Australia: New Governance For Aviation Safety In Australia

Last Updated: 3 April 2009
Article by Andrew Tulloch

The Civil Aviation Amendment Act 2009 and the Transport Safety Investigation Amendment Act 2009 recently passed through Australia's Parliament. The passing of these two Acts ensures the implementation of two key aspects of the Federal Government's national aviation policy.

In his second reading speech the Minister for Infrastructure, Transport, Regional Development and Local Government, Anthony Albanese stated 'safety is the number one priority for government aviation agencies, and safety regulation must be robust, efficient and effective'. But does the new legislation deliver this?


This Act creates a small expert board of five members appointed by the Minister for the Civil Aviation Safety Authority (CASA).

The previous board of CASA was abolished in 2003. However, it has been recognised that since then there has been significant organisational reform within CASA and improved interaction with the aviation industry and the aviation community in general. Accordingly, it was considered that it was now appropriate to return to a board structure for the organisation.

The new board will not seek to be 'representational', although the Minister who appoints the board must ensure that it has an appropriate balance of professional expertise. The board, which will include the Director of Aviation Safety as an ex-officio board member, is to operate at a strategic level giving high level direction to the organisation's regulatory and safety oversight role. This also involves the board being broadly responsible for CASA's strategic direction, risk management and corporate planning.

The Act also improves oversight of foreign carriers flying to Australia in that it enables CASA to require the provision of information about a carrier's ability and willingness to satisfy safety requirements.

The Act has also strengthened and improved CASA's enforcement powers. It extends the period of Enforceable Voluntary Undertakings (written undertakings obliging the holder to take specific action to redress identified safety deficiencies) from six months to one year.

There are a number of changes to CASA's investigative powers and search warrant procedures, bringing them into line with current Commonwealth criminal justice practices and procedures.

Finally, the Act amends automatic stay provisions so that any extension beyond five days of a CASA decision to vary, suspend or cancel a civil aviation authorisation is the result of an application to the Administrative Appeals Tribunal and determination of such an application.


Readers may recall from our Trade & Transport Bulletin of 3 April 2008 that in 2007 Mr Russell Miller AM reviewed the relationship between CASA and the Australian Transport Safety Bureau (ATSB). The review's report, released on 20 March 2008, recommended that the Government move to clarify the ATSB's independence as the national safety investigation agency. (Click here to view Trade & Transport Bulletin, Issue 3 April 2008.)

Following on from this recommendation, the Act establishes the ATSB as a statutory agency with a commission structure. The newly independent ATSB comes into being on 1 July 2009.

This change is consistent with the obligations under Standard 5.4 of Annex 13 to the International Convention of Civil Aviation (the Chicago Convention) which states:

'The accident investigation authority shall have independence in the conduct of the investigation and have unrestricted authority over its conduct'.

The ATSB will consist of a full time Chief Commissioner who will be the Chief Executive Officer, and two part time Commissioners with an appropriate mix of skills and expertise.

The ATSB will not be subject to direction from any person other than the Minister in relation to the exercise of its powers and functions.

Under the Act, the ATSB is required to cooperate with similar agencies around the world and with other Commonwealth and State and Territory agencies to ensure coordination when investigating a transport accident.

The Act makes it clear that apportioning blame and determining liability is not a function of the ATSB. The legislation maintains the existing protection of safety information such as evidence collected from cockpit voice recorders and witness statements obtained in the course of accident investigation to prevent these being used in apportioning blame or determining liability.

The ATSB is given a new power to require responses to any formal recommendation that it makes within 90 days.


The recreation of the CASA board and the establishment of the ATSB as a separate statutory agency with operational independence from the Department of Infrastructure, Transport, Regional Development and Local Government is welcomed. It is hoped that the new independence of the ATSB will address the concerns raised in the Miller report and will have the outcome of enhanced aviation safety in Australia.

However, the proof of success of these measures will be dependent upon the conduct of the new bodies and the interaction between the CASA board, CASA itself and the aviation industry in general and the part which the ATSB Commissioners play in ensuring the effectiveness of its investigative powers. In short, 'the proof of the pudding will be in the eating'.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

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