AVIATION REFORM ... OR
CHANGE FOR THE SAKE OF CHANGE?

CASA has published some vague details of the latest version of the aircraft registration system.  You can see the details at www.airsafety.com.au/rego/ or, if you are a member of AIR SAFETY AUSTRALIA we will fax the proposal to you at your request.

It shows with stark clarity the present focus on change for the sake of change.  Look at this:

What CASA said on 21st September 2000 in relation to the change for year 2000 "CASR Part 47 is being introduced because there have been too many incidents in which vital safety information (such as Airworthiness Directives) has not been passed on by the Certificate of Registration holder to the person controlling the airworthiness and maintenance of an aircraft."

What CASA said on 31st August 2001 in relation to the change proposed for year 2001 "4.2.9 Because registration and airworthiness and maintenance responsibility will not be automatically linked, the proposal is not to identify the person responsible for airworthiness and maintenance control in the regulations dealing with registration of aircraft. That is, the proposed CASR Part 47 will not identify the person legally responsible for managing the maintenance of an aircraft."

In other words, the changes proposed in 2001 do not even attempt to solve the problem that was said to be the reason for 2000's changes.  But still CASA proposes change, with new forms to be filled in, new criminal penalties, and new tricks.  The thing which is clear is the overwhelming desire to change things.

THE NEW PROPOSAL AGAIN THREATENS YOUR OWNERSHIP OF YOUR AIRCRAFT AND THE CONTENTS OF YOUR WALLET

The Discussion Paper shows the utter contempt which CASA has for those it is "consulting", because the definitive version of the proposed new rule is not revealed.  All we see of it is a "non-legal draft", which we are told will be different when it has been re-drafted by legal draftsmen.  Of course it will, because that's when all the nasty little bits will be thrown in.  The thing we HAVE been shown is a complete shambles - for example it has gross typographical errors.  And section 47.100 refers to section 47.022 - which does not even exist (or is being kept secret).  Here's what it says at the very beginning "the following paragraphs have not been produced by legislative drafters and therefore should not be considered as legal drafts".  It's now 3 years and 1 month since CASA issued the Notice of Proposed Rulemaking - and still there is no definitive draft of the proposed rule.  This is not consultation, it is job-creation on a breathtaking scale.

The proposed new rules - as far as they have been disclosed - differ not so much in principle as in detail from the rules we used to have - there are new forms to be filled in, new criminal offences, and higher penalties.  The equivalent of "Trade Plates" for dealers have been re-introduced - but all that does is reverse an earlier change.

So where has this never-ending cycle of change upon change got us?  Nowhere.  And the crucila thing is that if we introduce a whole new set of laws we create a lawyers' feeding festival while the Courts determine the meaning of the new laws.  The people who provide the food for that festival are, of course, us.

SOME SNEAKY LITTLE TRICKS

Section 47.080 is a nasty little trick.  It permits CASA to ask for further information, and to cease considering your request to register your aircraft until that information is provided.  CASA and its predecessors have been registering aircraft for 80 years now, and should know what is required.  The problem here is that it's an offence punishable by 2 years' jail to fly an unregistered aircraft.  Therefore the requirements for registration must be very clearly spelled out, and CASA must be FORCED to register an aircraft if those requirements are met.  A piece of legislation which CAN be abused, WILL be abused eventually.

Section 47.030(E) is a cute little trick.  It says that information provided by the owner in response to an address verification request cannot be used as evidence in a prosecution for failing to notify a change of address.  What it should say is that providing information in response to a verification request is a defence to a charge of failing to notify a change of address.  As it is, CASA can learn from a person's response that there has been an address change and then prosecute the person using other information, e.g. the phone book or statements from neighbours.

In Sections 47.010(a)(ii) and 47.030(D) taken together we see a breathtaking attempt to make it a criminal offence if the Registrar enters an address incorrectly into the Register.  But when that happens, it is not the person who makes the mistake who becomes a criminal - it is the owner of the 'plane in question.  This is not just some theoretical question.  The register is run on a computer, into which humans feed data like addresses.  Mistakes will inevitably be made.  As an example, my own address was entered incorrectly in 1990 (my street number was entered as 19 instead of 91).  The mistake remained for years until I investigated why I was getting no correspondence from CASA.  Under this new proposal, the person who made that mistake would get off scot-free but I would have been liable!

Section 47.010(B) says in effect that a person is deemed to have received a notice sent by fax if CASA gets a confirmation at the sending end.  Heaven help me!  What about fax machines with memory?  If a memory machine runs out of paper, it stores the next few incoming faxes in memory and sends a confirmation to the senders.  But if there is a power failure before new paper is put in, or if the person who puts in the new paper turns off the power as a safety precaution, many types of machine lose everything stored in memory.  As a result the aircraft owner never sees the fax but is "deemed" to have seen it and thus becomes criminally liable.

IF YOU ARE GOING TO RESPOND TO CASA ABOUT THE NEW CASR 47

Respond to your Federal MP instead! If you have anything to say about these new rules, say it to someone who will listen - and that's your Federal MP. Please copy AIR SAFETY AUSTRALIA and by all means copy CASA. But remember that it is only Parliament which can make laws, so it is to your MP that you should write.

It is said that CASA staff openly boast that they throw away response forms that they don't like. You may be quite certain they do not throw away response forms which come via MPs, no matter how much they may dislike them!

We have another fight on our hands to get all this mess cleaned up when CASR 47 reaches Parliament.  At the price of a lot of money and effort, we'll win that fight.

BUT IT MAKES ONE WONDER ABOUT THE ENTIRE REFORM PROGRAM

The program of aviation reform was a good concept.  However it got off to a fatally flawed start in 1996 when the then-Minister put CASA in charge of it.  I fell out with him over that, because prior to the election that year he had said that the program would be run directly out of his office by a group of 3 people.  I saw no chance that the program would succeed if run by CASA with a cast of hundreds.  Others believed it could, and I enthusiastically supported them although I declined to take part myself.

Unfortunately I was right, and the reform program has failed.  It has now become nothing more nor less than the biggest-ever job-creation scheme in the history of Australian aviation.  CASA has been working on a new registration scheme for three years now.  At present there are 21 people working on JUST THE REGISTRATION PROJECT - 7 paid CASA employees and 14 "industry volunteers".  Three utterly different reasons have been put forward at three different times as to why the registration scheme must be changed - but in fact it is working very well.  After three years all that has been achieved is to re-introduce "Trade Plates" (which were removed by an earlier change) and to create a few new criminal offences for the convenience of CASA.

The Civil Aviation Act rightly makes CASA responsible for enforcing the rules BUT NOT FOR MAKING THEM.  The creation of laws is - legally - the function of Parliament.  That is how things should be, because the act of making laws involves a very delicate balance of the interests of all who will be affected - it is the quintessential political process.  If you hand the process over to one of the interested groups - as the Howard/Anderson government has done, the results are bound to be unfairly weighted in favour of that group.  Thus we see things like rules which convert mistakes made by CASA itself into criminal offences on the part of the aircraft owner.  Thus we see horrendous things like the proposal to introduce EVUs.  Thus we see the scheme to outlaw the previously-compulsory Australian Flight Manual. And thus we see many other restrictive and expensive proposals coming down the pipeline without proper consultation and without any need.

YET ANOTHER FIGHT ABOUT CHANGE FOR THE SAKE OF CHANGE

AIR SAFETY AUSTRALIA can and will fight all such proposals when they reach the Parliament.  At the price of a huge amount of work - and money - we will stop most of them.  But I myself have no doubt that the entire review process should be taken away from CASA and run directly from the Minister's office or that it should be stopped.  It is not bringing us any net benefit, and it is putting a lot of people off flying because they are unable or unwilling to keep up with the never-ending change.

If there is to be any meaningful aviation reform in Australia, two things need to be tackled first.  Those two things are CASA's powers of patronage and coercion.  There can be no genuine consultation with industry when every member of that industry knows that CASA can confer favours in him, or his competitors, at any moment.  And that CASA can put him out of business at any moment.  With their powers of patronage and coercion in place, CASA can be sure that those in the industry will always sing the CASA song.  Over the past five years, there has been a cast of thousands involved in hundreds of committees on aviation reform.  Not one, though, has been game to tackle the central issue - CASA's powers of patronage and coercion.

This document is available at http://www.airsafety.com.au/b911abxx.htm