Civil Aviation Bill [B73-2008]: final deliberations & adoption

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12 November 2008
Chairperson: Mr J Cronin (ANC)
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Meeting Summary

The Department of Transport presented a new "A" list and a new version of the Bill, incorporating all the latest changes, and took the Members through the changes made since the last meeting. Members discussed each of those clauses, accepting some and suggesting further changes to others. In respect of the Definitions, it was noted that the definition of "serious incident" should be omitted, as there was provision for "aircraft accidents" and "aircraft incidents", now linked more clearly to the International Civil Aviation Organisation Convention. Although the references to “authorised persons” and the inclusion of gliders were queried, Members were satisfied with the explanations and no changes needed to be made. Clause 15(2)(c) was to be amended to reflect that the short list should be “no more than ten persons” and Clause 15(2)(d) must contain a reference to the Department having to notify Parliament of the short list. In respect of Clause 74(1)(b) the levies or charges on passengers were qualified by addition of the words "as prescribed by national legislation" and the same addition was made to Clause 74(1)(g). Clause 77(3)(c), similar to Clause 15, must contain the words “and notify Parliament accordingly". The word "or” was to be deleted from Clause 90(3)(a). Clause 98(2) would have two commas added to make for easier reading. In Clause 98(4) the phrase “must take disciplinary steps” was to be used to emphasise that some action must be taken if there had been an offence of non-disclosure. In respect of Clause 99, there was to be reference only to "no employee of the Civil Aviation Authority is liable", but the exemption from liability could not attach to the Civil Aviation Authority itself, since it was a juristic person.

A new Clause 104(2) was to be added, to provide that a member of the National Aviation Security Committee must have a top secret security clearance. Clause 104(1)(q) and Clause 106(2) were extensively discussed, and it was agreed that the reference in Clause 106(2) to coopting new members should be removed, so that any additional experts could merely be invited to attend and address a meeting of the National Aviation Security Committee, but it was decided that the wording, referring to the Director General was acceptable, as the Minister did not make this appointments. A new subclause was to be added in to Clause 106, stating that the Committee must decide for itself how to conduct its own meetings. In respect of Clause 109, the heading was to be replaced with "Aviation Security Programme", and this phrase was to be used consistently in the clause.  In addition the words “safety officer” in subclause 109(1) was to be substituted with “security officer". There were no further changes to the clauses after Clause 110, up to clause 148 on this list.

Members voted unanimously to adopt the Bill, as amended, and the Committee Report. This Report would include a suggestion to Parliament that there be a comprehensive review on the governance of regulatory entities.

Meeting report

Committee's Report on governance, arising from deliberations on Civil Aviation Bill
The Chairperson reminded Members that the model adopted in this Bill included a Board, responsible for certain issues, and a Director who had a direct reporting line on other issues to the Minister. Although the Committee had agreed to adopt this model, it had nonetheless agreed that it would like to table a report suggesting that Parliament might like to consider a comprehensive review for governance of regulatory entities.

Mr Cronin read through the draft that he had prepared. This reflected that during the course of the public hearings and deliberations on the Civil Aviation Bill, different views were expressed on the desirability of various governance arrangements. The Committee had decided to accept the governance model that was put forward in the original tabled Bill, which established a Board responsible for corporate governance, whilst the safety and security functions did not fall under the Board, but instead the Director of the Authority would report directly to the Minister of Transport, to ensure clear lines of communication and accountability on matters of national importance and safety. The Committee had decided not to change this model for the purposes of the current Bill. However, the Committee considered that the Parliament should consider a comprehensive review of the governance model for regulatory authorities.

The Chairperson indicated that he had purposely not decided to make a recommendation also to the Executive.

Members accepted and adopted this report.

Civil Aviation Bill (the Bill): Deliberations
The Chairperson asked the Department of Transport to take the Committee through the new document of Proposed Amendments (the A-list) focussing on the issues that the Committee had raised in previous meetings.

Clause 15
Mr Anwar Gany, Chief Director, Department of Transport, started with the new Clause 15, dealing with the Aviation Safety Investigation Board (ASIB), setting out that this dealt with the competencies, who would be appointed, and what offices they would hold.

The Chairperson checked on the process, reading through subclauses (2)(a) to (h). He questioned the words "eligible to be appointed as members" in (c), saying that the word "eligible" was used in a different context in subclauses (b) and (c).

Mr B Mashile (ANC) noted that in (c) "no more than twice the number of persons" might be too many.

Mr Gany suggested that this should be amended to read "no more than ten persons".

Members agreed with this suggestion.

Mr Mashile questioned whether Parliament would be specifically notified of the shortlist. Subclause (2)(d) only noted that the shortlist would be published in the Gazette.

The Chairperson did not have a problem with the way in which this was worded, as parliament would be relying on interested parties and stakeholders to make comments. One recourse they might take was to approach Parliament, but he did not think that there would be any problem also in adding in a requirement to notify Parliament.

Mr Gany suggested that the phrase "and the Department must notify Parliament accordingly" would be added to the end of the sentence.

Clause 16
A new clause had been inserted to deal with the disqualification and removal of members of the ASIB. It was quite straightforward.

Clause 17
A new clause had been inserted, in respect of the Performance Management System. A report must be submitted, to be tabled by Parliament by the Minister in terms of Clause 17(6).

Chapter 6
Mr Gany noted that this had been discussed the previous week and had been transferred across from the document that the Members had been dealing with then. Members did not have any issues to raise

Clause 74
Mr Theo Hercules, State Law Adviser, Office of the Chief State Law Adviser, noted that certain of the clauses mentioned levies. In order that this Bill should not be regarded as a money bill, the derivation of those levies must be linked to an Act of Parliament, so he suggested that wording along the lines of "prescribed in terms of an Act of Parliament” should be added to the end of each of the subclauses 74(1)(b) and (g). National Treasury would then have to make provision for this funding, because the mention of it in this Bill would confer the necessary authority on Treasury.

Mr Gany pointed out that the Civil Aviation Authority Levies Act was already in existence.

The Chairperson asked whether it should not be mentioned specifically.

Mr S Farrow (DA) noted that this Act was mentioned in the Annual report as one of the sources of funding.

Mr Mashile said that "any other money received" had been included. He wondered if (b) and (g) were in fact required at all, because they might repeat what was said in (f).

Mr Gany noted that this was not necessarily included.

The Chairperson said that it was often preferable to refer to "as prescribed by national law" rather than listing the specific Acts. There could also be some doubt whether one or two Acts applied.

Mr Gany said that keeping the wording more general, as suggested by the Chairperson, would be preferable and the phrase he had suggested would be inserted into (b) and (g).

Clause 76
Mr Gany noted that Clause 76(1) set out the functions of the Civil Aviation Authority (CAA) Board. There were three main functions mentioned: overseeing corporate governance to attain the objects of the legislation, providing strategic direction and monitoring service standards.

The words "implement" had been removed from subclauses (2)(a) and (b).

Mr Mashile asked how the role of the Board under (2)(a) had been separated from the functions listed in Clause 76(1)(b), which made reference to Section 72.

The Chairperson explained that the Board would provide strategic direction on corporate governance only, but not in respect of the other matters in Section 72.

The Chairperson noted also the changes to Clause 76(1)(e).

Clause 77
Mr Gany noted that there had been changes to Clause 77(1)(d), pointing out that two persons representative of the civil aviation industry were to be appointed, who had financial and operational expertise. This was worded slightly differently from what had been suggested in the previous meeting. The legal expert who was now also named would not be a representative of the civil aviation industry, but would have expertise in civil aviation law.

Mr Mashile suggested that similar wording to what had been discussed under Clause 15 should also be inserted into Clause 77(3)(c), requiring notification to Parliament.

Members agreed with this.

Clause 85
Mr Gany referred to Clause 85(3), noting that the Director's qualification were narrowed down and listed in two separate subclauses.

Clause 85(5) had also changed, to reflect that the remuneration and allowances were determined "after consultation with the Minister of Finance and the CAA board"

The ordering of Clause 85(11)(b) and (c) had changed.

Members raised no queries.

Clause 90
Mr Gany read out Clause 90. It was noted by the State Law Adviser that the first "or" under Clause 90(3)(a) should be removed as it was not needed.

Members agreed to this change. 

Clause 97
Mr Gany noted that the wording in respect of the name or acronyms had been tidied up.

Clause 98
Mr Gany pointed out the words "in writing" had been added to the second line of Clause 98(1).

Mr Mashile asked for clarity on Clause 98(2), saying that he found it too wordy.

The Chairperson pointed out that commas could be inserted.

Clause 98(3) had been slightly reworded also, and there was now a new subclause (4), dealing with the failure to disclose the interest.

Mr Mashile noted that the "may" in subclause (4) should be changed to "must", although it was correct to retain "may" in subclause (3). He noted that the failure to disclose was an offence.

Adv Leon Kellermann, Consultant, DOT, said that non-compliance with any of the provisions of the Act might constitute an offence. The failure to disclose the interest might warrant prosecution and if so, then the Director would normally not take disciplinary steps. He would prefer to retain the discretion.

Mr Mashile said that he was concerned that "may" provided an opportunity for non-action, and a defaulting person might simply be moved to another department.

Adv Kellermann said that the Director, as employer, could take steps under the Labour Relations Act. However, he took the point and said that he did not think that there would be a problem in inserting the word "must".

Mr Farrow said that he had made a note during discussions that the steps were to be taken to ensure that the conflict of interest did not arise again.

Clause 99
Mr Theo Hercules, State Law Adviser, Office of the Chief State Law Adviser, noted that Members had, at a previous meeting, asked for the inclusion of the Civil Aviation Authority. However, the clause was initially drafted to protect employees. He pointed out that the Civil Aviation Authority was a juristic person and therefore could not be excluded from any legal challenges being made against it. He would suggest that the clause should read "no employee of the CAA is liable" so that the reference to "or the Civil Aviation Authority"  was to be deleted.

Members took the point and agreed that this should be done.

Clause 104
Mr Gany noted that a new subclause had been included in Clause 104(1) to say that the Minister must institute a National Aviation Security Committee (NASC), and the composition was set out in subclauses (a) to (q).This list had been extracted from the current regulations on the formation of the Committee. There had been discussion on coordination on the National Aviation Security Programme (NASP).

Mr Mashile asked what the status of this Committee was on security clearance. He asked if all members were security cleared. Over and above that, he wanted to know the relationship between the Office of the Director and this Committee, and whether there were accountability and reporting lines.

Mr Gany said that the distinction was related to the National Aviation Security Programme and the coordination of agencies and departments. This Committee would have to comprise representatives of all government departments. Although there would an assumption that all agencies would have clearance, he agreed that there should be a reference to the top secret level of clearance, and that this could be inserted as a new clause 104(2), to read " A member of the National Aviation Security Committee must have a top-secret security clearance  " That would accord with the Director's security clearance. The remainder of the subclauses would be renumbered.

Mr Farrow asked whether there was a need to include any aviation operators in that Committee, as they night be able to bring to light any security factors and how this could be addressed.

The Chairperson suggested that this could be done during the consultative process. This was essentially a governmental agency.

Mr Gany read out the existing subclause (2) and subclause (3), which included the consultation with stakeholders.

Clause 105
Mr Gany read out the Objects of the NASC

Clause 106
Mr Gany read out the wording of this clause. He explained that because of the nature of the industry, the NASC may require an international authority to come and advise, and that was why there was mention of "co-opt as a temporary member".

Mr Mashile noted that this was not consistent. The Minister was to appoint the members. He did not agree that the NASC itself could co-opt temporary members.

The Chairperson noted that this also raised questions around Clause 104(1)(q)

Mr Gany said that these were valid points. He suggested that Clause 104(1)(q) should read "any other person designated by the Minister".

Mr Farrow said that the Minister would certainly drive the process. However, different departments designated different officials. He was not sure that the Minister would need to do every designation personally. Perhaps the designation of the Director General should be changed.

The Chairperson suggested that Clause 104(1)(q) could probably remain as worded, namely "designated by the Director General", but in respect of Clause 106(2) he questioned whether those people must be temporary members, or whether they should merely be invited to attend and give their advice at a particular session. In fact, he then queried if it was necessary to say this at all, as a Committee should surely be able to make the decision to invite anyone.

Mr Mashile said he would prefer to keep the sentence in, so that no questions of procedure could be raised if a person was invited. However, he agreed that such experts should merely be invited to address the NASC on any matter, and they should not be co opted.

Mr Farrow noted that he did not see how this had anything to do with the meetings. He suggested that perhaps Clause 104(1)(q) should be amended to "any other person, designated by the Director General, who is an authority with regard to any particular matter", which would then take away the need to have Clause 106(2).
Mr Mashile understood Mr Farrow's point, but he was still concerned that if this person was brought under (q) he or she could be regarded as a member. The intention of Clause 106(2) was to attract a certain speciality at a certain time, but not to add members to the Committee.

Mr Gany suggested new wording for Clause 106(2), as follows: "The NASC may invite any person or persons to a meeting or meetings of the National Aviation Security Committee, with an authority, with regard to any specific matter”. He suggested that if this wording was used, then Clause 104(1)(q) could be kept in its current formulation. 

Mr Mashile asked again why the reference to the Director General was being retained under Clause 104(1)(q). He had understood that the whole Committee was to be established by the Minister. Whether or not the Director General was to identify the people, the Minister was surely to appoint them.

The Chairperson noted that the wording read "the Minister must institute". This meant that the Minister would in practice instruct the Director to set up the Committee. The relevant departments would designate their officials. The Minister would not in fact appoint them as these Departments empowered their own officials. It was important to have the power for additional people to attend the Committees.. He did not feel that the wording was inconsistent. The Director General, as the Chair of that Committee, would make the decision.

Mr Farrow suggested that rather than using the words "National Aviation Security Committee" it should be specified that it should be "the Chair of the Committee,"

The Chairperson did not agree that it was necessary to change this. Although the Chairperson, acting on behalf of the Committee, would send the letter, he preferred to have the entire Committee mentioned..

Mr Hercules said that there was nothing to say how the meetings would be conducted in Clause 106. There should perhaps be a clause to say that the Committee must determine its own procedures.

The Chairperson agreed; this would be added as a new subclause.

Mr Mashile raised concerns about the security clearance, asking what would happen if the Director General of the Department of Transport would not pass the security clearance.

Mr Gany noted that all Director Generals would need to have top secret clearances already.

Clause 109
Mr Gany noted that the heading of the clause should be replaced with the heading "Aviation Security Programme". This wording was also to be used consistently in the clause.

In addition, under Clause 109(1) he noted that the words "safety officer" should be substituted with "security officer".

Mr Farrow queried whether these should be capitalised.

Members agreed that they should not.

Clauses 110 to 148
Mr Gany said the remainder of the document dealt with insertion of words and other minor issues around inspection procedures, and had been inserted consistent with the suggestions of the industry. There were no issues of principle.

Mr Farrow noted that in the "A" list there were no inclusions of definitions. One that came to mind was the difference between what was an accident and what was an incident. "Serious incident" was used in the text, but had not been defined.

Adv Kellermann noted that the definition of "serious incident" should in fact be omitted. The reason was that there was provision for "aircraft accidents" and "aircraft incidents". These had been extended to cover what was effectively included in Annex 13 of the International Civil Aviation Organisation (ICAO) Convention. 

Mr Farrow questioned the wording of "authorised persons", which seemed to include all rankings within the Defence Force, which he felt was probably not intended. He wondered if this should not refer to “an assigned member”.

Mr Hercules said that he would need to check on the reference to the Defence Act.

Adv Kellermann noted that the reference should be to Section (1)(a) of the Defence Act, not merely Section 1, as it would otherwise include all visiting forces. It was intended to be so broadly worded, as all these people, including permanent members of the Defence Force, had powers of arrest under certain circumstances.

Mr Farrow also raised the issue of whether a "glider" was covered, as raised by the Law Society.

Adv Kellermann said that these were dealt with under Part 61 of the Aviation Regulations. All issues pertaining to technical specifications and oversight were covered, although the matters, for instance, around smoking on board, may not apply.  What had to be referred to was therefore the overarching "aircraft".

The State Law Advisers noted that they would check on the numbering.

Additional comments
The Chairperson said that in the past public representation had been received on interference with air crews and similar issues around the behaviour of air passengers that caused problems to the crews. This had not really received much attention in the current discussions, but it was probably something that should be reported in the House.

The Chairperson read out the Motion of Desirability. Members accepted the Motion unanimously.

The Chairperson then summarised all the changes made by Members that morning. Members agreed that this was accurate.

The Chairperson read out the Report of the Committee, noting that this was a Section 75 Bill, with amendments, and that Members had accepted the Bill as B 73A-2008.

Members accepted the Report and indicated their unanimous agreement to the adoption of the Bill.

The Chairperson noted that the debate had been scheduled for Wednesday, but he was trying to have that moved to Thursday. There would not be too long a debate; about 45 minutes had been set aside for the debate. It was unlikely that more than this would be required.

The chairperson expressed his special thanks to the State Law Advisers and the Department of Transport,  whom he would also thank formally in the House. He said that this had been a challenging Bill. He reiterated that an additional Report would be made calling upon Parliament to revisit the governance matters for regulatory authorities.

He also expressed his thanks to all Committee members for their hard work during this Parliament, and said that he had enjoyed working with them all.

The meeting was adjourned.


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