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Rural and Regional Affairs and Transport Legislation Committee
22/02/2019
Estimates
INFRASTRUCTURE, REGIONAL DEVELOPMENT AND CITIES PORTFOLIO
Civil Aviation Safety Authority

Civil Aviation Safety Authority

[16:16]

ACTING CHAIR: I welcome representatives of the Civil Aviation Safety Authority. Mr Carmody, do you have an opening statement?

Mr Carmody : Thank you for the opportunity to make this short opening statement. I'd like to update the committee on three topical areas of the Civil Aviation Safety Authority before we move to questions. I want to begin by reiterating that CASA in its current form was established with the focus being first and foremost on aviation safety. This stemmed from the tragic Monarch and Seaview accidents in 1993 and 1994, respectively, when the then Civil Aviation Authority, the regulator, our predecessor, was found to have failed in its safety responsibility by placing commercial considerations ahead of the safety of passengers. I don't want this to occur again.

One of the three topics I'll mention today is the significant progress that CASA has made on the finalisation of the Civil Aviation Safety Regulations. The journey began in around 1995, with 55 regulations to be made. By 2010 there were 17 left. By 2016 there were 10 left. Last year we completed seven, so we have three regulations left before calling an end to the regulatory development program. To put it another way: we're 95 per cent complete, with a lot of work done last year.

Remotely piloted aircraft systems is another topic I'd like to mention. One of the recommendations of the references committee last year related to establishing a registration system and a competence test for RPAS or drones. We released a policy proposal on 25 January this year for consultation on registration of drones, including an online education course, and the consultation closes today. As of this morning, we have received over 4,100 responses, which is the most we've had in relation to one consultation ever, as far as I can recall. As per our practice, once this consultation closes we will evaluate the responses to determine if any amendments need to be made to our proposal. We will then publish a summary of the consultation and the comments approved for publication and make the necessary changes to our regulations. At this stage we're aiming to introduce RPA registration for RPA operator certificate holders from 1 July, registration and accreditation for the excluded category from 1 September and registration for recreational RPA operators from 1 November this year. We're also continuing to work on the other areas outlined in the report.

The third item I'd like to mention today is the recent changes to community service flights. To be clear: these changes are about community service flights—that is, flights conducted by volunteer pilots free of charge and coordinated by a third party. They're not about emergency services, aeroambulance or aeromedical flights. These changes are not trying to close down the valued service the CSF organisations offer the rural and regional communities. On the contrary, we are trying to fulfil our mandate by making certain that these fights are as safe as possible, noting that it is unreasonable to assume members of the public who accept charitable medical flights would have a meaningful awareness of the resulting increased potential for exposure to risks that may be associated with these fights, the pilot's experience level or the airworthiness status of the aircraft. It is our view that community service flights, particularly those arranged, coordinated or brokered by Angel Flight, have an accident incident rate significantly higher than private operations. Given this, I have acted in the interests of aviation safety to raise the minimum standards for pilots operating these flights.

Since consultation closed on the community service flights discussion paper and instrument and since I signed the instrument that imposes conditions on licences for pilots wishing to conduct community service flights, I have had a number of additional representations regarding the restriction of rotary-wing aircraft in community service activities. After considering the feedback, I acknowledge that the consequences might be to limit the field of potential CSF community service volunteers. Limiting potential community service flight volunteers was not my intention. Given this, I have an instrument being prepared to amend the current instrument and include rotary wing operations, which I will lodge in the parliamentary process. I am happy to take questions from the committee.

Senator PATRICK: I'm not sure if you listened to the testimony in Brisbane last week into rural and regional airfares.

Mr Carmody : No. I did see a transcript of something, which I skimmed through, but I wasn't even aware at the time.

Senator PATRICK: There were a couple of issues that were raised. I'm not directing this at you in any way, shape or form but am really after a response of some sort. One of them was in relation to a High Court case that has just passed—Work Health Authority v Outback Ballooning.

Mr Carmody : I am familiar with that. The High Court handed down its decision a couple weeks ago.

Senator PATRICK: I won't be critical of the High Court; they define the law as it is. I note that Justice Edelman made a very forceful dissenting judgement but the rest of the justices basically have ruled that personnel operating an aircraft need to comply not just with CASA regulations but with local work health and safety regulations. Dr Aleck, I presume that was a reasonable summation?

Mr Carmody : Dr Aleck is much more of an expert on it than I am but it was a cojurisdictional arrangement, I suppose, in my mind it was the best way to describe it.

Senator PATRICK: There has been an immediate expression by industry that creates a significant problem for them, because now someone who is flying particularly from Queensland to South Australia and then on to Western Australia is now burdened with three different regulatory requirements imposed upon them by the states. I'm wondering whether CASA, noting we don't really want to impose regulations unnecessarily on pilots and aircraft operators, will review that decision and make some recommendations in respect of that decision, noting that anything that is passed in the federal parliament by way of section 109 of the Constitution could override that High Court decision?

Dr Aleck : Your summary was accurate. There is a risk, not so much in what you had to say but in the perception it overstates matters to some extent. The High Court majority decision basically held that there is room for both aviation legislation and work health and safety regulation in that space so long as there is no direct inconsistency between the two. What the case decided was that there was no 'field exclusion' or 'indirect inconsistency' issues, so the mere fact that the civil aviation legislation governs activities in the aviation operational environment would preclude the ability for any state work health and safety legislation or other legislation to be involved.

Prior to 2011 and to some extent after that, that was the situation. I'm not aware of any huge controversies that arose about the coextensive jurisdiction of work health and safety authorities and civil aviation. We're certainly mindful of that judgement and we were watching those proceedings very carefully and very closely, if for no other reason than because, in our experience, there are areas where CASA is not really properly equipped or designed to be regulating. I won't go into hypothetical examples but the initial case in 2011 involved an injury or death, I believe, that occurred within the cockpit of an aircraft, an operational environment without any question. The Outback case involved something different; it was a passenger embarking on a commercial balloon flight—an area where CASA could, and in fact did, have regulatory responsibilities and had imposed them most appropriately on that operator.

However, there is a whole host of other areas where those lines can become increasingly blurry. It may be somewhat fanciful but what if a pilot slips on a banana peel in the despatch room—operational environment? Is that something CASA should be regulating? We were talking about how, with some of these flights, you have to go in a little bus from the aircraft back to the terminal. Is that something CASA should be regulating? Talking about with some of these flights, where you have to get off the plane and go in a little bus from the aircraft back to the terminal, we were speculating: what if a passenger became overcome with fumes in that transport vehicle? Would that be a CASA regulatory issue? Would it be something else?

We feel that, in the absence of most extraordinary circumstances where there would be a direct inconsistency anyway, that there is room for cojurisdiction here. We have done and we will continue to work with work health and safety authorities. In fact, we have already arranged to meet with their national organisation in April to talk about the implications of this decision, to try to ensure we don't undercut or override one another's jurisdiction.

Senator PATRICK: Can I invite you to have a look at the Alliance airlines' testimony because they stated the concern, and I would appreciate their concern. They provided an example of a passenger boarding an aircraft and whether or not that was the start or the end of a navigation, which is exclusively a Commonwealth jurisdiction, and whether or not there is some way with the Commonwealth law to draw the line so it extended to common laws for pilots and aircraft operators as they go from state to state. There would be benefit in making sure you don't have a pilot who now has to get their mind across all sorts of legislation depending on the state in which they're flying into or out of.

Dr Aleck : First of all, I've actually seen that testimony and am aware of those issues.

Senator PATRICK: You have?

Dr Aleck : And I'm alive to the concerns they have; they're not fanciful. By the same token, those are realities with which operators have been dealing for years.

Senator PATRICK: But we can make it easy for them.

Dr Aleck : That's why we want to meet with work place health and safety authorities. We don't want to create situations that are complicated.

Senator PATRICK: And I would hope you might consult with industry as well about their concerns in relation t it.

Dr Aleck : We consult with all of those we are meant to consult with. This is an initial meeting with work place health and safety because these are the two jurisdictions that now will be looking at each other.

Senator PATRICK: Sure.

Dr Aleck : But your points are well taken.

Senator PATRICK: Are you aware of the new bill that has entered into the parliament in relation to changing the act—

Dr Aleck : I'm aware of the bill, yes.

Senator PATRICK: consistent with the theme that that amendment is intended to invoke. Once again, we're trying to reduce the regulatory burden on the industry. The other decision that the committee was alerted to was the decision in CASA v Caper Pty Ltd. They basically said that regulation 206(1)(b), which defines charter operations, that there was going to be a rationalisation across basically private, commercial. Currently we have charter then regular public transport or licences. The latter of those two are going to be combined, is my understanding. The question which we were asked to put to CASA is: as you combine the RPT licence requirements and the charter licence requirements, the fear is that that will cause the charter operators to have to operate to a higher level of regulation than they currently do. How you going to handle that, basically?

Dr Aleck : As far as the operational differences are concerned, there are others who can speak to that more effectively than I can. But, on the questions that were raised in those proceedings last week, I find myself in the extraordinary position of agreeing with what Mr Martin said—that is, the problem will be solved, and has been solved now, with the introduction of parts 1-19, 1-21 and 1-35, which do what Mr Martin said they would do. You no longer have to go through this extraordinary, tortuous process to determine whether accommodation in the aircraft is available to persons generally. Now it's simply a question of whether it's a large or small aircraft engaged in a passenger transport operation. That particular problem that was addressed in Caper will go away when these pieces of legislation come into force in 2021.

Mr Carmody : Senator, if I may, part of the intention—I think it's been a longstanding intention of governments—has been to reduce the distinction between charter and regular public transport operations, which means closing the gap between the two. I don't believe it was ever the intention to reduce the safety standards in regular public transport. It was always the longstanding intention to assist charter to get closer to that safety standard. That's one of the things that's come out of these regulations. I take the point on regulatory burden, but I also understand the point of that very longstanding strategic objective for a very long time of trying to reduce that gap.

Senator PATRICK: To segue into regulatory burden, my understanding is you've got a plain English regulation program in train. Can you provide some details on that?

Mr Carmody : Certainly we have. We've been concerned for some time, for a long time, that the regulations are very complex. They're very hard to read. The way they are drafted is in accordance with government drafting standards, so the Office of Parliamentary Counsel drafts them in such a way that says, essentially, it is an offence if you do any of the following things, which takes you through the offences before you get to what it is that they really want you to do. We've been concerned about that for a while. I had discussions with OPC about changing the drafting style, but they were unsuccessful. So, on discussions internally in the organisation, we have been working on drafting a plain English guide to see whether we could turn that discussion around to a positive affirmation of what it is that you want to do: 'If you want to fly in an aircraft as a pilot, you need to have the following things with you. You need to do this; you need to do this.' We have drafted the first stage of general operating and flight rules, a plain English guide. We were going to launch it at Avalon next week for consultation.

Senator PATRICK: I won't spoil it by asking you to table it!

Mr Carmody : In the document itself, we have said we are asking for feedback on the full plain English guide. We want pilots to understand the rules. If they think this will work, my intent is to roll it out across not necessarily all the regulations, because they may not need it, but a lot of the regulations so that we will end up with a plain English guide that you can just grab—a little bit like a road rules guide so that, when you are learning to drive a car, you don't have to go to the act. You can go to a book that explains what you're supposed to do. That's our intent.

Senator PATRICK: In those circumstances—this is something I was thinking about, and I will declare you gave me a private briefing on some of these issues the other day—what happens in the instance where the regulations and the plain English guide are interpreted differently or cause a problem and it ends up in a court, which I suspect will look to the regulations and not to the guide?

Mr Carmody : I hope to avoid that. What we've done so far is tried to turn the drafting model on its head and drafted something, and then we are working it through our legal and regulatory affairs area to be absolutely certain that what is reflected in the plain English guide actually reflects the intent of the regulation, even though it's turned around the other way. So far we've been successful. I think there is still some concern—this is not an easy thing to do—that it's going to be challenging, and that's why we've done the first things on part 91, to see whether it does actually work. So far there's nothing in the draft plain English guide that we're putting out that is inconsistent with its parent part 91. So we've made it work in this circumstance. I think that, if I use the road rules example again, I would assume that what I'm reading in the road rules when I'm learning to drive is absolutely consistent with the road rules of the state that I'm in and that, if I followed that guide, I would, in fact, be operating consistent with the rules. So we're alert to it. In fact, we've had numerous discussions about it as we try and work our way through, but at this stage we're confident that we can get ourselves there. It will depend a bit on the feedback. We might find that industry doesn't like it and they'd like to stay with what they've got. But I would be surprised.

Senator PATRICK: Sure. We will see how that pans out. I do note your office provided me with a copy of the Visual Flight Rules Guide. I presume that's not public yet—or it is?

Mr Carmody : I think that's an update. It is public, yes. We have a broad responsibility for education; it is one of the things that we do. We are publishing a human factors guide at Avalon as well, which we think will be very helpful for pilots at all levels. The more experienced pilots do a lot of human factors training in airlines, but as you work your way back down to the smaller end of town, there is sometimes a lack of awareness, and we're moving into that space as well, hopefully in cooperation with the community service flight organisations and a range of others. We've reached out to the Aircraft Owners and Pilots Association and said that we'd like to work closely with them in promoting human factors and those sorts of things.

Senator PATRICK: I've got a pilot's licence—I am wondering if I should declare it as a gift of some sort. I haven't flown for 20 years, so hopefully I'll get away with—

Mr Carmody : I'll have to check to see what we sell them for, Senator!

Senator PATRICK: Let's move to a perhaps more contentious issue, which is the community service flights. I'm very glad to hear that you are now going to modify the regulations to allow helicopters. We did talk about this in our meeting the other day. I still have some difficulties with the regulations, and I just want to work through that publicly with you. The regulations seek to change a number of things. I note from a briefing you provided me, and I think to the committee, that these regulations stem from two accidents that have taken place—one in Victoria and one in Mount Gambier in South Australia.

Mr Carmody : I'd say they do directly, but the connection between the actual accidents themselves is indirect. But, in terms of raising the standard in the sector, there is a direct relationship, if I may.

Senator PATRICK: I've read the ATSB report for the Victorian incident, and, of course, I can't for the Mount Gambier incident, because the ATSB has not finished its work.

Mr Carmody : It is now in the draft interested parties stage, so the report has been released to me to look at as an interested party, but I'm not allowed to share the contents, and to Angel Flight and also to the families of those involved—and there are probably a couple of other interested parties. It is now in a phase of I think six weeks of discussion before they finalise their report.

Senator PATRICK: Just going through the regulations as you are changing them, one of the changes you're placing upon pilots who may participate in this is a minimum number of hours. I think it's 400 hours experience.

Mr Carmody : That's correct.

Senator PATRICK: And 200 in command.

Mr Carmody : It is 250 in command and 400 hours minimum, unless you hold a commercial pilot's licence or an air transport pilot's licence, which you can get in fewer hours but it is a much more structured training program to get you to that point. The 400 hours tends to relate more to private flying, which is an experiential base but not as much a structured training course.

Senator PATRICK: But I note that those requirements are, firstly, not related to either of the accidents that have taken place. In both of those cases, those pilots had substantially more experience than the 250-hour minimum requirement that you've placed in this regulation.

Mr Carmody : The 400.

Senator PATRICK: The 400, yes.

Mr Carmody : I'm not sure on the first accident; I'd have to go back and have a look. In the second accident, which is still subject to the investigation, I think the pilot had 530 hours—so, yes, more. Four hundred is less than that, but for us it's a question of experience, and that's where the 500 comes in. If I may make a point, looking just at the Angel Flight organisations across the world or at the seven Angel Flight organisations in the United States, for example—because I'm often encouraged to harmonise my regulations with the FAA—a number of those are at 500 hours. They're nearly all at instrument flying. They are nearly all much higher than the standards we're imposing here. So we're just lifting that minimum threshold.

Senator PATRICK: I'm looking at the pilot affirmation required for Angel Flight, and they say you must have at least 250 hours logged as a pilot in command.

Mr Carmody : It depends on which one. Which Angel Flight is that? It will be on the top of the sheet, probably. Angel Flight Mid-Atlantic is—

Senator PATRICK: I'm talking about the Australian operation.

Mr Carmody : The Australian operation is 250. I was talking about the American ones, so we're talking at cross-purposes.

Senator PATRICK: Sure.

Mr Carmody : The point I was making, or endeavouring to make, is that the minimum standard in Angel Flight elsewhere voluntarily is much higher than the minimum standard that Angel Flight sets here in Australia. We consider that pilot experience is a relevant factor. Most Angel Flight pilots have much more experience than 500 hours. All we're doing is increasing the experience level at the bottom end.

Senator PATRICK: In fact, I think what you're doing is placing a minimum that I actually don't think will affect their operations, to be quite honest.

Mr Carmody : Nor do I. I think it would be so minor. I just don't see how it would affect them.

Senator PATRICK: In that area I don't have a problem. As you know, the other day I had a big problem with the helicopters. That leads us to things like night VFR. The general principle is: I as a person can jump into Senator Brockman's plane—I think you've got a licence, haven't you?

ACTING CHAIR: No, I did some pilot training but I never got my licence.

Senator PATRICK: I'm not going to jump into his plane, then! He can jump into mine. I can jump, as a regular person, into an aircraft with a pilot, with a certain level of comfort that this person knows how to fly because CASA would not have given them a licence unless they were able to. That includes for night VFR. If you're trained for night VFR, I'm trying to understand the distinction between a regular person and someone who might be an Angel Flight passenger. For the chair and others who may be listening, Angel Flight and these community service flights are used in circumstances where someone in a remote or regional area unfortunately finds out they've got cancer, needs some treatment in chemo and that has to be done, in my state, in Adelaide. It can be quite a burden to go from Ceduna to Adelaide multiple times, so these pilots volunteer and actually pay their way. Angel Flight provides a level of regulation, if you like—not in the CASA sense—and also contributes to the cost of the fuel.

Mr Carmody : Just to clarify, I think that Angel Flight brokers the activity and coordinates it. It has some rules around that; very minimal, though, in comparison to, for example, the other community service flight operator, Little Wings, which operates as if it holds an air operator's certificate. So it has systems in place and it has appointed people to manage that, whereas Angel Flight's view is that it brokers the activity and no more. It connects the patient, or the passenger, with a volunteer pilot, but not extensively more than that.

Senator PATRICK: In that sense, the nature of the discussion is that if these regulations come into force and, in this case, exclude someone who would normally be able to fly me from Ceduna to Adelaide on night VFR then the new regulations would exclude a friend of mine who has cancer from jumping into the same aircraft and making the same trip.

Mr Carmody : I understand the point that you're making. I think that Angel Flight indicates that it has about 3,000 pilots on its books, give or take. They do reimburse the cost of fuel and, anecdotally—if not more than anecdotally—people fly for Angel Flight as much for the good that they're doing as it is for someone paying for their hours.

Senator PATRICK: Sure.

Mr Carmody : Also, there are lots of pilots, if you like, competing for 'jobs', if I can put it that way, when a job comes up. I'd argue that in the majority of circumstances there would be pilots around. I think that the night VFR connection relates to the first accident, too, which was the accident in Nhill in Victoria. I think that was in 2011. Essentially, it was an accident under night visual flight rules. I understand that the pilot was qualified to fly night VFR, but night VFR is a risky activity. What we're really endeavouring to do here, if I may, is to reduce the risk.

If I link it back to what I said before, we spent a lot of time working with Angel Flight over the last 18 months, encouraging them to do what some of the other angel flights are doing voluntarily to raise their standards—to push them up voluntarily—because we think there's risk. Unfortunately, we were not successful.

Senator PATRICK: I don't really—

Mr Carmody : So that's a whole package of things.

Senator PATRICK: I don't really want to go to Angel Flight; I'm just trying to understand why, where you have someone who is qualified to fly night VFR, I can go to that person and say, in a private way, 'There're two of us in the plane; how about we split the cost of this journey?' I believe that's lawful—

Mr Carmody : Yes.

Senator PATRICK: I can pitch in for the fuel, pitch in for some of the maintenance costs and pitch in for whatever other costs might be involved in the flight. That's fine; Senator Patrick goes off on his flight. But my colleague who is ill—with the same pilot, the same aircraft and, in this instance, where someone is assisting with the cost of the fuel—can't do that. I just wonder how you differentiate between—I'm probably less valuable than that person!—two people in exactly the same circumstances from a safety perspective?

Mr Carmody : Okay—

Senator PATRICK: You're kind of arguing from a duty-of-care perspective—

Mr Carmody : Certainly, duty of care and, certainly, knowing that there are opportunities. In that last accident case, I think the drift into night VFR was a consequence of late appointments and what have you. Sometimes this happens in the community service flight sector, where someone is flying into the city for an appointment. The appointment gets delayed, something happens and then they're under pressure to get back. In this case I think it was a drift into night VFR, but they ran out of time. The pilot would be saying: 'I'm still qualified, so I'll fly in night VFR. I've been flying all day but I'll keep on flying.' We're looking for human factors, decision making, to say, 'Maybe I shouldn't fly night VFR.'

Senator PATRICK: But that doesn't vary from person A to person B.

Mr Carmody : It does in the sense that you know your mate. You've dealt with your mate. You know your mate's appetite for risk.

Senator PATRICK: That doesn't tell me anything about his flight qualifications.

Mr Carmody : But you do know his appetite for risk.

Senator PATRICK: I'd like to table documentation, which is the Angel Flight flight request documentation, that's okay.

Mr Carmody : It's also really an issue that, suddenly, the flight has become significantly more complex than it was planned to be and you have ill passengers in the back. You have people who are unwell.

Senator PATRICK: No, they're not ill passengers.

Mr Carmody : They can well be. They very often are, with respect, Senator. They're not being treated, but in that sense—

ACTING CHAIR: I think Senator Patrick does make a very good point though. In terms of the safety profile, I'm not convinced you've made the case.

Mr Carmody : I'll ask one of my colleagues to come in and see if he can give me some assistance.

Senator PATRICK: Just so everyone is aware of what I've tabled, it's the Angel Flight flight request documentation.

ACTING CHAIR: We're happy to table that.

Senator PATRICK: Thank you. It has a fact sheet, instructions, guidelines for referrals, medical clearances, passenger guidelines, waivers and a release of liability. I'm informed—and I have no reason to doubt this—that, before you can jump on one of these flights as a person seeking to fly to Adelaide to have chemo, you also have to have watched a video that takes you through the process and talks you through the risks of what it is you're getting into. The duty of care thing is, in some sense, negated by the fact that you have someone who has had to sign up to a waiver, read through the fact sheet and watch a video. They're going in with eyes open.

Mr Carmody : What the document doesn't say is that, in Angel Flight's case, for example, according to our statistics, there's a significantly higher risk of accident or incident flying with Angel Flight then flying privately.

Senator PATRICK: I'm going to ask you to table evidence that grounds that statement.

Mr Carmody : We have done our calculations, which have led us to our conclusion. I'm not sure that, even though we've done our work, everyone will agree with it. I'm quite happy to table it or quite happy to do it on notice.

Senator PATRICK: That's fine.

Mr Carmody : But I'd ask that you also take notice on the ATSB's work, because they will have done much more definitive work on this risk as part of their analysis.

Senator PATRICK: I don't have the benefit of the draft report for the Mount Gambier flight.

Mr Carmody : The only thing I would say is that I've not read anything thus far that would make me change my opinion, if I can put it that way. I can't say any more.

Senator PATRICK: I understand that. You're actually protected by privilege, but I won't press the issue. Therein lies my problem, and the chair has sort of picked up on it. If you then start to impose additional rules—and I don't have a problem with the hours, because they actually all have that anyway, so it doesn't act to deter.

Mr Carmody : Mostly.

Senator PATRICK: But we may have a situation where there is a person who is qualified to fly night VFR. They can fly Rex Patrick when he's contributing partly to the fees, who hasn't signed a waiver and hasn't looked at any of the stuff but kind of likes the person who is flying him—had a few drinks with them a few weeks ago or something. You have a person who probably needs the flight more than what I do and has signed a waiver. It's the same flight, same aircraft and same qualifications, and there's now a risk that a pilot who is night-VFR qualified flies into Adelaide and is going to get delayed—that's additional cost to him or her—for no apparent safety reason, from their perspective. I'm sure a pilot would not fly if they didn't feel like it was safe. Can you see my point?

Mr Carmody : I see your point. I'll ask my colleague to address it, if I may.

Mr Monahan : I'd like to refine the question. With night VFR, as far as I know there is no community service flight organisation that allows night VFR right now in country. But the opportunity is: in the case of night VFR, you have the ability to fly—a qualified aircraft and a qualified pilot—into a regime where you are no longer qualified by discernible horizon at night. If you are an IFR aircraft and an IFR pilot, then you are, in theory, able to manage all the weathers. You are fully qualified through the entire part of the flight. If you lose discernible horizon, you are supposed to, basically, come back to a place where you can fly night VFR. To the discussion of why you can fly with him but you can't fly—it's because we can't guarantee you are going to be matched up with somebody you know. The system is very big and—

Senator PATRICK: But knowing someone is not a test.

Mr Monahan : Excuse me?

Senator PATRICK: I know Senator Brockman—I think he's a fine chap. I did a flight around the Condamine just recently. I turned up and jokingly said to the pilot, 'Are you a student pilot or not?' as my own safety check. He said, 'No, I'm a commercial pilot,' but he looked like he was 18. What made me get on that flight—I've accepted on face value his statement that he is a commercial pilot—was that I know CASA wouldn't give him a licence until he'd reached a particular standard.

Mr Monahan : I understand that, but the unique nature and the operational—

Senator PATRICK: I didn't know the pilot at all. If it were a friend of mine, I'd say, 'Have you got a licence?' Senator Brockman just said no, so that stops the whole thing.

ACTING CHAIR: I'd hope so!

Senator PATRICK: But had he said, 'Yes, I've got a licence,' I'd probably ask him how many hours he had. If he said he had 250 hours, I'd go, 'Okay, let's do it'. That's less of a check and I'm less informed than someone who might jump on an Angel Flight would be.

Mr Carmody : We've seen the Angel Flight documentation, because we have it. We have a slightly different view, then. Our view is that, even through that, you don't really have, necessarily, a meaningful understanding of the risk. You don't know statistically that it is four or five times less safe to fly with Angel Flight than it is to fly with your mate.

Senator PATRICK: I think you need to ground that statement.

Mr Carmody : I'm sure they will, and I am confident that that will. They've had two fatal accidents in the last 10 years—we've gone over 10 years. They've had a number of other accidents. They had a wheels-up two weeks ago, if you recall, in Wagga, and they've had a number of other incidents. Statistically, our numbers show that they are less safe. That doesn't quite come through in the documentation. There is stuff about risk—I haven't seen the video; my colleagues might have—but it's a meaningful understanding of what the risk is.

ACTING CHAIR: I know we've had a previous discussion about this, Mr Carmody, but, if you took one of those incidents out of the mix, potentially community service flights would be safer.

Mr Carmody : But I can't take the incident out of the mix, because it happened. It's like me taking a Lion Air crash out the mix.

ACTING CHAIR: You can't just look at statistics; you have to look at statistical significance as well.

Mr Carmody : I understand the point you're making, but I suppose the point I'm making is that the accident did happen. We look at statistics across all sectors of the industry. I look at statistics for aerial agricultural flights and how effective they are. The numbers aren't great but the numbers are there. We look at all statistics and Angel Flight has had those two accidents. We run over 10 years, not over the last six. If you just counted the two outliers, it'd actually be higher—I'm not a good statistician, but I think the numbers would be higher. But the point is the events did occur and, as I said, we could be having a discussion about international low-cost carriers and we could exclude Lion Air from three months ago. The numbers are there, the events have occurred and the statistics show what they show. What they show us is that there are more incidents in that space. Should I take those incidents out? I don't know. I wouldn't take them out statistically. One of the points in the instrument I signed a few weeks ago is to make sure that all community service flights in future are declared as such, because at the moment they are not. They prefer to just categorise themselves as private flights, so no-one knows really what the statistics are. But we've done our own analysis on the flights and we've come up with a higher number. If I understand it correctly, part of the investigation from the Australian Transport Safety Bureau was to get information from Angel Flight. So they did their own numbers.

ACTING CHAIR: When are those statistics going to be available?

Mr Carmody : Once the Australian Transport Safety Bureau completes its report. I can't speak for them, but I would assume it would be six weeks or so. That is normally the time. Six to eight weeks is normally the time. When they go into the final consultation phase with families and interested parties, it is about checking details and finalising. So my point is that they are not that far away.

Senator PATRICK: I'm presuming that if you have to declare that you're a community service flight that's a ticking of a box somehow, is it?

Mr Carmody : It's ticking a box. It would be declaring a start time in the aircraft and logging it in your log book so that statistically over a period of time then we'll know which ones are community service flights and which ones are not, which, as I said, has proved quite a difficulty for us because we've been relying on figures provided by the organisations plus our own analysis.

ACTING CHAIR: If you have to do a leg to get to a pick-up point and then a leg to a destination and then a leg home, are all three legs considered community service?

Mr Carmody : I would have to ask my colleagues; I'm not a pilot.

Mr Monahan : If you're going to be reimbursed by the CSF then, in that case, yes. It goes under that construct. In the case which you mentioned earlier of the night VFR concern, we thought about your concern about limiting and closing off any opportunities for people. We considered that, because they have thousands of pilots available to them, if they plan weeks and months in advance they know they might be having a scheduled time that brings them up against night. In the last report, in 2011, 61 per cent were IFR rated pilots. So it's a good opportunity for people who are cleared to fly at night so they can pre-plan and get somebody in there with an aircraft that can support that.

Senator PATRICK: I would love to have a pilot that is IFR rated or a commercial airline pilot who is doing the flight. I would love that. That would make me feel even safer, probably. But, once again, it goes to safety. If you've got a night VFR qualified pilot, they have got the CASA stamp to say they are safe to fly from A to B at night under VFR conditions. My major concern is you're putting in place these regulations. If they are safety based, hence the pilot hours, I have no problem with that. But there are additional maintenance requirements where a pilot is going to say, 'If I'm going to do this flight, I'm going to have to book my inspection three months or one month earlier and that is going to cost me a couple of thousand dollars before I can even qualify to do this flight.' Once again, that aircraft could otherwise be used to fly me from A to B, not as a passenger. If it deters people from engaging in this community service that helps people in the regions out—because, boy, do they do it tough—that's where I have a problem. I'm going to stop here. Once again, I'll say that the secrecy associated with the ATSB is subservient to the inquiry powers of the Senate, but I say that while giving you the opportunity to correct me. In the case of both Mount Gambier and Moorabbin, I think it was—

Mr Carmody : The first accident was in Nhill in Victoria and the second was in Mount Gambier.

Senator PATRICK: In both of those cases, having done an inspection would not have done anything in changing the outcome of those flights because they were not maintenance related.

Mr Carmody : That's correct, Senator.

Senator PATRICK: You're going to table some statistics so that they can be reviewed by people—I'm sure Angel Flight will have their interest in it, we'll have our interest in it and so forth—that grounds your claim here in this committee that they are less safe. I would like, as you're doing that, where there is some problem that has occurred in your analysis, if you would perhaps annotate next to it and say, 'Our new regulation would have prevented that from occurring.'

Mr Carmody : As I've said, in the broad—and I understand that what you've requested—

Senator PATRICK: So you're happy to do that?

Mr Carmody : this is about raising the threshold. I would prefer to ensure that the Australian Transport Safety Bureau's accident investigation report, which would be much more thorough than the work we do in this space, is out at the same time.

Senator PATRICK: But you've said you have done statistics.

Mr Carmody : We've done our statistics, but the issue of maintenance is less of a statistical issue, if I may. Private aircraft fly approximately 50 hours a year—that's all. So there is a threshold that says every 12 months you'll have your aircraft—

Senator PATRICK: Hang on, that average includes those like me, who don't fly very often, and those who are quite experienced.

Mr Carmody : Quite, but the BITRE standard says that private aircraft fly an average of 50 hours a year. It's 50, isn't it?

Mr Monahan : Yes.

Mr Carmody : When we consider these community service flight activities, we categorise them as private activities, but they're on the cusp of commercial activities in the sense that the reality is that people are receiving funding payment for them. So, in a technical sense, they're on the cusp. We put them in the private category because we know that, and we also know that the aircraft aren't operated that much. When you start to move into layers above these private activities, there is more complexity and there are more requirements. There is more maintenance and more training as you move up from the private to the commercial, all the way up to regular public transport; we add more and more layers. With the case of something like the 100-hour maintenance issue, we did propose a much more stringent maintenance regime. We listened to what was said in the feedback and we reduced that maintenance regime significantly in the final instrument.

Senator PATRICK: That's the equivalent of saying, 'We could have been even worse, but we're not.'

Mr Carmody : I suppose what I'm saying—

Senator PATRICK: I want to know: how does it make it safer?

Mr Carmody : What I'm saying is we consulted and we listened to people who said those maintenance requirements would be too onerous. It makes it safer because it catches the out-riders. The people who are caught above 100 hours are the ones I want to catch. The people who are flying their aircraft for 300 hours are the ones I want to catch because they're using their aircraft a lot more than the average. They are the ones—and there won't be very many of them—

Senator PATRICK: But they're going to be more experienced.

Mr Carmody : This is not about experience; your question is about maintenance. It's how often the aircraft is used. So the 100 hours and the 12 months is pretty much standard.

Senator PATRICK: It's the same pilot, the same aircraft—

ACTING CHAIR: I'm not sure how the aircraft becomes less safe if I jump in as a community service passenger versus someone who has just met Senator Patrick.

Mr Carmody : What I'm saying is it's statistically less safe because there are more accidents and incidents in that sector brokered by people than there are in private flying.

Senator PATRICK: You have to ground that properly with evidence.

Mr Carmody : Certainly.

Senator PATRICK: Can I just tell you the strategy that my party has done in terms of lodging a disallowance. We have lodged a disallowance in the House. It's really just to send a signal so that people can be prepared and present their case. I will do the same in the Senate when it returns on 2 April. I don't want to disallow something, but you've got to make your case. You are the safety authority. You are introducing a regulation that you say is centred on safety. I can't quite see it as it stands. You have now basically said it comes down to the statistics. You are concerned that Angel Flight have more incidents than private pilots.

Mr Carmody : Than private flying.

Senator PATRICK: I want to see those statistics and see how these regulations would have altered those statistics to get them back to the place we are with normal pilots' licences.

Mr Carmody : We are concerned at both the incidents. I'm concerned at the two fatal accidents, too, and I don't want to see another one.

Senator PATRICK: Sure. No-one does. But you can't then make a set of regulations that only relate to those two flights.

Mr Carmody : May I make one observation, which is that, of the 200-odd responses that we received to our consultation, a significant number were from Angel Flight pilots themselves. That's a relevant consideration. Just over 50 per cent of those Angel Flight pilots said no change is required, but close to 50 per cent—in the high 40s—said something needs to be done here. They're people who operate in that sector. Those responses are published on our website; they are visible. What I'm saying is that I've got a range of very experienced Angel Flight people who come up with a similar view. I've also got people who disagree with the view. But some of the people who disagree with the view disagree with any form of regulation, so they would disagree with whatever I told them.

Senator PATRICK: I'm sure that AOPA are listening and Angel Flight are listening, and I'm sure that they will write to the committee. My message to them will be the same: ground any claims you make in evidence. The nice thing is that we've got estimates in six weeks time.

Senator McKenzie: A lovely reminder at 10 past five on a spillover day, a Friday, Senator Patrick.

Senator PATRICK: I'm trying to finish off. I'm just saying—

Senator McKenzie: If you haven't had enough yet, there's more to come.

Senator PATRICK: let's look at this again in six weeks time with your evidence on the table and with the evidence of anyone else who wants to make a contribution.

Mr Carmody : That's fine. I understand everything you've said. I would make the point, however, that as a director of aviation safety my responsibility is to keep Australians safe. They're the decisions I make, which the government has empowered me to do and wants me to do, based on the evidence that I have. I've made those decisions and it's up to the parliament. If the parliament wishes to disallow, I understand that process completely.

Senator PATRICK: And I'm a senator who wants to make sure that people who rely on these flights to get medical treatment also do so safely, but there's always a balance to be had here and I'm just not sure it's right.

Mr Carmody : There is certainly a balance, and this is—

Senator PATRICK: We can make it completely safe by banning everyone from flying, and there will be no accidents.

Mr Carmody : That's certainly not our intent. That is why, as you know, I listened to what was said with rotary-wing and said it was not my intention to limit the field; my intention was to make sure these activities occur. But we are in the precautionary space. I cannot prevent two accidents that occurred—I cannot do that. What I can do is raise standards to prevent the next accidents occurring. I can't do any more with organisations like Angel Flight than encourage them to raise their standards. I cannot get them to do anything else, because they are not subject to my regulatory oversight. I can only encourage them to raise their standards. I've done that.

Senator PATRICK: You gave every one of their pilots a licence.

Mr Carmody : With respect, they would say they are not their pilots.

Senator PATRICK: Okay. Sure. I'm done, Chair. Thank you very much for your time, Mr Carmody.

Mr Carmody : My pleasure.

ACTING CHAIR: Just to follow up what Senator Patrick said: I think the reason we are both concerned about these regulations is that we've heard from the general aviation sector over a long period that they feel they are being squeezed out of existence by the level of regulation they face. As Senator Patrick said, we could make things a lot safer if everybody stopped flying, but I don't think that's where any of us want to be.

I have just a really quick one on complaints about drones. You received a complaint, which we received as well, about the difficulty of reporting a drone that was, I believe, in controlled air space. They were on the phone for half an hour and had to ring back.

Mr Carmody : I'm not familiar with the actual complaint. One of my colleagues might be. We do get a lot of complaints, and we do a lot of prosecutions, on drones.

ACTING CHAIR: I don't want to read the name into the public record, but it's clearly been sent to you as well as to this committee.

Mr Monahan : Some days it's a growth industry with people trying to call and make complaints like that, which we encourage people to do because it gives us more data to work with when we get reliable sightings and work through them. Certainly we wouldn't want anybody to wait that long. If I can get the details afterwards we can try to run it to ground, because we don't want anybody to wait that long.

ACTING CHAIR: I'll get the secretariat to get in touch. If you could give us a little bit of feedback on that, it would be appreciated.

Mr Monahan : Certainly. I'll take that on notice.

ACTING CHAIR: Excellent. On that note, Mr Carmody, we thank you all for your time. We thank all witnesses who appeared today. Ms Spence, I think you got off pretty lightly.

Ms Spence : Very lightly.

ACTING CHAIR: You don't want to throw a couple of questions at Ms Spence, Senator Patrick?

Senator PATRICK: Actually, I'll just use this opportunity. I've thought about this guide here. I think I've declared on the Hansard now that I got this Visual Flight Rules Guide free of charge from CASA. I think that covers me off.

ACTING CHAIR: To Minister McKenzie, Minister Colbeck—from earlier—and all the officials who have appeared today: thank you. Thanks, Hansard and Broadcasting. Thank you to the secretariat. On that, we adjourn.

Committee adjourned at 17:15