The Civil Aviation Amendment Bill sought to strengthen the current safety, security, and environmental regulatory framework. The overall objective was to transform aviation and strengthen its governance and oversight to the benefit of all South Africans. Amendments make provision for the operational independence of aircraft accident and incident investigations by establishing an Aviation Safety Investigation Board would be. An effective enforcement mechanism would be ensured by strengthening the penal code for criminal offences. The Minister would be given additional powers to make regulations in future.
Members asked about the nature of the Aviation Safety Investigation Board, the proposal for the establishment of certain committees and the regulatory powers given to the Minister. The Committee requested a list of draft legislation from the Department.
The Committee supported the Bill
Civil Aviation Amendment Bill [B44-2018]: briefing
Mr Alec Moemi, Department of Transport: Director General, led the delegation in presenting the amendments to the Civil Aviation Act, 2009. The Civil Aviation Amendment Bill tabled in Parliament in 2018 sought to strengthen the current safety, security and environment regulatory framework. According to the International Civil Aviation Organization (ICAO) Convention, there is a requirement to have an independent authority for aircraft accident and investigations. The Aviation Safety Investigation Board was to be fully established and it would include environmental protection in its mandate.
Additionally, by rectifying incorrect references to ministries and government institutions the law would be streamlined. An effective enforcement mechanism would hold violators of the law and code accountable by strengthening the penal code for criminal offences. The Minister would be given additional powers to make regulations in future. The proposed amendments were reached after the Department hosted workshops and consultations with various aviation stakeholders. The draft Bill was published in October 2016 for public comment and these comments were considered and addressed. The Bill was also submitted to other departments for comment. Cabinet approved the Bill in September 2018 and it was introduced to Parliament on 8 October 2018. He requested that the Portfolio Committee support the Bill.
The Chairperson requested Members to express the desirability of the Bill.
Mr C Hunsinger (DA) asked why the corporate governance plan was phased out the Bill during the decision-making process. He expressed concern about compliance notices and asked if it was necessary to have regulations made later. In the past there has been a framework and an understanding of how the body functions. Regulations present a “hidden for later” circumstance. This is because by first approving the process wherein regulations arise later, it creates suspicion.
Mr T Mabhena (DA) asked how the Aviation Safety Investigation Board would be structured and funded. He asked if it would fall under the Civil Aviation Authority. By giving the Minister powers to make regulations what procedure would the Minister follow and how would the Portfolio Committee be involved in this process? The Committee should be able to exercise oversight over any regulations made. He acknowledged that the objective of the Bill was to provide an effective enforcement mechanism but said its work should translate to service delivery on the ground. He asked what should happen when the South African Aviation Authority (SACAA) is in contravention of its own regulations and how would SACAA be held accountable.
Mr L Mangcu (ANC) asked why there was a need to establish committees, how many were going to be established. He expressed concern over the powers given to the Minister to make regulations.
Mr P Mey (FF+) said that he preferred to fly using South African Airways (SAA) even when he was warned not to. He asked why American experts were being used despite South Africa having none.
Mr L McDonald (ANC) commended the idea of the Bill as aviation safety will be improved. Environmental protection was long overdue as the aircraft industry has the biggest carbon footprint. It is one of the biggest contributor of noise pollution which affects communities who live close to airports. He was concerned that the Carriage by Air Act, No 17 of1946, was not included in the amendment proposals. He asked about the timeframe for the Amendment Bill.
Mr M Chabangu (EFF) asked why there were provisions for the establishment of certain committees that were not included under the current Act. He asked if the formation of the Aviation Safety Investigation Board would ensure transparency and thereby serve the interests of the country.
Mr Moemi replied that clause 10 of the Bill covers the way the Aviation Safety Investigation Board must be appointed. All appointments must possess technical knowledge in the civil aviation sector. Professional standing in terms of special skills and suitable qualifications is a criterion too. Exclusionary clauses are included under clause 18 of the Bill. This is a guiding framework and must be read with other pieces of legislation. Those who apply and are rejected have the right to review. The Aviation Safety Investigation Board is an independent board with the mandate for regulation and investigation. According to ICAO, due to conflict of interest, a separate regulatory board is necessary. This is a requirement for all countries that have ratified the ICAO Convention. The Aviation Safety Investigation Board will be funded by law and will be appropriated as part of the budget. The initial investment for establishment had to be provided by the state. The application for funding will be disclosed as a grant to the South African Civil Aviation Authority (SACAA). The grant will kick start the initiatives of the Aviation Safety Investigation Board.
Mr Moemi replied that the Carriage by Air Act deals with the terms and conditions of the penal code. Since then the Act has been shifted into the Civil Aviation Act.
Mr Moemi replied that SACAA can conduct investigations but where specialised skills are required and/or in the absence of an accredited board, American experts are hired. The Aviation Safety Investigation Board which will be accredited will assist with investigations in the African continent at large and it will build capacity. This is in line with the African Union (AU) declaration.
Mr Moemi replied that clarity must be provided on the powers given to the Minister within the context of the legal framework. In the case of passing law, regulations are made complementarily. It is a regulatory process to consult and publish regulations, so it is free for comment. It has become convention and an act of good practice to table regulations in Parliament beforehand. He assured the Committee that State Law Advisors would be stringent in this regard. The Committee has the power of oversight in the way that it seeks to question and hold the Minister accountable at any stage. In the case of the Aviation Safety Investigation Board contravening its mandate, it is the responsibility of the Minister to hold the Board accountable.
In response to Mr Hunsinger, Mr Moemi replied that the law cannot address everything. The corporate governance plan is an administrative function of management and there is no need to regulate this in the law. There are dates for submission for compliance notices. Ministers who fail to meet the deadline are held accountable.
Mr Moemi explained that the establishment of certain committees ensures the division of duties for various types of investigations. For example, the Air Service Licensing Committee will grant licences and regulate this process.
The Chairperson asked the State Law Advisor to comment on the procedure going forward.
In response to the Chairperson, the State Law Advisor said that Parliament has the Constitutional oversight role. Parliament can implore the regulatory process wherein the Ministers are given powers. Any regulations come into publication in the Gazette. The Act does not specify that the Committee must approve regulations before the Minister makes them. In other laws, this is a clear specification. He recommended that the Department amend this specific provision.
The State Law Advisor replied that the Office of the Chief State Law Advisor is in agreement with government. The regulations will come to Parliament before being published as final.
The Chairperson commended the Department on its work.
Mr Hunsinger asked if the regulation-making process has already begun. If so, what regulations have been made already. He asked if the regulations were a simultaneous process to bringing this Amendment Act into operation.
The Chairperson replied that to his knowledge no regulations have been made thus far because no permission has been given to the Minister to make regulations. He referred to Mr Moemi for additional comments.
Mr Moemi clarified that the Bill is debated first, then it becomes law and thereafter regulations are made.
Mr Mabhena noted that there is no constitutional requirement for the regulations process but when the need arises the Minister will bring the regulations to the Portfolio Committee to deliberate on them. This process is best practice but it is not legally binding to do so.
The State Law Advisor added that once the Act of Parliament is passed it may be held up by the need for regulations. This means that it cannot be fully implemented because there are regulations missing. He agreed that at the current moment the Minister possesses no power to make regulations specific to this Bill.
The Committee approved the Bill unanimously without amendment.
Mr McDonald asked for a comprehensive list of draft legislation so the Committee knows what is being considered or drafted by the Department.
The Chairperson granted the Department seven days to do so.
Mr Moemi replied that he has submitted the list to the Leader of Government Business and was currently waiting for confirmation. He noted the separation of powers and that his duties lay with the Executive.
The Chairperson added that it is good practice that the Department should agree to this request by the Committee and reply accordingly.
The previous minutes were adopted and Committee Reports.
The meeting was adjourned
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