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Wednesday, 23 March 1994
Page: 2013


Senator MacGIBBON (9.54 a.m.) —I move:

  That new regulation 239, as contained in regulation 16 of the Civil Aviation Regulations (Amendment), contained in Statutory Rules 1993 No. 319 and made under the Civil Aviation Act 1988, be disallowed.

A new set of regulations has been tabled in the Senate by the government on behalf of the Civil Aviation Authority. Within Statutory Rules 1993 No. 319 a new regulation 239 is inserted in clause 16. This regulation is wrong, and I seek the support of the Senate to delete this new regulation 239, not the whole of statutory rule No. 319. Regulation 239 deals with the planning of flight by a pilot in command. It provides:

"239. (1) Before starting:

(a) an I.F.R. flight—

that is, a flight made under instrument flight rules—

(b) a flight at night under the V.F.R.; or

(c) a flight longer than 50 miles from the departure aerodrome;

the pilot in command must plan the flight, having regard to:

(d) the information set out in subregulation (2); and

(e) any instructions under regulation 240 that bind the pilot.

Penalty: 25 penalty units.

  "(2) The information referred to in subregulation (1) is:

  (a) current weather reports or forecasts for the route to be followed and at the aerodromes to be used; and

   (b) the airways facilities available on the route and the condition of the facilities; and

   (c) the condition of the relevant aerodromes and their suitability for the aircraft to be used; and

   (d) the air traffic control instructions and information relating to the flight; and

   (e) any other information that is available and appropriate to the flight.

  "(3) If, when a pilot in command is planning a flight, any information referred to in paragraph (2)(a), (b), (c) or (d) is not available, the pilot is taken not to have complied with subregulation (1) until:

  (a) the information becomes available; and

  (b) the pilot has regard to it in planning the flight.

   "(4) Before starting a flight, other than a flight covered by subregulation (1), the pilot in command must plan the flight, having regard to all available information appropriate to the flight.

Penalty: 25 penalty units.

Twenty-five penalty units, I am advised, is $2,500 in today's scale of penalty units. The reason this is wrong relates to the requirement that is provided under 239(1)(c) which states:

  a flight longer than 50 miles from the departure aerodrome.

The Senate has no quarrel with the requirement to obtain a forecast and acquire all the necessary information in relation to an IFR flight or a VFR flight at night. That is not in dispute at all. But the imposition of this requirement to get all the information that is required for an instrument flight, for a VFR flight, which is a flight made under visual flight rules, is wrong and is a classic example of over-regulation.

  I have no problem and the Senate would have no problem with the general proposition that pilots should always be encouraged to get this information. The problem with the resolution is that it requires, under pain of a very high penalty, that the pilot acquires this information, otherwise the flight is illegal.

  There are occasions in Australia where it is inconvenient to get this information and proceeding without the information in no way would prejudice the safe conduct of the flight. I stress that if the Civil Aviation Authority recommended that pilots in command should get, wherever possible, all this information, particularly in relation to weather forecasting, and if they requested them to submit a flight plan, we would wholeheartedly support that move. It is the element of compulsion on this narrow point that is wrong.

  To penalise someone with a fine of $2,500 for this alleged breach of the rules is quite disproportionate. It is as nonsensical as the current legislative position that a pilot can be fined $5,000 for running out of fuel. No pilot would run out of fuel as a conscious act. I have been flying for 30 years and if I have ever run out of fuel I have been facing circumstances that were beyond my anticipation at the time I departed on that flight. I would have either met extreme weather conditions, there would have been something mechanically wrong with the fuel supply system, or the operation of the engine occasioned a much higher than normal fuel burn. This reflects the current philosophy of the Civil Aviation Authority. There is this great punitive air; there is no consultation; there is no seeking to counsel and advise people who breach rules; there is just the imposition of massive fines. It creates the wrong atmosphere in a small community such as the aviation community.

  One of the things that is very wrong about the regulation before us today is that it fails to reflect the policy changes in the Civil Aviation Authority in relation to VFR flights that have been manifested in recent years. The Civil Aviation Authority has campaigned against VFR pilots putting in flight plans. They have talked about the enormous cost of putting a plan in and have discouraged pilots on that basis.

  The fact that they attribute such a high cost to putting a flight plan in reflects on their administrative processes. A plan should be able to be submitted and processed for a very nominal figure. The machinery is there for it, and if it is used efficiently there should not be figures of $150 and upwards bandied around by the authorities as the cost of filing a plan. It should be a matter of a dollar or so.

  Another significant thing in VFR operations has been the closure of flight service offices all around country Australia. That has made position reporting very difficult. If a VFR pilot is flying around Australia and makes a position report, either that position report will not be acknowledged or the pilot will be reproved or rebuked by the air traffic controller for cluttering up the airspace with unnecessary information.

  I have previously mentioned in the Senate how pilots often use subterfuges as they cross from one air traffic boundary into another. They will call up for the QNH of the new area and in the process put in a position report saying they are overhead so and so at this time at such and such an altitude, and anticipating their next point at such and such a time. That is never acknowledged by the air traffic controller, but it is on the tape. If the aircraft fails to arrive at its destination, it then becomes possible to check back and get a position fix indirectly through the tape.

  The evidence is very clear. The department does not want to do anything for VFR operations. The law does not require radio below 5,000 feet. It is quite possible to legally fly VFR and make no demand at all on air traffic control procedures or facilities. Therefore, to legislate that we must have information on all the air traffic control procedures and requirements for an area is quite irrelevant. It just does not need to be done.

  What we have seen in recent times is an imbalance develop in the Civil Aviation Authority, with all the emphasis on aircraft operating under the instrument flight rules and very little concern for the interests of the pilots operating under VFR. The great majority of flights are in light aircraft in Australia and are made under visual flight rules. Numerically, that is the major part of the traffic in Australian skies.

  Recently, a number of VFR aircraft have been lost and the authority has been involved in a series of very expensive searches looking for those aircraft. Those searches would have been speeded up a great deal if pilots had been encouraged to file flight plans. That would have refined the area of the search to a considerable degree. The searches would have cost at least $250,000 to $350,000 and upwards for the hire of search aircraft. The authority is now getting very embarrassed about that and is rethinking its policies on VFR operations, but it does not have the courage to admit that it was wrong in the first place.

  The policy of the authority should be to encourage pilots to file flight plans and to get information wherever possible, but not to make it compulsory. There are a lot of parts of Australia where we can safely fly without a weather forecast. For the major part of the year in most of Australia, for VFR operations operating along the coast or inland, the terrain is very low and flat and the weather systems are very predictable particularly through western New South Wales and western Queensland for months on end.

  By looking at the weather one can make a very good forecast as to what will happen in the day. If one starts the day in winter in western New South Wales or western Queensland, and there is no ground fog and eight-eighths blue sky one can be reasonably confident, if there is not a high wind, that one will experience good weather conditions, not only for that day but also probably for some days ahead. One makes that assessment based on judgment and airmanship. I do not see that there is any need to make a forecast mandatory.

  It is also harassment for a lot of pilots, particularly in rural areas. Let us take as an example somebody who is on a property 60 miles out of Longreach and who wants to go into Longreach on business. It is mid-winter in Queensland, perfect blue skies and negligible wind: he can safely look at the weather, make that assessment himself, fly into Longreach, do his business and return without getting a forecast. Of course, thousands and thousands of pilots have operated that way. The Civil Aviation Authority cannot show, statistically, any record of accidents or malpractices that have arisen as a result of pilots making their own assessment in the sorts of circumstances about which I am talking.

  I want to return to VFR operations at the present time. Legally one can fly below 5,000 feet without radio VFR. It is quite anomalous to make the flight illegal unless the pilot is aware of `the airways facilities available on the route and the conditions of the facilities' and `the air traffic control instructions and information relating to the flight'. Quite simply, one can fly where one does not need those facilities at all. So it is wrong to legislate for it.

  Until two years ago this situation was dealt with by having an exclusion for aircraft below 1,930 kilograms. That operated very well: such aircraft were excluded from the old regulations of getting weather information and all the rest of it. That basically took in all those VFR light aircraft operations. Interestingly, when the CAA was challenged on this point, it claimed that a range of high performance, twin-engine aircraft have been introduced which could no longer land in small restricted spaces, which was the basis for awarding the original concession against aircraft below 1,930 kilograms.

  I would ask the Civil Aviation Authority to instance any high performance, twin-engine aircraft that has been introduced in the past 20 years. It simply has not happened—it is a false claim. All those twin-engined aircraft that are on the register in Australia were designed, certified and registered in Australia more than 20 years ago. Their operational history is such that there are no grounds at all for claiming an abuse of the process. What we have had in the past has worked well. There is simply no evidence from the Civil Aviation Authority to warrant this change that is before us. It is the worst sort of over-regulation, it is not necessary and it is harassing the pilot community. My biggest objection to it as a legislator is that the regulation is unenforceable.

  The procedures for obtaining weather forecasts, getting NOTAMs and filing flight plans are set up now so one can dial in with a touch phone and, through a series of computer codes, access all this information. One then gets a computer generated voice with an American accent giving the weather information, the NOTAMs and all the rest of it. The point is that it is an automatic transfer of information.

  For example, if a pilot flew in from Bourke to Bankstown VFR and a CAA inspector asked him whether he obtained a weather forecast before he made the flight, the pilot could deceive the Civil Aviation Authority by saying, `Yes, I did. I did it automatically on my touch phone and I received the information'. It would be quite impossible for the Civil Aviation Authority to disprove that false claim.

  As a legislator, like everyone else in this chamber, I believe that it is very bad practice to pass legislation which is unenforceable. At the end of the day the element of proof that someone did not obtain a flight plan cannot be obtained with the present system that is in place. And, of course, the other thing that the CAA relies on very strongly here is the presumption that weather forecasts are accurate. Weather forecasts are done either on a terminal airfield basis of making a forecast of what might happen through the next 12, 24 hours at the particular airport to which one is going, or they are done on a regional basis.

  The forecasting system does its best, but in no sense is it infallible. Yet the whole basis and justification for this is that somehow or other a blueprint can be obtained from a forecaster, saying with perfect fidelity what is going to happen within the next 12 to 24 hours. That is not true. It is part of good airmanship to be very cautious about the veracity of weather forecasts. I can well remember a situation, maybe 28 years ago, when I was a very inexperienced pilot. I departed from a capital city airport in absolutely perfect weather conditions—not a cloud in the sky and zero wind. The forecast I had obtained about half an hour before departure showed that there were CAVU conditions obtaining in that area within the state.

  Within 20 minutes of my departure from that airport I was literally fighting for my life below the cloud base, over the tops of trees, in mountainous terrain. I got into that situation principally because I was inexperienced and young. I got out of it because I was very experienced in that area—I had done a lot of rock climbing and mountaineering when I was at university and I knew the terrain. But the point is that I believed the forecast that I had got only half an hour or an hour earlier—a forecast which said there was no significant weather, no cloud, no fog, nothing. I was led in through my inexperience, reinforced by the belief that there was no significant weather in the area. Every pilot has a story like that. It is quite wrong to presume that a forecast is infallible. By all means, people should be encouraged to get a forecast, but they should regard it as a guide to what might happen, not as a certainty of what will happen.

  One of the problems we are dealing with here now is the general run down within the Civil Aviation Authority and the lack of operational experience and professional competence within that body. Some time in the future when there is a relevant bill before us I will look at this in some detail. But all of us in the aviation industry are now very concerned by the marked decline in professionalism within that body. A regulation like this would never be put forward by anyone who had any operational experience: it is wrong; it is over-regulation; it is unenforceable; and it carries this quite horrendous fine of $2,500. Quite apart from the fact that that is a lot of money, the incident would go on somebody's record with the department and have to be declared annually when they renegotiated their insurance premiums on their aircraft. They would pay a penalty because they had breached Civil Aviation regulations. It would be quite unjust for someone in the sorts of circumstances I have outlined that apply to VFR operations to carry that stigma on their career.