will be tested through consultation with stakeholders.

Further, it will outline the government’s policy objectives for the administration and use of Australian administered airspace and include a strategy for the future administration and use of Australian administered airspace. This strategy will make future airspace changes more predictable. For example, the strategy may include descriptions of how Australian administered airspace will accommodate technological change. Clause 8(3) allows the minister to include any other matters that the minister thinks appropriate, and clause 8(4) states that the statement described in clause 8 must be consistent with the Chicago convention, and this includes the annexes to the convention. Where Australia has notified differences under article 38 of that convention, the statement must be consistent with those differences.

Clause 8(5) provides that the Australian airspace policy statement will be a legislative instrument, but neither section 42 nor part 6 of the Legislative Instruments Act 2003 applies to the statement. This means that the statement must be tabled as required by the Legislative Instruments Act 2003 but is not disallowable and may not be the subject of a sunset clause. However, clause 10 of this bill requires that it will be subject to regular review, including a comprehensive consultation process. Clause 9 does deal with that. It requires the minister, when developing the statement, to consult the Civil Aviation Safety Authority, Airservices Australia and any other person or body the minister thinks appropriate. Consultation under clause 9(2) will include consultation with the Minister for Defence, and it is likely that the first statement will be developed as an interim statement in order to be in place at the point that regulations are made conferring relevant airspace functions and powers upon the Civil Aviation Safety Authority and removing those functions and powers from Airservices. That is to ensure that CASA has in place a complete legislative framework for administering and regulating Australian administered airspace. All of this is in a framework where a statement must be made by the minister every three years. Clause 10 directs that this must occur. The intent of the provision is to ensure that there is no more than three years between the end of one review commissioned by the minister and the end of the next airspace regulation.

Clause 11 makes provision for regulations to be made under the proposed Airspace Act to provide the Civil Aviation Safety Authority with the powers and functions necessary to administer and regulate Australian administered airspace. At the time those regulations are made, part 2 of the Air Services Regulations will be repealed, and all instruments made under those regulations will be grandfathered in order to maintain continuity of airspace architecture in Australian administered airspace. Transitional provisions enabling regulations to be made to put this arrangement into effect are included in schedule 3 of the related consequential amendments bill.

The provisions of clauses 11(2)(a) to 11(2)(k) list some of the matters that may be dealt with in regulations under this bill. It is not an exhaustive list. Clause 11(3) notes that the matters listed under clause 11(2) do not limit the matters for which regulations may be made under this bill. Subclauses under 11(2) describe matters that may be put into regulations to allow CASA to determine the appropriate services for particular volumes of airspace. In addition, regulations may be made to empower the Civil Aviation Safety Authority to regulate the provision of aeronautical information services in Australia. It is intended that Airservices Australia will remain the provider of Australia’s aeronautical information service pursuant to annex 15 of the Chicago convention. Clause 11(2)(j) will enable CASA to regulate the quality of the information provided by Airservices Australia and other providers of civil aeronautical information services in Australia. Regulations may be also be made to empower CASA to obtain information from the operators of aerodromes, the owners or operators of aircraft, or the providers of air navigation services. Clause 11(3) notes that the matters listed under clause 11(2) do not limit the matters for which regulations may be made under this bill.

There are a variety of other matters which make provision for such matters as the Civil Aviation Safety Authority delegating its functions and powers to another person. Circumstances when that might occur are most likely when decisions are required in the management of Australian administered airspace. For example, this could occur with respect to the designation and conditions of use of an air route or airway and the giving of directions in connection with the use or operation of designated routes and airways. In addition, provisions define ‘aerodrome’, ‘aircraft’, ‘air route’, ‘air route facilities or airway facilities’, and ‘airway’ and draw those meanings into line with the meaning in the Civil Aviation Act 1988. Other terms will defined in the airspace regulations.

Clause 12 provides direction to CASA on how it is to perform the functions and powers given to it in the airspace regulations, in particular to achieve the balance of matters referred to in clause 3 of the bill, subject to obligations in sections 9A, 11 and 11A of the Civil Aviation Act 1988, and it requires the Civil Aviation Safety Authority to actively encourage the efficient use of Australian administered airspace and equitable access to it and to ensure that national security concerns are accounted for.

As I mentioned earlier, as part of the role of the airspace regulator, clause 13 specifies that CASA is expected to conduct regular reviews ‘of the existing classifications of volumes of Australian-administered airspace in order to determine whether those classifications are appropriate’, in clause 13(1); ‘of the existing services and facilities provided by the providers of air navigation services in relation to particular volumes of Australian-administered airspace’, in clause 13(2); and ‘in order to identify risk factors and to determine whether there is safe and efficient use of that airspace and equitable access to that airspace for all users’, in clause 13(3). Clauses 14(1) and 14(2) provide for the minister to request advice from the Civil Aviation Safety Authority, by writing to that organisation, on a matter related to Australian airspace policy. In other words, CASA will assist the regulator in relation to that matter.

In essence, all of that means that this bill provides for the transfer of airspace regulation and administration from Airservices Australia, which has had this power for some time, to the Civil Aviation Safety Authority. This will provide an additional function for CASA to regulate civil airspace. Since 1995, the function to classify non-defence Australian airspace has been undertaken by Airservices Australia. There is a potential conflict of interest in a commercial provider of airspace services also being a regulator. The transfer of function will require the Civil Aviation Safety Authority to establish a dedicated administrative unit, which will be called the Office of Airspace Regulation. In addition, the bill requires the minister to outline an Australian airspace policy statement. This change should provide certainty for industry, particularly in view of significant changes to technology currently being instituted within Australia and in other jurisdictions. The statement will require major changes to Australian airspace to be subject to risk analysis, detailed examination of the potential costs and benefits and stakeholder consultation.

As I said earlier, the opposition will be supporting this bill. That is not to say that we do not have some concerns in relation to this arrangement—not that it is inappropriate, because it is appropriate; not because the principles that underline the bill are flawed, because we do not have that concern. Our concern is that the Civil Aviation Safety Authority has not performed to the standard that would give the opposition complete confidence that allocating an additional power to that organisation is the best course of action at this point in time. However, we are guided by the principle that the structure to be put in place ought to be the most sensible and consistent. We also believe that these provisions are capable of delivering for Australia a sensible and consistent model of regulation and removing the inconsistency of a service provider of airspace also being the regulator of that airspace.

I have had a lot to say in this chamber about the deficiencies in the performance of the Civil Aviation Safety Authority—not in relation to this power, of course, because they do not yet have it, but in relation to their regulation of operators in Australian airspace. The Lockhart River tragedy has taken some time of this chamber. I make no apology for bringing matters such as that before this chamber. We still await the Australian Transport Safety Bureau’s final report on that tragedy. It has been some time since the draft was sent to interested parties—which I believe included the Civil Aviation Safety Authority. I will not be surprised if there are criticisms of the Civil Aviation Safety Authority in the document when it is finally issued.

We will hold our opinion until we see that document, but there are certainly great concerns held within the community of North Queensland about the way that CASA performed their functions in relation to Transair. It of course is a matter of history that Transair was finally, some time after the crash, the subject of regulatory action by the Civil Aviation Safety Authority, which ultimately saw it concede its licence following two particular actions by the authority under its legislation. Of course, the families of those killed in the Lockhart River tragedy will continue to wonder whether their loved ones would have been saved had CASA acted more expeditiously in relation to matters that were drawn to its attention over a long period of time—matters which seem to go to the very fundamentals of the safety of the operation of that organisation.

There have also been concerns expressed about the Civil Aviation Safety Authority’s performance in the minister’s own state, Western Australia. There has been at least one instance—but I believe there could have been more—where a coroner has made very critical comment about the performance of the authority in relation to a fatality: for example, where the authority approved the manufacture of an aircraft part inappropriately and that aircraft part, according to the coroner, led to a crash and a fatality. The performance of the authority has been good in some areas. I think, overall, the opposition’s view is that its performance nationally has been quite patchy.

There have also been concerns expressed from the state of Western Australia, in particular, about the way that officers of CASA have used their authority to pursue, if not persecute, particular operators—matters which have led to proceedings before administrative tribunals and, I believe, the Federal Court. One particular case, which I will not put on the record now, ultimately saw the operator continue to operate because, frankly, in the operator’s view, he had pockets deep enough to continue to challenge the decisions, the processes and the practices of CASA in relation to his business.

Those concerns are matters which the opposition and I have raised in this chamber before. They are matters that the opposition will continue to pursue. We do hope that, in this new section of CASA that is being created to regulate airspace, the organisational culture being created can ensure that this area functions most efficiently, because there is one certainty in aviation regulation: if airspace is not regulated properly, the chance of incidents and accidents occurring is greater. That is something that the Australian travelling public will not countenance. That is something which will affect the credibility of aviation services in Australia and which will impact on Australians’ preparedness to travel. We will support this legislation, but we do so whilst having serious concerns about the performance of and the culture within the Civil Aviation Safety Authority. We hope that can be improved; in government, we would certainly make sure it was.