Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 82.3 Amendment Order (No. 1) 2009
Legislative background
Under section 27 of the Civil Aviation Act 1988 (the Act), CASA may issue Air Operators’ Certificates (AOCs) with respect to aircraft for the purpose of safety regulation. Under section 28 of the Act, CASA must issue the AOC if satisfied that the applicant can comply with the requirements of Australian civil aviation safety legislation.
Under paragraph 28BA (1) (b) of the Act, an AOC has effect subject to any conditions specified in the regulations or Civil Aviation Orders (the CAOs).
Additionally, under subsection 98 (4A) of the Act, CASA may issue CAOs, not inconsistent with the Act, in respect to any matter in relation to which regulations may be made for the purposes of, relevantly, section 28BA of the Act (conditions on AOCs).
Part 82 of the CAOs specifies conditions on AOCs for various kinds of operations. CAO 82.3 contains conditions on AOCs that authorise regular public transport operations in aircraft other than high capacity aircraft (high capacity aircraft are those aircraft certificated as having a maximum seating capacity exceeding 38 seats or a maximum payload exceeding 4 200 kilograms).
ICAO policy background
CASA’s corporate goals include development and implementation of appropriate aviation safety standards that are aligned with international standards and recommended practices as promulgated by the International Civil Aviation Organization (ICAO) under the Chicago Convention.
Paragraph 3.2.4 in Part I of Annex 6 of the Chicago Convention states that from 1 January 2009, Member States of ICAO shall require operators to implement acceptable safety management systems (SMS) for their flight operations.
Related to this, paragraph 3.2.7 in Part I of Annex 6 states that each operator of an aeroplane with a maximum certificated take-off mass in excess of 27 000 kg shall be required to establish and maintain a flight data analysis program (FDAP) as part of its SMS. A FDAP is a program for recording and analysing operational flight data to improve the safety of flight operations.
In addition, Part I of Annex 6 also states that operators shall be required to deliver human factors (HF) and non-technical skills training for maintenance personnel (paragraph 8.7.6.4), flight crew (paragraph 9.3), and cabin crew (paragraph 12.4). (Guidance is provided in the ICAO Human Factors Training Manual (ICAO Document 9683.)
Finally, paragraph 6.1.2 in Part I of Annex 6 states that, among other things, an aeroplane shall be required to carry a certified true copy of the operator’s AOC and relevant operational specifications. A recent ICAO audit of Australian civil aviation legislation identified the need to make this requirement more explicit in relevant legislation.
Details of the CAO amendment
CASA has used Civil Aviation Order 82.3 Amendment Order (No. 1) 2009 (the CAO amendment), to adopt a phased approach to the implementation of these ICAO standards for non-high capacity RPT aircraft operators. This phased approach will enable operators to prepare for, and implement, the required changes in a timely and effective way.
Thus, although the CAO amendment commences on the day after it is registered, specific application provisions indicate when precisely the various amendments apply to operators.
A specific provision requires relevant existing AOC holders to take preliminary action and submit to CASA for approval a plan for the implementation of a safety management system ahead of the date when the system must actually be implemented.
Details of the CAO amendments are set out in Attachment 1.
Legislative Instruments Act 2003 (LIA)
Paragraph 28BA (1) (b) of the Act provides that an AOC has effect subject to any conditions “specified in the regulations or Civil Aviation Orders”.
Subsection 98 (4A) of the Act provides that CASA may issue CAOs with respect to any matter in relation to which regulations may be made for the purposes of section 28BA.
Under subsection 98 (4B) of the Act, a CAO issued under subsection 98 (4A) is stated to be a legislative instrument and is, therefore, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
By providing that an AOC has effect subject to any conditions specified in the regulations or CAOs, paragraph 28BA (1) (b) of the Act is a separate head of power for the making of relevant CAOs. For section 5 of the LIA, such CAOs would be legislative instruments subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
The CAO amendment is made under both paragraph 28BA (1) (b) of the Act and subsection 98 (4A) of the Act and is a legislative instrument.
Consultation
Consultation under section 17 of the LIA has been undertaken through publication of a Notice of Proposed Rule Making (NPRM) which informed the public and the relevant aviation industry of the proposed CAO amendment and the background to it.
CASA considered all of the representations made to it in response to the NPRM and took them into account in finalising the CAO amendment.
Office of Best Practice Regulation
The CAO amendment implements aviation safety requirements that are based on international standards issued by ICAO. The Office of Best Practice Regulation (OBPR) required preparation of a Regulation Impact Statement (RIS) and this was submitted to OBPR (RIS No. 9926). OBPR has advised that the RIS satisfies the Australian Government’s best practice regulation requirements.
Commencement and making
The CAO amendment commences on the day after it is registered, although specific application provisions indicate when precisely the various amendments apply to operators.
The CAO amendment has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 84A (2) of the Act.
[Civil Aviation Order 82.3 Amendment Order (No. 1) 2009]
Attachment 1
Details of amendments to CAO 82.3
Amendment No. 1
Implementation plan for safety management system (SMS)
Schedule 1 in the CAO amendment inserts a new subsection 1AA into CAO 82.3.
This provides that each operator who holds an AOC on 1 April 2009 (relevant operators) must give CASA for approval the operator’s plan for implementation of a safety management system. This provision is required to ensure that operators put appropriate planning in place to achieve implementation of an SMS by the implementation date of 1 February 2010.
Date of application of this change
Unless CASA approves otherwise in writing for a particular relevant operator, the obligation to give CASA an implementation plan applies on 1 July 2009. SMS implementation plans must, therefore, be submitted to CASA by not later than 1 July 2009.
A proposed SMS of a relevant operator whose planned implementation has not been approved by CASA under new subsection 1AA is not likely to be approved as an SMS for implementation in accordance with subparagraph 2.1 (a) of CAO 82.3 (see Amendment No. 2, below) because, without advance planning for its implementation, it cannot be assured of success and CASA cannot approve it in such circumstances.
Amendment No. 2
Requirement to have an SMS
Schedule 1 in the CAO amendment amends subparagraph 2.1 (a) of CAO 82.3.
Previously, subparagraph 2.1 (a) provided that each operator must establish and maintain an appropriate organisation, with a sound and effective management structure.
As amended, the paragraph now provides that each operator must establish and maintain an appropriate organisation, with a sound and effective management structure that uses an SMS approved by CASA.
A Note explains that guidance on what CASA will consider in deciding whether to approve an SMS is contained in a set of 3 related Civil Aviation Advisory Publications (the CAAP SMS package), namely CAAP SMS-1(0) — Safety Management Systems for Regular Public Transport Operations; CAAP SMS-2(0) — Integration of Human Factors (HF) into Safety Management Systems (SMS); and CAAP SMS-3(0) — Human Factors and Non-Technical Skills Training for Regular Public Transport Operations.
Date of application of this change
Unless CASA approves otherwise in writing for a particular operator, this changed obligation concerning an SMS will apply to each AOC holder on and from 1 February 2010, or, if the operator notifies an earlier date in writing to CASA, that earlier date.
Amendment No. 3
Requirement to train for human factors and non-technical skills
Schedule 1 in the CAO amendment adds a new subparagraph 2.1 (c) to CAO 82.3.
The new paragraph provides that each operator must have a program, approved by CASA, to train and assess personnel in human factors and non-technical skills with the aim of minimising human error.
A Note states that the CAAP SMS package contains guidance on what CASA will consider in deciding whether to approve a program for human factors and non-technical skills training.
Date of application of this change
Unless CASA approves otherwise in writing for a particular operator, this changed obligation concerning human factors and non-technical skills training will apply to each AOC holder on and from 1 February 2010, or, if the operator notifies an earlier date in writing to CASA, that earlier date.
Amendment No. 4
Definitions
Schedule 1 in the CAO amendment adds some new definitions.
New paragraph 2.7 provides that human factors or HF means the minimisation of human error and its consequences by optimising the relationships within systems between people, activities and equipment.
New paragraph 2.7 also provides that non-technical skills means specific human competencies, including critical decision making, team communication, situational awareness and workload management, which may minimise human error in aviation.
New paragraph 2.7 also provides that safety management system or SMS has the meaning given in subsection 2A.
Amendment No. 5
Definition of safety management system (SMS)
New subsection 2A provides a definition of an SMS.
Thus, a safety management system or SMS is a systematic approach to managing safety. It must include the organisational structures, accountabilities, policies and procedures necessary to manage safety in a systematic way.
Further, an SMS must, as a minimum, include the following:
(a) a statement of the operator’s safety policy and objectives, including documented details of the following:
(i) the management commitment to, and responsibility for, safety risk management;
(ii) the safety accountabilities of managers;
(iii) the appointment of key safety personnel;
(iv) the SMS implementation plan;
(v) the relevant third party relationships and interactions;
(vi) the coordination of the emergency response plan;
(b) a safety risk management plan, including documented details of the following:
(i) hazard identification processes;
(ii) risk assessment and mitigation processes;
(c) a safety assurance system, including documented details of the following:
(i) safety performance monitoring and measurement;
(ii) management of change;
(iii) continuous improvement of the SMS;
(d) a safety promotion system, including documented details of the following:
(i) training and education;
(ii) safety communication;
(e) for an operator who operates an aircraft with a maximum take-off weight exceeding 27 000 kg —a flight data analysis program (FDAP) in accordance with paragraph 2A.3.
Flight data analysis program (FDAP)
A FDAP mentioned in subparagraph 2A.2 (e) as a component of certain SMS must regularly record and analyse the operational flight data of individual and aggregated operations to improve the safety of flight operations. The FDAP must be integrated into the SMS safety assurance system. It must be supplied by the operator or, without in any way compromising the operator’s responsibility for the existence and effectiveness of the FDAP, another appropriate person.
As a program, the FDAP must ensure that, except with the person’s written consent or by a court order, the identity of a person who reports data to the program is protected from disclosure to anyone (other than a person whose duty requires him or her to analyse operational flight data and who, therefore, has access to identity information solely for that purpose).
Finally, as a program, the FDAP must also ensure that no punitive action may be taken by the operator against a person who reports data.
A FDAP under which relevant identity is not protected, or under which punitive action is or may be taken by the operator against a person who reports data, would not qualify as a FDAP and the SMS would not be compliant with the requirements in subsection 2A for an SMS or for approval of an SMS.
Date of application of these changes
The definition of SMS and the provisions relating to FDAPs apply when the CAO amendment commences on the day after it is registered. However, they have no effect until other relevant provisions of the CAO amendment take effect in order to call them up.
Amendment No. 6
Carriage of certain documents on international flights
Schedule 1 of the CAO amendment inserts a new subsection 9A into CAO 82.3 to the effect that each operator of an aircraft engaged in an international flight must ensure that the pilot in command can present a true and complete hard copy of the operator’s current AOC, and any operational specifications that were issued with the AOC for the aircraft type, to any person who has a lawful right to inspect it before, during or at the end of the flight.
It would be possible under the amendment for an operator to meet the requirement by, for example, the pilot in command of an aircraft carrying the document. It would also be possible to meet the requirement by the pilot’s timely accessing of an electronic copy of the document through an on-board computer system, provided, of course, that the hard copy product of the electronic access was, and could immediately be shown to the satisfaction of the requesting authority to be, a true and complete hard copy.
Date of application of this change
This requirement applies to operators on and from 1 December 2009.