[Peetwo]

Su_Spence stalling on promised delegated legislation amendments -   

Reference Appendix D of the DLM tabled yesterday in the Senate: Monitor 11 of 2021

 Undertakings

7.1 From time to time, a minister or agency may make an undertaking to address the committee's scrutiny concerns. These may include, for example, an undertaking to amend a legislative instrument or an explanatory statement, or to review an Act or a departmental practice. The committee expects that, when a minister or agency has made an undertaking, it will be implemented in a timely manner. Accordingly, this appendix records outstanding ministerial and agency undertakings, and the undertakings implemented since the committee's last Delegated Legislation Monitor.

Outstanding undertakings

7.2 The following table records undertakings that remain outstanding, from oldest to newest. The committee draws these undertakings to the attention of the Senate.

Part 133 (Australian Air Transport Operations—Rotorcraft) Manual of Standards 2020 [F2020L01614]

The Civil Aviation Safety Authority undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

20/04/2021

---

CASA EX16/21 — CASR Subpart 99.B DAMP Requirements for Foreign Air Transport AOC Holders Exemption 2021 [F2021L00149]

The Civil Aviation Safety Authority undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

10/05/2021

---

Civil Aviation Legislation Amendment (Flight Operations—Consequential Amendments and Transitional Provisions) Regulations 2021 [F2021L00200]

The Civil Aviation Safety Authority undertook to amend the instrument in response to the committee's scrutiny concerns.

21/05/2021

---

Civil Aviation Legislation Amendment (Flight Operations—Consequential Amendments and Transitional Provisions) Regulations 2021 [F2021L00200]

The Civil Aviation Safety Authority undertook to amend the instrument in response to the committee's scrutiny concerns.

08/06/2021

---

CASA 30/21 – Required Communication Performance and Required Surveillance Performance (RCP 240 and RSP 180) Capability Declarations – Direction 2021 [F2021L00504]

The Civil Aviation Safety Authority undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns.

09/07/2021

Also related is the following list of CAA and CASR delegated legislative instruments tabled in the Senate on Monday: ref - pg 22-23 of 03/08/21 Senate Journal.

Civil Aviation Act 1988—

Civil Aviation Legislation Amendment (Flight Operations—Consequential
Amendments and Transitional Provisions) Regulations 2021 [F2021L00200]—
Replacement explanatory statement. P2 - Hmm...what about the amendment?
Civil Aviation Regulations 1988—Civil Aviation Order 20.16.3 Amendment
Instrument 2021 (No. 1) [F2021L01026].
Civil Aviation Regulations 1988 and Civil Aviation Safety Regulations 1998—
Carriage of Children with a Serious Medical Condition (Regional Express)
Instrument 2021—CASA EX79/21 [F2021L01052].
Carriage of Children with a Serious Medical Condition (Virgin Australia
International Airlines) Instrument 2021—CASA EX80/21 [F2021L01046].
No. 107—3 August 2021 3813
Civil Aviation Safety Amendment (Unmanned Aircraft Levy Collection)
Regulations 2021 [F2021L01027].
Civil Aviation Safety Regulations 1998—
ATC Licence (PARM Endorsement) – Exemptions from Recency and
Currency Requirements Instrument 2021—CASA EX06/21 [F2021L01051].
Canopy Latching—AD/LANCAIR/1 Amdt 2 [F2021L00969].
Cessna Aircraft (Cessna Supplemental Inspection Documents
Requirements) Exemption 2021—CASA EX67/21 [F2021L00861].
Flight Reviews, Proficiency Checks and Related Matters (Extensions of Time
Due to COVID-19) Exemptions Instrument 2021—CASA EX92/21
[F2021L01045].
Life Jacket Standard (Heli-Aust Whitsundays Marine Transfer Operations)
Exemption 2021—CASA EX75/21 [F2021L00977].
Maintenance Control (Certain Class A Aircraft Only Engaged in Private
Operations) Exemption 2021—CASA EX91/21 [F2021L01041].
Medical Certification (Private Pilot Licence Holders with Basic Class 2
Medical Certificate) Exemption 2021—CASA EX69/21 [F2021L00867].
Nose Gear Lower Shock Absorber Assembly—AD/BEECH 200/45 Amdt 5
[F2021L01010].
#1Statement of Expectations for the Board of the Civil Aviation Safety Authority for
the Period 1 July 2021 to 30 June 2023 [F2021L00929].
Civil Aviation (Unmanned Aircraft Levy) Act 2020—Civil Aviation (Unmanned
Aircraft Levy) Regulations 2021 [F2021L01028].

(#1 So the Ministerial SOE has been tabled - time to take this to BJ's thread... )



So what's the hold up PIP??     

MTF...P2 

[Peetwo]

Su_Spence still stalling on promised delegated legislation amendments -

Referring to Appendix D to DLM 16 tabled in Parliament it can be seen that yet again (refer post above) the Su_Spence regime is still yet to fufill promised undertakings dated as far back as 20th of April 2021?? 

However Su_Spence probaly deserves a little credit for reeling in some of the behemoth pile of delegated legislation exemptions normally tabled in the first sitting day of a new parliamentary sitting: Senate Journals 22 November

Civil Aviation Act 1988—
Civil Aviation Regulations 1988 and Civil Aviation Safety Regulations 1998—
Carriage of Children with a Serious Medical Condition (Virgin Australia Airlines)
Instrument 2021—CASA EX 126/21 [F2021L01468].
Civil Aviation Safety Regulations 1998—Part 91 MOS Amendment Instrument
2021 (No. 1) [F2021L01533].

Finally, I note that BJ's department has come through on exemptions for charter operators operating international medical evacuation flights:

Air Navigation Act 1920—Air Navigation (Exemption for Commercial
Non-Scheduled Flights) Amendment Determination 2021 [F2021L01450].

Details:

Air Navigation (Exemption for Commercial Non-Scheduled Flights) Amendment Determination 2021

I, Jim Wolfe, delegate of the Secretary of the Department of Infrastructure, Transport, Regional Development and Communications, make the following determination.

Dated    20      October 2021             

Jim Wolfe

Assistant Secretary- International Aviation

Department of Infrastructure, Transport, Regional Development and Communications

1  Name

This instrument is the Air Navigation (Exemption for Commercial Non-Scheduled Flights) Amendment Determination 2021.

2  Commencement

(1)  Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1.  The whole of this instrument 25 October 2021 25 October 2021
Note:          This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

(2)  Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

This instrument is made under subsection 15A(3) of the Air Navigation Act 1920.

4  Schedules

Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1—Amendments

Air Navigation (Exemption for Commercial Non-Scheduled Flights) Determination 2019

1  Subsection 7(2)

Repeal the subsection, substitute:

(2)  However, while the Biosecurity (Human Biosecurity Emergency)(Human Coronavirus with Pandemic Potential) Declaration 2020 remains in force, this section applies to a medical evacuation flight but does not apply to any other charter flight conducted by an aircraft that is carrying one or more passengers.

2  Section 8

Before “This”, insert “(1)”

3  At the end of section 8

Add:

(2)  However, while the Biosecurity (Human Biosecurity Emergency)(Human Coronavirus with Pandemic Potential) Declaration 2020 remains in force, this section does not apply in respect of a charter flight occurring on or after commencement of this subsection that forms part of a program conducted for the purpose of transporting passengers.       

MTF...P2 

[Peetwo]

Scrutiny of CASA: DLM 1 of 2022??

Ref: https://www.legislation.gov.au/Details/F2022L00061 & https://www.aph.gov.au/-/media/Committee...E8236A363E

While reading this summary keep the following quoted para from the BJ SOE in mind: 

(b) fully consider the impact of new regulations on general aviation, with a particular focus on regional and remote Australia. All Explanatory Statements drafted by CASA for subordinate legislation should identify the impact on the various categories of operations as well as on communities in regional and remote Australia served by those operations and how these impacts have been considered...

Chapter 4 - Scrutiny of instruments exempt from disallowance (CASR entries)

4.4 The instruments may not meet the committee's expectations because:

• the explanatory statement accompanying the instrument does not contain a sufficient explanation for why the instrument is exempt from disallowance and therefore the committee has not been able to assess whether it is appropriate for the instrument to be exempt from disallowance; or
• a substantive explanation for exemption is provided but the committee considers that the explanation does not meet the Senate's requirement that exemptions should only be made in exceptional circumstances and will only be justified in rare cases.1

1. Senate resolution 53B: Delegated legislation—disallowance and sunsetting, agreed to on 16 June 2021, https://www.aph.gov.au/Parliamentary_Bus...he_Senate/.

---

4.6 The following instruments do not meet the committee's expectations under standing order 23(4A).

CASA OAR 064/21 — Determination of Airspace and Controlled Aerodromes Etc. (Designated Airspace Handbook) Instrument 2021 [F2021L01618]- Infrastructure, Transport, Regional Development and Communications

Appendix A - Chapter 5: New Matters. (CASR entries)

5.1 The committee engages with relevant ministers and agencies to attempt to resolve its concerns about scrutiny issues raised by disallowable legislative instruments. This appendix documents the committee's new scrutiny concerns in relation to legislative instruments registered on the Federal Register of Legislation between 23 October 2021 and 26 November 2021.

Agency engagement

5.3 The committee is engaging with the relevant agencies via its secretariat to seek further information about potential scrutiny concerns raised by the instruments listed below.

---

Civil Aviation Order 48.1 Amendment Instrument 2021 (No. 1) [F2021L01610]/ Principle (k) exemption from sunsetting/ Committee secretariat considering response.

---

Part 91, Part 133 and Part 138 Manuals of Standards — NVIS Amendments Instrument 2021 (No. 1) [F2021L01591]/ Principle (k) exemption from sunsetting/ Committee secretariat considering response.

---

Part 138 MOS Amendment Instrument 2021 (No. 1) [F2021L01595]/ Principle (k) exemption from sunsetting/ Committee secretariat considering response.

Appendix B - Chapter 6: Ongoing Matters (CASR entries)

Agency engagement

6.3 The committee is continuing to engage with the relevant agencies via its secretariat to seek further information about potential scrutiny concerns raised by the instruments listed below.

---

CASA EX83/21 – Part 121 and Part 91 of CASR – Supplementary Exemptions and Directions Instrument 2021 [F2021L01399]/ Principle (a) compliance with Legislation Act 2003—incorporation/ Committee secretariat considering response.

Appendix D - Undertakings

8.1 From time to time, a minister or agency may make an undertaking to address the committee's scrutiny concerns. These may include, for example, an undertaking to amend a legislative instrument or an explanatory statement, or to review an Act or a departmental practice. The committee expects that, when a minister or agency has made an undertaking, it will be implemented in a timely manner. Accordingly, this appendix records outstanding ministerial and agency undertakings, and the undertakings implemented since the committee's last Delegated Legislation Monitor.

Outstanding undertakings

8.2 The following table records undertakings that the committee is aware remain outstanding, from oldest to newest. The committee draws these undertakings to the attention of the Senate.

Part 133 (Australian Air Transport Operations—Rotorcraft) Manual of Standards 2020 [F2020L01614]/
The Civil Aviation Safety Authority undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns./ 20/04/2021

---

Civil Aviation Legislation Amendment (Flight Operations—Consequential Amendments and Transitional Provisions) Regulations 2021 [F2021L00200]/
The Civil Aviation Safety Authority undertook to amend the instrument in response to the committee's scrutiny concerns./ 21/05/2021

---

Civil Aviation Legislation Amendment (Flight Operations—Consequential Amendments and Transitional Provisions) Regulations 2021 [F2021L00200]/ The Civil Aviation Safety Authority undertook to amend the instrument in response to the committee's scrutiny concerns./ 08/06/2021

---

Part 60 Manual of Standards Amendment Instrument 2021 (No. 1) [F2021L01303]/
The Civil Aviation Safety Authority undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns./ 12/11/2021

MTF...P2 

[Peetwo]

DLM 2 and CASA rule by exemption continues - 



Ref: DLM 2 0f 2022

There is one 'New Matter' under scrutiny from the SSCSDL for the CAA/CASR:

Civil Aviation Order 95.12.1 (Exemptions from CAR and CASR — LSA Gyroplanes and ASRA-compliant Gyroplanes) Instrument 2021 [F2021L01663]/ Principle (f) incorporated materials freely accessible/ Committee secretariat considering response.

  

Other than that not much has changed, although in reference to the latest substantial pile of CAA/CASR legislative instrument exemptions (tabled Tuesday) it would appear that the 'outstanding' promised undertakings list is in the process of being actually actioned (see in purple) -   :

Civil Aviation Act 1988— Civil Aviation Regulations 1988 and Civil Aviation Safety Regulations 1998—

Civil Aviation Order 95.4 (Exemptions from CAR and CASR — Sailplanes and Towing Aircraft) Instrument 2021 [F2021L01669].
Civil Aviation Order 95.8 (Exemptions from CAR and CASR — Hang Gliders and Paragliders) Instrument 2021 [F2021L01667]. Civil Aviation Order 95.10 (Exemptions from CAR and CASR — Microlight Aeroplanes) Instrument 2021 [F2021L01670].
 Civil Aviation Order 95.12 (Exemptions from CAR and CASR — Gyroplanes Not Exceeding 250 kg) Instrument 2021 [F2021L01672].
Civil Aviation Order 95.12.1 (Exemptions from CAR and CASR — LSA Gyroplanes and ASRA-compliant Gyroplanes) Instrument 2021 [F2021L01663].
Civil Aviation Order 95.32 (Exemptions from CAR and CASR — Powered Parachutes and Weight-shift-controlled Aeroplanes) Instrument 2021 [F2021L01665].
Civil Aviation Order 95.55 (Exemptions from CAR and CASR — Certain Light Sport Aircraft, Lightweight Aeroplanes and Ultralight Aeroplanes) Instrument 2021 [F2021L01666].
Civil Aviation Order (Flight Operations) Repeal and Amendment Instrument 2021 (No. 1) [F2021L01680].
Civil Aviation Safety Regulations 1998— Aeronautical Knowledge Examinations (Extension of Time Due to COVID-19) Exemption 2021—CASA EX138/21 [F2021L01878].
Amendment of CASA EX81/21 – Instrument 2021—CASA EX146/21 [F2021L01684]. Amendment of CASA EX82/21 – Instrument 2021—CASA EX147/21 [F2021L01683].
Amendment of CASA EX83/21 – Instrument 2021—CASA EX148/21 [F2021L01682]. Amendment of CASA EX84/21 – Instrument 2021—CASA EX149/21 [F2021L01679].
Amendment of CASA EX85/21 – Instrument 2021—CASA EX150/21 [F2021L01675]. Amendment of CASA EX86/21 – Instrument 2021—CASA EX151/21 [F2021L01685].
Amendment of CASA EX87/21 – Instrument 2021 (No. 1)—CASA EX145/21 [F2021L01671].
ATC Licence (RMON Endorsement) – Exemptions from Recency and Currency Requirements Instrument 2022—CASA EX01/22 [F2022L00072].
Civil Aviation Order 48.1 Amendment Instrument 2021 (No. 1) [F2021L01610]—Replacement explanatory statement. Civil Aviation Order 95.53 (Commercial Balloon Flying Training and Balloon Transport Operations) Instrument 2021 [F2021L01673].
Civil Aviation Order 95.54 (Part 131 Recreational Activity and Specialised Balloon Operations) Instrument 2021 [F2021L01674].
Exclusion from the Operation of Airworthiness Directives FAA AD 2021-23-12 and FAA AD 2021-23-13 Instrument 2021—CASA 114/21 [F2021L01909].
Miscellaneous Flight Operations Exemptions and Approvals (Transitional) Instrument 2021—CASA EX161/21 [F2021L01689].
Part 66 Manual of Standards Amendment Instrument 2021 (No. 2) [F2022L00007]. Part 91 MOS Amendment Instrument 2021 (No. 2) [F2021L01732].
Part 91, Part 133 and Part 138 Manuals of Standards — NVIS Amendments Instrument 2021 (No. 1) [F2021L01591]—Replacement explanatory statement.
Part 105 (Trainee Parachutists) Exemption 2021—CASA EX153/21 [F2021L01686].
Part 121 and Part 91 of CASR – Supplementary Exemptions and Directions Instrument 2021—CASA EX83/21 [F2021L01399]—Replacement explanatory statement.
Part 121 (Australian Air Transport—Larger Aeroplanes) Amendment Manual of Standards 2021 [F2021L01681]. Part 133 Manual of Standards Amendment Instrument 2021 (No. 1) [F2021L01688].
Part 135 Manual of Standards Amendment Instrument 2021 (No. 1) [F2021L01687].
Part 138 MOS Amendment Instrument 2021 (No. 1) [F2021L01595]— Replacement explanatory statement. Part 149 (Approved Self-administering Aviation Organisations) Amendment Manual of Standards 2021 [F2021L01697].
Repeal of Airworthiness Directive AD/B737/241—CASA ADCX 010/21 [F2021L01711].
Repeal of Airworthiness Directive AD/BAe 146/71 Amdt 3—CASA ADCX 012/21 [F2021L01892].
Repeal of Airworthiness Directive AD/PA-23/70 Amdt 2—CASA ADCX 013/21 [F2022L00071].
Repeal of Airworthiness Directive AD/RES/10 Amdt 4—CASA ADCX 011/21 [F2021L01736].
The Corryong Hang Gliding Cup Instrument 2021—CASA EX163/21 [F2021L01889].
Wing Structural Fatigue Life Limitation—AD/PA-32/42 Amdt 3 [F2022L00064].
Statement of Expectations for the Board of the Civil Aviation Safety Authority for the period 31 January 2022 to 30 June 2023 [F2022L00061].

 

Hmm...note above (in bold) that the BJ SoE has now been officially tabled. However the SoE link on the Fort Fumble website still has not been updated? This is despite the fact that the Org Chart was recently updated on the 5th of February??

(P2 - comment: Note the number of 'Acting positions' currently held?)

MTF...P2 

[Sandy Reith]

P2 should be paid by BJ to keep track of what really pertains in the lumbering machinations of CASA.

Noting the number of ‘acting’ positions makes one wonder if there’s been quite a few jumping ship.
Otherwise perhaps the explanation is that it’s become more difficult to attract qualified personnel to such a wretched crew who can’t own up to the destruction of what was a valuable industry, or the unscrupulous and unconscionable method of smashing various individuals, Glen Buckley being the most prominent and recent example.

Would you want to work for this mob?

[thorn bird]

Not if you had a love for this industry Sandy. Only incompetent bitter and twisted Industry rejects, Lawyers who's specialty is New Guinea Voo Doo hoo doo backed up by a tranche of Eastern Block ex Stasi gestapo, or career Bureaucrats who wouldn't know up from down, other than where to park their backsides, infest the regulator.

A massive fraud has and is being perpetrated on the Australian public, from Airport privatisation to regulations, hundreds of millions of dollars of taxpayers money expended or gifted to big banks and development sharks with no appreciable improvement in anything to do with aviation including the Prime directive safety.

For around five million dollars or so, thats what it cost New Zealand, we could have the most mature, workable regulatory suite completely aligned with the worlds prime supplier of aviation equipment, achieved the same or better level of safety and unshackle our industry to reach its full potential.

Its a no brainer and just plain old common sense.

[Peetwo]

DLM 3 2022 and the Gemmell review??

Via SSCSDL webpages: https://www.aph.gov.au/Parliamentary_Bus...on/Monitor

3 of 2022 /10 March 2022/Monitor

Of interest:

Pg33:

CASA 114/21 — Exclusion from the Operation of Airworthiness Directives FAA AD 2021-23-12 and FAA AD 2021-23-13 Instrument 2021 [F2021L01909] / Principle (k) exemption from sunsetting /Committee secretariat considering response.

---

From Pg 45 under outstanding undertakings:

Part 133 (Australian Air Transport Operations—Rotorcraft) Manual of Standards 2020 [F2020L01614] / The Civil Aviation Safety Authority undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns. / 20/04/2021

Civil Aviation Legislation Amendment (Flight Operations—Consequential
Amendments and Transitional Provisions) Regulations 2021 [F2021L00200] / The Civil Aviation Safety Authority undertook to
amend the instrument in response to the committee's scrutiny concerns. / 21/05/2021

Civil Aviation Legislation Amendment (Flight Operations—Consequential Amendments and Transitional Provisions) Regulations 2021 [F2021L00200] / The Civil Aviation Safety Authority undertook to amend the instrument in response to the committee's scrutiny concerns. / 08/06/2021

Part 60 Manual of Standards Amendment Instrument 2021 (No. 1) [F2021L01303] / The Civil Aviation Safety Authority undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns. / 12/11/2021

CASA EX83/21 – Part 121 and Part 91 of CASR – Supplementary Exemptions and Directions Instrument 2021 [F2021L01399] / The Civil Aviation Safety Authority undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns. / 04/01/2022

Civil Aviation Order 95.12.1 (Exemptions from CAR and CASR — LSA Gyroplanes and ASRA-compliant Gyroplanes) / Instrument 2021 [F2021L01663] / The Civil Aviation Safety Authority undertook to amend the explanatory statement to the instrument in response to the committee's scrutiny concerns. / 07/02/2022

Various instruments made by the Civil Aviation Safety Authority [F2021L01671][F2021L01675] [F2021L01679][F2021L01681][F2021L01682][F2021L01683] [F2021L01684][F2021L01685][F2021L01687][F2021L01688] [F2021L01697][F2021L01680] / The Civil Aviation Safety Authority undertook to amend the explanatory statements to the instruments in response to the committee's scrutiny concerns. / 07/02/2022

Hmm...wonder what the hold up is - 

On exemptions to legislative instruments issued by CASA, I noted the following comment from AF CEO Marjorie Pagani...  

"Angel Flight continues to negotiate with CASA for an exemption to the instrument and a lot of progress has been made. We expect that to be finalised within the next few days..."

I fully understand why AF is applying for an exemption to the CSF instrument, however I find it unbelievable that they are forced to do this even before the ink on the amendment has even dried - 

This brings me back to #Post 24 (above) and the statement from former CASA CEO John McCormick of 'almost  ruling by exemption'.

Perhaps now might be the time to resurface this SBG edition from 2 years ago: https://auntypru.com/sbg-23-2-20-ignoran...-paranoia/

And in particular this KC and AMROBA reference to former CASA Deputy Director Bruce Gemmell's 2001 Review of Regulatory Reform Program:

In 2001, the Civil Aviation Safety Authority’s Deputy Director, Mr Bruce Gemmell, produced a
report titled “Review of Regulatory Reform Program” which documented reasons why regulatory
change had not been successful and how the purpose for change had been lost. Nothing has changed.

Gemmell’s Review of Regulatory Reform Program states under “History of Regulatory Reform” the
various phases since government listed the prime objective (see below) in the late 1980s for change.

• 1990 – Harmonisation with the New Zealand Civil Aviation Regulations
o Director of Aviation Safety Mr Ron Cooper
• 1993 – Regulatory Structure Validation Project (RSVP)
o CEO Doug Roser/Director of Aviation Safety Mr George Macionis
• 1996 – Regulatory Framework Program (RFP)
o CEO/ Director of Aviation Safety Mr Leroy Keith
• 1998 – Aviation Safety Standards Division (ASSD)
o CEO Mr Mick Toller/Deputy Mr Richard Yates
• 1999 – Regulatory Reform Program
o CEO Mr Mick Toller/Deputy Mr Bruce Gemmell

Post Gemmell’s Report
• 2003 – European Aviation Safety Regulations Harmonisation
o CEO Mr Bruce Byron
• 2008 – Regulatory Reform Program – Application of Criminal Code
o CEO Mr John McCormick.
• 2010 – Recreation of Aviation Safety Standards
o CEO Mr John McCormick

Mr Gemmell clearly stated that “repeated changes in [CASA] management and direction over the last
decade have restricted progression of regulatory reform.” The government’s prime objective for
regulatory change back in the late 1980s is still seen as the reasons for change by the industry. The
prime objectives stated by the Minister in 1986 post a Parliamentary Inquiry (not a CASA Inquiry) to
provide for cost effective safety system were as follows:

1986 Ministerial Statement:

The prime objective of the Regulations is to reduce costs to the aviation industry by:
• simplifying the previous maintenance requirements and improving safety standards by harmonisation
with overseas standards;
• eliminating unnecessary administrative processes;
• eliminating unique Australian maintenance requirements unless such differences are clearly justifiable;
• aligning Australian procedures with the internationally accepted approach towards aircraft
maintenance;
• increasing the flexibility for maintenance of general aviation aircraft; and
• correcting deficiencies identified in the previous maintenance regulations and Orders that have resulted in unnecessary or ambiguous maintenance requirements and practices.

New Zealand, who continued with regulatory reform when CAA changed direction, now has an
aviation regulatory system that has been adopted by nearly all our Pacific trading countries. Gemmell
clearly identified that CASA/CAA moved away from harmonisation with NZ at the first opportunity.

At the start of this government initiated regulatory change there was industry support to harmonise
with New Zealand to reduce any differences with personnel qualifications to meet the intent of the
Trans Tasman Mutual Recognition Agreement and to provide an outcome of minimal differences to
achieve a Single Aviation Market not only for the airline sector but general aviation as well. Every
CAA/CASA regime, since the original objectives were identified by government, has changed the
objectives mainly to meet their own internal perceptions of aviation – many current proposals
resurrect the requirements that caused the government review in the 1980s.

So why is aviation regulatory change so difficult? – Gemmell again answers this in an observation.
“Reasons for embarking on the complete rewrite of the regulations have become clouded over time.
[CASA] Management has failed to consistently articulate the key objectives for the review leaving
project managers with the difficult task of resolving conflicting priorities.”

The prime objectives stated by government in 1986 still exist today – regulations now being produced
do not meet the original prime objectives. With no corporate knowledge left in CASA why the
regulatory rewrite began, and no political corporate knowledge as to why the government wanted new
regulatory requirements, the outcome will be another unique Australian regulatory system that will
have a negative impact on the future of aviation, especially the non airline segment.

Another reason seen by Gemmell as a reason why the regulatory reform continues to falter is “No one
person/group [within CASA] has a clear understanding what the ‘big picture’ is in terms of product
release. Linkage between Parts, implementation and transitional arrangements.”

Twenty one years later and how things have changed...err NOT! 

The 2010 AMROBA paper could have been written today without too much editing -     

Perhaps the DPM and the department should take on board the following extract:

In hindsight, it is now obvious that any complete regulatory rewrite to align with the other international aviation regulatory systems should have started by a complete review of the Civil Aviation Act to comply with the International Civil Aviation Organisation’s (ICAO) recommendation for the creation of a Civil Aviation Authority. ICAO provides a sample enabling Act for the creation of a contracting State’s Aviation Authority. Unless CASA is correctly structured with the duties and responsibilities as recommended by ICAO, then regulatory requirements produced will not harmonise with other countries. See ICAO/FAA endorsed Model Act attached.

Recommendation: That the original objectives, as stated in 1986, be confirmed by the
Minister so that the Act, Regulations and Instruments will provide the community and aviation
industry with:

Efficient regulations where the total benefits to some people will exceed the total costs to others by:

• simplifying the previous requirements and improving safety standards by harmonisation with
overseas standards, especially New Zealand for general aviation;
• eliminating unnecessary administrative processes;
• eliminating unique Australian requirements unless such differences are clearly justifiable;
• aligning Australian procedures with New Zealand’s approach towards aircraft maintenance;
• increasing the flexibility for regulations of general aviation aircraft; and
• correcting deficiencies identified in Regulations and Orders that have resulted in unnecessary or
ambiguous requirements and practices.

Regulatory and administrative changes that CASA’s predecessors have imposed on the industry during this period of regulatory change have contributed to the current Pilot and LAME shortages.

Past regulatory changes and structural/responsibility changes within CASA has not provided Regulations where the total benefits to some people exceeded the total costs to others. Cost benefits to the community have not been considered by CASA as they state their only concern is safety.

MTF...P2 

[Sandy Reith]

Peetwo uncovers more of the machinations of our dysfunctional regulator CASA as it stumbles along with its patchwork of improbable, unworkable and contradictory rules, exemptions and ‘policies.’

[Peetwo]

Under the cover of Kitching and the budget??

Yesterday in the Senate special sitting, for the late Senator Kitching's condolence motion, the following was discretely tabled by the Su_Spence led CASA:

Civil Aviation Act 1988—
Civil Aviation Safety Amendment (Parts 47 and 101) Regulations 2022 [F2022L00157].
Civil Aviation Safety Regulations 1998—
Amendment of CASA EX81/21 – Instrument 2021—CASA EX146/21 [F2021L01684]—Replacement explanatory statement.
Amendment of CASA EX81/21 (Air Display Practice Flights and Part 173 Validation Flight Checks) Instrument 2022—CASA EX18/22 [F2022L00342].
Amendment of CASA EX82/21 – Instrument 2021—CASA EX147/21 [F2021L01683]—Replacement explanatory statement.
Amendment of CASA EX83/21 – Instrument 2021—CASA EX148/21 [F2021L01682]—Replacement explanatory statement.
Amendment of CASA EX84/21 – Instrument 2021—CASA EX149/21 [F2021L01679]—Replacement explanatory statement.
Amendment of CASA EX85/21 – Instrument 2021—CASA EX150/21 [F2021L01675]—Replacement explanatory statement.
Amendment of CASA EX86/21 – Instrument 2021—CASA EX151/21 [F2021L01685]—Replacement explanatory statement.
Amendment of CASA EX87/21 – Instrument 2021 (No. 1)—CASA EX145/21 [F2021L01671]—Replacement explanatory statement.
Civil Aviation (Community Service Flights — Conditions on Flight Crew Licences) Amendment Instrument 2022—CASA 19/22 [F2022L00332].
Educational, Training or Research Use of Certain RPA as if They were Model Aircraft – Prescription and Exemption Instrument 2022—CASA EX15/22 [F2022L00224].
Exclusion from the Operation of Airworthiness Directives FAA AD 2021-23- 12 and FAA AD 2021-23-13 Instrument 2021—CASA 114/21 [F2021L01909]—Replacement explanatory statement.
Flight in Class D Airspace near Sunshine Coast Aerodrome (Sunshine Coast Sports Aviators) Instrument 2022—CASA EX04/22 [F2022L00298].
Prescription and Approval of Japan as a Recognised Foreign State Instrument 2022—CASA 14/22 [F2022L00373].
Repeal of Airworthiness Directive AD/GENERAL/65 Amdt 5—CASA ADCX 001/22 [F2022L00216].
The Corryong Paragliding Open and the Not the NZ PG Open Instrument 2022—CASA EX11/22 [F2022L00134].
The NSW Hang Gliding State Titles Instrument 2022—CASA EX12/22 [F2022L00158].
The Wings Out West Instrument 2022—CASA EX14/22 [F2022L00318].

   

(NB: The parts in bold are some of the long promised amendments by CASA in response to the SSCSDL scrutiny concerns) 

MTF...P2 

[Peetwo]

Under the cover of the 47th Parliamentary Opening Day - 

I note that on the very same day the 47th Parliament was officially opened Su_Spence tabled (without any effective Parliamentary scrutiny of delegated legislation ie tick'n'flick) the following list of CASR/CAA exemptions, delegated legislation etc..etc...  

Civil Aviation Act 1988—
Civil Aviation Amendment (Part 149 Deferral) Regulations 2022 [F2022L00978].
Civil Aviation Regulations 1988 and Civil Aviation Safety Regulations 1998—Civil Aviation Order 95.55 Amendment Instrument 2022 [F2022L00900].
Civil Aviation Safety Amendment (Parts 47 and 101 No. 2) Regulations 2022 [F2022L00499].
Civil Aviation Safety Regulations 1998—
Amendment of CASA EX39/19 (Aerobatics) – Instrument 2022—CASA EX22/22 [F2022L00590].
Amendment of CASA EX81/21 (Aerobatic Activities, Experimental Aircraft, and Other Matters) Instrument (No. 1) 2022—CASA EX46/22 [F2022L00720].
Amendment of CASA EX82/21 – Instrument (No. 1) 2022—CASA EX41/22 [F2022L00670].
Cessna Aircraft (Cessna Supplemental Inspection Documents Requirements) Exemption 2022—CASA EX32/22 [F2022L00671].
DAMP Organisations (Collecting and Screening of Oral Fluid and Urine Body Samples Outside Capital City Areas) Exemption 2022—CASA EX43/22 [F2022L00772].
Fairchild Cockpit Voice Recorder – Inspection and Modification—AD/REC/2 Amdt 1 [F2022L00580].
Flight Training and Test (Low-Fidelity Simulators) Exemption 2022—CASA EX42/22 [F2022L00641].
Fuel Tank Bay – Modification—AD/YA-1/4 [F2022L00615].
Horizontal Stabiliser Skin Disbonding Follow-up—AD/DHC-8/55 Amdt 1 [F2022L00572].
Main Fuel Filter and Auxiliary Fuel Pumps – Modification—AD/YA-1/5 [F2022L00610].
Main Landing Gear Top Attachment Bolts – Replacement—AD/YA-1/1 [F2022L00609].
Obtaining Experience for Grant of RePL for Medium RPA, and for RePL Upgrade to Different Category of Small or Medium RPA – Exemption Instrument 2022—CASA EX17/22 [F2022L00488].
Operating Limitations (Aircraft Fitted with Engines Manufactured by Jabiru Aircraft Pty Ltd) Instrument 2022—CASA 31/22 [F2022L00917].
Operation of Certain Unmanned Aircraft – Renewal of Directions Instrument 2022—CASA 22/22 [F2022L00449].
Part 101 Manual of Standards (Miscellaneous Revisions) Amendment Instrument 2022 (No. 1) [F2022L00448].
Part 101 Manual of Standards (Modified Licensing Standards for Advancing RPA Technology, and Other Matters) Amendment Instrument 2022 (No. 1) [F2022L00718].
Pilot’s Safety Harness Attachment – Modification—AD/YA-1/6 [F2022L00611].
Prescription of Qualification Standards (Synthetic Trainers) Instrument 2022 [F2022L00729].
Repeal of Airworthiness Directive AD/CL-600/87 Amdt 1—CASA ADCX 002/22 [F2022L00715].
Repeal of Airworthiness Directive AD/T53/21—CASA ADCX 003/22 [F2022L00728].
Repeal of Educational, Training or Research Use of Certain RPA as if They were Model Aircraft – Prescription and Exemption Instrument 2022—CASA EX39/22 [F2022L00634].
State of Design Airworthiness Directives—AD/CJ610/7 [F2022L00972].
The Corryong Hang Gliding Cup Instrument 2021—CASA EX163/21 [F2021L01889]—Replacement explanatory statement.
The Corryong Inter-Club Fly-in Instrument 2022—CASA EX20/22 [F2022L00605].
The Paragliding State of Origin Instrument 2022—CASA EX37/22 [F2022L00606].
Use of Class A Airspace by Sailplanes Instrument 2022—CASA 32/22 [F2022L00981].
Vertical Fin Attach Brackets, Nutplates and Fittings—AD/CESSNA 150/31 Amdt 5 [F2022L00556].
Wing Attach Fittings, Bolts and Nuts—AD/BEECH 95/26 Amdt 3 [F2022L00685].
Wing Bolt, Nut and Fitting—
AD/BEECH 33/41 Amdt 3 [F2022L00689].
AD/BEECH 33/41 Amdt 4 [F2022L00974].
AD/BEECH 35/67 Amdt 3 [F2022L00688].
AD/BEECH 35/67 Amdt 4 [F2022L00969].
AD/BEECH 36/43 Amdt 3 [F2022L00687].
AD/BEECH 36/43 Amdt 4 [F2022L00973].
AD/BEECH 55/79 Amdt 4 [F2022L00686].
AD/BEECH 55/79 Amdt 5 [F2022L00968].
AD/BEECH 95/26 Amdt 4 [F2022L00971].
Wing Rear Spars – Modification—AD/YA-1/3 [F2022L00613].
Wing Structural Fatigue Limitation—AD/YA-1/8 [F2022L00612].

UDB!! - 

So perhaps for the 1st point of business and the 1st delegated legislation monitor, the newly elected/nominated SSCSDL should consider the above cynically tabled list of Su_Spence delegated legislation - 

MTF...P2 

[Peetwo]

DLM 5 of 2022; & ACT Lakes Ordinance/regulatory overreach?? 

Via the Senate: https://www.aph.gov.au/Parliamentary_Bus...on/Monitor

Monitor
Ministerial responses
Tabling statement   


Refer to pages 3 to 14 of the Monitor - extracts:

Overview

1.3 The Australian Capital Territory National Land (Lakes) Ordinance 2022 (the
instrument) regulates various matters relating to the management and use of National
Lakes (Lake Burley Griffin) in the Australian Capital Territory, including the grant of
permits to use Lake Burley Griffin for various activities, regulation of boating and the
closure of the lake area for safety, maintenance and for approved events. The
committee has identified several significant technical scrutiny concerns in the
instrument, detailed below.

Scrutiny concerns

Coercive powers;2 significant matters in delegated legislation3

1.4 Several provisions in the instrument contain search and seizure powers.4 Where an instrument contains coercive powers such as these, the committee will consider relevant limitations on the powers, including who may exercise them,5 and whether the powers unduly trespass on personal rights and liberties,6 such that they are a matter more appropriate for parliamentary enactment.7

Inclusion of coercive powers

1.5 Part 8 division 2 of the instrument confers entry, search and seizure powers on inspectors to enter boats and seize evidence. Additionally, section 140 authorises the seizure of a boat if an inspector believes it is or has been involved in an offence against the instrument.

1.6 The committee considers that provisions which contain coercive powers have the potential to seriously trespass on personal rights and liberties and should not ordinarily be included in delegated legislation.8 Where an instrument nevertheless contains such provisions, the committee expects the explanatory statement to describe the nature and scope of the provisions and the circumstances in which the powers will be exercised. The committee also expects the explanatory statement to justify why the provisions are necessary and appropriate, whether compensation is available for any property seized or destroyed in the exercise of the powers, whether independent review is available of decisions made and actions taken in connection with the exercise of the powers, and whether the provisions comply with Chapters 7 and 8 of the Attorney-General's Department's Guide to Framing Commonwealth Offences.9

1.7 In this regard, the explanatory statement does not appear to describe why
entry, search and seizure powers are necessary and appropriate to be included in the
instrument, nor does it explain whether these provisions comply with the Attorney-
General's Department's Guide to Framing Commonwealth Offences. The explanatory
statement separately clarifies that no independent review is available for decisions
made under the instrument,10 heightening the committee's concern about the
inclusion of coercive powers in delegated legislation and the need for such powers to
be thoroughly justified.

Exercise of coercive powers

1.8 Subsection 150(1) of the instrument provides that the minister may appoint
the Chief Executive of the National Capital Authority or a member of the staff of the
National Capital Authority as an inspector for the purposes of the instrument.
Subsection 150(3) provides that the Delegate for Lakes and police officers are also
inspectors for the purposes of the instrument.

1.9 As noted above, where an instrument confers coercive powers on a person or
class of persons, the committee will be concerned to ensure that the instrument does
not unduly trespass on personal rights and liberties. In this regard, the committee will
consider whether there are appropriate limits and safeguards in place on the exercise
of powers, and whether the persons on whom the powers are conferred possess the
appropriate qualifications or experience necessary to exercise the powers.

Accordingly, the committee expects the explanatory statement to outline who will be
exercising the relevant powers and whether they possess the appropriate
qualifications and necessary skills. The committee also expects the explanatory
statement to include the nature and source of any relevant limitations and safeguards
on the exercise of the powers, including whether they are contained in law or policy.

1.10 In addition, where an instrument delegates administrative powers or
functions to a member of the Australian Public Service, the committee expects that
the delegation will be limited to members of the Senior Executive Service (SES) or
equivalent. Consequently, the explanatory statement should provide a thorough
justification for any delegation of powers to officers below the SES level.

1.11 In this instance, neither the instrument nor its explanatory statement appears
to provide any guidance about what qualifications or experience a person must
possess to be appointed as an inspector, other than being a relevant office-holder in
section 150, nor is there any detail about any safeguards or limitations on the exercise
of the powers.

1.12 The committee therefore requests the minister's more detailed advice as to:
• why entry, search and seizure powers are necessary and appropriate, including how the public interest is served by their inclusion in delegated legislation, rather than primary legislation;
• whether the provisions comply with Chapters 7 and 8 of the Attorney-General's Department's Guide to Framing Commonwealth Offences;
• the circumstances in which the search and seizure powers will be exercised;
• whether the individuals exercising the powers under section 150 will be required to have the appropriate skills, qualifications and experience to exercise the relevant powers; and
• whether any safeguards or limitations apply to the exercise of these powers, and, if so, whether the safeguards are contained in law or policy.

Significant penalties;11 significant matters in delegated legislation12

1.13 The instrument contains several offences which impose custodial penalties ranging from three to twelve months.13 For example, section 47 provides that a person who operates an unsafe boat on the lake may incur a penalty of imprisonment for six months or 38 penalty units ($8 436), or both.

1.14 Senate standing order 23(3)(j) requires the committee to consider whether an instrument contains matters more appropriate for parliamentary enactment. This includes whether an instrument imposes significant penalties.

1.15 In the committee's view, serious criminal offences and significant penalties should ordinarily be included in primary legislation rather than delegated legislation to ensure appropriate parliamentary oversight of the scope of the offence and penalty.

1.16 Where an instrument imposes significant penalties, the committee expects the explanatory statement to explain the nature and scope of the offence and what penalties apply.14 The committee also expects the explanatory statement to justify why the penalty is appropriate to the relevant offence, and why it is necessary and appropriate to include such penalties in delegated legislation. In addition, the committee expects the explanatory statement to state whether the Attorney-General was consulted in relation to the inclusion of custodial penalties, in accordance with Offences.15

1.17 In this instance, the explanatory statement provides that the penalties are
consistent with the penalties for equivalent offences set out in the
Lakes Act 1976 (ACT). However, noting that the Lakes Act 1976 is primary legislation,
it remains unclear to the committee why it is appropriate to include such penalties in
delegated legislation rather than primary legislation.

1.18 The committee therefore requests the minister's more detailed advice as to:
• the justification for including custodial penalties in sections 47, 48, 102, 104
and 105 of the instrument, as opposed to primary legislation; and
• whether the Attorney-General's Department was consulted in relation to
the inclusion of custodial penalties in the instrument, in accordance with
Part 3.3 of the Attorney-General's Department's Guide to Framing
Commonwealth Offences.

Strict liability;16 absolute liability17

1.19 The instrument provides for several strict liability offences.18 For example,
section 14 provides that a person commits an offence of strict liability if they put a
boat in a lake or take a boat from a lake (other than a personal watercraft) at a place
that is not in a prescribed launching area. Section 104 of the instrument similarly
creates a strict liability offence for persons who operate a boat on a lake whilst having
a prescribed drug in their oral fluid or blood. However, subsection 104(2) provides that
a person cannot rely on a defence of mistake of fact about the identity of the
prescribed drug in their oral fluid or blood. Excluding the defence of mistake of fact
appears to apply absolute liability to this component of the offence. In addition to
these offences on the face of the instrument, section 106 appears to apply certain
strict liability offences in the Road Transport (Alcohol and Drugs) Act 1977 to persons
operating a boat on a lake.19

1.20 Senate standing order 23(3)(h) requires the committee to scrutinise each legislative instrument as to whether it trespasses unduly on personal rights and liberties. This includes whether the instrument provides for offences of strict or absolute liability.

1.21 The requirement for the prosecution to prove fault on the part of a defendant is an important element of the common law right to be presumed innocent. The application of strict and absolute liability undermines this right by removing the requirement to prove fault in relation to one or more elements of an offence.

1.22 Where an instrument provides for strict or absolute liability offences, the committee expects the explanatory statement to explain the nature and scope of each offence, including the relevant penalties.20 The committee also expects the explanatory statement to justify why it is necessary and appropriate to apply strict or absolute liability to the offence with reference to the principles set out in part 2.2.6 of the Attorney-General's Department's Guide to Framing Commonwealth Offences.21

1.23 The inclusion of absolute liability offences requires a particularly strong justification, as this excludes the fault element and defence of honest and reasonable mistake of fact.

1.24 In this regard, the explanatory statement does not appear to outline why the strict and absolute liability offences are necessary and appropriate. While the statement of compatibility notes that 'many of the strict liability offences in the Ordinance relate to safety on the lake', it is unclear why strict liability offences are necessary for offences that do not relate to lake safety.22

1.25 The committee further notes that sections 102 and 104 of the instrument include a maximum penalty of 12 months and three months imprisonment respectively. The committee's concerns about the lack of justification for strict or absolute liability offences are heightened by the inclusion of custodial penalties.23 This is consistent with the position of the Senate Standing Committee for the Scrutiny of Bills and the Attorney-General's Department's Guide to Framing Commonwealth Offences, which provides that the application of strict or absolute liability to all physical elements of an offence is not appropriate where the offence is punishable by imprisonment.

1.26 The committee therefore requests the minister's more detailed advice as to why it is necessary and appropriate for the instrument to contain offences of strict and absolute liability, with reference to the principles set out in part 2.2.6 of the Attorney-General's Department's Guide to Framing Commonwealth Offences, particularly in relation to the following offences:
• offences that include custodial penalties;
• offences in the Road Transport (Alcohol and Drugs) Act 1977 (ACT) applied by section 106 of the instrument; and
• offences that do not relate to lake safety.

Reverse burden of proof24

1.27 Several offences in the instrument contain defences which impose an evidential burden of proof,25 or legal burden of proof,26 on the defendant. For example, subsection 15(1) creates an offence for swimming or diving in a lake in an area where swimming or diving is not permitted. Subsection 15(2) provides a defence where the swimming or diving is authorised by a regulated activity permit, and a note to the provision provides that a defendant bears an evidential burden in relation to the matter.

Subsection 29(1) of the instrument makes it an offence to anchor a boat on a lake at night. Subsection 29(4) provides a defence if the defendant proves that the boat was anchored for the purpose of viewing a fireworks display and the defendant or someone else was on the boat for that purpose when the boat was anchored. A note to the provision provides that a defendant bears a legal burden in relation to this matter. In addition to these offences, section 106 of the instrument appears to apply certain provisions in the Road Transport (Alcohol and Drugs) Act 1977 which reverse the legal burden of proof to persons operating a boat on a lake.27

1.28 Senate standing order 23(3)(h) requires the committee to scrutinise each legislative instrument as to whether it trespasses unduly on personal rights and liberties, including the right to be presumed innocent.

1.29 The right to be presumed innocent is a fundamental principle of the Australian legal system. Normally, the right to be presumed innocent requires the prosecution to prove all elements of an offence. Consequently, this right is undermined by provisions which require the defendant to raise evidence about a matter (reverse evidential burden), or positively prove a matter (reverse legal burden).

1.30 The committee expects that the explanatory statements to instruments which
reverse the burden of proof should justify why it is necessary and appropriate to do so
in the explanatory statement.28 Where the legal burden of proof is reversed, the
committee considers that a much stronger justification is necessary. The committee
also expects justification to refer to the test in part 4.3 of the Attorney-General's
Department's Guide to Framing Commonwealth Offences.29 This test requires that the
relevant matter is peculiarly within the knowledge of the defendant, and would be
significantly more difficult and costly for the prosecution to disprove than for the
defendant to prove. In addition, if the provision reverses the legal burden of proof, the
committee expects the explanatory statement to justify why this is necessary, rather
than reversing the evidential burden of proof.

1.31 In this regard, the committee notes that the explanatory statement provides
limited explanation as to why it is necessary and appropriate to reverse the evidential
burden of proof in relation to some offences and no explanation as to why it is
necessary and appropriate to reverse the legal burden of proof.

1.32 The committee therefore requests the minister's more detailed advice as to:
• why it is necessary and appropriate to reverse the evidential burden of proof
for the relevant offences, with reference to the relevant guidance in the
Attorney-General's Department's Guide to Framing Commonwealth
Offences;
• why it is necessary and appropriate to reverse the legal burden of proof in
sections 29, 60, 75, 78, 89 and 103 of the instrument, with reference to the
relevant guidance in the Attorney-General's Department's Guide to Framing
Commonwealth Offences;
• why it is necessary and appropriate to reverse the legal burden of proof in
sections 29, 60, 75, 78, 89 and 103 of the instrument, as opposed to the
evidential burden of proof; and
• why it is necessary and appropriate to apply provisions reversing the legal
burden of proof in the Road Transport (Alcohol and Drugs) Act 1977 (ACT) to
persons who operate a boat on a lake within the meaning of the instrument.

Hmm...I wonder if Dr A (the guru on big R regulatory drafting) has offered his services in helping draft the 'Australian Capital Territory National Land (Lakes) Ordinance 2022'?? - 

Perhaps the committee could be convinced to do a top down review of all the individual Parts of the CASR?   

MTF...P2 

[Sandy Reith]

An excellent example of the mindset of the Can’tberra bureaucrats and their pursuit of perfect control and to hell with the principle of innocent until proven guilty. Even the Committee gives weight the cost of prosecution being a good reason to undermine the most fundamental foundation of justice.

But what cost justice ?  Civilisation, freedom and prosperity and the pursuit of happiness?

The dearth of intellect and proportionality being displayed by the make work salary factories of Canberra’s Public Sector (that which used to be the Public Service) is frightening. There is no doubt that this excessive and hugely expensive bureaucratic overreach is costing the taxpayer dearly, as well as undermining our way of life.

We need a Bill of Rights.

Much thanks to P2 for keeping watch and uncovering such an important area, and heaven help anyone who trips and falls into Lake Burley Griffin, you might finish up with a criminal conviction (try going o/s with that) and a year in jail.

[Peetwo]

ACT Lakes Ordinance/regulatory overreach - Part II

Ref:

An excellent example of the mindset of the Can’tberra bureaucrats and their pursuit of perfect control and to hell with the principle of innocent until proven guilty. Even the Committee gives weight the cost of prosecution being a good reason to undermine the most fundamental foundation of justice.

But what cost justice ?  Civilisation, freedom and prosperity and the pursuit of happiness?

The dearth of intellect and proportionality being displayed by the make work salary factories of Canberra’s Public Sector (that which used to be the Public Service) is frightening. There is no doubt that this excessive and hugely expensive bureaucratic overreach is costing the taxpayer dearly, as well as undermining our way of life.

We need a Bill of Rights.

Much thanks to P2 for keeping watch and uncovering such an important area, and heaven help anyone who trips and falls into Lake Burley Griffin, you might finish up with a criminal conviction (try going o/s with that) and a year in jail.

Follow up to the above, which IMO perfectly highlights the Albo Government's take on such matters as public safety risk mitigation thru overbearing, draconian regulation. The following is the miniscule's (IE Mandarin's) response to the Scrutiny of Delegated Legislation Committee's concerns with the 'ACT National Land (Lakes) Ordinance 2022' and the subsequent committee view (acceptance/further recommendations): Ref -  https://auntypru.com/wp-content/uploads/...2022-2.pdf & https://auntypru.com/wp-content/uploads/...2022-1.pdf

Minister's response10

1.10 In her response of 8 November 2022, the minister advised that the entry, search and seizure powers conferred by the instrument are necessary for the effective and safe operation of the Lake, including for the protection of Lake users and the environment.

1.11 The minister also advised that the AGD Guide contemplates the inclusion of these powers where the objectives of the primary legislation will be frustrated unless the powers are included in delegated legislation. The minister added that the inclusion of such detailed matters in the primary legislation, the Seat of Government (Administration) Act 1910 (the 1910 Seat of Government Act), would change the basic framework of the legislative scheme, which is fundamental to the administration of Commonwealth laws in the ACT.

1.12 The minister further noted that the Governor-General's power to make ordinances for the peace, order and good government of National Land is plenary and has historically been used by the government to make laws for the ACT. Further, she noted that ordinances made for the external territories generally deal with 'state-type matters', including those relating to the protection of life, which are not normally dealt with in other types of Commonwealth delegated legislation.

1.13 The minister provided specific examples of situations where the entry, search and seizure powers would be used for the effective and safe operation of the Lake, to be exercised in "situations of emergency and serious danger to public health".11The situations were such that there was a need for inspectors to be able to respond swiftly to minimise endangerment to life, environment and property. The minister advised that the use of these powers is constrained by the need for consent and search warrants, except for where life or property is endangered.

1.14 The minister further advised that the Delegate for Lakes is appointed on the basis of having technical expertise, relevant qualifications and experience in water management roles. Members of the Australian Federal Police are also automatically defined to be inspectors and exercise entry, search and seizure powers on the lake. The minister also noted that internal frameworks and guidelines are currently being developed to monitor the exercise of coercive powers.

1.15 Finally, the minister made an undertaking to amend the explanatory statement to provide a more detailed explanation of these unique legal and administrative arrangements governing the Lake, which justify the inclusion of coercive powers in the Ordinance.

Committee view

1.16 The committee notes the minister's advice that protection of life, environment and property on the Lake are of great importance and that search, entry and seizure powers are required to ensure the safe and efficient operation of the Lake. The committee also notes the advice that these powers are delegated to a suitably qualified and experienced individual and the exercise of the powers is limited by the need for consent or warrants, except in cases requiring the protection of life or property. Additionally, the minister helpfully clarifies that the 1910 Seat of Government Act cannot be amended to include the relevant powers, as this may inadvertently change the basic framework of the legislative scheme, which is fundamental to the administration of Commonwealth laws in the ACT and would affect other ordinances made under the 1910 Seat of Government Act.

1.17 While acknowledging this advice, the committee would appreciate further detail about the nature of the relevant legislative framework and how amendments to the Act could detrimentally change the framework of the legislative scheme.

1.18 The committee therefore requests the minister's further detailed advice as to what limitations prevent the 1910 Seat of Government Act from being amended to include certain powers.

Minister's response14

1.21 In her response of 8 November 2022, the minister advised that the legal and administrative arrangements governing the Lake are under the 1910 Seat of Government Act, which cannot be amended to include these offence provisions without changing the framework of the Act’s legislative scheme and unintentionally limiting the scope of the ordinance-making power. The minister also noted that the Governor-General’s plenary power authorises the making of ordinances and does not limit the size or nature of the penalties that can be imposed with respect to National Land.

1.22 The minister also confirmed that the Administrative and Criminal Law sections of the Attorney-General’s Department were consulted in relation to the inclusion of custodial penalty provisions and provided recommendations accordingly. Further, the custodial penalties for offences under sections 102 to 105 are consistent with the Lakes Act 1976 (ACT) (the Lakes Act), which relates to territory lakes.

1.23 Finally, the minister undertook to amend the explanatory statement to set out the unique legal and administrative arrangements governing the Lake and clarify that the penalties imposed are consistent with corresponding offences under the Lakes Act.

Committee view

1.24 It is the committee’s view that serious criminal offences and significant penalties should ordinarily be included in primary legislation rather than delegated legislation to ensure appropriate parliamentary oversight of the scope of the relevant offence and penalty. The committee notes the minister's advice as to the need to include the provisions relating to these offences and the associated penalties (including custodial penalties) in the ordinance, as the relevant primary legislation cannot be amended to include these provisions.

1.25 While the committee welcomes the minister’s undertaking to amend the explanatory statement to explain the unique legal and administrative arrangements governing the Lake, the committee seeks further information about the barriers to amending the primary legislation to include provisions relating to serious criminal offences and significant penalties, including custodial penalties.

1.26 Accordingly, the committee requests the minister's further advice as to the limitations preventing the 1910 Seat of Government Act from being amended to include the above significant penalties.

Minister's response20

1.30 In her response of 8 November 2022, the minister advised that the ordinance contains 65 offences of strict liability and no absolute liability offences. The offences, with the exception of the offences under sections 102 and 104, do not include
penalties of imprisonment and, in accordance with the AGD Guide, these offences are under 60 penalty units. The minister's advice notes that the offences are regulatory in nature, apart from those under sections 102 and 104, and are therefore appropriate as strict liability offences as enforcement officers can readily assess the truth of a matter and determine if an offence has been committed.

1.31 The minister advised that strict liability offences are imposed only where necessary and proportionate to the conduct being regulated, which includes for reasons of public safety and ensuring the enforcement of a regulatory scheme. Strict
liability offences can also deter relevant conduct, and are necessary to ensure the integrity of the regulatory regime over the Lake. The minister also advised that, due to the safety implications of operating a boat while intoxicated for the operator, other passengers and other lake users, it is reasonable that these offences are strict liability. These penalties are consistent with equivalent offences under the Lakes Act and the Road Transport Act.

1.32 The minister also confirmed that the offence under section 104 is not an offence of absolute liability although it excludes a defence of mistake of fact in one circumstance. This is where the defendant has mistaken a controlled drug for a prescribed drug. All other defences of mistake of fact are still available.

Committee view

1.33 The committee thanks the minister for her advice about the appropriateness of the provisions regulating the Lake to include offences of strict liability. The committee also thanks the minister for confirming the strict liability offences are applicable in cases that involve lake safety, such as operating a boat while under the influence of drugs or alcohol and, with the exception of two serious offences, they are subject to a maximum of 60 penalty units.

1.34 The committee also notes the minister’s advice that there are significant safety risks involved for the operator in operating a boat whilst intoxicated, and the offences are equivalent to other offences of strict liability that relate to operating vehicles whilst intoxicated. The committee further notes the minister's advice that the offence under section 104 is not an offence of absolute liability but rather only excludes the defence of mistake of fact in a narrow set of circumstances.

1.35 In light of the information provided by the minister, the committee concludes its examination of the instrument in relation to this matter.

Minister's response25

1.39 In her response of 8 November 2022, the minister advised that the nature of the relevant offences relate to serious matters of safety, primarily aimed at the protection or preservation of life of the person involved and of others, such as bystanders. The minister's advice also notes that these offences involve matters that are specifically in the minds of the defendant, in which case, the defendant would only need to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist. It would be significantly more costly for the prosecution to disprove the existence of the relevant matter.

1.40 The minister also advised that these offences contain low penalty units, well under the 60 penalty unit threshold recommended for strict liability offences in the AGD Guide and, for a number of the offences, the conduct proscribed by the offence poses a grave danger to public health or safety. Additionally, for a number of these offences, the matters raised in relation to the defence are not central to the question of culpability for the offence.

1.41 Finally, the minister advised that for offences where the legal burden of proof has been reversed, the elements of the defence that must be positively proved are within the reasonable power of the defendant to establish and outside of the reasonable power of the prosecution to disprove. If the prosecution were required to disprove these matters beyond reasonable doubt (and the defendant were only required to meet an evidential burden) as part of the process of upholding the law, the prosecution would find it extremely difficult to perform the role necessary to support the operation and public safety purposes of those measures. Finally, the minister noted that these provisions align with equivalent provisions in the Lakes Act.


Committee view

1.42 The committee notes the minister’s advice that the offences contain low penalty units, relate to serious matters of safety and protection of life and relate to matters that are specifically in the minds of the defendants, which require the defendant to only adduce or point to evidence that suggests a reasonable possibility that the matter does or does not exist.

1.43 The committee’s view is that the right to be presumed innocent is a fundamental principle of the Australian legal system and this right is undermined by provisions that reverse the burden of proof and require the defendant to raise evidence about or to positively prove a matter. However, in this instance, the committee acknowledges that the nature of the offences relates to matters of public safety and protection of life, that the penalties for the offences are low and that the matters that are to be raised as part of either a legal or evidential burden of proof are matters that are specifically within the defendant’s mind and are within the defendant’s reasonable power to raise evidence about or positively prove.

1.44 In light of the information provided by the minister, the committee concludes its examination of the instrument in relation to this matter.

Minister's response29

1.49 The minister advised that in making the decisions regarding the matters highlighted by the committee, the National Capital Authority delegate must refer to criteria set out in the internal operating procedures and policies, so that decisions are
made in a consistent manner with reference to evidence, based on merit and subject to internal review mechanisms. The minister also advised that the delegation of these powers to non-SES officials is appropriate, given their specific expertise and
qualifications in water management, asset maintenance and planning, which will allow for the Lake to be administered efficiently for public benefit. Further, the agency’s size and resources do not allow for changes to this practice as it would be a significant operational impediment and could risk effective administration of the ordinance.

Committee view

1.50 The committee notes the minister’s advice that delegates must make decisions in accordance with criteria established in policy, with reference to evidence, and must provide reasons for decisions, which are also subject to review. The committee further notes the minister’s advice that delegations to officers below SES level are appropriate as they are required to possess the specific qualifications and expertise described by the minister.

1.51 The committee’s view is that when delegations are made below the SES level, the explanatory statement should include an explanation of the scope and nature of the delegated power and what specific skills or qualifications the delegate will require. In this instance, the committee notes the minister’ advice that the delegate, while not at SES level, must possess technical expertise in water management, asset maintenance and planning, which are necessary for the exercise of the conferred power, and that the delegate must exercise this power in accordance with criteria established in the National Capital Authority’s internal operating procedures and policies.

1.52 The committee therefore requests the minister's advice as to whether the explanatory statement can be amended to include the further advice provided to the committee about this matter.

Minister's response31


1.55 The minister advised that ‘dangerous to the public’ includes anything that causes, or is likely to cause, injury or death to a person, damage to property or threaten public safety. The minister’s advice also provides examples of behaviours that are contemplated to encompass dangerous conduct.

1.56 Further, the minister gave an undertaking to amend the explanatory statement to include guidance on the proper interpretation of ‘dangerous to the public’.

Committee view

1.57 The committee welcomes the minister's advice and undertaking to amend the explanatory statement to include the meaning of 'dangerous conduct'.

1.58 In light of the minister's advice and undertaking to amend the explanatory statement, the committee concludes its examination of the instrument in relation to this matter.

Minister's response34


1.61 The minister advised that the government was currently developing the Australian Capital Territory Legislation Amendment (Ordinances and Reserved Laws) Bill 2022, which is proposed to amend the AAT Act, such that decisions that are administrative in character and made under ACT ordinances will be subject to review by the AAT, as well as judicial review in the Federal Court and Federal Circuit Court.

Committee view

1.62 The committee welcomes the minister’s advice that a bill is in development which will allow for the availability of independent review of administrative decisions made under ACT ordinances, including such decisions under this instrument. The committee would appreciate an update on the progress of this matter when this is available.

1.63 In light of the minister's advice about the legislative developments in progress to address this issue, the committee concludes its examination of the instrument in relation to this matter but seeks an update on the progress of this matter when this is available.

Minister's response38


1.67 In her response of 8 November 2022, the minister advised that the Australian Standard is incorporated by reference and can be accessed at the National Capital Authority office during business hours upon request.

Committee view

1.68 The committee thanks the minister for her advice and notes that this information would be useful to include in the instrument's explanatory statement.

1.69 The committee therefore requests the minister's advice as to whether the explanatory statement can be amended to include this additional information about the incorporation of the Australian Standard and where it can be freely accessed.

Minister's response41

1.74 The minister advised that there is one regulation in force, the Road Transport (Alcohol and Drugs) Regulation 2000 (ACT), as well as several notifiable instruments, and the penalty units set under ACT laws are applicable in this instance.

1.75 The minister also advised that specific provisions of the Road Transport Act, which are based on Part 6 of the Lakes Act, are incorporated to ensure a consistent framework for the enforcement of drug and alcohol offences.

Committee view

1.76 The committee thanks the minister for her advice that the applicable regulation is the Road Transport Act, along with several notifiable instruments. The committee also thanks the minister for her advice that penalty units set under ACT laws are the applicable penalty units under the instrument. However, it is the committee's view that this information should be included in the instrument.

1.77 The committee therefore requests the minister's advice as to whether the instrument can be amended to include this additional information. 

   
Hmm...I wonder if there is any laws regarding the harassment of local wildlife intent on taking an early morning dip in Lake Burley Griffin...

Ref: Popinjay to the RESCUE

Watch this morning's rescue of a kangaroo from Lake Burley Griffin

21 September 2021 | Damien Larkins



While the kangaroo seemed glad to be out, it went back in the freezing lake two more times. Photo: David Boyd.

MTF...P2 

[Peetwo]

DLM 3 of 2023 etc.

Via SSCSDL webpages:

3 of 2023
8 March 2023
Monitor
Ministerial responses
Tabling statement

Although not directly related to aviation laws and regulations that are listed as delegated instruments and exemptions, I found the following passage from the 'Tabling Statement' interesting because IMO, for large parts of it, you could simply replace the Treasury references for CASA and the committee's observations and concerns could be largely replicated. The major difference of course is that Treasury is directly accountable to the Minister and Secretary of the Dept, whereas CASA is an independent statutory corporate authority...  

..The Corporations Amendment (Litigation Funding) Regulations 2022 provide
litigation funding schemes with explicit exemptions from the Corporations Act,
including the product disclosure regime and anti-hawking provisions. The Treasury
Laws Amendment (Rationalising ASIC Instruments) Regulations 2022 similarly inserts
ongoing exemptions to requirements in the Corporations Act and the Consumer Credit
Protection Act.

It is the committee's long-standing view that modifications to or exemptions from
primary law should be set out in the primary law itself. When these measures are in
delegated legislation, the committee expects they will be time limited to ensure
frequent parliamentary oversight. This also provides the executive with the ability to
assess whether the measures remain appropriate and necessary.

Not only do these instruments insert a number of exemptions to primary legislation,
but they are in place on an ongoing basis, as the measures are not subject to the usual
10-year sunsetting period.

It is of particular concern that the Rationalising ASIC Instruments Regulations have
the effect of shifting exemptions previously contained in individual legislative
instruments, usually time limited to a period of 3-5 year, or at a minimum, subject to
sunsetting period, into the Principal Regulations which are exempt from sunsetting.

This means that these exemptions from primary law are being placed in delegated
legislation indefinitely, which is a significant scrutiny concern for the committee.

For this reason, the committee sought the Assistant Treasurer's advice as to why it was
necessary and appropriate to introduce these exemptions in delegated rather than
primary legislation. Further, the committee asked whether there is any intention to
move the exemptions into primary legislation and if not, whether the instrument can
be time-limited.

The Assistant Treasurer advised that there is no intention to introduce the exemptions
in primary law or to time limit them. He advised that delegated legislation is the most
appropriate place for the exemptions. He also advised that including the exemptions
in the instrument would ensure they are co-located with existing exemptions, and
time-limiting them would only introduce uncertainty and confusion.

Unfortunately, this response did not address the committee's scrutiny concerns about
this matter. For this reason, the committee is now seeking the Assistant Treasurer's
further advice, including whether the primary legislation could be amended to include
these exemptions.

     

Perhaps the committee could devote some time to examining the 'passing strange' phenomenon where at the start of a new sitting week CASA quietly, with virtually zero Parliamentary scrutiny, table significant lists of delegated legislation (exemptions and instruments).

As an example here are the lists for the start of the sitting week for both the 6th February & 6th March  2023:   

Civil Aviation Act 1988—
Civil Aviation Regulations 1988—CASA 41/01 Repeal Instrument 2022—
CASA 50/22 [F2022L01584].
Civil Aviation Regulations 1988 and Civil Aviation Safety Regulations 1998—Civil
Aviation Orders (CAO 95 Series) Amendment and Repeal Instrument 2023
[F2023L00021].
Civil Aviation Safety Amendment (Flight Operations—Parts 119 and 138)
Regulations 2022 [F2022L01612].
Civil Aviation Safety Regulations 1998—
Amendment of CASA EX81/21 (Maximum Take-off Weight for Aerial
Application Operations) Instrument 2022—CASA EX 93/22
[F2022L01541].
Amendment of CASA EX82/21 – Instrument (No. 2) 2022—
CASA EX108/22 [F2022L01765].
Amendment of CASA EX83/21 – (Miscellaneous Revisions) Instrument
2022—CASA EX98/22 [F2022L01753].
Amendment of CASA EX84/21 (Miscellaneous Revisions) – Instrument
2022—CASA EX99/22 [F2022L01745].
Amendment of CASA EX85/21 (Miscellaneous Revisions) – Instrument
2022—CASA EX100/22 [F2022L01652].
Amendment of CASA EX86/21 (Miscellaneous Revisions) – Instrument
2022—CASA EX101/22 [F2022L01660].
Part 42 Manual of Standards Amendment Instrument 2022 (No. 1)
[F2022L01708].
Part 121 – Single Pilot Aeroplane (MOPSC 10-13) Operations – Exemptions
Repeal, Remake, and Direction Instrument 2022—CASA EX97/22
[F2022L01558].
Part 137 and Part 91 of CASR – Supplementary Exemptions and Directions
Instrument 2022—CASA EX 92/22 [F2022L01540].
Part 138 MOS Amendment Instrument 2022 (No. 1) [F2023L00004].
Repeal of Airworthiness Directive AD/F100/24—CASA ADCX 001/23
[F2023L00045].
Repeal of Airworthiness Directive AD/MAKILA/11—CASA ADCX 005/22
[F2022L01556].
The Corryong Cup Hang Gliding Competition Instrument 2023—CASA
EX02/23 [F2023L00017]—Rectified authorised version.
The Corryong Paragliding Open Instrument 2023—CASA EX07/23
[F2023L00057].
Civil Aviation Safety Regulations 1998 and Part 133 Manual of Standards—
Amendment of CASA 69/20 (Prescription and Approval of Certain Recognised
Foreign States) Instrument 2022—CASA 68/22 [F2022L01750].

---

Civil Aviation Act 1988—Civil Aviation Safety Regulations 1998—
Amendment of CASA EX82/21 – Instrument 2023 (No. 1)—CASA EX14/23
[F2023L00131].
Amendment of CASA EX83/21 – Instrument 2023 (No. 1)—CASA EX15/23
[F2023L00126].
Amendment of CASA EX85/21 (Miscellaneous Revisions) – Instrument
2022—CASA EX100/22 [F2022L01652]—Replacement explanatory
statement.
Amendment of CASA EX86/21 – Instrument 2023 (No. 1)—CASA EX16/23
[F2023L00132].
Amendment of CASA EX87/21 – Instrument 2023 (No. 1)—CASA EX12/23
[F2023L00130].
CASR Subpart 99.B DAMP Requirements for Foreign Air Transport AOC
Holders Exemption 2023—CASA EX18/23 [F2023L00144].*
Class 1 Medical Certificate (Certain Flights by Holders of a Commercial Pilot
Licence or Air Transport Pilot Licence) Exemption 2023—CASA EX28/23
[F2023L00154].
Directions – TRAs and TDAs outside Australian Territory – Instrument
2023 (No. 1)—CASA 08/23 [F2023L00116].
Operations by Sport and Recreational Aircraft in Restricted Area R979A
(Australian International Airshow and Aerospace & Defence Exposition)
Exemption 2023—CASA EX23/23 [F2023L00137].
Part 145 Exposition (CAR Maintenance Activities) Exemption 2023—CASA
EX30/23 [F2023L00152].*
Pre-deployment Drug and Alcohol Testing Exemption 2023—CASA
EX17/23 [F2023L00149].*
Repeal of Airworthiness Directive AD/A320/1—CASA ADCX 002/23
[F2023L00123].
The Bright Open Instrument 2023—CASA EX11/23 F2023L00097.

MTF...P2 

[Sandy Reith]

What a tangles web of pointless work, a tour de force of bureaucratic overkill. CASA trying to micromanage everything and continuously tripping itself up and confounding everyone in aviation.

[Peetwo]

DLM 4 of 2023 (29 March 2023): Is "rule by exemption" a symptom of lazy Government??

Reference: 

What a tangles web of pointless work, a tour de force of bureaucratic overkill. CASA trying to micromanage everything and continuously tripping itself up and confounding everyone in aviation.

From the latest DLM it would appear that 'ruling by exemption is endemic across many of Government's Ministerial portfolios and agencies.

Extract from pg 11 of latest DLM:

1.26 The committee's longstanding view is that provisions that amend or create exemptions to primary legislation should be included in primary, rather than delegated, legislation. However, if the provisions are in delegated legislation, the instrument should operate no longer than strictly necessary, which in most cases should be no more than three years after commencement, in order to ensure regular parliamentary oversight. It is also a requirement of the Senate under standing order 23(3)(l) that the committee examines such instruments as to whether they are in force 'only for as long as strictly necessary'. Further, the committee's expectation about such instruments is informed by its longstanding view that such delegated legislation should not continue to be in force for such a period as to act as a de facto amendment to primary legislation.

 
Hmm...a blast from the past and the Oz Flying archives:
  

CASA Explains Regulatory Reform in Video

30 May 2013



CASA Director of Aviation Safety John McCormick has gone in front of a video camera to explain regulatory reform to the industry.

In the video, available on You Tube here, McCormick details the concepts behind the changes and reasons for the slow rate of reform. The process began in 1988.

The transition from Civil Aviation Regulations (CARs) to Civil Aviation Safety Regulations (CASRs) is being driven by the need for the rules to reflect reality and align Australia with ICAO standards.

"Our system at the moment, we've relied heavily on exemptions and permissions," McCormick says in the video. "There's in excess of 1700 of those documents out there, and that becomes a case of almost ruling by exemption."

According to McCormick, that system can make the original rule "a nonsense."

Other issues effecting the reform process that are detailed in the video include:

• The need for industry to be involved, including the traveling public
  
• Regulations need to be no more onerous than they are in other countries that CASA benchmarks itself against
  
• Maintenance regulations will take three to four years to roll out
  
• Part 141 is designed to demystify training regulations, particularly for small or one-person training operations
  
• Training and education are the cornerstones of what CASA does.
  

CASA has come under fire the for slow pace of reform over the past 25 years, and the video comes only a week after a Senate committee recommended an inquiry into CASA's handling of the process.

This was that recommendation: Ref - 

Recommendation 13

6.58 The committee recommends that a short inquiry be conducted by the Senate Standing Committee on Rural and Regional Affairs and Transport into the current status of aviation regulatory reform to assess the direction, progress and resources expended to date to ensure greater visibility of the processes.

As history shows, the Labor Govt response to the PelAir report was obfuscated by Albo, with the excuse that the government was about to go into 'caretaker mode' (ref ProAviation: http://proaviation.com.au/2013/08/06/ele...endations/ )

When asked during Estimates on May 29 if the department’s brief to the Minister would occur in sufficient time so that Mr Albanese could respond before the caretaker mode, Department Secretary Mike Mrdak replied:

“We already have officers in the department – and clearly me and senior officers – who have carefully read the report now. I have had discussions with my senior officers. We envisage being in a position to provide some initial advice to the minister, I expect, certainly within the next week to 10 days in relation to it. I envisage having conversations with the Civil Aviation Safety Authority CEO and the head of the Australian Transport Safety Bureau in the coming days to ascertain their views, to enable me to provide a comprehensive view to the minister, I would hope by the end of next week.” [two months ago.]

Senator Fawcett points out that the report was tabled on May 23, allowing the Minister a three month window to respond and that given its damning findings Minister Albanese should have made this his top priority, particularly given his promise that ‘nothing is as important as aviation safety.’

Of course, with the change of Government, the responsibility for responding to the PelAir report fell on the Abbott Coalition Govt:

 
And again as history will show, that was the prelude to the ASRR (Forsyth Review) and we all know how that ended up...

So my challenge to the Scrutiny of Delegated Legislation Committee is to put their money (IE 'Our Money') where their mouth's are and conduct a serious review of the considerable list of CASA/CASR legislative instruments and exemptions...  

MTF...P2 

[Peetwo]

DLM 5 of 2023 and CASA's latest list of rule by exemption! - FDS..

Via the APH website: https://www.aph.gov.au/Parliamentary_Bus...on/Monitor

Extract page 6 of: https://www.aph.gov.au/-/media/Committee...A0B0EDAE94

Availability of independent merits review;
exemption from the operation of primary
legislation

1.17 Senate standing order 23(3)(i) requires the committee to consider whether an
instrument unduly excludes, limits, or fails to provide for the independent review of
decisions affecting rights, obligations, or interests. Where an instrument empowers a
decision-maker to make discretionary decisions, the committee expects those
decisions should be subject to merits review. Additionally, Senate standing order
23(3)(l) requires the committee to scrutinise each instrument as to whether it contains
amendments or modifications to primary legislation or exempts persons or entities
from the operation of primary legislation. Under this principle, the committee is
typically concerned with instruments that amend or modify the operation of primary
legislation or create an exemption from the operation of primary legislation.

1.18 Division 3, Subdivision A of the instrument sets out when an APS non-SES
employee is entitled to seek review of an action that relates to their employment and
identifies what actions are reviewable. Notably, subsection 37(2) of the instrument
provides that certain actions listed in the table in that subsection are not, or cease to
be, reviewable actions.

1.19 Section 37 of the instrument is made for the purposes of section 33(1) of the
Act. Section 33 of the Act, in part, provides:

(1) An APS employee is entitled to review, in accordance with the
regulations, of any APS action that relates to his or her APS employment.
However, an APS employee is not entitled to review under this section of
APS action that consists of the termination of the employee’s employment.

(2) The regulations may prescribe exceptions to the entitlement.
Note: For example, the regulations might provide that there is no
entitlement to review if the application for review is frivolous or vexatious.

1.20 In this regard, section 36 of the instrument sets out details about APS
employees' entitlement to review and section 37 sets out what APS actions are
reviewable actions. Specifically, subsection 37(2) operates to provide exemptions to
the general entitlement in section 33(1) of the Act that APS employees can seek review
of any APS action related to their employment.

1.21 Where an instrument provides that certain decisions are excluded from merits
review, the committee considers that the explanatory statement should
comprehensively justify the nature and scope of the relevant exclusions, including
whether it is appropriate to include them in delegated legislation. Further, in instances
where a decision is excluded from merits review, the relevant explanatory statement
should explain what characteristics of the decisions justify the exclusion by reference
to the Administrative Review Council's guide, What decisions should be subject to
merit review?9

1.22 In this case, the explanatory statement to this instrument does not provide a
justification for the exemptions created by subsection 37(2), nor does it provide an
explanation of their nature and scope, or why the exemptions are appropriate to be
included in delegated legislation.

1.23 The committee's longstanding view is that provisions which amend or create
exemptions to primary legislation should be included in primary rather than delegated
legislation. If the provisions are in delegated legislation, in this case enabled by
subsection 33(2) of the Act, the exemptions should operate no longer than strictly
necessary. The exemptions created by subsection 37(2) of the instrument do not
appear to be time-limited.

1.24 Additionally, some of the items listed in the table in subsection 37(2) are
drafted broadly and appear to include classes of decisions that would have the
capacity to substantially affect a person's rights and interests rather than specific
actions. For example, item 8 of the table provides that an '[a]ction relating to the
engagement of an APS employee' is not a reviewable decision. Neither the instrument
nor the explanatory statement appears to provide an explanation of the kinds of
decisions covered by item 8 or address why it is necessary to include them in delegated
legislation.

1.25 The committee therefore requests the minister's advice as to:

• the nature and scope of each of the APS actions listed in subsection 37(2) of
the instrument as non-reviewable actions;
• what characteristics of the actions listed in subsection 37(2) of the
instrument justify the exclusion of merits review, by reference to the
established grounds set out in the Administrative Review Council's guidance
document, What decisions should be subject to merit review?; and
• why it is considered appropriate to include these exemptions from the Act
in delegated rather than primary legislation.

With the above in mind, since the 6 March list of CAA & CASR was tabled (see above), the following are the legislative instruments and exemptions that have accumulated...  

Civil Aviation Act 1988—Civil Aviation Safety Regulations 1998—
Amendment of CASA EX66/21 (Low-level Rating) Instrument 2023—CASA
EX51/23 [F2023L00485].
Authorised Maintenance at Unapproved Locations (Part 145 Organisations)
Exemption 2023—CASA EX03/23 [F2023L00415].
CASR Subpart 99.B DAMP Requirements for Foreign Air Transport AOC Holders
Exemption 2023—CASA EX18/23 [F2023L00144]—Initial explanatory
statement.
CRS and SM CRS Document to Cover Specialist Maintenance by a Class D AMO
– Instrument 2023—CASA EX52/23 [F2023L00482].*
Multi-Engine Helicopters (CASA EX49/22) Amendment Instrument 2023—
CASA EX01/23 [F2023L00418].
Part 61 Flight Crew Licensing (Prescribed Aircraft and Type Ratings) (Edition 9)
Instrument 2023 [F2023L00428].
Part 91 MOS Amendment Instrument 2023 (No. 1) [F2023L00423].
Part 101 Manual of Standards (Miscellaneous Revisions) Amendment Instrument
2023 (No. 1) [F2023L00446].
Part 141 operators using a sole instructor – Exemption Instrument 2023—CASA
EX39/23 [F2023L00424].
Part 145 Exposition (CAR Maintenance Activities) Exemption 2023—CASA
EX30/23 [F2023L00152]—Initial explanatory statement.
Remotely Piloted Aircraft Operations Beyond Visual Line of Sight Exemption
2023—CASA EX27/23 [F2023L00422].
The Corryong Inter-Club Fly-in Instrument 2023—CASA EX45/23
[F2023L00425].
The Paragliding State of Origin Instrument 2023—CASA EX44/23
[F2023L00426].
Type Ratings Excluded from Part 142 Flight Training (Edition 7) Instrument
2023 [F2023L00419].

  
Please Scrutiny of Delegated Legislation Committee can you run a scathing eye over these legislative instruments along the lines of para 1.17 to 1.25 of the latest DLM?? 

MTF...P2