Avalon Airport
Solicitor's letter to CASA re Avalon Airport
By Dick Smith
Apr 28, 2008, 12:31

24 April 2008

Mr Bruce Byron AM

Chief Executive Officer

Civil Aviation Safety Authority

GPO Box 2005

CANBERRA    ACT   2601                                         

Dear Mr Byron

Urgent Need To Introduce Controlled Airspace At Avalon Airport

We act for Mr Dick Smith.

As you are aware from past correspondence and meetings between Mr Smith and CASA, he has grave concerns regarding passenger safety at Avalon airport arising from the fact that the airspace is currently uncontrolled notwithstanding that Jetstar has operated commercial flights there for the last three years and is currently using Avalon to carry in excess of one million passengers per annum.  CASA has also publicly noted that traffic density at Avalon is expected to increase substantially over the next 12 months.

Mr Smith understands that Jetstar has opposed any proposal for the airspace at Avalon to be controlled because of the cost implications for its commercial operations if the existing air traffic control tower, which is currently unmanned, became operational.  It would plainly be unacceptable if this were the reason why CASA has failed to take appropriate steps to introduce controlled airspace at Avalon. 

Mr Smith has repeatedly drawn the attention of both Airservices Australia and CASA to the unacceptable and ongoing risk to passenger safety posed by the uncontrolled airspace around Avalon.  Mr Smith strongly believes that the only appropriate action is to introduce controlled airspace at Avalon and man the Tower.  CASA’s delays in respect of this matter raises serious questions as to whether CASA is discharging its statutory obligations.

As you would be aware, CASA has the statutory function of conducting safety regulation of civil air operations in Australia.  Moreover, under section 9A of the Civil Aviation Act 1988, CASA is required to regard the safety of air navigation as the most important consideration in exercising its powers and performing its functions. 

The paramountcy of the safe operation of aviation passenger transport operations in Australia is further reinforced by other relevant sources affecting CASA’s operations.  In particular the current Airspace Policy Statement dated 28 June 2007 emphasises this paramount consideration.  Paragraph 5.6 of that Statement contains the following important material :

            “By far the great majority of people who travel by air are fare-paying airline passengers, or are travelling on charter aircraft.  These people are not generally able to make informed independent judgments about the safety of operators and place trust in other parties, including airlines, airports and regulatory agencies.  They have an expectation that air travel will not involve a significant level of personal risk.

            The Government expects CASA to place the safe and efficient operation of Passenger Transport services as its first priority in airspace administration” (emphasis added).

The Policy Statement also obliges CASA to act transparently in its operations, including those of the OAR.  Paragraph 5.9 sets out the Government’s expectation that CASA will publish relevant material on its approach to decision-making, including with respect to cost benefit analysis and risk management. 

As required by section 11A of the Civil Aviation Act, CASA is obliged to exercise its powers and perform its functions in a manner which is consistent with the Australian Airspace Policy Statement.

Other relevant matters binding CASA in the performance of its duties are set out in the Statement of Expectations dated 12 March 2007.  Those matters include the following :

·                     the central importance of consistency and timeliness in CASA decision-making in delivering transparent and respected safety regulatory processes;

·                     CASA’s ongoing responsibility to provide timely advice to the Parliament and the public on its operations;

·                     the essential need for CASA to perform its airspace regulatory responsibilities to a high standard, which requires CASA to devote appropriate resources and preparation to this responsibility; and

·                     CASA’s obligation to develop, assess and promote airspace reform proposals according to inter alia international best practice risk and cost benefit analysis.

In your letter dated 14 May 2007 to the Minister, you formally recorded your personal determination to ensure that :

·                     CASA’s highest priority is the fare paying passenger;

·                     CASA is a firm regulator with safety as its primary objective; and

·                     CASA makes quality judgments on safety issues, while permitting the orderly operation and growth of Australian aviation.

The Office of Airspace Regulation has been in operation now since 1 July 2007.  Yet no satisfactory solution has been implemented to rectifying the unacceptable airspace arrangements at Avalon.  In particular CASA’s delay in coming to a decision to make Avalon controlled airspace is unacceptable in circumstances where the interests of public air safety overwhelmingly point to the need for the airspace to be controlled. 

Ample time has now passed for OAR to fulfil its statutory obligations and to conduct the various steps set out in the Australian Airspace Policy Statement regarding changes to airspace classification, including :

·                     carrying out risk management analysis consistent with CASA’s Risk Management System and Common Risk Management Framework;

·                     assessing the potential costs and benefits of reclassification;

·                     consulting with stakeholders; and

·                     ensuring consistency with Government policy as expressed in the Policy Statement.

Towards the end of last year, OAR placed on its website a safety study carried out by it in respect of Avalon Tower.  CASA has acknowledged that that study did not include the total OAR package of airspace oversight measures, including formal cost-benefit and risk analyses, even though such matters appear to have been required in accordance with the Policy Statement.  CASA’s failure to conduct a timely and thorough review of the issues reflects poorly on it and is inconsistent with its obligation to treat the safe and efficient operation of passenger transport services as its first priority.  Mr Smith was highly critical of various aspects of that study, for reasons set out in some length in his letter to CASA dated 30 November 2007, to which he received no reply. 

Mr Smith was advised by way of an email from CASA dated 26 September 2007 that OAR would include a full Aeronautical Study of Avalon in its program for 2008.  CASA has now indicated on its website that it has commenced an Aeronautical Study of Avalon and adjacent airspace which is said to be scheduled for completion by April 2008.  CASA also announced that it has retained Risk and Reliability Associates to conduct the risk assessment component of the Study and that it will provide a risk assessment based upon several possible airspace models which could be implemented at Avalon.  CASA has not made clear whether one of those models includes manning the existing Air Traffic Control Tower at Avalon, which is the obvious solution. 

In view of the urgency of the situation and the grave ongoing risk to passenger safety, it is difficult to understand why CASA is taking so long to finalise its position concerning Avalon.  The inordinate delay is unacceptable, especially in circumstances where Mr Smith instructs us that he has been informed that there has been at least one internal recommendation within CASA that the Avalon Tower be manned.  That view is irresistible in the circumstances of this matter.

In light of all the above, a serious question arises whether CASA is currently in breach of its relevant statutory and legal obligations concerning passenger safety at Avalon.  CASA’s delays are inexplicable and unacceptable.  By any reasonable standards CASA ought by now have determined that Avalon should be controlled airspace. 

Mr Smith is currently considering whether he should commence appropriate legal proceedings in the Federal Court seeking declaratory and other relief which would compel CASA to carry out those obligations and functions.  As you would be aware, Mr Smith’s standing to bring such proceedings has previously been accepted by the Federal Court in litigation relating to the NAS Reforms. 

We are instructed to advise you that, as matters stand at present, Mr Smith is minded to bring proceedings if CASA does not determine to make Avalon controlled airspace. 

In order that we may advise Mr Smith concerning his options, we request that you confirm that CASA’s Aeronautical Study of Avalon will be finalised by April 2008 and that the Study will be promptly made available to the public in accordance with CASA’s transparency obligations.  We also request that you indicate the timeframe for CASA’s ultimate determination on the matter.  In view of the public importance of the subject we should be grateful if you could provide us with your response within seven days.

Given the importance of this matter we are instructed to copy our letter to the Minister for Transport.

We look forward to receiving your response.

Yours faithfully

Mark O'Brien

Partner

cc.        The Honourable Anthony Albanese, MP

Minister for Infrastructure, Transport

and Regional Development, Local Government