Results updated 28 Apr 2021

From 24 September - 22 October 2019 we asked for feedback on proposed changes to Civil Aviation Orders (CAOs) 82.3 and 82.5. The changes seek to enhance the protection of safety data and information including their sources and align the Australian requirements to provisions of Annex 19 to the Chicago Convention that came into effect on 7 November 2019.

There were seven responses to the consultation. Most responses were from pilots and organisations that have a direct relationship with regular public transport (RPT) pilots. One AOC holder also provided comments. Two consented to having their response published and five requested their submission remain confidential.

All respondents agreed that the proposed governance arrangements, in relation to the use and protections applicable to safety information collected and stored in an operator’s flight data analysis program (FDAP), are fair and operable.

Four respondents raised important issues for further consideration by CASA including:

clarity of the scope of the definition of safety information
the use of safety data in administrative, civil and criminal proceedings
the interrelationship between 82.3 and 82.5 and industrial relations law
ensuring the inclusion of the provision in Part 11 of the Civil Aviation Safety Regulations 1998 (CASR) corresponding to regulation 301 of the Civil Aviation Regulations 1988 (CAR).

Each of these issues were addressed to the satisfaction of the Technical Working Group participants through further consultation.

Other general matters raised included the need for ongoing training, education and awareness regarding the purpose and value of the continued availability of safety data and information to maintain or improve aviation safety, and the need to ensure the integrity of the systems and processes used to collect, store and utilise that information.

Respondents strongly supported the proposals overall. We have amended CAOs 82.3 and 82.5 to implement the proposals. Operators will have until 14 December 2020 to implement the new requirements.

We are developing additional guidance material to assist operators in the effective and efficient implementation of the proposed changes. Operators will be required to submit their amended Safety Management System manual to CASA incorporating the new changes—the assessment of these changes will be free of charge. A new instrument of approval will be issued to the operator.

We will incorporate these amendments into the corresponding provisions of Subpart 119.F of the Civil Aviation Safety Regulations (CASR), which commence in March 2021. It is envisaged that these amendments will eventually be included in Part 5 of the Civil Aviation Safety Regulations (CASR) - Safety management, when that Part is promulgated.

Published responses

View submitted responses where consent has been given to publish the response.

Overview

CASA is seeking feedback on proposed changes to Civil Aviation Order (CAO) 82.3 and 82.5 which will:

enhance the protection of safety data, safety information and their sources
facilitate the continued availability of safety data and information to maintain or improve aviation safety
clarify the definition of safety information in relation to the protective objectives reflected in the proposed amendments
ensure application of ‘just culture’ principles consistent with CASA’s regulatory philosophy
respond to feedback received via previous consultation on this matter.

The proposed changes to CAO 82.3 and 82.5 are intended to reflect the latest ICAO standards and recommended practices (SARPs) as set out in Amendment 1 to Annex 19 of the Convention on International Civil Aviation (Chicago Convention).

CASA intends for the amendments to CAO 82.3 and CAO 82.5 to come into effect on 7 November 2019, when Amendment 1 to Annex 19 to the Chicago Convention becomes applicable.

In the near term, CASA intends to incorporate these amendments into the corresponding provisions of Subpart 119.F of the Civil Aviation Safety Regulations 1998 (CASR) of the new flight operations regulations which commence in March 2021. It is envisaged that these amendments will eventually be included in CASR Part 5 (Safety Management), when that Part is promulgated.

Background

Air operators collect safety data and safety information to support proactive and continuous safety improvement and to maintain the safety of current operations. The processes by which safety data and information is collected, stored and analysed are generally part of an operator’s safety management system (SMS). These systems may include a flight data analysis program (FDAP) and other kinds of safety data collection and processing systems. The data and information involved often include details from which the identity of the individual reporting, responsible for or otherwise identified in the data and/or information can be ascertained. Limitations on the use of such information is widely recognised as integral to the efficacy and objectives of safety reporting systems.

Many of the provisions in the proposed amendments are currently reflected in CASA Directive 02-0053 - Limitations on the Use of Safety Information (July 2019), which has been in effect since 2017. The Directive applies rational ‘just culture’ principles to the processes and products of all safety reporting, irrespective of the means by which that information has been obtained by or the circumstances under which it became apparent to CASA.

Previous consultation

CASA previously consulted on this matter in 2018. The draft policy was set out in the exposure draft of Part 119 of CASR and subject to the review of a Technical Working Group appointed by CASA’s Aviation Safety Advisory Panel. A copy of the exposure drafts previously consulted is included in the ‘related’ links below. Feedback from the previous consultation on this issue is in the fact bank below.

Extract from Part 119 summary of consultation More Information

Subpart 119.F – Safety management (119.220 and 119.225)

Comments

CASA received a small number of comments on 119.220 and 199.225, most significantly in respect of the flight data analysis program (FDAP) requirements, protections from disclosure of the identity of a data source, the disclosure of the data source to CASA, and the circumstance under which the operator could take punitive action against the data source. Most of the comments received recommended further consultation on these provisions. These additional consultations were undertaken with respondents who asked to meet with CASA, and with the TWG meeting for Part 119 of CASR. At the TWG meeting it was also noted that the FDAP mandate extended to some helicopters that were not required under current or proposed new legislation to be fitted with an FDR.

CASA response

CASA notes the complexity of the SMS regulations and agrees with comments that it could be simplified.

Regarding the taking of punitive action against a data source, CASA agrees that the regulation could reflect a better balance between protecting the identity of the data source and when punitive action may be taken by the operator against the data source. CASA also agrees that the FDAP provisions must be consistent with the FDR fitment mandate for smaller rotorcraft.

CASA action

In response to comments received, CASA will make the following changes to Subpart F:

Extract the FDAP requirements from regulation 119.200 and set them out in a separate regulation.
Modify the mandated components and elements of the safety management system in 119.220 to reflect the ICAO components and elements, without including sub- and/or related elements that could be or are addressed in guidance material. This involves the deletion of subregulation (2), paragraph (3)(a), subparagraphs (3)(b)(iii), (v), (vi) and (vii), subparagraph (3)(d)(ii) and paragraph (3)(d).
Remove subregulation 119.220(6) from the regulation, pending consideration in 2019 of how the regulation could better reflect the balance between protection principles and punitive action (or exception as per ICAO) principles, in accordance with ICAO guidance.
Revise the FDAP mandate for rotorcraft. Operators of rotorcraft configured to carry more than 9 passengers but having a maximum take-off weight less than 7,000 kg would only be required to provide an FDAP if the rotorcraft is fitted with an FDR. Remove regulation 119.225. CASA has other legislative means to require the name of a data source.

Why your views matter

CASA recognises the valuable contribution community and industry consultations make to the policy decision-making process and future regulatory change. Please take this opportunity to give your views on these proposed amendments.

Informed by the input received in response to CASA’s 2018 consultation in connection, which focused on the FDAP provisions in then-draft Part 119 of CASR, this consultation exercise considers the broader implementation of the ICAO Annex 19 SARPs governing the use and protection of safety data and information which are applicable from 7 November 2019.

Documents for review

On this page under the heading, "Related Documents” you will find the Summary of proposed change on CD 1914FS and the draft CAOs containing the proposed amendments. You will also find a downloadable Word copy of this consultation for ease of distribution and feedback within your organisation.

Further reading for additional information is also available:

Exposure Draft 119.220 – Compliance with exposition by personnel
Exposure Draft 119.225 - Personnel training and checking records-making records
Fourth edition of Safety Management Manual (SMM), Doc 9859, published by the International Civil Aviation Organization (ICAO)

Providing your response

Comments on CD 1914FS should be submitted through the online response form. The survey has been designed to give you the option to provide feedback on the survey in its entirety or to provide feedback on the policy topics applicable to you.

Note: The word document and PDF are not to be used as an emailed submission, unless there are extenuating circumstances and this form of submission has been agreed to by the consultation project lead.

General comments and file upload option

There is a general comments box at the end of the consultation, into which you can place your comments on matters related to the regulatory amendment, which have not already been addressed in the consultation.

Note: CASA can no longer offer the option to upload files because of the potential risk of malware.

Using an iPad

If you are using an iPad to complete the survey you will be asked to 'download the relevant PDF'. Depending on the software you have on your iPad you may need to download the free viewer to review the single document PDF files. Where a file is a 'multi-file or portfolio PDF you will need to source the Adobe free view - available from iTunes.

What happens next

All comments on the drafts of CAO 82.3 and 82.5 consultation will be considered. Relevant feedback that improves upon the proposed regulations and is consistent with the regulations and other CASA policy, will be incorporated into the final ruling.

Once the consultation has closed, we will make all submissions publicly available on the Consultation Hub, unless you request your submission remain confidential. We will also publish a Summary of Consultation which summarises the feedback received, outlines any intended changes and details our plans for the CAO’s.

CASA has set a date of 7 November 2019 to make the proposed rules, which will come into effect on the day of registration. The feedback we receive from this consultation will also assist CASA in developing additional implementation strategies. ** Update: CASA intends to make the proposed rules by early March 2020.**

Information about how we consult and how to make a confidential submission is available on the CASA website .

To be notified of any future consultations, you can subscribe to our consultation and rulemaking mailing list .

Audiences

CASA Staff
Air operators

Interests

Safety management systems
Operational standards

Proposed amendment to protection and use of safety information - Civil Aviation Orders 82.3 and 82.5 - (CD 1914FS)

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