Safe to report to us, says Forsyth

Aviation Safety Regulation Review (ASRR) Panel Chairman David Forsyth has responded briskly to concerns over the confidentiality of submissions to the review and the possibility of regulatory retribution.

Several industry stakeholders had contacted us with worries that the present legal framework provides ample opportunity for the regulator to harass its critics administratively and financially to a non-survivable extent, and they quote numerous credible current and past examples of where, when and how this has been achieved.

Although senators had sought parliamentary privilege for people and organisations who lodge submissions, it has been explained that under the parliamentary rules, privilege can only be conferred on proceedings that are in fact part of the Parliamentary process, whereas the ASRR’s review is at the behest of the Minister, not the Parliament but is not an instrument of the parliament.

Mr Forsyth says: “We’ve been to the Attorney General’s Department and ask them about what can and what cannot be done in terms of parliamentary privilege, and the legal advice that came back is as follows:

Parliamentary privilege cannot be conferred by Parliament or the Senate or a Senate committee, on proceedings or activities which are in fact not part of the proceedings of Parliament. So parliamentary privilege only applies to proceedings in Parliament. If a statutory invested protection which applies under the Act to parliamentary proceedings, it means all words spoken, acts done in the course of, for the purpose of, or incidental to transaction of the business of a house or of a committee.”

However, says Mr Forsyth, that doesn’t mean that security and anonymity can’t be protected, and formidable security safeguards have already been put in place at the ASRR’s office:

“It may not make your readers totally happy, because some would have been seeking parliamentary privilege. But what we’ve done – and we’ll be telling GA people this when we talk to them as well – the ASRR is now set up with its own offices, its own email addresses, its own files and its own security. It’s a totally separate office in a separate building, separate from the normal Department network.

“So there’s a wall around the review, around its files, around its information and around its people. Each person in the office has signed a confidentiality agreement and gone through all of the processes that generally apply to these sorts of reviews. The government actually does have a pretty good system for making sure that an Ombudsman has a wall around them which can’t be breached in terms of getting access to what’s been submitted and what’s been retained. We even have a safe in the office I’m sitting in at the moment, which is a substantial measure itself, because it used to be the Head of Government Security’s safe. We put anything in there that we’ve been given; we require an extra degree of security around it; and we already have one document in there.

“Everything potentially sensitive will be kept in the safe; it can only be accessed by one person and that person is not me; it’s one person who is general manager here. So even if I want to look at something there it’s got to go back to him. Anything we put in a safe we are not copying, there is an original in the safe, and that’s it. So if someone makes a confidential submission and wants it totally protected we can do that; no one can refer to it, and it goes back in the safe when the panel’s finished with it. What it boils down to I think, is if people don’t tell us what they want to tell us, we can’t do anything about it.

Mr Forsyth is also exploring other avenues to protect confidential submissions.

“I think if people saw the sort of lengths that they go to here and if they understand the lengths that governments go to, and are used to going to, to protect these sorts of enquiries – panels, the Ombudsman and so on, they’d feel a lot more comfortable. There may be some people who are never going to be comfortable, but from what I’ve seen of Ombudsman offices and other similar types of enquiry, the protection here is giving you 99% of what you want anyway, and it would be an absolutely exceptional set of circumstances for something you go wrong. Generally it would mean somebody there the leaking or breaking their confidentiality agreement, and I don’t think that’s going to happen. I think if somebody tried to extract vengeance because of a submission to our review, it would be pretty obvious that that’s what’s happened, and I just don’t think CASA would be that unwise. I think people are jumping at shadows, and I think it would be a great pity if they didn’t make submissions because it was perceived there was a risk.”

A cynical viewer from the industry whose views we respect, isn’t so sure:

“Well, we’ll see. The Panel acknowledges that all the submissions including confidential submissions may be made available to ‘interested government departments and government instrumentalities under certain circumstances.’ I personally think [CASA] are so thick-skinned, and so full of the ‘we’re the authority, so you can all get lost’ attitude, that they won’t care how open it is, because it will never get to the politicians and the general public in a way that will say ‘this is corrupt conduct.’ There are subtle ways they can shaft even somebody who’s made a genuine submission and set out all sorts of genuine and provable problems, but CASA can still just keep doing what they’ve done before: ‘Oh! This bloke’s got such a problem that we’d better conduct a special audit,’ and we all know that a lot of his problems are actually found in a special audit and draconian limitations put on his business. That’s the real problem the panel faces.”

Notwithstanding all that, ProAviation expects to be changing hats long enough to file a comprehensive submission.

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About Paul Phelan

Paul Phelan flew for over 50 years in private, charter, corporate and regional aviation, worked in senior management roles with a major regional airline, and retains his license. In parallel he has been writing for Australian and international aviation journals for well over 20 years on all aspects of aviation including aircraft evaluation, flying, industry affairs, infrastructure, manufacture, regulatory affairs, safety, technologies and training. He has won three separate National Aviation Press Club awards for "best technical aviation story of the year."

3 thoughts on “Safe to report to us, says Forsyth

  1. Carmel Piccolo

    Is this really Australia? Or Poland in the 60s??

    To quote Bruce Courtenay – “Cry, the beloved Country.”

    This is how people lose their Country.

    Before this Review gets properly under way, ICAC should become closely involved, to protect the interests of all parties. At the SLIGHTEST HINT of false or MISLEADING input, the matter should be reviewed on the spot (before becoming part of the body of evidence), with offender(s) subject to a predertimed mandatory legal punishment.

  2. ld

    Jumping at shadows… And we know who hides in there !

    I find the legal advise re parliamentary privlege….er.. confusing
    ie cannot be conferred by…a Senate committee

    When I lodged a submission for d) other related matters, Senate Pel Air Inquiry, they responded with “… it (my submission) has been ‘privleged’ and I must not relay that material to any other person, otherwise I would be in breach”
    Or have I misread the legal advice?. Just asking.

  3. Name witheld

    Hi Paul,

    The terms of reference in this are as follows:

    If you wish you make a confidential submission, you should indicate below and ensure your submission is marked confidential.

    Confidential submissions will be kept securely and will only be disclosed in the following circumstances:

    # 1 In response to a request by a Commonwealth Minister;
    # 2 Where required by a House or a Committee of the Parliament of the Commonwealth of Australia; or
    # 3 Where required by law.

    In limited circumstances, confidential submissions may also be disclosed within the Commonwealth of Australia, including with other Commonwealth agencies, where necessary in the public interest.

    Item # 3 above – this is so loose, that a subpoena issued against the committee on a specific person/organisation would be likely to be successful. In such a circumstance, why would anyone put themselves in the way of CASA by giving a submission to the Forsyth committee without privilege similar to that which the Senate offers?

    The information that I have viewed in a number of cases supports a view that CASA will do anything to get at individuals or organisations.

    This is an untenable situation as the cost to “fight CASA” is beyond the means of most people. The result is loss of people from the industry who are well able to sustain a defence under normal circumstances.

    The changes CASA is making to the regulations further strengthens the power of the regulator, with the use of non-defendable “statutory fines” and the use of section 30 investigators with seemingly superman powers.

    Also, the CASA litigious misuse of the AAT and the Federal Court is a threat beyond comprehension.

    Yes the industry must be “concerned”, angry even about the direction that this inquiry is taking, particularly where this direction seems to be driven by the Department, not the Senate, and by Minister Truss himself.

    The appointment of a senior [or former] member of CASA’s senior management team [Mr. Richard Farmer] must also be queried, as to the appointment of Phillip Reiss [AOPAA President] representing fewer than 800-odd members.

    We must have -bridled confidence in this process. At this point in time Mr. Forsyth has not convinced me and the article in the Australian, with the header line: “Safety panel no place for rage: Forsyth.”

    Why would individuals and organisations not be angry? This inquiry is the result of building anger in the industry.

    Re-format and protect the incoming information and there will be an excellent outcome. The challenge is for Mr. Forsyth to seek this solution by re-assessing what is already being conveyed to him.

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