Trade and Transport Bulletin - Making the Australian skies even safer

On 20 March 2008, the report from the review by Russell Miller on the relationship between the Civil Aviation Safety Authority (CASA) and the Australian Transport Safety Bureau (ATSB), was made available for public comment. The Review was commissioned following the Coronial Inquest into the 2005 crash of Fairchild Metro 23 at Lockhart River. The Review's report on Aviation Safety Agency Relations, includes a list of recommendations for improvements to the current state of affairs.

Relationship between CASA and ATSB

Russell Miller, a senior lawyer and aviation expert, made it clear that the Review is primarily about improving the way the two bodies work together as part of what is already a very safe aviation system.

The Review acknowledged that both the ATSB and CASA are leaders in their respective fields and generally the two bodies enjoy a good degree of cooperation in their day-to-day work.  But it recognised that occasionally there are legitimate differences of opinion.  In addition, it stated that 'some degree of constructive tension between the ATSB and CASA should be expected given their respective roles' and 'creative tension can be a positive force'.  How they deal with these differences is the centre of the Review.

The Review of the relationship between CASA and the ATSB was not conducted to place blame, but instead to improve the way things are done in the future.  This entailed first looking at the relationship between CASA and the ATSB to identify any cause of friction between them.  Second, in the interest of aviation safety, the Review set forward recommendations to remove unnecessary legislative and organisational obstacles for both agencies to facilitate their collaboration.

The Review looked at, among other factors, the international obligations under Annex 13 of the Chicago Convention 1944, the governance of the ATSB and CASA and their legislative framework. It involved interviews with key players, previous incidents and accidents, and international comparisons.

Recommendations

The Report included the following key recommendations:

• The Transport Safety Investigation Act 2003 (TSI Act) should be amended to make it clear that the primary object is to contribute to improved safety.
• The TSI Act section 7(2) should state that the ATSB Executive Director is required to cooperate with CASA.  This is regardless of whether CASA has powers or responsibilities under other Commonwealth legislation to also investigate matters under investigation by the ATSB.  The cooperating period should not be limited to when the ATSB is conducting an investigation.
• The Secretary of the Department of Infrastructure, Transport, Regional Development and Local Government (Department) should convene a biannual meeting with the ATSB Executive Director, the CEO of CASA and the CEO of the Australian Maritime Safety Authority.  The purpose of the biannual meeting should be to review progress of safety recommendations, share information on current investigations and report to the Minister on the state of the ATSB safety recommendations.
• The Minister may issue general policy statements setting out the Government's policy on the administration of the TSI Act and its role in the Australian transport safety system. 
• The main responsibility for policy on the proposed amendments to the TSI Act and for Australia's policy positions at the International Civil Aviation Organization (ICAO), should be assumed by a Policy Division within the Department.  This Division should obtain input from the Executive Director and all other relevant stakeholders.
• The Executive Director of the ATSB should appoint an expert review panel to review each draft and final investigation report.  It should also advise the Executive Director before the reports are issued.
• Consideration should be given to altering the governance of the ATSB including changing the Executive Director's statutory role and responsibilities.  This also includes lifting the status of the ATSB by establishing an Australian Transport Safety Commission, based on the International Air Services Commission (IASC) model. 
• Expand the sharing of information between the Executive Director and CASA.  This could be partially accomplished by recasting the definition of 'restricted information' in the TSI Act to limit its scope and bring it more into line with Annex 13.  Disclosure of restricted information to CASA should be required where the Executive Director has reason to believe that there is a serious and imminent risk to air safety.  In such circumstances, CASA should be permitted to use the information to take protective action.
• While compelled evidence under section 32 of the TSI Act should continue to not be admissible against the individual providing the information in any civil or criminal proceeding, it should be available in accordance with other recommendations in the Report (eg to CASA in serious and imminent risk situations).
• The Court should consider whether or not 'restricted information' should be disclosed on the basis that it is likely to interfere with an active investigation.  This is in place of the Executive Director being required to give a certificate before the court can consider the matter.
• The Executive Director should request information needed from CASA for an investigation. CASA should cooperate fully and provide the information in a timely manner.  A Section 32 Notice should only be issued after a discussion between the Executive Director and the Director of Aviation Safety.
• The ATSB and CASA should have seminars together, exchange personnel to benefit from the training and experience of the other agency, and cooperate in joint research initiatives.
• An Executive level meeting should be held quarterly between the ATSB and CASA, which would be strategic, forward-looking and deal with emerging issues between the two agencies.
• The ATSB should use CASA's expertise when it might assist in determining the likely causes of an accident or incident.
• The ATSB should discuss any proposed recommendations for regulatory changes affecting CASA, with CASA and take CASA's views into account before issuing a draft report.  
• Where CASA or another interested party responds to a draft report issued by the ATSB, the final report should contain a balanced explanation.  This includes setting out the Executive Director's reasons for accepting or rejecting the views put forth. 
• The ATSB should provide a copy of any draft press release on any investigative report to the Department and any relevant agency for comment, before it is released to the public or media.
• CASA should develop an internal system to ensure that it appropriately monitors and cooperates with the ATSB investigations, and responds accordingly.
• It should be the exception, not the rule, for the Commonwealth to retain counsel to appear in coronial enquiries.
• Before CASA instructs counsel to appear at a coronial inquest on its behalf, CASA should inform the Secretary of the Department.  The Director of Aviation Safety should take account of the Portfolio Secretary's views when deciding whether to intervene.
• CASA should be obliged to inform the ATSB if it believes the ATSB may have overlooked relevant evidence or come to an incorrect expert opinion, prior to presenting the evidence or making the submission to a coroner.
• A new Memorandum of Understanding should be drafted between CASA and the ATSB, which includes matters such as more day-to-day interaction between the agencies when serious accidents and incidents occur, and the substance of recommendations of the Miller Report. 
• CASA should have clear protocols internally to promote active cooperation with the ATSB.  Necessary resources should be allocated by CASA to ensure full cooperation with the ATSB, including timely and appropriate feedback to the ATSB draft investigation reports and safety recommendations.

The Minister has released the Report for public comment by 30 April 2008.

Conclusion

While aviation in Australia is safe, there is always room for improvement as the wellbeing of passengers is fundamental.  It can be expected that most of the recommendations included in the Miller Report will be implemented.  While it will be unlikely that the changes recommended will bring about a very visible shift in working relationships between the two bodies, the Report is the product of a thorough review and its recommendations appear reasonable.  If aviation safety is further enhanced as a result, that can only be a good thing for all of us. 

For more information please contact:

Cheri Chestnut, Foreign Associate
Tel +61 2 9286 8084
cheri.chestnut@dlaphillipsfox.com