[Peetwo]

Three decades of Australia taking the piss out of ICAO - 

Extracts from the 1999 ICAO audit of CASA: 

3.2.1.2 The Act empowers CASA to effectively discharge its duties and responsibilities. It also

provides CASA with an investigative power and the authority to develop aviation safety standards and to issue permissions and air operator certificates (AOCs) . However, CASA does not have direct regulatory powers. The power for making regulations is held by the Governor General (essentially the Executive Government) in accordance with Article 98 of the Act which also requires that regulations be made for “the purpose of carrying out and giving effect to the provisions of the Chicago Convention relating to safety”. The rationale for giving the regulatory power to the Governor General is that regulations are delegated legislation in respect of which there must be ministerial responsibility and parliamentary oversight. CASA is a regulator,  not a law-maker, and this is an important distinction in the Australian system of government. The Act (Article 1) also requires that CASA “...performs its functions in a manner consistent with the obligations of Australia under the Chicago Convention”

3.2.1.3 The civil aviation regulations of Australia are in the process of a major review and are grouped in two different sets. The first set — Civil Aviation Regulations 1998 (CARs 1998) — were adopted in 1998 as the first instalment of a major revision of the Australian regulations system which will be organized along the lines of the United States’ Federal Aviation Regulation (FAR) system. It includes Parts 21 to 35 (Airworthiness). The other regulations are contained in the Civil Aviation Regulations 1988 (CARs 1988). A timetable indicates that the progressive transfer to the new system will be completed by 2003...

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...3.2.2.1 With respect to the recommendation on reducing the number of differences with ICAO SARPs, CASA will, as necessary, consult with the industry on whether or not a difference should be notified or rectified. It will also complete the programme of rewriting the CARs and monitor changes in ICAO SARPs to ensure future conformance. CASA already started consideration of those departures from SARPs which should be the subject of a notified difference and the target date for notification was 1 January 2000. CASA further indicates that it will develop programmes for monitoring future changes to SARPs to ensure that Australia remains compliant.

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5. ICAO SARPs NOT IMPLEMENTED

Several differences existing between ICAO Annexes 1, 6 and 8 and the Australian regulations were identified and remained not implemented by the time this report was prepared. On the basis of Article 17 of the MOU signed between Australia and ICAO, the differences contained in the Attachment to this report will be forwarded to the appropriate Sections of the Air Navigation Bureau for inclusion in the Supplements to the respective Annexes.

Extracts from the 2004 ICAO audit of the ATSB:

5.1.3 Status of implementation and differences to Annex 13


5.1.3.1 In practice, the ATSB is provided amendments to Annex 13 and other relevant ICAO documentation from the Department of Transport and Regional Services (DOTARS).
The Deputy Director Aviation Safety Investigation reviews the amendments and advises the DOTARS if differences to Annex 13 exist. Australia has notified differences to ICAO in respect of Annex 13. However, while section 17 of the TSI Act automatically endorses any amendments to ICAO SARPs and gives them the force of Australian law, the ATSB has not yet formalized its process for reviewing the SARPs and identifying its differences (Appendix 1-1 refers).

5.1.3.2 In respect of the difference filed by Australia against paragraph 5.1, the audit team
recalled that paragraph 5.1 is a fundamental paragraph in Annex 13, placing an obligation on the State of Occurrence to institute an investigation into the circumstances of an accident and to be responsible for the conduct of the investigation, with the objective of the prevention of (future) accidents and incidents (paragraph 3.1 of Annex 13). The accident investigation agencies in some other major aviation States, facing similar workload increases and budgetary decreases as ATSB, have elected to investigate all
accidents in accordance with Annex 13, with the proviso that the investigation is continued to a point that it is evident that no further safety enhancements can be achieved. A decrease in workload is thus achieved by (severely) limiting the scope of the investigation of some (smaller) accidents as well as the size and format of the report.

5.1.3.3 Australia had filed a difference to paragraph 5.4 a) in respect of “gathering, recording and analysing all available information”. The ATSB commented that there were limited resources resulting in a prioritization depending on the likely safety value of the investigation.

5.1.3.4 The difference filed by Australia against paragraph 5.6 concerned the control of the
bodies of the fatally injured flight crew and passengers which rested with the coronial authorities. The ICAO audit team recalled that the intent of paragraph 5.6 was to deal with the access and control by the investigator-in-charge of the wreckage and flight records and documentation. The handling and the autopsies of the bodies was dealt with in paragraph 5.9 which addressed “the State” (not the investigatorin-charge) to reflect the fact that the primary control of the handling of the bodies and the autopsies was the responsibility of other national authorities (usually coronial and police authorities).

5.1.3.5 Regarding paragraph 5.25, Australia had filed a difference reserving the right to remove a participant from an investigation if such a participant contravened the agreed conditions of participation.

The audit team recalled that the spirit of Annex 13 was full cooperation between the States and the participants involved, and full adherence to Annex 13. Hence, Annex 13 did not deal with situations that might result from non-adherence to Annex 13 and it should not be necessary to file differences for such eventualities. The audit team noted that Note 1 to paragraph 5.25 appeared to cover the situation envisaged by Australia. Regarding the envisaged situation, the audit team further noted that subject to a consultation with the State that appointed an accredited representative or an adviser, that State could be
expected to replace or withdraw its appointed representative/adviser. In such a case, the State of Occurrence would not have a need to “remove” a participant from an investigation.

5.1.3.6 The difference filed by Australia against paragraphs 7.1 and 7.5 regarding Preliminary Reports and Data Reports to be sent to the ICAO Accident/Incident Data Reporting (ADREP) system introduced certain limitations to the reporting by Australia. The ICAO audit team reiterated that the ICAO ADREP system had been established by the 1974 ICAO Accident Investigation and Prevention Divisional Meeting. The States participating in the meeting considered it essential that a world accident data system be established and that ICAO be the custodian of the system. The States undertook to report their accidents to the system. The original ADREP system was developed in 1975 by an expert made available to ICAO by Australia. The requirements for States to report to the ADREP system are contained in Chapter 7 of Annex 13. The data in the ADREP system was essential in developing the world accident statistics, determining safety indicators for aviation, analysing causal factors in accidents and in determining and prioritizing safety initiatives.

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CORRECTIVE ACTION PROPOSED BY THE ATSB:

Section 17 of the Transport Safety Investigation Act 2003 requires the ATSB to exercise powers in a manner consistent with Annex 13 (identified by Regulation) in the latest form that the Annex is in force. This means that there is no need to take separate action to ensure amendments to Annex 13 are reflected in Australian legislation – it happens automatically.

However, the ATSB has revised the Safety Investigation Policy and Procedures Manual to include a procedure to formally review amendments to SARPs against the TSI Act, regulations, policies, procedures and resource capability of the bureau, and to list and notify any differences to ICAO.

The ATSB has forwarded a notification to ICAO, through the Australian Council Representative, that Australia is removing differences filed against Annex 13 paragraphs 5.6 and 5.25. This action was taken as a result of the ICAO Audit Team noting that the intent of paragraph 5.6 and the spirit of Annex 13 in relation to paragraph
5.25 were being met by Australia.

Extracts from the 2008 ICAO audit of the Civil Aviation System of Australia:

AUDIT FINDING LEG/01

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Australia has established procedures for the amendment of its regulations and for the identification and notification to ICAO of differences existing between the ICAO SARPs and PANS on one hand and Australia’s regulations in its newly approved Regulatory Development Management Manual on the other hand. However, these procedures do not address adopted regulations and have not fully kept the national regulations in pace with ICAO Annex amendments, in particular in the areas of personnel licensing, airworthiness and aircraft operations. In addition, not all differences to ICAO SARPs have been notified to ICAO. Furthermore, the list of differences to ICAO SARPs as published in the Aeronautical Information Publication (AIP) Australia has not been updated since 9 June 2005.

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A new Australian policy and associated procedures for identifying and notifying ICAO of differences to standards and those recommended practices has been developed. The policy includes notification of a difference to those recommended practices which we consider integral to the implementation of a standard.


Once adopted, the new policy will be used to complete a thorough review of Australia’s
differences. All differences to standards and significant recommended practices will then be
notified to ICAO in a single document. 

Note: The policy also includes a regular review of differences followed by any required notification to ICAO, to be coordinated by the Department of Infrastructure, Transport, Regional Development and Local Government (Department of Infrastructure).

- Infrastructure By 31 October 2008

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Following the notification of all differences to ICAO, Australia will update its AIP to reflect all notified differences and those relating to PANS. - Airservices Australia - By 30 November 2008

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Each relevant agency will also develop, document and implement a process for critically assessing proposed amendments to the SARPs to support the differences policy and procedures. These processes will ensure that amendments are adopted as appropriate, or a difference is notified, in a timely manner. - CASA, Airservices Australia, ATSB, BOM, AMSA - By 31 January 2009

Now let's fast forward to the here and now, first of all we had the exchange between the ICAO permanent rep Sam Lucas and Kaz Casey who AP supported with this: ref - Obfuscation of ICAO - A how to?

"...In general, it must be stated that the Australian Civil Aviation Safety Authority (CASA) has an unique approach to ICAO compliance, with record number of ‘notified differences’..."

Further to the embarrassing -  - number of Australian notified differences to the ICAO SARPs it is worth referring again to my previous post and the DoIRD submission to the Parliamentary JSCOT inquiry into the Serbia/Vanuatu Airservices agreements/treaties: Post #8

And again referring to that table for the JSCOT inquiry:
 

Coming back to that 'categories of differences' table:

My hope is that due to Senator Fawcett's questioning and in collating that data for the sup submission, the Department may have suddenly come to the realisation that Australia is far from being anywhere near adhering to the spirit and intent of most of the ICAO SARPs.

It is worth noting that of the listed 10,696 notified differences from the three countries, 4024 were from Australia, this is a disturbing 38% of the total. But what is more disturbing is the figure in the 'Less protective or partially implemented or not implemented' category (in other words the 'up yours' category... ), which was an UDB 2078, compared to 41 Serbia & 9 Vanuatu... 

4024 notified differences for Australia?? Recently I had collated from the 2015 AIP GEN 1.7 SUP that notified differences had grown to a total of 3116. However in actual fact between the 2011 SUP the figure had grown to 4024 but due to the loose ICAO arrangement of only listing NDs every 3 years this was missed. So from my approximate estimate from 2011 to 2014 the NDs had grown by 2500.

This means that in actual fact in the period between 10 February 2014 till November 2015 the Department has managed to reduce the notified differences by 908.

Still got a long way to go but perhaps this highlights more than anything else the impact that the Senator Fawcett inquisition had way back on the 10 February 2014... 

What followed then was Sam Lucas handballed to the Dept minion Lachie which led to my still unreplied - Dear Lachie correspondence?? However since that JSCOT inquiry I was under the (unfortunately false) impression that after 30 years of obfuscating the Dept, Iron Ring and agency minions were endeavouring to reduce the total number of notified differences. However after the tabling at the last Budget Estimates - ref: Barry O, Mr McFixit and the ICAO snowjob  - evidence would appear to be the opposite (see attach A table above). - 

Which finally brings me to this passage of Hansard from the Cloncurry Senate (Air routes) inquiry public hearing - Reference Senate Estimates: Winton/Cloncurry Hansard; & tabled docs.

ACTING CHAIR: This committee's bailiwick is to do with aviation. We are very alive to the issues around CASA, less so around the ATSB. Let's not flinch: they're not CASA's regulations; they're the government's regulations that are often recommended by CASA. We're aware of the current impacts on general aviation with new CASA regulations, the shortage of pilots and the maintenance issue with licensed aircraft maintenance engineers and the like. We as a committee have called for some figures—and I don't know if Ms Redden is in a position to update us. We want to look at comparisons with international standards. The FAA has done an audit on CASA in Australia. I understand it's going to be interesting reading. They're resisting publication of that at the moment. We're trying to muddle our way through getting that out into the open. So we're very alive, to the point where we have contemplated out loud whether we will hold an inquiry such as this into this regulatory environment—not just the operation of CASA but by extension the impact that that is having on general aviation.

We conducted an audit of the OneSKY program. You might be familiar with that, where we are changing the platform for air traffic control. That absorbed quite an amount of this committee's energy for about 18 months. But I suspect there's nothing new you can tell us about CASA—their popularity or otherwise—and about what people see as arrogance and sometimes an abuse of power. With the ATSB there is not so much. They're in a quite respected cycle of their lives. We are alive to it all. We are contemplating week by week as to whether we'll have an inquiry. If it gets to a point where this evidence that we've called for shows us that it's critical, we'll conduct an inquiry like this and may find ourselves back in Cloncurry—or Mount Isa next time, probably—to hear evidence of its impact, particularly on rural aviation...

So after the evidence of nearly 3 decades (see above) of taking the 'Mickey Bliss' on compliance and relative harmonisation with the ICAO SARPs: 
QON - why is the committee whose 'bailiwick is to do with aviation' not holding the aviation safety bureaucracy to account? And how can the Iron Ring resist publication of the ICAO audit report? Finally why isn't a certain independent Senator requesting a copy of that report, either via the FOI or Senate order?

P2 comment: And if people are under the misbleief that under the new CMA USOAP system that an ICAO audit no longer requires a proper summary audit report think again- refer to this ICAO powerpoint presentation link: 

From pg 9: 

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 Phase 3 ― Validation and Report Production (Post-audit/ICVM) • ICAO forwards draft audit report to State. • State submits comments and Corrective Action Plans (CAPs). • Comments are incorporated into final audit report. • Final audit report is published on USOAP CMA Online Framework (OLF): www.icao.int/usoap.   

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And pg 27-28:

IV. Timeline of Validation and Report Production Phase (Post Audit/ICVM)

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And if the Dept et.al are still waiting for the final report, the question will be - what the hell is the delay??  


MTF...P2 

P7's two bob - Bloody good work P2 - first class. Perhaps we can get the issue raised by Mike Smith at the Wagga pow-wow. Have a choc frog mate...My shout next time around..