Aviation Safety Laws

Ask anyone working in Australian aviation about safety rules, and they’ll likely point you to CASA regulations. While that’s not incorrect, it’s far from complete.

Aviation safety laws form a multi-level structure - more akin to “ladders in the sky” - where sovereignty, international bodies, and ever-evolving regulations all intersect. To complicate matters further, this hierarchy varies not just from one country to another, but also within federal systems like Australia and the United States.

After delving deep into this topic, we’ve uncovered that Australia’s aviation safety framework is far more nuanced than the typical “it’s all about CASA” viewpoint. In fact, the interplay between historical treaties, constitutional powers, civil and military mandates, and international soft law reveals a complex system that can change faster than many expect.

1. Australia’s Two-Pronged Oversight: CASA & DASA

1. Civil Aviation Safety Authority (CASA)
   • Established in 1996, oversees the civil aviation sector under the Civil Aviation Act 1988 (Cth), complemented by Regulations (CASRs, CARs), Orders (CAOs), and other guidance.
   • Aligns closely with ICAO Standards and Recommended Practices (SARPs), though Australia’s Parliament remains the legislative gatekeeper.
2. Defence Aviation Safety Authority (DASA)
   • Created in 2016 within the Department of Defence to manage non-civil (military) aviation safety.
   • Follows Defence directives rather than purely civil regulations, although often cross-references ICAO principles.
   • Article 3 of the Chicago Convention excludes “state aircraft” from civil requirements, giving DASA the autonomy to adopt or adapt ICAO norms as needed for defence imperatives.

Despite their distinct remits, CASA and DASA sometimes coordinate (via an MoU signed in 2015) to ensure an overall consistent approach to safety and airworthiness—without merging the two domains.

2. ICAO Precedes the UN: Why It Matters for Australia

ICAO (International Civil Aviation Organization) was formed in 1944, before the United Nations itself was established in 1945. This fact often goes overlooked but has significant implications:

1. Foundational Autonomy
   • ICAO’s earlier founding theoretically grants it an independent, foundational authority in civil aviation—one not merely derived from the UN system.
2. States and Sovereignty
   • Contrary to the assumption that states can simply “reject” ICAO mandates at will, ICAO’s pre-UN status implies a global civil aviation framework that predates modern sovereignty doctrines.
   • Refusing or deviating extensively from ICAO can, paradoxically, undermine a state’s own sovereign standing in the international aviation arena, since uniform adherence to ICAO fosters mutual recognition of airspace rights and responsibilities.
3. Dozens of ICAO Bodies
   • Per our infographic below, ICAO houses multiple bureaus, secretariats, and committees, each influencing different facets of aviation—spanning safety oversight, technical cooperation, legal affairs, and more. In practice, these numerous bodies shape the evolution of SARPs, creating a complex interplay with national laws.

‍See the Infographic here. It visually represents how Australia’s hierarchy of laws interacts with ICAO, CASA, DASA, and the broader legislative processes. Discussed below.

3. Hierarchy of Laws in Australia: Constitutional to Operational

Within Australia, legal authority is layered:

1. The Constitution
   • Section 51(vi) grants Parliament power over defence and aviation. Section 119 can be invoked for national security needs.
   • These provisions allow major legislative shifts in aviation safety if security or parliamentary agendas deem it necessary.
2. Federal Acts
   • Air Navigation Act 1920 (Cth) (which implements core ICAO provisions for civil aviation, though excluding military/police).
   • Civil Aviation Act 1988 (Cth), forming CASA’s legal foundation.
   • Defence Act 1903 (Cth), enabling DASA’s separate structure and authority.
3. Delegated Rules & Guidance
   • CASRs, CARs, CAOs, MOSs (for civil) and DASRs (for military) detail day-to-day regulations.
   • Advisory materials, like CAAPs and ACs, provide additional guidelines—often referencing ICAO best practices.

While this system is comprehensive, it’s also susceptible to rapid modifications—through parliamentary amendments, defence directives, or even shifts in ICAO’s frameworks.

4. Safety Management Systems (SMS): Civil & Military Variations

ICAO’s Annex 19 popularised the concept of Safety Management Systems, requiring operators to integrate hazard identification, risk analysis, and continuous improvement. In Australia:

• CASA’s Civil SMS
  • Mandated in various CASR Parts (e.g., 119, 139, 145), requiring advanced oversight of flight operations, maintenance procedures, and personnel training.
  • Subject to re-interpretation if the Civil Aviation Act or underlying regs change.
• DASA’s Military SMS
  • Governed by Joint Directive 21/2021 and the Defence Aviation Safety Regulations.
  • Tied to a chain of command rather than civilian legislative consultative processes, meaning changes might stem from a higher-level Defence command decision rather than civil consultation.

5. Capacity for Rapid Change: More Fluid Than Many Realise

Despite Australia’s high regulatory standards, big shifts can—and do—happen quickly:

1. Parliamentary Amendments: for instance, if national security is invoked (sections 51(vi) or 119), or if a major incident prompts urgent legislative updates, entire blocks of regulations can be reworked or replaced.‍
2. Deregulation Agenda & Lobbying: the Federal Government may push for streamlined rules, allowing CASA to expedite changes (especially via delegated legislation). Stakeholders can lobby for specific reforms, sometimes leading to near-immediate modifications in CASRs or guidance materials.‍
3. Military Overrides: Defence can reprioritise DASA’s safety approach if a conflict scenario emerges, effectively bypassing certain civil norms for operational expediency.

6. International Comparisons: US, EU, and the Netherlands

• United States: The US FAA’s “soft pretzel” style of regulating means federal regulations can bend and reshape quickly under legislative or executive direction.
• EU: EASA serves multiple sovereign states, making the rulemaking process more elaborate than Australia’s, given the EU’s cross-border harmonisation efforts plus each state’s local nuances.
• Netherlands: Uniquely, they embed military aviation safety across various ministries (like Infrastructure & Water Management for civil) rather than a single Defence agency—creating a more opaque but flexible approach.

Final Word: An Intricate Yet Susceptible System

Australia’s aviation safety regime is built on constitutional powers, federal enactments, and ICAO mandates that actually predate modern sovereignty in global aviation. Contrasted with other jurisdictions—like the US’s quick-changing “soft pretzel” or the EU’s labyrinthine multi-state structure - Australia maintains a thorough but nimble system, split between CASA for civil and DASA for military. In short, while the rules appear highly regulated, one must remember that federal law reforms, defence prerogatives, and ICAO’s continuing evolution can reshape Australian aviation safety standards - sometimes more swiftly than most in the industry would expect.

Disclaimer

This article is for educational and informational purposes only, focusing on Australian law and regulatory frameworks. We do not practise foreign law, and nothing here should be construed as legal advice. Seek a qualified legal professional for guidance specific to any particular situation.