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Making airlines more profitable by making them safer. The safety quinella. Ron Bartsch Managing director Avlaw pty ltd.

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Making airlines more profitable by making them safer

The safety quinella

Ron BartschManaging director Avlaw pty ltd

quinella(kwiˈnelə)n. 1. A form of betting, especially on horse races, in which the punter, in order to win, must select the first two places in a race, in any order. 2. safety quinella n. especially in aviation, an action or procedure that results in a win or gain in both business efficiency and safety, in any order.


Tonight’s meetingThe aviation safety derby

Race 1 The Birth of Aviation – the need to control

Race 2 Globalisation and Harmonisation – the proliferation of regulation

Race 3 The Regulation of Aviation – Parental Law

Race 4 Change is in the Air – Technocentricity

Race 5 The Regulatory Compliance Handicap

Race 6 The Safety Quinella – What does it look like?

Race 7 The Safety Quinella – How to structure your organisation?

Race 8 Barriers to achieving a Safety Quinella

Race 1 the birth of aviation

The need to control

The birth of aviation: the need to control

1783 The Montgolfier Brothers first manned flight

1784 The Paris Police require Special Permits to fly

1914-1919 World War 1

1919 Paris Convention

1920 Air Navigation Act (Cth)

1939-1944 World War 2

1944 Chicago Convention

1947 Establishment of ICAO

Chicago convention 1944

Article 1

The High Contracting Parties recognise that every Power has complete and exclusive sovereigntyover the air space above its territory.

Something different about aviation

“Strange as it may seem to us today, weary veterans of crowded commercial airliners and depressing airports, the invention of the airplane was at first perceived by many as an aesthetic event with far reaching implications . . . that excited people's imagination and appeared to guarantee the coming of a New Age … its invention nonetheless inspired an extraordinary outpouring of feeling and gave rise to utopian hopes and gnawing fears.”

Bartsch R, Aviation Law in Australia, 2010

Race 2 GlobalisAVIation

The proliferation of aviation

Globalisation & harmonisation: the proliferation of regulation

  • Unlike the established customary law of the sea that had developed over centuries, aircraft, virtually overnight, became capable of transporting large numbers of passengers between legal jurisdictions at previously unimaginable speeds.

  • Legislation was simply the onlymeans available of ensuring this new technology was suitably harnessed

  • A new form of law is of necessity being created overnight to take the place in air that Admiralty has gradually developed through centuries upon the sea

  • In respect to air law the law was developing at the same speed at the invention itself

  • Bartsch R, Aviation Law in Australia, 2010

Globalisation & harmonisation: the proliferation of regulation

  • Aviation regulation developed from a need to “protect” nations

  • Today aviation is generally considered to be “the most extensive and strictly regulated human activity” (Milde 2008)

  • 190 of United Nations’ 192 Members have adopted Chicago Convention

  • Governments owned airlines and wanted to protect them

  • Australia’s Two Airline Policy 1952-1990

Globalisation & harmonisation: the proliferation of regulation

“You can't be a real country unless you have a beer and an airline. It helps if you have some kind of a football team, or some nuclear weapons, but at the very least you need a beer.”

  • Frank Zappa

Race 3 regulation of aviation

The development of Parental law

The regulation of aviationthe development of parental law

  • Back in 1784 authorities (French Police) wanted to control aviation

  • Two World Wars – control aviation due threat to national security

  • Governments owned airlines and protected them by controlling them

  • Military influence over aviation activities through regulation

  • Australia’s Two Airline Policy (1952-1990)

The regulation of aviationthe development of parental law

Concepts of “command” and “command authority” are commonplace in both admiralty law and air law regimes – but those ideas are not common in the civilian world outside aviation – except in the case of “parental authority”

Regulation of “adult behaviour” is more commonly developed via participatory processes whereby the law is said to derive its authority from the “consent of the governed” or because it's clearly for the common good – at least in most western Parliamentary democracies.

Bartsch R, Aviation Law in Australia, 2010

Aviation industry : “Just tell us what to do and we’ll do it!”

the development of parental law

  • Own experiences in being “taught/told” aviation

    • Don’t touch navigational aids when you are a VRR pilot – don’t question authority

  • Airline experiences

    • Tenerife 1977 - Cockpit Authority Gradient

    • First Officers (FAGOs) – Second Officers as Captains’ ‘Sexual advisors’ (circa 1980)

  • Regulator experiences in Australia

    • Perpetuation of Australian “Peculiarities” (Aircraft certification, medical examinations, CIR tests, use of night goggles, introduction of A330, etc) Dick Smith’s Two Years in Aviation Hall

  • Male dominated authoritarian culture

    • Deborah Lawrie (nee Wardley) first female airline pilot – end of 1979

    • First female “examiner” of airmen in Department of Aviation in 1984

The regulation of aviation

  • “By mentioning the word "safety" whenever they believe their unfettered control is threatened, or if anyone queries their deliberate preference for granting selective dispensations instead of updating a regulation. This maintains the enormous power base of the bureaucrats concerned.”

  • Dick Smith Two Years in the Aviation Hall of Doom December 1984

  • “Now there is a culture of change aversion that has effectively removed Australia from identifying and participating in improvements to air safety.”

  • Dick Smith Ten years of Aviation Safety Neglect July 2010

Compliance does not guarantee safety

Race 4 change is in the air

Systems approach and Technocentricity

Change is in the airsystems approach and Technocentricity

  • Deregulation of United States airline industry in1978

  • Economic liberalisation of the 1980s

    • Use of market forces to achieve economic outcomes

    • British Airways privatised in 1987

    • Qantas Airways in 1993

  • Systems approach to aviation safety

    • Entry of Low Cost Carriers (LCC)

    • - Increased competition and diversity of aviation industry

    • Introduction of new technologies

Change is in the airsystems approach to aviation industry

  • Adoption by ICAO of a systems approach to safety management and safety oversight in the early 1990s

  • BASI Monarch Airlines Report systems investigation in 1993

  • Professor James Reason’s Accident causation model in 1997

  • Organisational accident v individual accident

  • CASA’s first systems-based audit in 2000

Professor James Reason's Accident Causation Model is used today by many organisations, and in particular within civil aviation, as the basis for risk assessment and safety management systems

Change is in the airsystems approach to aviation industry

  • Reason's accident causation model has been supported by ICAO and recommended (in Annex 13) for investigating the role of management policies and procedures in aircraft accidents and incidents

Reason’s accident causation

Latent conditions



Active failures

Workplace conditions


Causal nexus and accident causation

In the tort of negligence, the term causal nexusrefers to the unbroken chain of events – “causation” – that leads to some kind of damage recognised by the law. If the chain is broken, between the defendant's alleged negligent act (or omission) then liability is avoided

Within an organisation, if the causal nexus is broken (for instance, by the occasioning of a defence) then an incident or accident is averted

Case study of causal nexus

On 1 July 2002 a mid-air collision between a Russian passenger Tupolev Tu 154 and a DHL-operated cargo Boeing 757 occurred in Swiss-controlled airspace over Lake Constance near the town of Überlingen in southern Germany.

In September 2007 a Swiss court convicted three Skyguide ATC managers (employees of the ATS provider) on charges of negligent manslaughter and negligent disruption of public transport and sentenced each to one year prison.

Courts approach to accident causation

The judge held that the managers had failed to exercise sufficient care and were convinced that this tragedy was attributable primarily to systemic causes in the interplay between people, technology and procedures.

The premise is therefore that no longer can management feel that they can remain aloof or removed from the actions of those whom they employ, and that the latent conditionsor active failuresbuilt into the culture and operating practices of the organisation are an integral component of their management responsibilities.

Case study 2 – Mid-air collision

It is interesting to compare and contrast the approach of the European courts some 30 years before the Überlingen accident relating to a mid-air collision between an Inex Adria DC-9 and a British Airways Trident over Zargrab in 1976 resulting in the deaths of all 176 aboard both planes. This was, at the time, the world’s worst mid-air collision.

The assigned air traffic controller was the only person found guilty and in 1977 sentenced to 7 years imprisonment despite the flawed ATC system (latent condition), lack of resources (workplace conditions) and outdated and faulty equipment (active failures) and local triggers at the time.

This case highlights the significant shift in the approach of both the courts and accident investigation agencies into aviation accidents in the 30 years leading up to the Überlingen trial in 2007.

Change is in the airaviation as a technocentric industry

  • ICAO mandating of safety management systems

  • SMS “tailor-made” for each organisation

  • Outcome-based legislation style (CASRS – EASA style)

  • Safety cases and Expositions

Change is in the airaviation as a technocentric industry

  • “Regulatory reform processes are particularly important for rapidly changing industries … As novel technologies are developed increasing attention is required to ensure work is done now to both remove old/defunct regulation to ensure it does not prevent the uptake of new technologies or adversely biases investment decisions as well as plan for new regulatory frameworks to suit the new technology.

  • Due to the pace of technology change, regulation that is technology-dependent can be quickly outdated. New regulation therefore needs to be de-coupled from specific technologies to avoid being readily surpassed.”

  • Lateral Economics, Beyond Taylorism: Regulating for Innovation (2007)

Race 5 regulatory compliance handicap

Regulatory compliance handicap

  • Aviation industry has been ‘conditioned’ to accept authority (“parental law”) and often equate regulatory compliance with safety

  • Aviation regulators have traditionally been responsible for telling industry not only what to do but also how to do it – military influence

    • - examiners of airmen v safety auditors and inspectors

  • Regulatory framework traditionally was highly prescriptive

  • Both the industry and the regulator require a paradigm shift

Regulatory compliance handicap

  • Without denying the importance of regulatory compliance as one of the fundamentals of aviation safety, the limitations of regulatory compliance as the mainstay of safety have increasingly been recognised, particularly as complexity of aviation operations, and the systems that support them, increases. It is simply impossible to write, in advance, regulations that provide guidance for all conceivable operational scenarios in an open and dynamic system such as aviation; just as it is impossible to entirely pre-specify, in advance, the spectrum of variables in the operation of the aviation system.

  • Outcome-based legislation requires outcome-based solutions

Bartsch R, Aviation Law in Australia, 2010

Regulatory compliance handicap

  • Too often both regulators and industry alike resort to prescription as their ‘comfort zone’

  • Both the industry and the regulator require training in a new approach to safety regulation and safety oversight

  • Instances of regulators requiring conformance with outdated or inappropriate application of regulation

  • - the story of the safety asterisk*


Where do

you want the



reporting culture required

Management acknowledgement


Those at the coal-face are most likely to know how best to do their job – efficientlyandsafely

So how does the aviation community benefit from the new regulatory benefit from the new regulatory regime?

“Regulatory compliance should not create an additional burden on an organisation if it provides little or no safety benefit, but should rather be an outcome of a system specifically designed to support the organisation’s safety operations.”

Extract from CASA letter to Airline CEOs, June 2007

“I don’t want your opinion –

just show me your safety case”

John McCormick


“The purpose of ICAO is to develop the principles and techniques to develop the of international air navigation and to foster the planning and development of international air transport so as to insure the safe and orderly growth of international civil aviation throughout the world”

Article 44, Chicago Convention 1944

“Initiatives aimed at introducing business efficiencies are by no means contrary to flight safety. Indeed, the systems necessary for good safety management and good business management share much

in common.”

ATSB Report, Investigation of Ansett Australia Maintenance, 2000

So how does the aviation community benefit from the new regulatory benefit from the new regulatory regime?

quinella(kwiˈnelə)n. 1. A form of betting, especially on horse races, in which the punter, in order to win, must select the first two places in a race, in any order. 2. safety quinella, vb especially in aviation, an action or procedure that results in a win or gain in bothbusiness efficiency andsafety,inanyorder.

The Safety Quinella!

Race 6 the safety quinella

What does it look like?

What does a safety quinella look like?

Example 1: Landing a B747-400 with flaps 25 and with idle thrust to reduce wear of carbon brakes to save money?


A safety quinella

Example 2: Introduction of automatic dependent surveillance broadcast (ADS-B) satellite navigation for all aircraft using instrument flight rules?

Yes . . . We have A safety quinella

  • "We must deliver on efficiencies that make

  • aviation economically viable . . . more efficient

  • flight paths can cut travel time, reduce congestion and delay and make life better for flying passengers

  • . . . fuel burn will be lower and noise emissions can be reduced for better environmental outcomes.”

  • "With these twin achievements, we know that our industry will be able to deliver better safety through greater visibility of aircraft as they track through the sky”

  • Alan Joyce, CEO Qantas Airways Limited

Steve Creedy, Air traffic systems 'must be updated', The Australian, 4 June 2010

Race 7 the safety quinella

How to structure your organisation

STEP 1: integrate all risk into one system

A risk . . .

is a risk . . .

is a risk.

STEP 2: create a single safety culture

  • A healthy safety culture can only be created by demonstrated commitment to safety by the most senior management

  • Safety departments don’t do safety

  • Responsibility for managing risk should be at thelowest appropriate level

  • Accountability for safety remains at the veryhighest level


reporting culture required

Management acknowledgement


Those at the coal-face are most likely to know how best to do their job – efficientlyandsafely

So Is your rose garden in order?

Are all your organisation’s risks being effectively managed?

Do you have onesystem and oneculture?

Or do you have some wildroses growing?

Fuel hedging risks?

Cathay Pacific losses of HK$7.6 billion for 2008?


with anti-competition legislation?

Qantas Airways fines and penalties for freight cartel:

2007 US 61M (Dept of Justice)

2009 CAD .155M (Canada)

2009 AUD 20M (ACCC)

  • 2011 US 26M (Class action)

  • 2011 NZ 6.5M (Regulator)

  • ???? USD 200M Class Action in Australia with other airlines

What other risks are

not being effectively managed?

Race 8 the safety quinella

BARRIERs restricting your organisation

The safety quinellabarriers restricting your organisation

  • Poor safety culture

  • Ineffective risk management systems

  • Inadequate understanding of new

  • regulatory philosophy

  • Poor relationship regulator v industry

  • Lack of understanding and inadequate/inappropriate training of new safety regime

barriers restricting your organisationPoor safety culture

  • Poor culture in management

  • - practice safety rhetoricrather than safety culture

  • - see FRMS rather than

  • approved Fatigue Risk Management System

  • - see CAMOrather than

  • approved Continuing Airworthiness Management Organisation

  • - lack of genuine commitment to safety

At Acme Airlines

our number one priority is safety!

blah, blah, blah, blah, blah . . .

So what are you doing about it?


At Acme Airlines

Our number one priority is maximising return on investment for shareholders

So what are you doing about it?

I’m managing a safe and efficient airline!

barriers restricting a safety quinellainadequate knowledge, understanding and training

  • Training in safety systems

  • Training in risk reporting and risk management

  • Understanding and acceptance of new

  • regulatory philosophy

  • Training of both regulator and industry required

barriers restricting a safety quinellaPoor relationship between regulator and industry

  • Relationship must be founded upon mutual respectbetween the parties

  • The ‘end game’ should be the same for both – safety outcomes

  • Trust can only develop through open and honest communication

  • Regulator needs to be fair, consistent and firm

  • Tension between the regulator and industry from time to time should not be seen as necessarily bad – but rather as part of a normal relationship

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