Submission to Aviation Safety Regulation Review
ProAviation, updated February 21, 2014
We havn’t been able to make the automated index function work in this post. Following are the principal headings in the correct sequence. We’re working on a fix for that. Meanwhile the ten case studies which were part of the submission are published in ten separate articles on this site. (listed below)
Case studies – Please note each of the articles listed below is published as a separate article on the site, not in this document.
Case study 02 – Birds? What birds?.
Case study 03 – Persecution in the Pilbara.
Case study 04 – Dudding the delegate.
Case study 05 – Publish and be damned.
Case study 06 – Dad’s Army revisited.
Case study 07 – Outing Ord Air
Case study 08 – Two weeks of shame.
Case study 09 – A Carefully Mismanaged Stuffup.
Case study 10 – How wrong can you get it?.
This submission concludes that a pervading “culture” exists within the Civil Aviation Safety Authority that has degraded relations between the regulator and most industry sectors to a point where it is impacting negatively on air safety in ways that we illustrate by reference to examples.
It is submitted that this culture has developed, evolved and progressively expanded and consolidated since CASA was established in July 1995 and first designated as an independent statutory authority. We believe several symptoms of the existence of this culture can be identified in the examples we cite, and that it is manifested by the interaction between CASA departments which our examples illustrate.
It is acknowledged that a number of quality employees remain employed by CASA, although their numbers are reducing and their capability to influence the way the regulator carries out its functions has been so limited that numerous key figures have voluntarily left the organisation.
A majority of the aviation stakeholders we have consulted observe that the embedded anti-reform culture still exists and thrives within the organisation. They point out that it has already survived several high-level enquiries; and that events have proven that no reform can be effective unless those influences are identified and permanently negated.
CASA has operated, and continues to operate under the notion that to be legal is to be safe. Nothing could be further from the truth, particularly when the industry is forced to operate under flawed and ambiguous legislation while separate offices; and at times different officials in the same office, make differing decisions when applied to different operators requesting identical approvals.
We consider the situations we detail demonstrate that solutions cannot be developed and implemented without significant amendment to the Civil Aviation Act and Regulations.
Our submission is based on current and past research, some of which has been previously published in articles that are now part of this analysis. Those articles, whilst not always identical with the original, have only been reviewed to the extent necessary to bring them up to date, in some cases by adding a “sequel.”
We note the Minister’s advice that:
[The review] will not be reopening previous air safety investigations nor will it be a forum to resolve individual complaints or grievances. It is about the future regulatory challenges and growing our industry.
In that context we respectfully submit that the case studies which we reference clearly typify both past and current regulatory processes, and that this can also aid in identifying changes that will be necessary to regularise the management of similar events into the future. Furthermore, the point must be made that some individuals are more frequently involved than others in both past and contempoary cases, and that a number of these still occupy positions that offer opportunity for continued misconduct.
We emphasise that matters we quote as examples represent only a fraction of the material that is stored in our files. Much of this material comprises matters which we submit would warrant completely independent external investigation.
Some of the regulatory adventures detailed in the case studies are related to the regulation of flight operations by flying operations officers and their supervisors. Some are related to airworthiness and principally involve airworthiness inspectors and their supervisors.
However, they all involve CASA lawyers in varying roles. Additionally reporting to the General Counsel and Executive Manager of the Office of Legal Services, are the office that attends to freedom of information applications, the investigations office which oversees the activities of CASA investigators, and the Senior Advisor, Enforcement Policy and Practice, whose responsibilities are detailed by CASA as “developing enforcement policy, strategies and procedures, coordinating enforcement and monitoring, on a centralised basis, all aspects of CASA’s enforcement related activities.”
We also draw the Panel’s attention to a major “enforcement” event which is still current; and which calls for close attention as to CASA’s decision making and conduct throughout the processes of investigation and subsequent enforcement activity. This is the process by which Barrier Aviation is currently being managed out of existence.
None of this analysis is intended to denigrate individuals or organisations. Instead we recount events and leave the Panel to form its own impressions. Our own opinions when expressed are labelled “Comment:” and represent the opinion of the author and/or the publisher.
This submission acknowledges and conforms to the Panel’s Terms of Reference for the review and under separate headings, variously addresses each item as follows:
- the structures, effectiveness and processes of all agencies involved in aviation safety;
- the relationship and interaction of those agencies with each other, as well as with the Department of Infrastructure and Regional Development (Infrastructure);
- the outcomes and direction of the regulatory reform process being undertaken by the Civil Aviation Safety Authority (CASA);
- the suitability of Australia’s aviation safety related regulations when benchmarked against comparable overseas jurisdictions; and any other safety relatedd matters.
Credentials & motivation
ProAviation was established as a not-for-profit web based journal with a readership comprising people who are principally engaged in the operational areas of flight operations, aircraft maintenance, repair and overhaul, accident investigation, operational and airworthiness administration and matters related to regulatory affairs.
Publisher, Stan van de Wiel:
Involved in Commercial aviation since 1966, most of Stan’s (circa) 24,000 hours having been accrued in management and the training of pilots on three continents. He believes the basics learned by starting off on Auster and DH82 aircraft, have stood him well in an incident-free career: “I can proudly say that none of my protégés has been involved in any major incidents, although regrettably two were killed over the Sudan, having been shot down in separate incidents.
“My interest in ProAviation.com.au, as publisher and contributor, is to foster aviation in Australia which, mainly at the hands of government and CASA, has in my opinion seen a drastic decline at a time when it could be a leader in providing pilots globally.”
Stan also acknowledges that he has outstanding issues with CASA which are related to a regulatory action against him, which are detailed in the article titled Shooting the Messenger.
Editor, 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 a CASA 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, navigation technologies, regulatory affairs, safety and training. Senior journalism appointments have included those of editor, Australian Flying magazine, and Australian Correspondent of Flight International.
Three articles that are reproduced in this report have won the National Aviation Press Club award for “Aviation Technical Story of the Year.”1
Paul has also operated as a flight operations consultant, assisting operators, prospective operators and pilots in their dealings with the regulator.
Our original submission to the Review Panel was submitted at a point where it was less complete than we would have preferred but comprised all that was possible within the time frame. As we advised at that time, we are now publishing this update of our submission and it is provided to the Panel as a courtesy in the event that it is convenient to accept the updated version. Significant alterations to the original are marked with the black sidebar on the left side, and are largely but not exclusively under the headings of
- regulatory development program,
- compliance and enforcement, and
- avenues of redress.
In the version on our website, the supporting “case studies” will be published separately for technical Internet-publishing reasons, while the re-submitted update will contain the same studies in the one file.
We recommend that various matters raised in this submission might effectively be referred to the indicated agencies for specialist input:
- Australian National Audit Office (ANAO) in respect of aspects including the budget performance of the RRP against its targets, management of the program, whether there is a strategy to bring the project to a credible and viable conclusion, and above all the question of why the RRP has not yet completed the enactment of a regulatory suite that is workable to industry, compliant with international obligations, and in accord with the Constitution and government guidelines.
- Productivity Commission in respect of aspects including the high costs of technical staff recruitment, training and turnover, allocation of resources measured against achieved safety outcomes, the engagement of consultants and contracted former employees, the cost to the public of apparent legal adventurism in pursuit of spurious enforcement actions, the performance and costs of the expanding aviation medical department, and the cost to the public and industry of operating the “Permissions Centre” and its service delivery. Also requiring assessment is the framing of regulations, practices and procedures in a way that has already begun to enshrine ongoing micromanagement and its associated costs to a level that is globally unprecedented and therefore threatens industry competitiveness now and in the longer term.
- Attorney-General’s Department in regard to compliance in the RRP process with the guidelines provided by:
- The Australian Law Reform Commission Report 95: Principled Regulation and the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.
- Australian Law Reform Commission whose newly-announced Australian Law Reform Enquiry will review Commonwealth legislation to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges. We submit that several examples of such provisions are likely to be identified in recent aviation legislation and also that the commission may be an appropriate agency to review some of the matters we raise.
- Model litigant obligations set out by the Attorney General’s Department.
- Australian Federal Police as to whether in some cases, criminal misconduct has occurred, and as to whether existing oversight of the regulator is adequate in that regard.
Regulatory reform program
We acknowledge that some of our comments on the current state of the program may be outdated by events because the situation is made extremely fluid at this time by the flow of legislation and amendments.
Our analysis of these issues is contained in a slightly updated version of an article titled To Hell with the rules, first published in October 2010 and re-published in this submission. We believe that this article presents some highly relevant but lesser-known insights and significant indicators for potential reform.
The article demonstrates that the regulatory review program has been no more than an embarrassing failure in terms of delivering on its stated goals. To support that observation, we cite just a few random examples of actual statutes that have been passed into law as amendments to existing legislation:
61.530 Aeronautical experience requirements for grant of private pilot licences—helicopter category
(1) An applicant for a private pilot licence with the helicopter category rating must have at least 35 hours of aeronautical experience that includes:
(a) at least 30 hours of flight time as pilot of a helicopter; and
(b) at least 10 hours of solo flight time in a helicopter; and
(c) at least 5 hours of solo cross‑country flight time in a helicopter; and
(d) at least 2 hours of dual instrument time; and
(e) at least one hour of dual instrument flight time in a helicopter.
Comment: We are advised by helicopter industry sources that:
- Approximately 90% of all helicopter operations in Australia are conducted under the visual flight rules (VFR). Therefore the same percentage of aircraft are not equipped for instrument operations or training. Very few helicopter training schools would be equipped with the certified flight instrumentation and navigational systems necessary to provide the training
- A similar percentage of helicopters are not equipped for operations under instrument flight rules (IFR) for two reasons. Firstly the aircraft are not required to operate under the IFR, and secondly the cost of initial training and ongoing proficiency checking would make no sense in terms of business or safety.
- The industry’s aversion to the fitment of unnecessary systems is largely due to the high maintenance/replacement costs caused by vibration in helicopters.
- The training would normally have to be conducted in a different helicopter (or flights training device) of the type which the student would be completely unfamiliar.
- The minimum instrument flight training prescribed under the regulation would therefore be worse than useless in terms of pilot proficiency, aircraft utility or safety.
- Comment: The requirements specified for commercial helicopter pilot licence holders under regulation 395 (at least 10 hours of instrument time and at least five hours of instrument flight time in a helicopter) are objectionable to the industry for the same reasons
61.370 Provision of photograph
(1) The holder of a flight crew licence commits an offence if:
(a) the holder exercises the privileges of the licence after the end of 10 years beginning:
(i) when the licence was granted; or
(ii) if the holder holds more than one flight crew licence—when the holder’s most recent licence was granted; and
(b) the holder has not, before the exercise of the privileges, given CASA a photograph of the holder:
(i) showing the holder’s full face and his or her head and shoulders; and
(ii) taken not earlier than 6 months before the end of the period mentioned in paragraph (a).
Penalty: 50 penalty units.
An offence against this regulation is an offence of strict liability.
Comment: CASA doesn’t provide photo identification on the pilot licences it issues, so despite the gravity implied by the specified maximum available penalty, it is unclear (a) what impact non-compliance would have had on ensuring the safety of air navigation, and (b) what on earth motivated the legislative drafters to solicit such priceless “gifts” under threat of a 50-unit (currently $5,500) fine?
To be fair, following industry ridicule this regulation was repealed shortly after it was published; however it does appear to reflect on the training, guidance and motivations of people tasked with writing the regulations, and it is only one of thousands of examples of compulsive over-regulation. It also appears to represent an unnecessary breach of privacy to store data of this kind when there is no apparent “safety of air navigation” benefit while doubtless at least the equivalent of one employee would be required for management and storage. Let’s say at least $150,000 a year including oncosts.
219 Route qualifications of pilot in command of a charter aircraft
(1) A pilot is qualified to act in the capacity of pilot in command of an aircraft employed in charter operations if the pilot is qualified for the particular route to be flown in accordance with the following requirements:
a) The pilot shall have an adequate knowledge of the route to be flown, the aerodromes which are to be used and the designated alternate aerodromes, including knowledge of:
(i) the terrain;
(ii) seasonal meteorological conditions;
(iii) the meteorological, communication and air traffic facilities, services and procedures;
(iv) the search and rescue procedures; and
(v) the navigational facilities associated with the route to be flown;
(b) If the flight is to be conducted under the Instrument Flight Rules, the pilot shall have demonstrated either in flight or by simulated means that he or she is proficient in the use of instrument approach-to-land systems which he or she may utilise in operations on that route.
(2) A pilot must not act in the capacity of pilot in command of an aircraft employed in charter operations if the pilot is not qualified in accordance with subregulation (1). Penalty: 50 penalty units.
(3) An operator must not permit a pilot to act in the capacity of pilot in command of an aircraft employed in charter operations if the pilot is not qualified in accordance with subregulation (1). Penalty: 50 penalty units.
(4) An offence against subregulation (2) or (3) is an offence of strict liability.
Note For strict liability, see section 6.1 of the Criminal Code.
Comment: the above regulation is an attempt to adapt the current CAR 218 (Route qualifications of pilot in command of a regular transport aircraft for the reason that ad hoc charter operations by their nature cannot provide a route checking system as RPT carriers do. (Otherwise operators would need to conduct a route check before each charter flight. It is a particularly ridiculous regulation because it attempts to define “an adequate knowledge of the route to be flown” without defining the word “adequate”, and providing a list of five dot pointed areas of knowledge which are accounted for under either the qualifications and proficiencies the pilot is already deemed to hold, or in the published information required to be carried on any flight.
Finally, this summary would be incomplete without a comparison with similar legislation in other jurisdictions. An example lies in a single regulation covering the “sharp end”:
Australia – 351 words
USA – 94 words
New Zealand – 96 words
91.060 Responsibility and authority of pilot in command
(1) The operator of an aircraft must ensure that the following information is available to the pilot in command of the aircraft to enable the pilot in command to comply with subregulation (5):
(a) the aircraft flight manual instructions for the aircraft;
(b) the airworthiness conditions (if any) for the aircraft;
(c) if the operator is required by these Regulations to have an operations manual — the operations manual;
(d) if the operator is required by these Regulations to have a dangerous goods manual — the dangerous goods manual.
Penalty: 50 penalty units.
(2) The pilot in command of an aircraft is responsible for the safety of the occupants of the aircraft, and any cargo on board, from the time the aircraft’s doors are closed before take-off until the time its doors are opened after landing.
(3) The pilot in command of an aircraft is responsible for the start, continuation, diversion (if any) and end of a flight by the aircraft, and for the operation and safety of the aircraft, from the moment the aircraft is ready to move until the moment it comes to rest at the end of the flight and its engine or engines are shut down.
(4) The pilot in command of an aircraft has final authority over:
(a) the aircraft while he or she is in command of it; and
(b) the maintenance of discipline by all persons on board the aircraft.
(5) The pilot in command of an aircraft must discharge his or her responsibilities under subregulations (2) and (3) in compliance with the following:
(a) the aircraft flight manual instructions for the aircraft;
(b) the airworthiness conditions (if any) for the aircraft;
(c) the operations manual (if any) as it applies to the pilot in command;
(d) the dangerous goods manual (if any) as it applies to the pilot in command.
Penalty: 50 penalty units.
Note These Regulations also contain other requirements and offences that apply to the pilot in command of an aircraft.
(6) An offence against subregulation (1) or (5) is an offence of strict liability.
91.3 Responsibility and authority of the pilot in command.
(a) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.
(b) In an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency.
(c) Each pilot in command who deviates from a rule under paragraph (b) of this section shall, upon the request of the Administrator, send a written report of that deviation to the Administrator.
91.203 Authority of the pilot-in-command
Each pilot-in-command of an aircraft shall give any commands necessary for the safety of the aircraft and of persons and property carried on the aircraft, including disembarking or refusing the carriage of:
(1) any person who appears to be under the influence of alcohol or any drug where, in the opinion of the pilot-in-command, their carriage is likely to endanger the aircraft or its occupants; and
(2) any person, or any part of the cargo, which, in the opinion of the pilot-in-command, is likely to endanger the aircraft or its occupants.
The Australian version, with exactly the same heading as the FAA uses, and similar to the NZ version, doesn’t even address the subject matter in the heading. It devotes the first 91 words (highlighted in blue typeface) to detailing some of the responsibilities of the operator – not the pilot in command. It then goes on to detail some (but not all) of the documents which CASA requires to be made available to the pilot in command during flight. These items are generally referred to as “shelfware”; a GA pilot’s description of in-flight documents that have no particular usefulness in flight but whose carriage is mandatory. Their principal purposes appear to be increasing the aircraft’s operating empty weight, cluttering the cockpit floor and its limited storage spaces, and obstructing escape routes in an emergency while also adding fuel to any resulting fire. Pilots are also warned that because of a common CASA practice of specifying the content and wording of operations manuals, the aircraft flight manual doesn’t always agree with the operations manual, and the AFM should be considered the overriding authority where there is a discrepancy. The preferred time to debate this is not when one is flying an aircraft.
The allocation of 50 penalty points for not having this library aboard is confusing as to who is committing the crime and who is incurring the penalty, because the heading of the paragraph conflicts with the duties attributed to the operator rather than those of the pilot.
The Aussie version then goes on to detail a few (but again far from all) of the many responsibilities of a pilot in command, by referring him (or her of course) to the shelfware that has already been listed once.
From this example it is clear that far from putting the “finishing touches” on Part 91, the serious work of developing intelligible and effective legislation hasn’t even started yet.
The US version says in 23 words, considerably more than CASR 91.060 says in its entirety, as well as adding a paragraph that intelligently permits pilots to deviate from the rules as necessary in an emergency, and a requirement to report the event (but only) if requested to do so.
Like the USA, the NZ regulations empower the pilot in command to make necessary decisions, the only special reference being specific authority to deny boarding to drunks and druggers.
In real life literally hundreds of duties and responsibilities are rightfully assigned to any pilot in command, and they are spelt out in the appropriate sections of any competently-written rule set. They are and should not be used as padding to project a false impression of regulatory diligence.
The new regulations are rich in similar examples.
Strict liability offences
It has been explained to us that offences are designated to be of “strict liability” so as to exclude intent from the elements defining the offence, and that for that reason the concept has no place in legislation on operational matters. It has also been explained to us that the reason that almost every regulation is assigned the maximum of 50 penalty points maximises the amount of the available administrative fine where that is an optional alternative to criminal prosecution.
We also submit that of all the regulatory material that has come to our attention, the most abused and therefore the most in need of reconstruction is S9A(1) of the Civil Aviation Act 1988, Polar Aviation being the best example. The next statute requiring urgent attention is the widespread abuse of the “fit and proper person” decision process.
Analysis: To Hell with the rules!
Author’s Note: This is an updated version of an article that first appeared in ProAviation in October 2010.
Reform of aviation regulation in Australia is further from becoming a reality than it has ever been since the need was first acknowledged and addressed 24 years ago. That is the collective view of senior industry figures who have been involved in the process almost since its inception.
The prime concepts driving the project that became known as the Regulatory Review Program (RRP) have always been:
- outcome-based rather than prescriptive regulation, which is the basis of aviation regulation in all other aviation-significant democracieis;
- alignment with overseas regulatory structures so that Australia could achieve true bilateral agreements with the leading overseas aviation authorities;
- ‘plain English’ rules that are easy to understand, administer and enforce;
- the elimination of wasteful and un-necessary administration, including evaluations of cost benefit and safety relevance;
- compliance in rulemaking with Australian law, government guidelines; international (ICAO) standards; and;
- two-tier regulation to replace the existing multi-layer regulation comprising the Civil Aviation Act, Regulations and Orders, policy documents, individual rulings and permissions, exemptions and other instruments.
Although endlessly repeated in political and administrative rhetoric right through the regulatory reform process, these goals have been almost completely ignored by well-placed CASA dissidents.
And worse, political pressure is now on Director John McCormick to rush the remaining legislation into Parliament regardless of its blatant non-compliance with founding principles.
This situation is no accident; it can only spring from deliberate corporate defiance of existing law, international standards, government directives and guidelines, and executive directions.
In September 2007 CASA admitted to a Senate committee that up to that time $144 million had already been spent on its Regulatory Review Program. It added that its estimate for the current year (2006-07) was $24 million, and the projected costs for 2007-08 were another $23 million. That pushed the expected total bill to a staggering $191 million in 18 years. Assuming conservatively that the following five years equalled the 2008 figure, we now seem to have run up a total bill for $306 million!
Former Program Advisory Panel (PAP) industry delegates now believe the situation will continue generating material that will eventually have to be reversed until CASA’s “resistance movement” is identified and dealt with, and until the RRP process is brought into uncompromising alignment with its stated goals and into compliance with published government policy.
This increasingly costly fiasco appears to be almost solely the work of former and present CASA lawyers, supported by the resistance movement of officials in airworthiness, flight operations and administration.
The obstruction was briefly circumvented in early 1997 when CASA’s Office of Legal Counsel (OLC) was bypassed. Since that time the CASA’s Standards Development Branch officials have reassumed the role, although neither the AGs nor CASA will explain when queried, why and how that reversal was achieved, and the process is back where it started.
The solution to the regulatory rewrite problem is simply to repeat the exclusion of CASA lawyers from the regulatory rewrite, purge the organisation of its “resistance movement” at any cost, and re-establish respect for the rule of law within CASA.
This analysis concludes that an equally valuable side benefit will be the cessation of hostilities between CASA and the industry it is supposed to be regulating.
* * * * * * *
In October 1996 CASA and its industry-based PAP were sparring over the format and content of Civil Aviation Safety Regulation (CASR) Parts 21-35.
Mr Peter Ilyk, then head of CASA’s ever-growing Office of Legal Counsel, was explaining that the draft CASR Part 21 which the Panel had favoured had been written in “American language” which wasn’t suitable for “Australian conditions.” He told the Panel it needed to be written in language that judges and the courts could understand.
That was too much for AIPA (Australian & International Pilot’s Association) President Bill Pike to swallow, according to witnesses who recall the scene clearly: “He got no further than that when Bill at the other end of the room blew his top, leapt to his feet, livid, pointed at Ilyk, and yelled at him: “I don’t want judges and bloody lawyers to understand it, I want the bloke in the cockpit to understand it!”
PAP member and highly-regarded aeronautical engineer Dafydd Llewellyn, recalls:
“That kind of intelligibility was achieved in Parts 21 – 35, and we do as a result now have something approaching a true bilateral airworthiness agreement with the FAA in the areas covered by those Parts; and we also (as a separate issue) now have a growing aeronautical component manufacture industry that is making replacement parts that are no longer available elsewhere for many aircraft types. This industry did not have a proper place prior to the introduction, in 1998, of Part 21, because the appropriate legislation for it did not exist before then. Bilateralism will make this an export industry. Further, the rules have been defined for MITCOM, (manufacture [of components] in the course of maintenance) and without both of these, aircraft maintenance in Australia would have ground to a halt. This piece of progress has NOT had any adverse effect on safety.”
A guide for the future
The smooth progress of Parts 21-35 has been explained to us by another PAP participant:
“In early 1997 a meeting took place between Transport & Regional Services Minister John Sharp, the then Attorney-General (Hon Daryl Williams), officials of the Attorney-General’s Department, DOTARS officials and CASA Director Leroy Keith. The issue was specifically whether the US FAA and UK CAA texts could be used. (In other words, could we harmonise?) CASA’s Office of Legal Counsel (OLC, now LSD) had obtained advice from AG’s that this could not be done. But this was in the days when the AG’s Department was competing with the private sector to give advice to government and therefore sought to please the ‘client.’ When it was discovered that the ‘client’ as represented by Leroy Keith and the Minister actually wanted to harmonise, all difficulties vanished and Parts 21 -35 largely reflect this success.”
This enabled lay draft regulations to bypass CASA’s OLC and go straight to the Attorney-General’s Office of Legal Drafting (OLD), now renamed Office of Legal Drafting & Publication (OLDP), and returned as intelligible legislation. At the same time an agreement was achieved between the Attorney-General’s Department and John Sharp as Minister for Transport that “plain English,” along the US style, could be used as was already the case with other Commonwealth legislation.
But if the current state of the maintenance regulations is an indication, that arrangement has since been sabotaged. We asked CASA if the arrangement had ceased, and if so when that was announced and why, and are still awaiting a reply. The AG’s Department is similarly unwilling to enlighten us.
We also asked CASA on October 1 if former CASA CEO Bruce Byron’s directives 16/17 were still in force, and if so why could they not be found on the CASA web site. CASA responded that: “The directives have been superseded by policies and this is why they no longer appear on CASA’s web site.”
The next question: “Perhaps you could direct me to the corresponding published policies?” also remains unanswered.
Several years after these events, promising “regulation with a capital R,” CASA Director John McCormick told the RAAA conference in October 2009:
“I’m not saying we won’t consult. I’ll say it again. We must consult with industry; the Civil Aviation Act requires that we do. CASA will continue to do that. But I’m not going to consult to consensus, because it’s impossible. There are various sections of the industry in Australia that hold such entrenched views that they are prepared to fight to the last man standing over something which I think in some cases is minuscule.”
The author has been briefed by several senior industry identities with deep backgrounds in the now 21-year-old RRP, who insist their concerns are far from minuscule. They believe that what is now happening with the development of the maintenance regulations will simply never work; that the whole process is foundering because of embedded opposition within the regulator, that compliance with guidelines, polices and directives has been thrown out the window, and that external intervention is now becoming imperative.
The PAP did not “consult interminably” as has been implied by some, including John McCormick. In fact while (then) CASA Director Leroy Keith was a member PAP decisions were always unanimous, and veto was never exercised, says James Kimpton, former Ansett executive responsible for government relations and regulatory affairs (1983 to 1999), who later chaired the PAP: “I did say that CASA needed to explain its decisions so well that they were accepted, and generally Leroy rose to this challenge.”
In September 1997 Leroy Keith left after the CASA Board passed a no-confidence motion in his management strategy. Given Mr Keith’s outstanding overall performance, especially in regulatory reform, this was a highly controversial event, and Board Chairman Justice William Fischer and member Dr Clare Pollock both resigned in protest at the Board’s handling of its Director.
At about the same time the New Minister for Transport and Regional Development, the Hon Mark Vaile MP, replaced Minister John Sharp, and Dick Smith was appointed Chairman, vowing at the PAP table that this time he would “get it right.” Industry believes Dick may now agree however that “getting it right” remains a challenge.
On December 9, 1998, John Anderson, then Minister for Transport and Regional Services, told the House in a second reading speech:
In July 1996 the government announced that the Civil Aviation Safety Authority, CASA, would conduct a complete review of the civil aviation legislation in Australia, with the objectives of harmonising it with international standards of safety regulation and making it shorter, simpler and easier to use and understand. This was also an election commitment in the government’s “Soaring into tomorrow” aviation policy statement. The Morris Plane safe report and the Seaview commission of inquiry both supported the need for a review of Australian regulations and standards.
The purpose of this bill is to facilitate the findings of the review and provides for the introduction of a new set of regulations which are harmonised with civil aviation laws internationally……….The amendments proposed in this bill will facilitate the long awaited introduction of a regulatory regime for the Australian aviation industry which is not only harmonised with international practice but clear, concise and outcome focused. The government’s commitment to deliver this objective has been realised.
Well, not quite. In October 2005 CASA’s (then) CEO Bruce Byron commissioned a comprehensive study of the agency’s regulatory structure by an “industry/CASA EASA (European Aviation Safety Agency) team.”
In the following year Byron, having briefly toured Europe and engaged with some of its EASA rule-makers, returned with the firm intention of enforcing the Government policy for outcome based-regulation justified by risk and cost benefits analyses. This would be done by replacing regulation that was currently under development, with a rule set based on EASA in what industry stakeholders described as “an ambitious but entirely achievable timetable.”
The new EASA approach, which Byron said already fitted Australian Government policy, was to develop new maintenance, repair & overhaul (MRO) rules that were closely harmonised with ICAO, EASA, FAA, and particularly Canada and New Zealand. This would replace CASA’s “Engineering Suite” which industry sources say comprised “some 9600 pages of complex and absolutely prescriptive maintenance laws, the breaching of any one of which would be a criminal offence.”
Because EASA did not yet have a full suite of general aviation MRO rules, Australia would draw on rules developed by a former consultative panel, abandoned in 2000, and on Canadian, US and New Zealand outcome-based rule sets with “acceptable means of compliance” customised for the Australian risk equation.
One stated outcome of the changes was to be that criminal offences would be limited to high-level genuinely criminal acts, as in other major aviation countries. All “unique” Australian rules were to go, and Australian aviation businesses of all sizes expected relief from what they described as a “regulatory straightjacket.”
Byron announced in a notice of proposed rulemaking (NPRM 0604MS) in October 2006 that CASA now planned to adopt a completely new regulatory format for the “maintenance suite” of regulations – CASR Parts 42, 66, 145 and 147. The NPRM explained in part:
Because of the availability of a new regulatory style pioneered by the European Aviation Safety Agency (EASA), CASA decided to amend the package of proposed regulations and commence a further period of consultation. CASA considers that it is necessary to seek comment on the changes made to the regulations as a result of areas of policy change and the new style of regulation writing. Some of these regulatory changes have, however, previously been consulted on.
One of the main drivers for Mr Byron to shift to the EASA style programme was that it could be delivered quickly and would purge the proposed Manuals Of Standards (MOS) of all the “hooks and barbs” that could be hidden in them. It was known that while CASA diligently consulted and produced some “vanilla flavoured” regulations, much of the MOS’s were not consulted on at all, and so became potentially a hidden “third tier of regulation” which industry believed would not be “disallowable documents,” and therefore not subject to Parliamentary scrutiny. At the time Byron stated that getting the maintenance regulations harmonised first would allow large Australian MROs to operate more effectively in the international market.
The NPRM commented at length on the out datedness and complexity of the existing maintenance regulations, their lack of conformity and harmony with international regulatory practice, and their lack of clarity and conciseness. The decision however virtually meant binning the newly developed rules which had been almost ready to be sent for drafting, and starting again in a format that blended with that of EASA. It also created the problem that EASA rules had no coverage of general aviation, as well as giving those CASA officials who were opposed to most of the guiding principles anyway, an opportunity to launch a campaign which would turn the maintenance regulations into the mess they now represent.
The airlines were satisfied with the EASA style Regulations as they were. As EASA had no general aviation regulations, CASA believed that Australia could provide a body of ready-made material that could easily be uplifted into the EASA format.
Work on that aspect has yet to begin.
The EASA decision was unpopular within CASA and with many in industry because it negated much of the regulatory development work already completed.
On Monday October 26, 2004, Bruce Byron held a meeting of all his executive managers in Melbourne. He announced major intended changes in CASA direction, including a requirement to move CASA out of the administration of private general aviation, to focus primarily on the oversight of passenger-carrying operations, including support sectors such as large MROs and airports, and detailed a new approach to regulatory reform, supported by specific directives, that would to return it to conformity with its by now often-stated goals.
On Friday of the same week in Canberra at a meeting of some, but not all CASA executive managers, the mood was one of outright revolt, with complete rejection of Byron’s announcements. Byron was not present and it is understood no minutes were kept.
Three separate sources say that ‘the feeling of the meeting,’ rich in expletives, was expressed in terms of “We are the safety experts, we’ll tell the bastards what the rules are, and what the policy is, and if they don’t like it, we’ll run them out of the industry.”
The meeting “agreed” that all the reform program changes put in place in 1996/1999 were a grave mistake, and they would put that right because the Government had “got it wrong”.
Obviously interesting times still lay ahead. In fact the meeting also “decided” that in the face of concerted opposition, Byron would back down and they would have a free run; that the DOTARS and the Minister would not stand in their way, so there would be no more “pandering to the industry” in terms of consultation.
One attendee at the meeting declared that all the changes the PAP had put in place were ‘not Government policy,’ notwithstanding that the PAP briefed the Minister monthly.
Only a few days after the meeting, Byron called in three of the executives without involving his Deputy and Chief Operating Officer Bruce Gemmell. The three, who left CASA almost immediately, included Bill McIntyre, CASA’s (then) Executive Manager of Standards who had overseen the controversial rule rewrite.
A month after the meeting, on 24 November 2004, Byron issued two directives to Gemmell, with immediate effect. They were clear and uncompromising, and again spelt out the goals of the program using now-familiar phrases.
Directive 16/2004 – Development of Regulations and the Regulatory Framework – set out to establish guiding principles for the development of the regulatory framework and to provide clear guidance for the development of proposed aviation safety regulations.
The regulations were to be developed on the basis of addressing known or likely safety risks, with each proposed regulation to be assessed against the contribution it would make to aviation safety.
Wherever possible, the CASRs were to be drafted to specify the safety outcome required, unless, in the interests of safety and to address known or likely aviation safety risks, detailed requirements were to be presented.
This is exactly what EASA rules deliver, and is why the EASA committee recommended to Byron that adopting EASA maintenance rules would achieve another of his objective which was:
“Wherever possible, aviation safety regulations are to be developed within a two tier regulatory framework comprising the Civil Aviation Act and the Civil Aviation Safety Regulations (CASRs), supported by advisory material that details acceptable means of compliance with the CASRs, together with appropriate guidance material.”
Manuals of Standards (MOSs) were to be developed only where there was a clear requirement, on the basis of safety, to mandate standards that for the purpose of clarity should not be contained in the Regulations.
Notably, the CASA lawyers had emphasised that a MOS would have to be referred to in the regulations, and would therefore become a third tier of legislation – highly undesirable and work-intensive when a MOS will contain material that needs regular updating in practice.
The content of proposed MOSs must also be assessed against the contribution made to aviation safety, and a MOS must only contain such standards as are clearly authorised by a particular regulation and must not be used as a vehicle for promulgating advisory material and other information.
And all proposed CASA Parts and MOSs were to be assessed against the guiding principles.
Directive 17/2004 – Regulatory Advisory Panels – required Regulatory Advisory Panels to be established in relation to each CASR Part under development, and the work of the panels to be separate from and additional to the existing consultative arrangements through the Standards Consultative Committee.
The RAPs were to advise the CEO on the proposed content of each CASR Part and, where applicable, the associated MOS, prior to publication of a Discussion Paper, NPRM or submission to the Minister, in relation to that Part.
The Advisory Panels would comprise:
- · Chair of the Standards Consultative Committee
- · Project Manager for the relevant Part.
- · Manager from the relevant Standards branch (nominated by EM Standards)
- · Member of the SCC (Nominated by the SCC)
- · Member of the ASF (Nominated by the ASF)
- · Inspector / Manager from the relevant area of Compliance (Nominated by EM Compliance)
- · Independent member of the aviation industry (nominated by the CEO)
- · Member of the Office of Legal Counsel (nominated by General Counsel)
- · Representative of the Department of Transport and Regional Services
- · Adviser from the Office of the CEO (Nominated by the CEO)
The Regulatory Advisory Panels, created after the Senate’s disallowance of Part 47, did useful work. James Kimpton chaired the only two that were convened, which sorted out difficulties with the very light aircraft amendments to Part 21 and Part 137 dealing with Aerial Agriculture. The third dealt with Part 99 (drug and alcohol testing.)
The directives, which were fully in line with (then) Minister Anderson’s comprehensive charter letter to Mr Byron on his appointment in November 2003, came shortly after the departure of the three executives. It sent a strong message to other officials still pushing for the mountain of regulation that had been under preparation since CASA set aside the industry consultation input of the PAP in the late 1990s. The directives represented a 180-degree turn away from “prescriptive” regulations whose development over the past six years had ploughed ahead in the face of vigorous industry opposition.
Among the remaining symptoms of substantial internal resistance to CASA reform, had been embedded contempt for the reform process, continued antipathy to the concept of industry consultation, the determination of CASA to walk away from modern regulatory frameworks and guidelines, a growing confrontational mentality that has further damaged industry relations, and an apparent absence of acknowledgement of, and compliance with, international obligations.
Byron continued taking a vigorous stance against the activities of staff who had since 2000 successfully delayed the implementation of government aviation regulatory reform policy. He removed the regulatory reform program from the general body of the Authority, and control of the program from the Legal Services Branch, to a new Planning & Governance Office reporting to the Office of the CEO. Major changes in the staffing of the Legal Services Branch occurred. He also set about ‘market testing’ all Canberra based support functions resulting in significant job cuts and cost savings, and commenced a process of moving operational activities out of Canberra.
Byron and a small team also got on with the job of internal reorganisation and restoring industry relations despite resistance at almost every step. They achieved some notable reforms including the removal of several employees and the sidelining of others to positions where they were less able to obstruct reform.
But now, , harmonisation with international regulation along with the long-sought simplicity, ‘plain English presentation,’ brevity, clarity and outcome-based format are now further away than ever, complain critics of the process who were experienced in regulatory development, and they believe they understand the reasons, pointing to the “Maintenance suite” of regulations as an example, and a possible key to the ongoing problem.
“Shorter” regulations in particular remain a fantasy. We are told for example that the USA’s equivalent Part 91 is about 33 pages when reduced to standard legislative A5; that New Zealand’s equivalent is about 39 pages; but that Australia’s Part 91 is about 250 A4 pages, which will probably increase to something like 350 pages when in A5 format.
Why so much more paper? The reason for this has been a stated insistence within CASA’s legal staff that “the government requires” that Australian aviation regulations must be framed in a criminal law format, along with penalties.
Nobody understands where this claimed “requirement” originates, least of all when they read statements like this one from the Australian Law Reform Commission (ALARC) Report 95: Principled Regulation:
Statement of Principle
The distinction between criminal and non-criminal (civil) penalty law and procedure is significant and adds to the subtlety of regulatory law. This distinction should be maintained and, where necessary, reinforced. Parliament should exercise caution about extending the criminal law into regulatory areas unless the conduct being proscribed clearly merits the moral and social censure and stigma that attaches to conduct regarded as criminal.
The ALARC Report also explains, for those who find that simple prescription hard to understand:
The main purposes of criminal law are traditionally considered to be deterrence and punishment. Central to the concept of criminality are the notion of individual culpability and the criminal intention for one’s action.
Another government publication goes into more detail. The Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers, published under the auspices of the Minister for Home Affairs and Justice and supported by the Criminal Justice Division of the Attorney-General’s Department, which has a role in advising on the framing of offences and other enforcement powers. The purpose of the guide is to assist agencies to frame these types of provisions.
That document further explains the concept of criminality in this context:
………..A key characteristic of a crime, as opposed to other forms of prohibited behaviour, is the repugnance attached to the act, which invokes social censure and shame.
Certain conduct should be almost invariably classified as criminal due to the degree of malfeasance or the nature of the wrongdoing involved. Examples include conduct that results in physical or psychological harm to other people (murder, rape, terrorist acts) or conduct involving dishonest or fraudulent conduct (false and misleading statements, bribery, forgery). In addition, criminal offences should be used where the relevant conduct involves considerable harm to society, the environment or Australia’s national interests, including security interests.
Since murder, rape, terrorist acts, false and misleading statements, bribery, forgery and similar offences are relatively rare events in maintenance hangars, critics of the proposed aircraft maintenance regulations are at a loss to understand why, despite all the published instructions to the contrary, the regulations should be thus framed, or for that matter who authorised these deviations from recommended practice, and why.
For any drafter who still doesn’t understand their obligations, the Guide offers further assistance to the decision-making process:
In many cases it will be difficult to determine when a given provision should be criminal or civil in character. Factors that should be considered in this context include the following.
- What is the nature of the conduct sought to be deterred? What are the circumstances surrounding the proposed provision?
- Where does the proposed provision fit in the overall legislative scheme?
- Does the conduct seriously harm other people?
- Does the conduct in some way so seriously contravene our fundamental values as to be harmful to society?
- Is it appropriate to use criminal enforcement powers in investigating the conduct?
- Is the criminal law appropriate for dealing with the undesirable conduct in question?
- How is similar conduct regulated in the proposed legislative scheme and other Commonwealth legislation?
- If the conduct has been regulated for some time, how effective have existing provisions been in deterring the undesired behaviour?
- What level and type of penalties will provide appropriate deterrence?
Yet the whole process has been beset by the “criminal code” mind-set for almost as long as anybody can remember, with repeated attempts to return the rules to the disastrous state that made reform necessary in the first place, and all along the way it has been resistance from Canberra and the varying policies and practices of successive CEOs – not the requirement to consult with industry – that has been at the heart of the endless delays.
We asked the Attorney-General’s Department what systems are in place to ensure compliance if differences have not been proposed and approved. The A-G Department will only say:
The Minister for Home Affairs and Justice, supported by the Criminal Justice Division of the Attorney-General’s Department, has a role in advising on the framing of offences and certain other enforcement powers. To assist agencies to frame these types of provisions the Department, with the authority of the Minister, publishes the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.
The Guide consolidates a range of principles and precedents relevant to the framing of offences and enforcement provisions to assist agencies to draft provisions.
Departures from the principles contained in the Guide may be necessary or justified in the context of a particular legislative framework.
The Senate Standing Committee for the Scrutiny of Bills and the Senate Standing Committee on Regulations and Ordinances regularly refer to the principles contained in the Guide when considering proposed legislation, and may draw Senators’ attention to provisions that depart from those principles.
This appears to say that regardless of all the guidelines, parliamentary explanatory memoranda, charter letters, ministerial and CASA executive directions, political statements about the program’s aims and something like 20 years of nonstop industry protest, The Attorney-General’s Department has handed back legal drafting to CASA officials who are acting in apparently reckless defiance of all of those definitions and prescriptions, and that the industry has no other apparent redress than to complain to a Senate committee after the damage is done.
One stated outcome of Byron’s changes was to be that criminal offences would be limited to high-level genuinely criminal acts, as in other major aviation countries. All “unique” Australian rules were to go, and Australian aviation businesses of all sizes expected relief from what they described as a “regulatory straightjacket.”
The in-house hostility to Byron and his reforms continued, and part of the process was a campaign to discredit him and members of his team. In the case of some team members, this took the form of formal complaints alleging a range of criminal misconducts. Each of these was duly investigated by external agencies, and found to be without merit. As he had foreshadowed since his appointment in 2003, Byron left CASA following completion of his five year term, although he stayed on for some months while the Government sought a replacement. The campaign against other executives however became so widespread and vindictive that several finally decided that enough was enough; that they could not hope to achieve what needed to be achieved in that working environment, and left the organisation.
Another new director
Byron’s replacement, John McCormick, joined CASA in March 2009. At least three involved aviation identities have since written personally to Mr McCormick expressing their continued concern over regulatory development, but say there has been no response.
Meanwhile the “legal drafting” process has turned Byron’s whole EASA based maintenance suite on its head, making it literally unworkable, according to individuals who are (or were) close to the process. But it appears that Director John McCormick, now under political pressure to end the 21 year old farce, is pushing ahead regardless.
Former AOPA President Bill Hamilton and Ken Cannane (who was CASA’s Acting General Manager of the Regulatory Framework Office, later its Head of Maintenance & Personnel Standards, and is now Executive Director of the Aircraft Maintenance, Repair & Overhaul Business Association) report that at the last SCC meeting, John McCormick virtually acknowledged that the resulting rules would not work, by announcing that in the future legislative instruments (in the form of variations, concessions and exemptions) would be used where the rules “don’t work”.
Some of Bruce Byron’s energies had been directed towards halting the widespread use of such variations, concessions and exemptions, as they were proof of the inadequacy of the existing rules – the whole reason for the reform program in 1996.
CASA advises that it is now its Standards Development Branch, not its Legal Services office, which provides OLDP with drafting instructions. We’ve now asked CASA: “What I am interested in, is the process by which the lay draft is converted by the Standards Development Branch into legalese and allocated penalty points, especially if lawyers are not involved?” Any response will be edited into this article with an explanatory note.
“There are mountains of important work still to do,” says Bill Hamilton. “We have no Part 91 [general operating and flight rules,] we have no Part 135 which is what we now call charter, no Part 121 [High Capacity Transport] and no maintenance rules, so we have none of the really important elements yet.”
Whoever is responsible, says Ken Cannane: “instead of harmonisation we have wound up with a draft set of maintenance rules that is unlike anything anywhere else in the world, and a stream of legislation still to be developed, examined, approved and published.”
An example is (our highlighting):
145.065 Provision of maintenance services
(1) If a Part 145 organisation provides maintenance services, it must provide the services only in accordance with:
(a) its exposition; and
(b) the approval rating for each class of aircraft or aeronautical product for which the organisation is approved to provide maintenance services; and
(c) the approval rating for each specialist service that the organisation is approved to provide; and
(d) any limitations applying to an approval rating mentioned in paragraph (b) or (c); and
(e) the privileges that apply to the approval rating under the Part 145 Manual of Standards.
Penalty: 50 penalty units.
(2) An offence against subregulation (1) is an offence of strict liability.
Ken Cannane comments:
“That a subjective interpretation of completion of a maintenance task could constitute a 50 point strict liability offence is absolutely unacceptable, and appears to be a complete breach of the Office of Home Affairs guidelines for establishing criminal offences — but nobody in CASA seems to care.
“The very concept of being able to write an exposition (maintenance procedures manual) that covers each and every process, in detail, for each and every aircraft, is lunacy of a high order. The idea that each and every company’s ‘Operations Manual’ or ‘Maintenance Manual’ is to be subject to Parliamentary disallowance —- words fail me !!!!”
“The Guide is quite clear in how you apply ‘strict liability’. An Exposition or MoS are not legislation, so local interpretations will apply. How can you be held accountable to documents that are not in legislation? Expositions are not subject to Parliamentary scrutiny and ‘privileges that apply to the approval’ is subjective.
“It looks like our next step will be writing to the Scrutiny of Bills Committee listing our concerns once it enters Parliament. This rule, like so many others in this package, is a fiasco.”
They also believe that a solution lies in revival of development work already done and later abandoned, through the establishment of a small, focused and properly directed independent group which could finalise the whole project in about 12 months. The adoption of the New Zealand rules is now being seriously proposed by some observers as an alternative.
To put micromanagement in perspective, in just one of hundreds of examples, the Panel will find it informative to review a tome titled CASR Maintenance Regulations, Part 145, Assessor Handbook V4, a copy of which ProAviation has provided to the Panel.
This 312-page volume is published as a guideline for CASA officials assigned to assessing applications for approved maintenance organisation (AMO) approval under Part 145. For anybody who understands micromanagement, it makes a particularly alarming read.
Assuming version 4.0, June 2012, is CASA’s fourth attempt to get it right, the English and the grammar in versions 1 to 3 must have been very disappointing. Apart from that, the recurrent use of subjective adjectives such as “acceptable”, “adequate”, “appropriate”, “necessary”, “satisfactory” and “sufficient”, guarantee ample scope for subjective assessments of the kind that have created an industry within an industry, in the endless process of reviewing and demanding changes to manuals, expositions and other such documents which require CASA “approval” without published objective guidelines. The frequency with which individual inspectors agree on the content of manuals is unknown but experience shows that it is miniscule.
The document, and the employment-creating philosophies it supports, paint a clear picture of the ongoing micromanagement of the MRO sector that can be expected, not only to contaminate the AMO approval process but also to form a basis for yet another layer of regulation, not subject to parliamentary scrutiny, and foreshadowing intolerable levels of intervention in day to day business by inadequately trained or supervised individuals who have never operated or managed a successful business in their lives.
Have the Panel members ever seen a document that so blatantly points the way to replacement of the “rule of law” with a system of “rule by regulator”?
One wonders where the language of a document like this originates, so as an experiment, we selected one single dot point item of about 30 from page 178, which poses the titillating question: How is the AMO internal reporting process structured to ensure a close-loop feedback communication system which will involves [sic] consultation between the necessary departments as the investigation report identifies?
How much deep and cogent navel gazing went into developing that engrossing query?
Well, not all that much it seems. It took our plagiarism detection system (Google) just 0.67 seconds to identify “about 16,600” erudite dissertations which had helped themselves to very large chunks of those 30 words, all of which adorn the gripping literary works of the global business management system industry.
Notably, each topic (of perhaps a couple of hundred) has a section titled “Things for consideration,” which warns:
The following information may be of value in assisting the Assessor to determine if the AMO has provided sufficient evidence of compliance with the requirements for the [particular topic] commensurate with the size of the organisation and its scope of work.
Note: these things for consideration may not necessarily be requirements for legislative compliance.
We are told that this represents an encouragement for assessors to impose their own requirements while acknowledging that there may be no enabling regulation.
We would be confident that AMROBA’s submission to the Panel will amply cover the detail of industry concerns over the even more serious issues the document raises.
Commercial air operators and their senior pilots are concerned over whether CASA is committed to conformity with ICAO standards and recommended practices (SARPs) and its own legislative requirements, and they quote credible examples that support their concerns.
A large number of flight training accidents throughout have been directly attributed to deviations from SARPs. Several of these have been fatal and the situation has resulted in questions over the regulator’s performance in its intervention and oversight of flight operations, training and checking.
A Sydney-based charter operator is one example of the risk associated with apparently uninformed intervention in flight operations. The company, which holds a charter and aerial work AOC, sought to upgrade the quality and safety of its services by adding a six-seat Cessna 510 Mustang twinjet aircraft to its fleet.
The C 510 is Cessna’s latest and smallest twinjet Citation. Like most other Citations, it is specifically designed and certified to be flown by a single pilot (i.e. without a co-pilot.) With first-jet customers in mind, Cessna went to unusual lengths to see that new owners flying their first jet would find the transition easy, enjoyable and safe. Having flown a Mustang on a pilot evaluation, ProAviation can confirm that for a pilot who is familiar with the advanced avionics and is IFR qualified, the aeroplane is at least as simple to fly as a Cessna 172.
The Mustang is certified to the US FAA’s FAR (Federal Air Regulation) 23, which prescribes airworthiness standards for the issue of type certificates, and changes to those certificates, for aeroplanes in the normal, utility, acrobatic, and commuter categories. The category is limited to aircraft with seating for nine or fewer passengers and a maximum certificated takeoff weight of 5700 kg (12,500 lb) or less. Maximum takeoff weight of a Mustang is 3930 kg (8664 lb.)
Small jets in charter operations normally fly between 300 and 400 hours per annum because the work usually involves a lot of waiting time as well as time between charters. The workload is well within the capabilities of a single pilot, and common practice would be to train and engage a part-time pilot to cover for days off and holidays. Commonly, operators manage the maintenance of pilot proficiency through periodic checking by a CASA-approved ATO who is qualified on the aircraft type.
But one of the first requirements CASA imposed on this operation, was to issue an “instrument of direction” requiring the company to establish a CAR 217 training and checking organisation by a specified date. That requirement is normally limited to regular public transport services or to other operators of heavy aircraft with a maximum takeoff weight above 5700 kg, however the regulation adds: “and any other operator that CASA specifies.”
Although the reason for the direction was not stated, CASA verbally explained it by asserting that the aircraft was a “complex type.” In comparison with numerous turboprop and piston engined aircraft, from a pilot viewpoint the Cessna 510 is in fact a much simpler aircraft to operate, with circuit speeds similar to or lower than many comparable turboprop types.
However the unilateral decision means that the company must employ a qualified and CASA-approved pilot to conduct pilot check and training on the Mustang. That in turn requires two pilots to be approved and employed as training and checking pilots so each can check the other! Since none of these arrangements would increase the amount of revenue flying, it would have the effect that the two pilots would share the 300 to 400 hours of annual revenue flying, thus heavily limiting their accrual of total type experience and arguably eroding the operation’s safety margins.
The next requirement related to aircraft flight manuals (AFM). Like any new US certified aircraft, the Mustang is delivered as certified by the FAA, with an AFM and separately what is known as a quick-reference handbook (QRH), an abbreviated flight checklist for carriage in the aircraft for in-flight use. The QRH is developed from the AFM, and both documents are part of the aircraft’s FAA certified equipment, which means that the FAA has certified that the QRH accurately reflects the AFM but in an abbreviated form. But CAR 138 (1988) requires that the pilot in command of the aircraft must comply with a “requirement, instruction, procedure or limitation” in the AFM. So if the content of the operations manual does not precisely match the content of the AFM, and if an insurance claim is incurred, it is certain to be contested because whichever manual you are using at the time contradicts the other document.
Also despite that certification, CASA apparently found it necessary to spend a great deal of a flying operations inspector’s time (at $160 per hour) cross checking the two FAA documents to ensure that they conform with one another, raising questions over whether CASA accepts FAA certification without question.
Next, CASA generates a “requirement” that a second expanded checklist be developed with directed modifications and inserted in the company operations manual, compliance with which is mandated by CAR 215. This requirement is supported by CAR 215(3) which authorises CASA to require the operator to include particular information, procedures and instructions in the manual, and to vary that information at any time. This means that the aircraft now has three separate sets of checklists: the expanded information in the AFM, the abbreviated information in the QRH, and whatever version of those two documents CASA requires to be published in the appropriate section of the company operations manual.
An industry analyst who works in these areas observes: “In effect, CASA is claiming that regulation 215 authorises them to direct a certificate holder to violate the design certification standard of the aeroplane, and the conditions under which its certificate of airworthiness is issued. I think they would be well advised to seek a qualified legal opinion on their own liability if they plan to follow that path. Like it or not, you no longer have the legal right in Australia to demand changes to manufacturers’ procedures for operating the aircraft as laid down in the AFM.”
While all this is still being thrashed out, the Mustang is dispatched to Bathurst to pick up a medivac passenger for transportation to Sydney. On arrival, the HF aerial is seen to have been broken, possibly by a bird strike. Its removal is necessary before further flight, and would normally be carried out in about one minute by any available LAME with a 3/8th inch spanner. However CASA has deemed that this aircraft may only be maintained by a LAME from a Part 145 maintenance organisation, meaning that somebody has to be flown from Bankstown to Bathurst to carry out that simple task. The charter client organisation is forced to hire another aircraft to move the patient so that any revenue from the operation is forfeit, and two other things have to happen before the aircraft can be returned to Bankstown. First, an engineering order will have to be generated to allow the removal of the antenna, ($590) and second, a permissible unserviceability certificate will have to be issued at a cost of $320 to permit the aircraft to fly from Bathurst to Bankstown, a short flight over a route on which HF communications will not be necessary.
Shortly afterwards, the Mustang is dispatched to Karratha, WA, where it is contracted as a standby Medivac aircraft by a consortium of resource companies, to substitute for their normal contract aircraft which is absent for maintenance. Although the Mustang is a single pilot aircraft, the contract requires a safety pilot in addition to the pilot in command, as well as 24 hour crew standby availability. Four pilots, all with command endorsements and instrument ratings, standing by in rotation, can meet these requirements.
After two weeks, the company is then asked to extend the contract for a further period of two weeks, during which time the instrument rating of one of the safety pilots will expire in the absence of a check flight. The chief pilot requests CASA approval for a suitably qualified and available ATO from Perth to carry out the rating renewal check. CASA refuses that request, because that particular ATO, although fully C510 qualified, is not listed as having CASA approval to carry out checking and training under the company’s CAR 217 approved training and checking system. The only available option is to fly the pilot from Karratha to Sunshine Coast airport and back, and conduct his rating check in a C510 simulator located there.
The options of either approving a two-week extension of the pilot’s 35-year-old command instrument rating, for consulting with CASA’s Perth office to approve the available ATO to append his to the company’s list of approved check pilot based on his experience, do not appear to have been considered by CASA.
Pilots flying the Mustang regularly believe that it, or something like it, represents the basic trainer of the future. Yet through a series of administrative decisions that are arguably outside CASA’s own guidelines, many of them made by one individual, the aircraft type could become all but unsaleable in a market that is searching for modern aircraft that are safer, more economical and more environmentally friendly than anything in the existing fleet.
Processes like these have convinced many in the general aviation industry that the sector is now being systematically deprived of some of its most respected practitioners and mentors, and that recent events seem to support that concern.
An apparent campaign to reduce the number of approved senior testing officers (ATOs) has resulted in a worrying reduction in the pool of available and experienced flying school instructors, and of training and checking pilots for charter operators around Bankstown and similar airports. CASA’s system for the ongoing oversight of flight-testing provides ample opportunity to cancel the approvals of industry ATOs, who assess pilots for licences and upgrades, and also those of line pilots’ instrument ratings and other proficiencies.
CASA “approvals” of chief pilots, chief flying instructors and ATOs rely on periodic reassessments as well as random checks conducted by observing flight tests in progress. However in the recent past, a number of Bankstown’s most highly qualified and experienced instructors and ATOs have experienced “aggressive” flight-testing by CASA flying operations inspectors (FOI). Some have been stripped of their qualifications because of vigorously disputed CASA assessments. Injured parties link most, but not all of these adverse decisions with the arrival in the area of recently appointed individuals who command absolutely no industry respect that ProAviation has been able to identify.
Although a CASA “approval” as a company-appointed chief pilot had always been a valued qualification for pilots in their career advancement, operators are now complaining that nobody wants the chief pilot job any longer, saying they “can’t afford the aggro” that is generated by some of these individuals.
One contentious issue is the actual approval process for CASA ‘acceptance’ as a chief pilot. There are no published rules for deciding how the assessment is to be made in terms of what may be examined, to what level or to what degree. For example, a chief pilot holding a commercial pilot license can be asked questions pertinent to airline transport pilot license qualification, such as complex fuel or runway performance calculations. There is no regulatory backing for this subjective type of approach, and there are numerous examples of its abuse. The chief pilot position is essentially an administrative appointment, and we’re told that under the regulatory regimes of some other countries, even a pilot who is permanently unable to fly for medical reasons may be appointed in this role.
A secondary issue is the option to flight test applicants for chief pilot approvals. Although CAO 82 states that a flight test ‘may’ be conducted; there are no published parameters for this test; it is purely subject to the whim of the FOI. There are recorded cases where an aspirant chief pilot has been deprived of all ratings and reduced to student pilot status following a flight test, despite having recently passed or renewed several of the ratings.
CAO 82.0 appendix 1; Approval of Chief Pilot by CASA
1.3 The appointment may be approved only if the person has:
(a) In the opinion of CASA, maintained a satisfactory record in the conduct or management of flying operations; and…….
Fairchild-Swearingen Metro III turboprop commuter aircraft are fitted with an automated stability augmentation system (SAS), which because the aircraft has “undesirable stalling characteristics,” is a mandated item for all flying. Yet a highly experienced ATO, who has undergone no fewer than 50 instrument rating renewals and literally dozens of assorted check rides throughout his career, was asked to demonstrate a stall and recovery in a Metro III with the SAS disabled. The procedure in any aircraft is to reduce power and raise the nose as necessary until the symptoms of an approaching stall are identified, and then to apply power, lowering the nose if required, and flying the aircraft out of the incipient stall condition. In a Metro with the SAS disabled this is contrary to manufacturers’ instructions and almost suicidal.
Part of the role of the SAS (also known as the stall avoidance system) is to operate a “stick shaker” which provides a tactile and noisy warning to the pilot that the aircraft is approaching an aerodynamic stall. This prompts the pilot to initiate the recovery action we have described if he or she hopes to survive to fly another day.
In effect, the SAS does exactly what it was designed to do – avoid a stall – unless you defy all the warnings and the dictates of commonsense. And to be quite clear, Metro and Merlin aircraft have been involved in fatal training accidents when prescribed procedures were ignored, including a crash in a Merlin in Norway on July 20, 2008 during a training flight. (A Metro is a stretched variant of a Merlin iii with no other significant differences.) The accident related to an “approach to stall” procedure with the aircraft in landing configuration. The aircraft’s altitude increased by 300 ft during which speed decreased and control was lost, followed by a 30-second dive from 6300 ft to the sea surface. Horizontal speed at impact was minimal, which is symptomatic of an unrecovered spin. Pilots familiar with the type say that the event could not have occurred if the SAS had been operative.
Against that background it is difficult to understand why this experienced ATO was publicly vilified for refusing to accept a FOIs ruling that ‘stalls’ were a mandatory requirement for co-pilot endorsement and that the SAS must be disabled to achieve this goal. He pointed out that stalls were only required for command training, and that they were only to be conducted according to the manufacturers instructions. The aircraft’s pilot operating handbook emphasises that the aircraft must not be stalled, and simulated failure of the SAS is therefore not discussed. There is an AFM procedure for a “failed” SAS unit, but the aircraft flight manual states categorically that the aircraft must not be operated with the SAS disabled under any circumstances. Such operations are also not permitted under a minimum equipment list (MEL).
It took a strongly worded letter from the aircraft manufacturer to produce a grudging acknowledgement from CASA, who despite that, resurrected the same argument later in the Administrative Appeals Tribunal in support of claims that the pilot was a ‘danger to air safety’.
This same ATO was later “failed” in a simulator check ride to qualify a ‘simulator pilot’ under CASA supervision. Despite his having already demonstrated twelve previous stall recoveries, one of the fail items was “loss of height (200′) during a simulated stall.” As a result the ATO had both his aircraft type and instrument ratings suspended as a ‘risk to flight safety.’ CASA has administratively imposed impossible conditions for the return of those ratings. That dispute is ongoing, with simple commonsense apparently excluded from the debate.
Notably, in the now-famous crash of Air France flight 447, an Airbus A330 descended through 35,000 feet at about 10,000 feet/minute with the nose held at a high angle of attack and N1 thrust values of between 48% and 100% right up to the point of impact. ProAviation has spoken to numerous flying instructors, training and line pilots, all of whom confirm that setting an arbitrary maximum acceptable height loss during a stall recovery is a nonsense. This is because of variables such as the exact point in the stall manoeuvre where stall and recovery are initiated, the individual aircraft type’s control responsiveness and interaction, engine power, centre of gravity, density altitude, and even turbulence.
What appals observers of this ongoing drama is the fact that a single FOI can apparently wave aside not only the manufacturer’s recommendations, but CASA’s own guidelines. The following prescription from CASA’s Approved Testing Officers’ Handbook should be clear enough, and certainly calls for an explanation of why the FOI was unaware of these limitations:
GEN 1 Only emergency and abnormal systems failures listed in the test aircraft Pilot Operating Handbook are to be simulated by a prescribed ATO during the flight component.
GEN 2 A prescribed ATO or a prescribed person must not introduce simultaneous multiple unrelated simulated emergency or abnormal situations during the flight.
….with apologies to those familiar with these issues if we explain something you already know:
A takeoff in a multi-engine airline aircraft certified for operations under the USA’s FAR Part 25, calls for three separate speeds to be calculated, which are defined as V1, VR and V2, and are normally called by the co-pilot as they are reached during the takeoff run.
At V1 the crew is committed to continue the takeoff even if one engine fails, that speed being calculated as one from which they will be able to accelerate despite the partial loss of thrust, and is based on ambient values like temperature, atmospheric density and aircraft weight.
….with apologies to those familiar with these issues if we explain something you already know:
A takeoff in a multi-engine airline aircraft certified for operations under the USA’s FAR Part 25, calls for three separate speeds to be calculated, which are defined as V1, VR and V2, and are normally called by the co-pilot as they are reached during the takeoff run.
At V1 the crew is committed to continue the takeoff even if one engine fails, that speed being calculated as one from which they will be able to accelerate despite the partial loss of thrust, and is based on ambient values like temperature, atmospheric density and aircraft weight.
VR is the recommended indicated airspeed at which the crew should initiate rotation of the aircraft into a nose up attitude – usually about 10° depending on type and configuration – for takeoff, and….
V2, the recommended speed for initial climb, is based on a number of elements including stall speed with a factored percentage added, demonstrated minimum engine-out control speed, aircraft weight, landing gear and flap configuration changes, and obstacle clearance along the flight path. In general terms an aircraft that is rotated at the rate recommended in its flight manual, will have accelerated to V2 plus 10 to 25 knots (depending on aircraft type) as it lifts off. If it suffers an engine failure at or close to rotation, it should be at or close to V2 when it reaches the initial climb attitude.
A couple of generations ago, it was generally accepted that climbing at V2 would optimise climb angle, and this has now been interpreted by some FOIs as a “requirement” that should an engine failure occur during a normal climb, the pilot should bring the speed back to V2 to continue to climb. In one example, CASA’s type specialist is promoting this view. With that apparent exception, aircraft manufacturers and the flight departments of major airlines have long ago set the doctrine aside, especially since the fatal crash of a McDonnell Douglas DC 10 at Chicago in July 1989.
In that event, the NTSB found that damaged hydraulics had caused the left-hand leading edge slats to retract, increasing the stall speed of that wing whilst the right-hand slats remained extended with the wing not stalled, and the crew failed to recognise the resulting roll as a stall symptom.
American Airlines subsequently issued an Operations Bulletin (DC-10-73) which amended the procedure and states, in part:
The following climb speeds will be utilised to obstacle clearance altitude when an engine failure occurs after V1 on takeoff:
- If engine failure occurs after V1 but not above V2, maintain V2 to obstacle clearance altitude.
- If engine failure occurs after V2, maintain speed attained at time of failure but not above V2 + 10 (knots) to obstacle clearance altitude.
- If engine failure occurs at a speed higher than V2 + 10, reduce speed to and maintain V2 + 10 to obstacle clearance altitude.
In the relevant section of its further analysis, the NTSB said:
“The pilot’s adherence to the airspeed schedules contained in the company’s engine-out emergency procedure resulted in the aircraft’s entering the stall speed regime of flight. Had the pilot maintained excess airspeed, or even V2 +10, the accident may not have occurred. Since the airspeed schedules contained in American Airlines’ emergency procedures at the time of the accident were identical to those currently contained in the emergency procedures of other air carriers, the Safety Board believes that speed schedules for engine-out climb profiles should be examined to insure that they afford the maximum possible protection.
“In summary, the loss of control of the aircraft was caused by the combination of three events: the retraction of the left wing’s outboard leading edge slats; the loss of the slat disagreement warning system; and the loss of the stall warning system — all resulting from the separation of the engine pylon assembly. Each by itself would not have caused a qualified flight crew to lose control of its aircraft, but together during a critical portion of flight, they created a situation which afforded the flight crew an inadequate opportunity to recognise and prevent the ensuing stall of the aircraft.”
And a senior Airbus A330 C&T captain confirms that similar practices are established in Airbus fleets: “The A330 engine failure at V1 has you initially raising the nose to 12.5° to guarantee unstick, but at high weights (eg 233 tonnes) the SRS (speed reference system) will immediately command close to 10° nose up to avoid speed decay. Single engine acceleration altitude in a jet is normally 1500 feet, so if we have an engine failure any time below that altitude, we select V2 to V2+10 to meet certification climb gradient on one engine.”
Independent research by Boeing confirmed the findings of both the NTSB and the airlines, and Boeing promulgated similar recommended procedures. There is consensus among airline experts we have spoken to, that the same principles would apply at least equally to light jets, whose thrust/weight ratios are equal to or better than those of large commercial airliners.
Given the possibility that any engine failure can cause unknown airframe damage and resulting increase in minimum control speed, and also given that operators of all shapes and sizes around the world have now embraced these philosophies, airline training experts cannot understand why any CASA official would continue to advocate the safety-negative practice its FOI is suggesting. In short, maintain whatever speed you have, and determine the state of the aircraft, before you change anything. Reducing speed to V2, “for the sake of compliance”, could kill you.
But there’s more.
A dangerous approach
Most light twin engined aeroplanes are certified with no guarantees of specific single-engine climb performance figures, except for the expectation that they must have a demonstrated ability to climb at 1% gradient at 5,000’ with the critical engine inoperative on a “standard day,” and that only for IFR certification. To help pilots manage an engine-out situation, each such aircraft type has an optimum calculated airspeed to maximise rate of climb, and a blue line on the airspeed indicator indicates this speed, although the value may vary slightly according to gross weight and ambient conditions. Even then, climb performance at blue line speed may be disappointing to say the least in this category of aircraft. In most cases the best option in the event of a low level (gear down below manufacturers minimum safe single engine speed) engine failure before, at, or shortly after liftoff in that aircraft category, may usually be to put the aeroplane on the ground and do your best to stop while there is still some available runway ahead.
Now, consider a pilot approaching for a normal landing. The accumulated wisdom of hundreds of airlines around the world is that the best and safest landings are achieved if they follow a stabilised approach, meaning one with only minimal changes such as undercarriage and flap deployment, and power/attitude adjustments to achieve a constant glide slope of (usually) 3°. In most light aircraft, pilots use a “reference speed” (Vref) that is typically equivalent to 1.3 times the aircraft’s stall speed (VS) in the landing configuration. And remember that the required runway length you’ve calculated is based on that airspeed or a similar one, so that any other approach speed you adopt will invalidate the calculation and could result in a runway overrun. CASA also “requires” demonstration of a stable approach.
So it was surprising during a pilot evaluation flight in a light twin at Essendon, when the demo pilot warned that our approach speed was too low, saying we should be approaching at “blue line” best one-engine-inoperative speed of 92 knots, which is 30 knots above this particular aircraft’s stall speed. We didn’t argue that point because there was plenty of runway at Essendon, and a good thing too, because the aircraft “floated” for a couple of hundred metres until it decelerated to a safer touchdown speed. It was later explained that most CASA FOIs were requiring pilots to conduct the whole approach at the “blue line” speed, which is considerably higher than the Vref that is recommended in the pilots operating handbook.
It was also explained that the reason for this “requirement” was provision for two separate and statistically improbable events to occur simultaneously. The first was an instruction from the tower to “go around” (i.e. abort the landing approach and carry out a missed approach) and the second was that while you are responding to that, the critical engine would fail and you’d need to carry out a single engined missed approach. This sort of unintelligent risk management has killed a large number of instructors and students over many years. The more mature instructors understand that if an average light twin is already in landing configuration and if both those events occur, you are in most cases already irreversibly committed to a landing. And if there’s another aircraft on the runway you do whatever is necessary to avoid a collision with it, either landing on the unoccupied section of the runway, a taxiway, or on the adjacent grass flight strip, whichever makes the most sense in the circumstances.
This issue has been discussed with senior CASA official by a retired Qantas check captain who should know: “What is being taught is that the overriding consideration of every approach is a possible engine failure and a go-around, which is almost a statistical impossibility. What these inspectors are requiring, is that pilots should hazard every approach they make, to provide for that probability. That’s not intelligent risk management. CASA denies it all, just as they deny that inspectors are requiring instructors to fail engines at low level. That’s why I was so disturbed by that last Twin Comanche crash at Camden, which incidentally, the ATSB declined to investigate thoroughly.”
For the same reasons, the training scenario of a simulated engine failure after takeoff needs to be managed with a degree of intelligent caution, which it doesn’t always receive, say experienced instructors and ATOs. In the light twin aircraft category (below 5700 kg MTOW) no certification data is available to establish values for V1, VR and V2. Most manufacturers limit their advisory material to suggesting that after liftoff, the aircraft be accelerated to well above single-engined minimum control speed (VMCA), to the manufacturers recommended safe single engine speed (SSE) for reasons such as improved performance, terrain clearance, pilot visibility and engine cooling.
All this, however, doesn’t dampen the enthusiasm of (some) FOIs for demonstrably dangerous practices such as simulating an engine failure before the aircraft has reached a safe height and speed with gear and flaps retracted and a steady climb established. This removes the pilot’s options to ‘safely stop or safely go’, a tenet that has been around since the first Cessna 310 appeared 60 years ago.
There is, of course, nothing to prevent an instructor simulating an engine failure after takeoff at a safe height with the aircraft in takeoff configuration, but a very large number of people over many years, have ignored that option with a fatal outcome. Despite this, it now seems that various FOIs and ATOs are interpreting the syllabus as requiring a flight testing procedure that carries an unacceptably high risk.
What seems to be missing from CASA’s Approved Testing Officer’s Handbook is some very firm guidance regarding unnecessarily high-risk procedures, especially in aircraft types with which the ATO is often unfamiliar. But the lack of consensus on these issues offers little promise that this will happen any time soon.
And as we’re about to see, the need for some straight talking and intelligent action on flight standards is not limited to fixed wing operations.
While Australia has a large number of high quality organisations training pilots for both fixed wing and helicopter licences, there has always been dissatisfaction in the industry at the regulator’s failure to identify those schools whose output is unsatisfactory, and to take corrective action. Because the demand for helicopter pilots is currently stronger, the situation is more serious in that industry but exists also in fixed winged flying. In some cases, it is clear that licence candidates are selectively seeking low-cost schools, which all but guarantee an outcome for a quoted price.
The chain of events recounted here has been provided to CASA by other sources, along with considerable detail. They relate to the adventures of a pilot we will call “Mr Smith”
A helicopter operator warned the (then) General Manager of the (then) Civil Aviation Authority that another operator at the same airport had been under-recording aircraft flight times. This malpractice, known to be common in some sectors of the helicopter industry, has grave implications for safety because it causes critical components such as rotors and gear trains to overrun their maximum safe service lives.
The regional manager was asked to investigate, and found that there were various anomalies that were confirmed as far as the operator was concerned, but which also drew attention to the way the operator was being regulated. He called in the CAA’s locally-based helicopter experts, who confirmed his concern that the responsible FOI, Mr Smith, was “too close” to the operator and also that his qualifications were somewhat suspect. In fact, he had been ‘moonlighting’ as a pilot for the operator.
This gave rise to an investigation of Mr Smith’s qualifications, which found that he had joined the Authority without an instructor rating. The CAA had paid for his Grade 3 training and rating, which was issued following a flight test by a helicopter-rated FOI.
Mr Smith’s Grade 2 rating had later been signed off by another FOI, and later reviewed again by a third, although both the latter FOIs were fixed wing pilots. It was also upgraded to a Grade 1 instructor rating at a later date, by the same FOI who had signed the Grade 2 upgrade.
One of the minimum experience levels required for a Grade 1 rating is that of having completed 400 hours of ab initio flight instruction.
The question was flagged to the regional manager – how did Mr Smith, a helicopter FOI, accumulate 400 hours of “elementary instruction” as a CAA employee following the issue of his Grade 2 rating? And that question became the subject of the investigation.
As a result of that investigation the (then) regional manager instructed an investigator to explore Mr Smith’s records, and as a result of the findings he issued a show cause notice as to why Mr Smith’s instructor rating should not be withdrawn. The rating was subsequently withdrawn.
The Australian Federation of Air Pilots then wrote to the regional manager asking why he was taking this action, saying that the action could not be substantiated legally. There was then a delay on the further investigation because there was a review of the (then) CAA by an ex-Qantas pilot consultant, because “there was some concern as to how the CAA was being run. “
During the delay another letter from an AFAP official said the matter had come under that organisation’s scrutiny and enquired how the manager could pursue this course. The manager responded that he had taken the action, and that that was the end of the matter.
CAA’s lawyers then became involved, and the whole exercise was reduced to the question of the definition of “elementary instruction,” and of how fixed wing FOIs could conduct helicopter instructor flight tests – in aircraft on which they had no qualifications.
The lawyers said that the regional manager really didn’t know what was “elementary instruction,” that he had no backing for use of the phrase because there was no legal definition of it in the regulations.
Below are the current regulatory prescriptions. It is not known whether those definitions applied at that time, although the information would (theoretically) be available from CASA archives.
4.3 An applicant for the issue of a flight instructor (helicopter) rating grade 1 must:
(c) have at least 1,200 hours of flight time as a pilot in a helicopter, being flight time that includes at least 400 hours during which the applicant gave elementary helicopter flying training.
And in both definitions:
Elementary helicopter flying training means flying training in the sequences set out in the helicopter syllabus that are required before a person attempts the general flying progress flight test for helicopters. (From CAO 40.7.3)
However, the CAA lawyers in Canberra said there had been no definition of the qualifications of an FOI in the legislation or the rules either. The CAOs only said that an FOI, inspector (or whatever designation was in use in those days) may conduct tests but did not state the qualifications required of an FOI, although there were industrial agreements that referred to the designation. In effect, that meant a Boeing 747 qualified FOI could conduct a flight test on a helicopter pilot because there was no reference to qualifications for FOIs.
Mr Smith’s ratings were restored, but only based on advice from CAA lawyers that they lacked the authority to cancel them. Later he was told that Mr Smith would be “briefed on the difference between elementary or ab initio training” – definitions of which most Grade 1 instructors would already be aware.
“In effect,” says our source, “the outcome of all that was that CAA had acquired (at its own or at public expense), a flying operations inspector whose signed-off qualifications have never related to his entitlements or to his demonstrated abilities. And please be reminded, that the outcome of all this is that you have an individual who is now feeding other incompetent instructors into the training system; a situation that results in continuing degradation of the product quality of a large section of the helicopter pilot training industry.”
Having later left CAA/CASA with all those qualifications intact including his ATO designation, Mr Smith had been operating in that role ever since, and had become well known as the ATO of choice for many pilots with proficiency problems.
One of these, another pilot whom we’ll call Mr Jones, approached Smith seeking a renewal flight test for a Grade 1 helicopter pilot instructor rating. Mr Jones had recently undergone two separate rating renewal tests. The first was with the proprietor and CFI of an Archerfield flying school. A CASA FOI oversaw the flight test at the request of the instructor, because the CFI was aware that Mr Jones was a pilot of doubtful proficiency. He failed that test and the FOI confirmed the decision.
The proprietor and CFI of a Sunshine Coast flying school, also overseen by CASA FOI, conducted the second test but with an identical outcome, Mr Jones was not seen for some time after that, because he had gone to New South Wales and contacted Mr Smith, who passed him on his Grade 1 instructor flight test.
On his next appearance in the area Mr Jones was flying a Bell Jet Ranger with its new owner aboard when he decided to demonstrate a simulated engine failure and auto-rotational landing. An extremely heavy landing seriously distorted the tail boom, but a court has been told that regardless of that Mr Jones flew to the opposite side of the airfield, and the helicopter was transported to another airport before details of the accident were notified. Related matters are still before the courts.
The above events have been detailed to us by reliable and informed individuals who are at a loss to identify any positive safety outcomes from these matters.
* * * * * *
The operators of reputable flying training organisations remain concerned that “rogue” ATOs acting both as individuals and in some cases CFIs, are continuing to put commercial pressures before their professional obligations. They also believe that the demand for well-qualified helicopter pilots is forcing CASA to engage underqualified FOIs.
CASA Director John McCormick recently admitted to a Senate committee: “It [staff recruitment] is always a struggle, particularly finding helicopter pilots. We compete with the industry for pilots with heavy helicopter experience. As I am sure you are aware, apart from the military, we do not find many people who have multi-engine helicopter experience and we certainly cannot pay the rates that the industry pays.”
In fact, the training industry observes that CASA has become a significant training ground for the heavy end of the helicopter industry. ProAviation is aware of instances of pilots with low to middle level experience being recruited, then undergoing enormously expensive advanced training in Australia and overseas at taxpayer expense, and then disappearing into multi-engined IFR jobs in the resource industry. This may suggest a management problem that could be solved in various ways including the engagement of contractors who are prepared to sign return-of-service agreements so that the Australian taxpayer won’t be saddled with the costs of their expensive career development.
The longer-established flying schools believe the heavy helicopter industry is well equipped to assess, check and where necessary train its pilots before or after induction. They believe that the more critical problem continues to be that of identifying and retaining FOIs with the necessary practical and credible training experience to take a proactive part in overseeing and enhancing the quality of basic commercial helicopter pilot training.
There are of course, flying operations inspectors who relate to and have strong professional respect for their industry counterparts. In fact some of them have been known to share their industry concerns and views with ProAviation. They also share the disappointment of industry professionals, in the way they say CASA’s “personal development program” for CFIs and ATOs is being managed as a platform to talk down to instructors rather than as an opportunity for mutual improvement through professional dialogue. “Death by PowerPoint” is one of their descriptions.
One situation wholly evident in our dialogue with certificate holders, is that a significant number of CASA inspectors, both in airworthiness and flying operations, now exhibit an aggressive “do it my way” approach that sets aside industry’s valid expectations and their own duty definitions. Some reported incidents leave us convinced that there exist matters that merit independent investigation, because they believe CASA would be unlikely to conduct such an investigation in a transparent way. We are also convinced that in at least some cases, “networking” between officials has impeded (and continues to impede) the employment elsewhere of victims of these individuals in a way that should be investigated as to whether conspiracy has occurred. Credible accounts of specific incidents strongly suggest that there are flight operations and airworthiness inspectors who are not psychologically or ethically equipped to interface with industry.
Matters that have come to our attention range from untested but credible allegations that warrant investigation, to suggested lines of enquiry, to amply-documented fact. ProAviation is willing to share this information with any properly constituted and transparent investigation.
CASA chief John McCormick told a Senate hearing: “What I found when I got to CASA, as I think we have discussed before, is that there was a significant lack of direction, and perhaps some of the things that we see and we are here discussing may be direct outcomes of some of that lack of direction and focus.”
There are hopes that the next director would not be heard expressing similar frustrations.
Relevantly to this topic, the fates of two recent enquiries which had remained largely ignored at the time of writing, would provide helpful guidelines for any new review:
* The Aviation Regulation Review Taskforce‘s Report on Activities and Findings, delivered in December 2007, included comprehensive recommendations on the regulatory review program (RRP) including full implementation by 2011 (That’s now three years ago) of the “priority regulatory parts,” options to speed up the process and enhance consultation arrangements, and ongoing monitoring of the RRP. It also sought continued adherence to regulatory development principles first established by Bruce Byron and since reversed.
* The fate of the 27 recommendations of the other recent report, that of the Senate Rural and Regional Affairs and Transport Committee’s unflattering review of aviation accident investigations, was at the time of writing, awaiting the attention of Transport and Infrastructure Minister Warren Truss, whose pre-election comments on these issues had give some cause for hope (now diminishing) that they would now soon be addressed.
If it’s good for the industry…….
A significant issue which has been raised many times over many years, is the fact that although CASA personnel are engaged in a large number of relatively complex flying operations, there is no apparent attempt to develop a system that oversees standards and recommended practices (SARPs) within sectors of the organisation that engage in flight operations.
This is despite the fact that CASA flying operations inspectors are encouraged to maintain their flying skills through funding for a specified annual number of flying hours per annum.
It has been suggested frequently, that this funding should be directed to structured flying training and assessment in order to best achieve its stated goals, and that CASA should have at least two chief pilots (fixed wing and helicopter) to focus on standardisation in instructional and flying standards, flight testing and other licensing and compliance issues. It has also been suggested that the Standards Division should hold an Air Operator Certificate and establish flight operations manuals, checking and training system, training manuals and an auditable safety management system, and should be subject to routine auditing as are other AOC holders.
Obviously CASA’s Airworthiness and Engineering Standards Branch would benefit from a parallel restructure.
Because both Flying Operations and Airworthiness/Engineering have close associations with relevant trade unions, those relationships should be reviewed to ensure that conflicts of interest do not exist.
Structures, effectiveness and processes
We refer to the following two TORs in the context of relations between CASA and ATSB:
- the structures, effectiveness and processes of all agencies involved in aviation safety;
- the relationship and interaction of those agencies with each other, as well as with the Department of Infrastructure and Regional Development (Infrastructure);
While the major air carriers are able to protect their own interests in ATSB proceedings, this is not the case for general aviation operators or pilots. Although the department’s response to the Senate committee’s recommendations regarding the Norfolk Island ditching is still awaited, the Panel should be aware that the processes identified in relation to that enquiry are all too familiar in general aviation. As examples, we cite the following three events:
Twin Comanche crash at Camden
In this accident ATSB investigators related the separate accounts of the two pilots and appears to adopt the instructor’s version which invites the reader to accept that the aircraft enmtered a spin at a height at “about 400 feet” and that the instructor’s actions achieved a spin recovery and levelling of the wings before the aircraft impacted the ground. The wingtip tanks were full.
While it is an excellent training or personal aeroplane when well handled and understood, nobody who is familiar with the PA 30 believes a spin recovery could be effected in less than 5000 feet, especially with full wingtip tanks, while most believed 10,000 feet to be a more realistic figure. Most believe that the recovery at any height with the full tip tanks would be highly unlikely.
While the ATSB recorded some training policies the operator had introduced, it made no recommendations regarding the dangerous practice of asymmetric flight training at low levels, and its recommendations did not include any advice to the regulator on such matters. The ATSB’s advice below appears to condone the practice by not censuring it.
This accident highlights the critical importance of conducting the appropriate response actions following both an actual or simulated engine failure in a multi-engine aircraft; and the inherent risks of using the mixture control to simulate a failure at low altitude.
DC3 ditching in Botany Bay
The ATSB/CAA (pre-CASA) interaction in this investigation is, in our opinion, a total disgrace. Correspondence obtained under Freedom of Information and made available to us has convinced us that it will be valuable to future generations to publish a full analysis of this matter which we will be doing in due course. Capt Rod Lovell ditched the DC three into Botany Bay in 1994, after an engine failure on take-off and inability to feather the failed propeller due to maintenance. All 25 crew and passengers on board survived without serious physical injury.
In this event, the interactions between government agencies extend beyond the ATSB to the involved Commonwealth Ombudsman. Here is an example in the form of an email from a CAA lawyer to a CAA district manager which reveals that CAA was invited to “approve” the Commonwealth Ombudsman’s eight page formal response to a complaint from Capt Lovell:
MEMO Canberra Office
TO: XXXXX XXXXXXX
FROM: XXX XXXXXXXX
SUBJECT: LOVELL – OMBUDSMAN
You will be pleased with the attached draft letter which I have approved to be sent out by the Ombudsman to Mr Lovell. I do not believe that we should necessarily alter any of the contents of this letter as it is reasonable to us and won’t necessarily get us any further even if he may not necessarily of [sic] answered absolutely everything.
We believe this correspondence also reflects a cynical and irresponsible mindset that is quite unacceptable in organisations exercising their respective responsibilities in matters of this kind.
The original report is dealt with in our article, How wrong can it get? The supplementary report deals largely with issues other than those our article identified.
Compliance and enforcement
For over 20 years the aviation industry has repeatedly complained that on compliance and enforcement issues, CASA has assumed the roles of “judge, jury and executioner,” without exposure to normal legal procedures which should provide natural justice and procedural fairness under the rule of law.
In fact this appears to be an understatement because the roles adopted by CASA are not infrequently the equivalent of “accuser, investigator, prosecutor, judge, expert witness, jury, court of appeal and executioner.”
Former Minister John Anderson introduced the Civil Aviation Act Amendment Bill 2003 and claimed enhancement of these aspects, and also provided an “automatic stay provision.”
The “Rundle Analysis” below demonstrates that the Minister of the day was led down a path which ran counter to the claims he made that the system had been improved in response to industry complaints. As a result, the amendment Bill of 2003 had the effect of misleading Parliament and the public. Not only has CASA retained the ability to cancel an approval and ground a pilot based only on a “reason to believe”, but has now added the ability to ground an operator on the same basis of “reason to believe”; without any show cause notice, and without that person or operator being protected by the new automatic stay provisions.
This has had the effect of reducing, rather than enhancing some of the former restraints on CASA, which now has more free power to penalise persons and operators by suspending authorisations.
The following analysis was provided by former CASA Flying Operations Inspector and District Flying Operations Manager (Townsville) Peter Rundle. Although time restraints have prevented us from exposing this analysis to checking with appropriate specialist sources, we have always found Mr Rundle’s analyses well-informed and helpful, as have many in the industry when seeking the path of common sense. If as we would expect, the Panel finds itself examining existing law and the need to change it, we would strongly recommend that this material be evaluated professionally in that process, since it raises questions we have not seen exposed to critical review elsewhere, and because it appears to identify significant avenues to abuse of process by the regulator.
The entire analysis is in blue typeface to aid in identifying its extent. Otherwise it has only been lightly edited, largely in its formatting.
The Rundle Analysis
Pilots Under the old CAR 268 CASA had the power to suspend a pilot on the basis that CASA had “reason to believe.”
· No show cause notice was required. (refer appendix “A” to this report for CAR 268)
· CASA could suspend or cancel a licence for one simple breach which carried a penalty of $1000.
· That decision relied on either CASA policy, or the policy of the individual CASA delegate.
AOCs Sect 28 BA (3) of the Act – CASA had the power to suspend an AOC “IF” there was a breach. No show cause notice was required
“IF” there is a breach – not “an allegation of a breach”, or “a reason to believe”, or “to investigate.” Refer appendix “B” for Section 28 BA (3), CASA could suspend or cancel an AOC for one simple breach. A breach carried a penalty of $1000
That decision relied on CASA policy, or the policy of the CASA delegate
The Amendment Bill of 2003 repealed the old CAR 268 (suspension for investigation); and introduced:
· The “Automatic Stay Provision;”
· “Demerit Points System;” and
· The “Serious and Imminent Risk Prohibition”
The Amendment Bill amended Section 28BA of the Civil Aviation Act 1988 by adding sub-section (4) which requires CASA to give a show cause notice before suspending or cancelling an AOC.
The Amendment Bill also amended the definition of Civil Aviation Authorisation – (See page 4 of the Act_ –
“means an authorisation under this Act or the regulations to undertake a particular activity (whether the authorisation is called an AOC, permission, authority, licence, certificate, rating or endorsement or is known by some other name)”
NOTE 1:A Civil Aviation Authorisation includes Pilot’s licence and Air Operator Certificate
NOTE 2:No definition of “Serious and Imminent Risk” is provided – the decision therefore relies on CASA Policy, which is not subject to any checks and balances.
NOTE 3:No show cause notice is now required under Section 30DC
NOTE 4:The new “Automatic Stay provision” does not apply because no show cause notice is required
Pilots– The amended Act section 30DC -“Serious and Imminent Risk”- empowers CASA to suspend a pilot’s licence, or any other authorisation, based only on the prescription: “if CASA has a reason to believe.” There is no provision for external validation of, or challenge to, a CASA statement that it has “reason to believe.”
· This means there is no change to CASA powers for the suspension of a pilot’s licence.
· CASA can suspend or cancel a licence for one simple breach – a penalty of $1000
· CASA can still, as it has done in the past, place the pilot out of work on the basis of a claim that it has a “reason to believe” – without a requirement to produce evidence beyond a doubt.
AOCs: CASA can now suspend an AOC under Section 30DC, “Serious and Imminent Risk”, based on a “reason to believe.” Prior to the Amendment Bill 2003, CASA could only suspend “IF” there was a breach.
· The new amendment makes it legal for CASA to suspend an AOC based on “a reason to believe”
· CASA can suspend or cancel an AOC for one simple breach – a penalty of $1000
· Place an operator on the ground for 7 days, the operator will loose most if not all contracts and is then out of business, the outcome of that is the employees are also placed out of work
· Where an AOC is suspended or cancelled the business suffers, all the employees suffer job security.
QUESTION – Who actually drafted the wording for the new amended sections?
Basic Principles in a Democracy
Where Parliament enacts Legislation in accordance with the Constitution requiring citizens to comply with various standards and specifies the penalty for those found guilty of breaching the legislation – those breaching the Law are charged and appear in a Court.
Constitution – Section 71 – “Judicial power and Courts”
“The judicial power of the Commonwealth shall he vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes”.
Constitution – Section 80 – “Trial by jury”
“The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall he held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes”.
Those “bad folks” – murderers, rapists, house invaders, robbers, violent assaulters, and terror suspects, all have the right to appear before a Judge in a Court, before being penalised; (where a suspect is considered a risk to society a Judge may place that person in custody) – while on bail waiting for the Trial the suspect can still earn a normal income.
· The Police and other Government agencies cannot penalise a person in the context of “Punishment” – only a Court can penalise.
· Under the basic democracy principles we would have a fair system of justice
The variation, suspension, or cancellation of an authorisation is a form of Punishment for an offence against a Commonwealth Law. (refer Section 80 of the Constitution.)
Penalty – 1. a penalty imposed or incurred for a violation of law or rule 2. a loss or forfeiture to which someone is subjected by non-fulfilment of an obligation
Penalise – 1. to subject to a penalty, loss, confinement, etc, for some offence, transgression, or fault: penalise a criminal 2. to inflict a penalty for (an offence, fault etc)
Penalty – 1. The act of penalising – 2. the act of being penalised, as for an offence or fault – something that is inflicted as a penalty
Suspend – 7. to cause to cease for a time from operation of effect a privilege = that is a loss of licence privilege
Cancel – 3. to make void or annul = that is a loss of licence privilege
Parliament enacted legislation, inconsistent with the Constitution, that provides two options for CASA, to prosecute in Court, or to make an administrative decision penalising the suspect based on “a reason to believe” – consider Australia’s claim to be a Democracy enjoying the British system of justice – innocent until proven guilty
· CASA’s powers of “trial and punishment” are inconsistent with Sections 71 and 80 of the Constitution
· CASA hides behind “in the interest of safety” claiming they only protect the safety of air navigation; – in many situations persons are penalised for breaching CASA policy; not always for breaching the legislation; invariably based on inspector opinion rather than evidence beyond doubt.
· The CASA Delegate (Judge) does not attend the hearing, but makes a decision based on an Area Office recommendation – the defendant is not permitted to address the delegate, or cross-examine CASA witnesses.
· REFER separate paper – Show Cause Conference = “CASA Kangaroo Court”
UNDER the Civil Aviation Act and Regulations 1988 – WE HAVE AN UNFAIR SYSTEM OF JUSTICE
The CASA “culture of penalising” by suspending and cancelling licenses and certificates rather than prosecuting in a court was confirmed at the National Press Club by former Director Mick Toller
“We do not go around pulling people’s certificates for the fun of it. We don’t do it very often. As I say, if we do it twice or three times a year, I would be surprised. I would only condone the removal of a certificate when we have strong evidence that there is an immediate threat to safety.”
“If we were to go through, as some people have suggested, the sorts of processes that you have discussed whereby we investigate, find the evidence, give the evidence to the Director of Public Prosecutions and wait for a decision from the Director of Public Prosecutions, who may or may not then take the matter to court, we’re talking about a period of time that is often unacceptable in safety terms; one or two years in many cases.”
Toller stated – “You may also then get an outcome that is not appropriate.”
Mr Toller was saying CASA does not trust the independent umpire –the judge
NOTE: The CASA culture has NOT changed – CASA continues its propensity to “suspend or cancel” pilots and operators – the ‘charges” by CASA charging the operator where pilots breached regulations that expressly apply to pilots; charges based on individual inspector opinions, no genuine evidence being provided; CASA knowing the DPP would not prosecute as a Judge would find the suspect not guilty. There are numerous documented cases where the above has occurred.
See the new Section 31A of the Civil Aviation Act 1988
Minister Anderson made much noise about the new “Automatic Stay Provision” providing a fair system of justice.
Sect 31A (1) “This section applies to a decision under the Act or the Regulations that is reviewable by the AAT, if before making the decision CASA was required by the Act or the Regulations to issue a show cause notice”.
NOTE: Decisions under the Civil Aviation Orders to cancel a chief pilot or check pilot approval are not covered by the Automatic Stay, and no show cause notice is required by the CAO under the relevant regulation.
BUT – under Section 31A (2) the automatic stay does not apply in a number of circumstances
Sect 31A (2) “This section does not apply to a decision under Section 30DI” – (follows on from Serious and Imminent Risk suspension); and -“Does not apply to a decision under the Regulations to cancel a licence, certificate, or authority on the grounds the holder contravened a provision of this Act, or the regulations.
NOTE 1: If CASA alleges the holder contravened a provision of the Act or the Regulations, there is NO automatic stay.
NOTE 2: CASA can therefore cancel a person’s licence or qualifications based on a CASA claim that the person is not a “fit and proper person” due to the person allegedly contravening a regulatory requirement. (Refer Appendix “C” – CASA’s use of CAR 269 to cancel a licence or authority)
Division 3D Amended Division of the Civil Aviation Act 1988
Section 30DY First-time demerit suspension notice
NOTE: “Civil Aviation Authorisation” includes AOC and pilot licence
Under Section 30 DY of the Demerit Points Scheme CASA must suspend the civil aviation authority even though the holder has been fined by the Courts. The first time suspension for a score of 12 demerit points is 90 days. That loss of salary for a pilot is greater than the fines imposed by the courts, and in the AOC situation, a 90 day suspension will force the operator out of business.
Demerit points values – CASR 13.370
13.370 (1) – applies to all CARs and CASRs that are specified as “strict liability “
13.370 (2) (a) – max prescribed penalty 10 units = 1 demerit point
(b) – max prescribed penalty 11 to 25 units = 2 demerit points
(c) – max prescribed penalty 26 or higher = 3 demerit points
Examples: CAR 5.109 “recent experience”:- aeroplane pilot not flown for 95 days instead of 90 days – penalty $2500.
CAR 5.125 “recent experience”: helicopter pilot had flown 200 take-offs and landings – but had not flown a circuit for 90 days – penalty $2500
CAR 92 – any pilot landing area – penalty $2500
CAR 100 – penetrate CTA – penalty $5000
Section 30DB – Serious and Imminent Risk prohibition – no show cause notice required –
“The holder of a civil aviation authorisation must not engage in conduct that constitutes, contributes to or results in a serious and imminent risk to air safety”
NOTE 1: Serious and Imminent Risk is not defined in the Act –
NOTE 2 The assessment of what constitutes a serious an imminent risk relies on CASA policy.
Section 30DC – “Where CASA has reason to believe the holder of a civil aviation authorisation has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB, CASA may suspend the authorisation.
NOTE 1; no show cause notice is required because there is no automatic stay provision
NOTE 2:“Has engaged in “ that is imposition of a penalty
NOTE 3:“Is engaging in” It is open to CASA to direct the holder to desist immediately.
NOTE 4:“Is likely to engage in” – It is open to CASA to caution the holder rather than assume the holder may engage in………
Section 30DC (3) – The “Serious and Imminent Risk” suspension lasts for five business days unless CASA applies to the Federal Court – Unless suspension occurs on a Monday, the net suspension period is therefore seven days
NOTE: Section 80 of the Constitution states the trial on indictment of any offence against any law of the Commonwealth shall be by jury.
Sect 30 DE (1) of the Act – CASA must apply to the Federal Court to obtain a Court ruling for an extension of the Suspension to provide time for CASA to complete the investigation of the situation.
Sect 30DE (2) of the Act – If the Federal Court is satisfied there are reasonable grounds to believe the holder has engaged, is engaging, or is likely to engage in, Serious and Imminent Risk , the Court must make an order that prohibits the holder from using his/her authorisation.
The Federal Court extends the Sect 30DC suspension to allow CASA more time to complete the investigation – CASA penalised the holder without completing an investigation – “reason to believe”
CASA has the power to suspend a person or close an operator down without having appropriate evidence to justify the suspension – just a reason to believe
Under State Liquor Licensing Laws does the State authority close a Hotel down based on an allegation the hotel served alcohol to an under-aged person? Underage drinking can cause a risk to society.
268 Suspension of licence, certificate or authority pending investigation – Repealed
(1) Where CASA has reason to believe:
(a) that there may exist facts or circumstances that would justify the variation, suspension or cancellation of a licence or certificate or an authority on a ground specified in regulation 269; and
(b) that there may be a serious risk to air safety if the licence, certificate or authority were not suspended;
CASA may, by notice in writing served on the holder of the licence, certificate or authority, suspend the licence, certificate or authority.
(2) Where CASA suspends a licence or certificate or an authority in pursuance of sub-regulation (1), CASA shall forthwith investigate the matter, and the suspension shall cease upon the completion of the investigation or at the expiration of 28 days from and including the date on which the suspension took effect, whichever is the earlier, but without prejudice to the powers of CASA under regulation 269.
(a) CASA, upon the completion of an investigation under this regulation, gives to the holder of the licence, certificate or authority a notice under sub-regulation 269 (3); and
(b) the suspension of the licence, certificate or authority under this regulation had not ceased before the completion of the investigation;
The licence, certificate or authority shall remain suspended during the time specified by CASA in that notice as the time within which the holder of the licence, certificate or authority may show cause why the licence, certificate or authority should not be varied, suspended or cancelled under regulation 269
28BA General conditions
(1) An AOC has effect subject to the following conditions:
(a) the condition that sections 28BD, 28BE, 28BF, 28BG, 28BH and 28B1 are complied with;
(b) any conditions specified in the regulations or Civil Aviation Orders;
(c) any conditions imposed by CASA under section 28BB.
(2) If a condition of an AOC referred to in paragraph (1) (a) is breached, the AOC continues despite the breach, to authorise flights or operations to which the condition relates.
(2A) If a condition of an AOC referred to in paragraph (1) (b) or (1) (c) is breached, the AOC does not authorise any flight or operation to which the conditions relate while the breach continues.
(3) If a condition of an AOC is breached, CASA may, by written notice given to its holder, suspend or cancel:
(a) the AOC; or
(b) any specified authorisation contained in the AOC; whether or not the breach is continuing.
NOTE: “IF” a condition is breached
New Section 28BA (4) – “Before making a decision under subsection (3) CASA must;
· give the holder of the AOC a notice setting out the reasons why CASA is considering making the decision; and
· Allow the holder of the AOC to show cause , within reasonable time as CASA specifies in the notice why CASA should not make the decision
BUT – that is over-ridden by Section 30DC; a reason to believe; no show cause notice required.
INCONSISTENTY – Section 28BA only permits CASA to suspend an AOC “IF there is a breach” BUT – Sect 30DC permits CASA to suspend an AOC “on a reason to believe”
NOTE: To cancel a licence under the Regulations CAR 269 is used.
269 (1) empowers CASA to cancel a licence etc.
269 (1) (a) cancel if the holder has contravened a provision of the Act or these regulations
269 (1A) (a) Prevents CASA cancelling a licence etc under 269 (1) (a) unless the holder was convicted by a Court, or
269 (1A) (b) – the holder was charged before a Court, and was found by the Court to have committed the offence but was not convicted by the Court
269 (1) (b) The holder fails to satisfy or to continue to satisfy, any requirement prescribed by or specified under these regulations in relation to the obtaining or holding the licence etc
269(1) (c) the holder has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft
269(1) (d) the holder is not a fit and proper person
269(1) (e) the holder has contravened a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders
Analysis of numerous regulatory actions against individuals and companies, is an aid to identifying the priorities and strategies that appear to be pursued, and apparent patterns of behaviour in the way in which CASA manages “enforcement” processes.
In the following pages the Panel will find ten “case studies” covering ten separate regulatory actions. These summaries offer an opportunity to identify patterns of behaviour that appear to be observable to readers across more than one of the studies.
At the time of some of these events guidance for CASA staff in compliance and enforcement matters was provided by CASA’s Compliance and Enforcement Manual which has since been revised several times and is now re-titled Enforcement Manual. We suggest that the actions of CASA personnel described here, in most cases merit detailed investigation of the procedures followed in comparison with the documented procedures specified in that manual.
Nobody is suggesting that the industry is totally free of rule-breakers or that there is no need for a set of valid enforcement procedures; however ProAviation submits that in numerous past and current regulatory actions we have analysed, the concepts of due process, procedural fairness, the rules of evidence, and particularly the guidelines contained in CASA’s own enforcement procedure manuals have simply been ignored.
A regulatory action can be triggered by any one of a number of events. Some have been initiated following an accident or incident. Some are the result of input from discontented former employees; and some have followed confrontation with a CASA official about a decision, a ruling, or a dispute over an operational procedure. Some of these events have amounted to serious personality clashes. Action can also be precipitated by a complaint from a passenger, a member of the general public, an adverse tip-off from a competitor, or even a routine audit of operation or maintenance procedures.
Flying school and charter operator Clark Butson of Polar Aviation, credibly recounts that what triggered the regulatory action against him was a heated argument during a routine audit over two operational procedures: a claimed “requirement” that simulated engine failure be part of every type endorsement training, and the requirement to carry lifejackets on coastal flights between his Port Hedland base and Broome. He believes the requirements sought to be imposed were not consistent with CASA’s Civil Aviation Advisory Publication (CAAP) and other guidelines, and still considers that this has been demonstrated to CASA.
Helicopter pilot John Quadrio’s troubles began when a passenger aboard a sightseeing helicopter filmed several clips and published some of them on You Tube, titled Aerobatics in a Robinson R44 over the reef off Cairns. The provenance and relevance of the “evidence” is as yet unresolved.
Max Davy was deprived of an income on the basis of several alleged infractions, by withdrawal of his training approvals following an engine failure and forced landing on the reef near Green Island.
Rob Leonard‘s Air operator certificate was restricted to three months validity following a heated argument with an official whose failure to meet CASA’s obligations had already caused Mr Leonard’s company Air Bush Charter crippling financial harm. (Mr Leonard’s case is not examined in our “case studies” because of time constraints.
Former proprietor of Schutt Aviation Stan van de Wiel’s fortunes began to fade soon after he vigourously challenged CASA’s management of the Mobil fuel crisis. Despite new and revealing evidence obtained under freedom of information processes it remains unresolved.
Uzu Air suspended operations following a fatal accident which was ultimately determined to have involved no fault on the part of the company. An issue that was at the core of the action remains unresolved.
Flying school Managing Director Barney Fernandes faced a shutdown of his international flying school as part of a pattern of harassment which was only discontinued by the prosecutor, virtually on the eve of a trial for 27 alleged criminal offences.
Mareeba pilot Richard Rudd faced several criminal charges alleging the commision of a physically impossible offence, which any competent staff member would have and should have identified as an utter nonsense.
In other actions it has been clear that action has been initiated on the basis of patently false information that should have been closely examined and tested before any regulatory action was even considered.
As the selected case studies illustrate a menu of diverse processes is available, and the time scale on which some of these matters have proceeded invites the interpetation that CASA tends to favour actions that will have the effect of shutting down a business (or individual) as quickly as possible. In some cases this has been almost instantaneous. Aquaflight (alleged breach of AOC conditions) and Quadrio (alleged reckless flying), although they differ in method, are both examples.
As CASA well nows deprival of personal income or company cash flow instantly reduces ability to challenge the action and in some cases places the certificate holder under duress to cooperate with subsequent investigations such as “special audits” which can be thinly disguised processes to search for evidence of matters alleged.
In almost all examples “show cause” notices are characterised by litanies of allegations that include matters already acquitted but retained in CASA records; it must be assumed for this purpose. “Show cause meetings” are not normally attended by the delegate who will be making the disputed decision, and most affected parties (and most lawyers) recommend that invitations to attend such meetings be declined.
As one aviation-involved lawyer advises: “You’re being asked to explain to an official why he/she should not recommend that a delegate take action against you, but you don’t get to address that with the delegate. To me it seems a pointless and wasteful exercise.”
Another “enforcement tool” is the withdrawal of a chief pilot or chief flying instructor approval as in the Polar Aviation and Ord Air cases. For reasons that are unexplained, these “administrative decisions” were not seen as subject to review by the AAT.
Comment – Motivations
In several cases CASA officials have revealed motivations that appear to support the view that their actions are based on “personality assessments.” These events appear to have at least one aspect in common; the fact that there has been a personality clash with a CASA official. It is unclear on what such officials base their character assessments, nor whether the individuals making them have appropriate degrees in business administration and experience in running a commercial enterprise. It is also difficult to understand the attitude that suggests that a person who has a financial interest in a company should be prevented from taking any interest in how it is managed, including how it complies with related regulation.
- · “The main problem we have with your company is you.” (CASA official to Maxine Reid– Ord Air. (Circa March 2000.) At that time Mrs Reid was acting as Managing Director of the company.
- · An audit team member told [operations manager] Hargraves that ‘Clark Butson is an impediment to progress in the company’. (Nov 2004 – Polar Aviation.) Mr Butson was at that time Managing Director of the company.
- · Mr Mick Toller, then CEO of CASA, wrote to [Managing Director] Mr Fernandes saying that CASA would no longer be dealing with him, and that all correspondence would be addressed to his Chinese partner (Circa March 1999 – China Southern Flying College) At that time Barney Fernandes was Managing Director of the company.
- · “Gents, be careful. Stan van de Wiel is a very slippery operator and he will do anything to get his hands on a LCPT [low capacity regular public transport] AOC) which will include playing both the airline office off against the GA office. DON’T LET THIS OPERATOR PLAY OFFICE POLITICS WITH US” (a Flying Operations Inspector to his colleagues on February 9, 2001.) Stan van de Weil was managing director of his company at that time.
- “Aviation manager [Uzu Air] appeared to be consistently involved to the point of apparent interference with duties of operational staff – pilots and CP [chief pilot].” Comment: Well, to any official with an IQ of two or more digits, surely his title would explain that!
In a significant number of matters we have detailed our case studies, information that has been damning to the certificate holder/s concerned, has been conveyed to the industry and/or the general public long before any meaningful investigation had occurred. The most blatant example of this was the case of Aquaflight Airways, when CASA published ten uninvestigated and therefore unsubstantiated allegations against the certificate holder on its website. It is probable that even CASA recognised this was potentially defamatory because there has been no apparent repetition of that action.
However, revelation to others in the industry or to commercial clients has been shown in some of our case studies and other events of which we are aware, to have been enormously and almost immediately damaging because when monitoring of the health and safety obligations of client corporations and government departments reveals that limited-term AOC restrictions have been imposed on operators, the action is assumed to reflect negatively on the operators safety credentials and forward bookings are cancelled. In fact, many relevant charter contracts impose a requirement on the operator to disclose any adverse action by the regulator.
In one event in regard to which we have been provided with considerable information, an operator complained to CASA that his competitor was overloading an aircraft by a specified amount for flights on a long-term contract. The major contract was cancelled on the basis of that information, which turned out to be an negligent misstatement because the person who made the complaint was unaware that the takeoff weight in question was lawful because of a supplemental type certificate which altered the aerodynamics of the aircraft and increased its maximum takeoff weight by the exact amount specified in the allegation.
In another event which ProAviation is currently documenting with intent to publish, an operator’s AOC was reissued for a strictly limited period on the basis that CASA had not conducted a compliance audit on the operator in the recent past. Among other things this decision imposed huge commercial penalties of the operator although CASA had admitted it had no reason to believe the operator to be guilty of any infractions at all. We consider that information obtained under freedom of information rules in this matter exposes a wilful disregard on CASA’s part for common-law duty of care obligations.
ProAviation is aware of several other instances which should be investigated, in which similar improper sharing of information has seriously disadvantaged certificate holders.
ProAviation is aware of numerous complaints under the above heading by affected individuals, which appear to be endemic in dealings between some CASA officials and certificate holders. We are prepared to indicate suggested lines of enquiry if the panel wishes to investigate these. Events recently complained of include (but are not limited to) the following examples.
- Constraining AOC/MRO operators to incorporate specifications in their individual procedures manuals, regardless of any anti-competitive disadvantage they impose on the operator, while refusing to issue a written and signed direction to do so. The constraint is simply enforced by the threat of withdrawal of CASA “approval” of the manual. NOTE: CASA does not “approve” flight operations manuals (at least in the general aviation environment), apparently because of the obsession of its Office of Legal Services over legal liability. It only “accepts” them but has no apparent formal process for confirming their acceptance in writing. There is one exception to that statement, in that an operator’s training and checking manual is deemed to be “approved” by the approval of the “Head Of Training And Checking”.
- This situation has in the worst case led to the total destruction of a major GA company based on CASA’s assertions that it had been operating under the provisions of an outdated manual for 18 months, despite the fact that a new manual provided to CASA had survived three audits, which led to the understanding that CASA had formally approved the amended manual. We understand that this issue is amply dealt with in the supplementary submission to the Panel of the Professional Pilots’ Investigative Network (PAIN)
- The apparent favouring of manuals produced by particular service providers, by simply declining to “approve” proffered manuals and in some cases recommending a named service provider.
ProAviation suggests that there are several instances contained in our case studies which strongly suggest that activities of various CASA officials reflect a completely unreasonable harassment of an individual, either on the grounds of a personal disagreement or in an attempt to reinforce adverse decisions already made and/or acted upon. Such events are characterised by incidents which are capable of the interpretation that pilots have been accepted by employment for a company, only to have the offer withdrawn at the last moment, in what is believed to have been a decision influenced by persons external to the company.
These actions give the appearance that industry personnel are being prevailed upon in the pilot employment market to reject particular individuals nominated for positions such as chief pilot, which requires a CASA approval. The events to which we refer include but are not limited to senior GA pilots with a lengthy problem-free operating history, a former CASA employee, and a former RAAA pilot whose harassment in the Australian Defence Forces is part of the ongoing investigation of such matters, but who claims that he has also subsequently been targeted by CASA officials with military backgrounds, which has erected barricades against his employment, evidence by last-minute withdrawals of job appointments. Again, we are prepared to indicate suggested lines of enquiry if the panel wishes to investigate these matters…
We suggest that even a brief scrutiny of the case studies we have published, would convince the panel at CASA’s conduct in the legal arena is capable of the interpretation that having financially disabled the certificate holder, there is absolutely no urgency to ensure that the matter is equitably dealt with at the earliest possible time. In this context we suggest that matters to be reviewed would include
- · all delays in proceedings;
- · requests for adjournments
- · alleged withholding of evidence
- · allegations of failure to comply with the obligations of witnesses in the AAT,
This topic is also examined under “Avenues of Redress.”
There is growing alarm among pilot bodies in both Australia and New Zealand at an apparent push by the medical departments of both regulators to reinvent aeromedical science.
One of the most recent manifestations of this, in Australia at least, has been a plan to mount a legal challenge to a long-standing reform that was reached 24 years ago regarding colour vision, between Australian pilots and Australian’s (then) Civil Aviation Authority.
Dr Arthur Pape, the engineer of this reform, recounts the events that led up to the groundbreaking decision that CASA is now seeking to reverse:
“The Empire Strikes Back”
An important message concerning aviation colour vision standards:
By Dr Arthur Pape
First, let me give you a concise history of the struggle by and for those pilots who have a colour vision defect (CVD). My role in the struggle is well documented over many years. I am an Australian GP and Aviation Medical Examiner and have been a lifelong campaigner for the rights of colour vision defective pilots.
I started my flying in 1976, at the Mid Murray Flying Club in Swan Hill, Victoria. Within a couple of years I managed to hold a CPL and a Command Instrument rating, but because of my CVD, I was prohibited from flying at night. I was mystified as to why this restriction was in place and after about ten years of research, I appealed to the Administrative Appeals Tribunal to have the night restriction removed. In the process of preparation I was assisted enormously by AOPA, both morally and financially. One of the memorable highlights in the preparation was a large meeting held at the club rooms of the Mid Murray Flying Club to which a couple of hundred colour defective pilots flew and drove from across the country to offer support and help plan the assault on the aviation colour perception standard.
The success of my own appeal was a just reward for a great deal of hard work and wide support, but the victory was bitter-sweet, as the Authority of the day refused to let the benefit of my success flow to any other pilot with the colour vision problem. That in turn led to a second far more comprehensive appeal for all the colour defective pilots of Australia. This case was nominally on behalf of Jonathon Denison, a young colour defective commercial pilot who had qualified for night flight in New Zealand, but who was prohibited from night flight in Australia. By mutual agreement between the parties, it was decided by the AAT to treat the Denison appeal as a wide-sweeping test case.
Again, the appeal succeeded and the ban on night flight was overturned for all colour defective pilots in Australia. To this date, the Denison appeal is still the most comprehensive examination of aviation colour vision standards that has ever been conducted in the entire world. The hearings lasted for over 30 days and called witnesses including experienced pilots and air traffic controllers, optometrists and visual perception psychologists to name just a few. As a direct result of the appeal’s success, many such pilots found doors opening to career opportunities that were previously denied to them.
During a period of relative sanity and pragmatism, the (now called) Department of Transport opened the way for colour defective pilots to use the ATPL if they could pass the control tower signal gun test. A pass on this test earned them a clean medical certificate, on which there was no longer any mention of colour vision related restrictions. I myself passed this test, and, had I been a younger man, I could have entertained a career as an airline pilot, notwithstanding the fact I had a diagnosis of deuteranopia, which is one of the more severe forms of colour vision defect. I continued in my medical career and enjoyed a modest participation in aviation. The colour vision issue was never far from my mind.
Many pilots with colour vision defects did pass the control tower signal gun test and many, who prior to 1990 would not have been allowed to fly a C152 at night, made it all the way to the rank of Captain in the various airlines in Australia. A significant number are still employed amongst the most senior and experienced crew.
All would have been well, but for the fact that some competent pilots had trouble passing the control tower signal gun test and as a result they remained banished to the rank of First Officer within the various airlines. As their numbers grew, it became obvious to me that the control tower signal gun test was being used as an arbitrary device to determine if a CVD pilot could be classified as “safe” or “unsafe”.
At the level of airline aviation, the control tower signal gun is a device that no airline pilot is ever likely to have to endure. Not only is the chance of exposure to such a signal almost infinitesimally small, the interpretation of such a signal is operationally impossible. Without labouring the point, imagine a B737 captain finding that he has lost radio communication as he calls “ready” at the holding point of a major runway at Sydney airport. There are three possible signals: white (return to starting point), red (not clear for take-off) and green (cleared for take-off). A 737 at a holding point cannot do a U-turn without entering the runway, which can’t be done without a green signal light, which in turn has the meaning of clear for take-off. It amounts to simple nonsense and the control tower signal lamp (at least for RPT operations) belongs in the aviation museum.
So it is that one of the pilots who is being held back from using his ATPL by his inability to pass the signal gun test has lodged an appeal to the AAT to have his restrictions removed. At first, it seemed that his appeal could be limited to just the issue of whether the signal gun test was a real world “practical test” that realistically delineated between “safe” and “unsafe”, but this is not the way CASA is treating the appeal.
Documents lodged to the AAT make it clear that CASA is treating this appeal as a golden opportunity to try to turn the clock back some 25 years in regard to the colour vision standard. It is patently clear that CASA is seeking to reverse every gain made in the Pape and Denison cases a quarter of a century ago and in the years that followed. Their desire is to reimpose restrictions of the most radical nature for those who fail to meet their renewed strict standard. Not only are CASA trying to restrict these pilots from progressing their careers, they are now actively proposing changes that would end their careers entirely.
There are two issues I want to bring to the attention of the entire aviation industry of Australia. The pilot who has lodged this appeal is a dedicated, hardworking and very competent pilot, employed as a First Officer on the Dash 8 for a regional airline. He has some 6000 hours of experience in a wide variety of operations. His company, his superiors and his peers endorse his professionalism and want him to assume command. But he does not have access to the sort of funds that CASA will be throwing into the legal battle that is looming. He has managed to obtain legal representation at a substantially discounted rate, but even with the discount, he would have to find a minimum of about $100,000 in costs to present his case and tackle the might and the apparently unlimited financial resources of CASA. We estimate that CASA is spending over half a million dollars on this case.
The second issue is that a failure of this appeal would have enormous ramifications for several thousand Australian pilots who have a colour vision defect. I know of many airline pilots whose careers would be adversely impacted should this appeal fail. Add to that the hundreds of CVD commercial pilots who could once again find themselves restricted to the pre 1989 limitations, and possibly even more drastic restrictions (for example, no instrument ratings, no carriage of passengers, no night flying at all). It is beyond belief, but these are the aims of the current CASA medical staff in regard to this appeal.
It is indeed patently obvious that CASA is treating this appeal as a de-facto appeal against the Denison decision of 1989 and if they succeed I predict a catastrophic result for the entire colour vision defective pilot community of Australia.
The preparation of this appeal is well advanced. We have a strong case and the likelihood of success is reasonable (there are no certainties in life except death and taxes, isn’t that how the saying goes?). The single most daunting obstacle to success is first and foremost the problem of costs. Whereas Denison’s and my appeal were ultimately funded by the Legal Aid system, it appears that such funding will not be forthcoming for this appeal. I am amazed at this fact, as there is no doubt that CASA is treating the appeal as a “Test Case”. If CASA goes ahead in this planned manner, it will be very much a case of “Might over Right”.
There are two things I want to ask the general pilot community to consider. The first is that each and every pilot considers a contribution to a fighting fund to help fund his case. I ask this of all, but more so, of those pilots who have enjoyed the benefits of the struggle waged all those years ago in liberating the thousands of Australian colour defective pilots from the irrational and unjust colour vision standard. The second thing I ask is that people write to their politicians and in particular the Minister, Warren Truss, to voice their disapproval of the tactics being employed by CASA to overwhelm and discriminate against a group of deserving, competent and safe pilots.
Last year I set up a not-for-profit organisation called the Colour Defective Pilots Association Pty Ltd which is incorporated in Victoria.
Dr Arthur Pape
Our industry contacts assure us that the colour vision issue, although typical of other matters of aviation medicine concern, is far from being the only one that is elevating aggravation among pilots, DAMEs and specialists, and that these matters will be amply brought to the panel’s attention by individuals and groups who are affected. One general practitioner brought our attention to the fact that he can no longer access parts of the DAMEs’ handbook on the CASA website, and is concerned that it may be in the process of being rewritten by persons whose regulatory and medical experience may be less than optimal.
We are reliably informed that some 450 pilots of one single carrier alone are affected by these policies and practices, which appear to embrace the development of new standards in the complete absence of empirical validation or external consultation.
As with some other matters we are convinced that the Panel will be amply provided with well informed information on these issues.
Under the administration of Mr Bruce Byron, industry relations began to improve considerably and there were encouraging signs that authoritarian misrule would be discouraged. Despite early cynicism at the scenario of “CASA investigating itself,” the appointment of an Industry Complaints Commissioner was generally welcomed, as was the intervention of some other executives who were prepared to acknowledge that a regulator sometimes makes mistakes, and to do something about it when necessary.
Mr Michael Hart, CASA’s first Industry Complaints Commissioner, was appointed by (then) Director Bruce Byron in June 2007. He already had considerable experience in managing complaints and complex investigations in the public sector including the New South Wales Attorney General’s Department and Independent commission against corruption and ASIO. He had also flown for several years in the RAAF as a flying instructor and as a check and training captain with Coastwatch, and was also General Manager of AOPA during the avgas contamination crisis. Following his appointment CASA’s organisation chart showed him reporting to Director John McCormick.
Mr Hart’s appointment was welcomed by many in the industry, as it became apparent that matters he handled were conducted in an ethical, equitable and reasonable manner.
That remained the case until Mr Hart’s role was suddenly and dramatically changed, with his position downgraded by a requirement to report through a newly established organisation called the “Ethics and Conduct Committee”.
In a letter to the Director soon after this reorganisation, revealed by Senator Eric Abetz in a Senate Estimates Committee hearing, Mr Hart explained:
When I accepted the position of Industry Complaints Commissioner with the Civil Aviation Safety Authority, it was on the basis that the role was to support the then CEO by managing complaints, CASA stakeholders and the authority’s relationship with industry. In view of proposed changes to duties, relationship and role of the ICC, together with the advice conveyed to me by the EM [Executive Manager] office of DAS that it is your direction that the ICC should now answer to the newly established Ethics And Conduct Committee, I have had cause to review the terms and conditions of my employment with the authority
Mr McCormick was responding to the Senator’s queries about Mr Hart’s departure from CASA,
That reorganisation had come soon after Mr Hart made four recommendations regarding CASA’s handling of a complaint from helicopter owner/pilot Richard Green, one of which was that CASA apologise to Mr Green, which CASA had declined to do. When asked why, Mr McCormick explained that decision to the Committee:
I reject the findings of Mr Michael Hart as the independent complaints commissioner—or the industry complaints commissioner, I should say6—in that he did quite often act as an independent complaints commissioner or more as an advocate for the industry rather than on the facts of the matter. The facts of the matter are before the AAT and will be proved and, if they are proved, we will see where that goes. At this stage, it is pointless me accepting something from somebody who was unqualified to make that statement—and that is Mr. Hart—and for me to apologise to Mr. Green when it has not been determined that I have anything to apologise for.
By the time those remarks were made, Michael Hart was long departed. His two successive replacements have been legal practitioners. The most recent appointee has been descibed by CASA as having formerly had “full carriage” of the John Quadrio case (see “birds” article).
The Industry Complaints Commissioner’s role now comes with a comprehensive “Terms of Reference” – a task-description package containing so many exclusions that it may leave the reader wondering what if anything might be left to complain to the ICC about. Among other matters it specifically excludes complaints about officials in senior positions including members of the Ethics and Conduct Committee and other senior CASA executives. It also excludes:
- “General complaints about CASA’s policies” which do in their own right generate not infrequent industry complaints;
- “Any matter that is currently, or ought more properly be, the subject of investigation by, or under the authority of, another CASA manager.” How that decision is made and by whom, is unexplained.
- “Issues arising in connection with regulatory decision-making—which might more appropriately be considered in the course of an administrative appeal or review.” However given the timeframes that often attend AAT proceedings, it is not explained how this is consistent with the stated goal to “ensure that meaningful and appropriate action in response to a complaint is initiated expeditiously and followed through to a fair resolution within a reasonable time.” Also unexplained, is the question of exactly what process is available to aggrieved parties to determine whether their case “might more appropriately be considered in the course of an administrative appeal or review.”
- “Any action or decision by a CASA officer or delegate taken under or pursuant to the civil aviation legislation, which is subject to review in the Administrative Appeals Tribunal.” This appears to describe most decisions which are likely to attract complaints. Meanwhile the restructure of the ICC position has left industry wondering what assistance is available to aggrieved certificate holders to make an informed decision on whether to approach the ICC, the AAT, the Ethics and Conduct Committee, or a CASA official from another department!
Most of our industry contacts believe the Industry Complaints Commissioner position would now be an appropriate issue for examination under the government’s cost-cutting initiatives.
They also believe a review of the deliberations and outcomes of the Ethics and Conduct Comimttee would be informative – if minutes of those meetings are retained.
A former CASA public affairs person once told us: “Well, that’s the decision we have made. If (the victim) doesn’t like it, he can appeal to the AAT, can’t he?”
Well, not always, and also not necessarily. This is particularly the case if you’ve been running a company with a multimillion dollar turnover whose cash flow has been cut off on the basis of the opinion of somebody who has taken a dislike to you that you are not “a fit and proper person.”
It’s really time for a critical scrutiny of the Civil Aviation Safety Authority’s dedication to its commitments under its ‘model litigant’ obligations.
There have now been countless protracted and well-documented actions by CASA over the last many years in which the regulator has succeeded in simply running a complainant out of money through administrative decisions without any legal action at all, clearly because CASA accurately assessed that its allegations would not survive proper legal scrutiny. The outcomes it has been able to achieve by manoeuvring its victims into the AAT process explains its obvious preference for avoiding the due legal process required in more formal proceedings.
The damages action filed by Polar Aviation against CASA and some of its officials is a classic example, and some observers believe that CASA must by now have spent many hundreds of thousands of dollars ducking and weaving its way through numerous and increasingly expensive legal actions in this matter. ProAviation has some figures in mind and they’re well over $1/2 million.
It seems that CASA was almost painted into a corner when Polar sought discovery of relevant documents. But CASA’s response to that was the bold stroke of applying for Polar’s application be struck out, which would have the effect of barring discovery of documents.
Discovery of documents could have any one of several possible outcomes.
The documents could reveal that CASA’s conduct in reaching the disputed decisions was a proper one; that it was improper; that it was illegal and/or inappropriate; that it was not adequately documented, or that it was not documented at all.
What needs to be asked is why it is that CASA, if it is convinced that it has been acting legally, properly and ethically, is so vigorously opposing the revelation of the documents that were sought?
The inference seems obvious.
CASA is a Commonwealth statutory body and the Attorney General has directed agents of the Commonwealth to be ‘model litigants.’
The Panel is invited to consider CASA’s actions in this and other recent matters against the contents of a document titled Directions on the Commonwealth’s obligation to act as a model litigant (Post 1 March 2006 Version) which is apparently still current:
1. Consistently with the Attorney-General’s responsibility for the maintenance of proper standards in litigation, the Commonwealth and its agencies are to behave as model litigants in the conduct of litigation.
Nature of the obligation
2. The obligation to act as a model litigant requires that the Commonwealth and its agencies act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or an agency by:
(a) dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation
(b) paying legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid
(c) acting consistently in the handling of claims and litigation
(d) endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate
(e) where it is not possible to avoid litigation, keeping the costs of litigation to a minimum, including by:
(i) not requiring the other party to prove a matter which the Commonwealth or the agency knows to be true, and
(ii) not contesting liability if the Commonwealth or the agency knows that the dispute is really about quantum
(f) not taking advantage of a claimant who lacks the resources to litigate a legitimate claim
(g) not relying on technical defences unless the Commonwealth’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement
(h) not undertaking and pursuing appeals unless the Commonwealth or the agency believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest, and
(i) apologising where the Commonwealth or the agency is aware that it or its lawyers have acted wrongfully or improperly.
The notes accompanying the guidelines for Commonwealth agencies and their legal representatives flesh out those requirements quite adequately.
But in numerous events of which we are aware, those and other guidelines appear to have been completely ignored.
In the Polar Aviation case, CASA’s lawyers spent hours expounding the concept (wrapped in reams of soporific case law), that under its powers as defined in the Act, its public safety obligations override everything else, including issues like common law duty to exercise statutory powers with reasonable care, duty of care for the purposes of the law of negligence, reckless indifference, and the list goes on.
CASA’s argument appears to reveal breathtaking defiance of the principles set out for the ‘model litigant.’
The (AAT) is currently a ‘costs free’ jurisdiction, set up in 1975 in the wake of the massive expansion of the public service and the associated increase in the level of licensing the virtually everything to ‘give the common person an avenue of review and relief from heavy and wrongful administrative action by a government body, without the added burden of legal costs.’
The original intention for the AAT was that ‘ordinary people’ could air their grievances to the Tribunal without the need for lawyers and without fear of legal costs if the AAT made an adverse decision against the person.
But that intent has been perverted.
What happens in reality is that when a person makes an application to the AAT for review of a decision made by CASA which is believed to be harsh or incorrect, CASA inevitably defends the application with a team of in-house solicitors and external barristers. The applicant has little or no chance of succeeding in an application for Review of a Decision before the AAT without legal assistance, and as a result the person seeking a Review is then obliged to engage lawyers to match the legal expertise of CASA.
As CASA well knows AAT proceedings are often prolonged, and it’s not uncommon for an applicant to be faced with a $70,000.00 legal bill for even a simple application for Review which became prolonged CASA’s legal ducking and weaving.
And even if the applicant is successful he or she has no recourse to the AAT for an order or direction that CASA, although proven to be wrong, pay for the legal costs of the applicant. This is so, regardless of the fact that CASA may have unjustifiably shut down a person’s business of unwarrantedly cancelled or suspended their licence, upon which that person might rely for their livelihood….all without recourse on costs before the AAT.
The only avenue left for an applicant seeking compensation for damages arising from a wrongful or unjust decision made by CASA which has been overturned by the AAT is to make a claim for damages in a Court of competent jurisdiction; which involves more legal expense. The applicant seeking justice will be faced with a further barrage of CASA lawyers, who will use the deep pockets of the Government to fund the defence of CASA and try to run the applicant out of money.
A possible remedy could be put in place if the Government amended the legislation to allow the AAT to award costs, in its discretion, to successful applicants (in a manner similar to what currently exists in State tribunals), CASA might become more accountable for the unwarranted actions and conduct of its officers.
Everybody recognises that CASA has a job to do and industry supports CASA in its role as regulator in keeping aviation safe. However, unjustified or unnecessarily heavy-handed action and/or bullying misconduct on the part of CASA officers, which is unfortunately far too prevalent today, no longer deserves the ‘blind eye’ afforded to it by CASA management, government and bureaucrats alike.
Polar Aviation proprietor Clark Butson’s own costs in his long drawn-out case are in the area of one million dollars. A closer examination of several similar instances of CASA misconduct, would reveal that this type of all-in assault, clearly expending vast amounts of public funds to drain the bank accounts of individuals and companies and disable their financial defences, is far too common and that there is no apparent accountability.
It’s really about time CASA was compelled to explain in detail much public money it has spent on this prolonged and ugly attack on Mr Butson and his business, and to exactly what purpose.
Another of the disadvantages of the AAT process is that the tribunal cheerfully admits that it is not subject to the rules of evidence, which appears in recent times to have led to somewhat unpredictable decision-making. Another is the time it takes to bring a matter before the tribunal. In the Quadrio case for example, an AAT hearing was suspended to allow a criminal prosecution to proceed. After an interminable wait through nine adjournments, until the DPP dropped the case against Mr Quadrio, and his matter was reopened in the AAT which then affirmed the CASA decision despite the DPP having dropped the case based on the CASA allegations against him.
Material obtained under FOI suggests that recourse to the Commission may be of limited effect, especially if the matter being dealt with is of a highly technical nature. An example is cited on page 29, DC3 ditching in Botany Bay, which suggests that if a complaint against CASA is of a technical nature, the authority is likely to be involved in preparing the Ombudsman’s response.
Mr Richard Rudd (see Dad’s Army Rides Again), also sought recourse from the Ombudsman Commission, when he was put to the $6000 cost of defending himself against a negligently prepared charge which was ultimately dropped by the DPP. Mr Rudd was let down by his lawyer who failed to make a claim for costs when the matter was struck out.
The Commission advised Mr Rudd:
“In terms of your out-of-pocket expenses, I suggest that you make a written claim to CASA. The discretionary compensation schemes available to Australian government agencies are not available to CASA. However, we would expect CASA to consider whether or not there is a legal obligation to pay any expenses you incur as a direct result of the actions of Mr Larard, Mr Retzki and Mr Clarke.
Mr Anastasi’s response rapidly put paid to that suggestion:
“CASA denies it owes any liability to you to pay your account and accordingly declines to pay it. If the legal expenses to which you refer relate to a criminal prosecution of you in which a CASA officer was the informant, I note that you did not seek payment of your legal costs when the charges were dismissed. If you would like to discuss this matter please do not hesitate to contact me.”
“Yeah. Thanks Adam.”
Best starting point is the Rule of Law Institute of Australia, which will walk you through the process. The “Model Litigant Rules” oblige the Commonwealth to act as a “model litigant,” and the Office of Legal Services Coordination (OLSC), which is an office of the Attorney General’s Department, manages that process.
Hopefully, Richard Rudd’s case is not typical of the level of service you can expect. FOI material provided to us paints a picture of a number of officials with imposingly expensive titles exchanging emails and file notes on Mr Rudd’s case, but the result of this material would not fill a potential MLO applicant with optimism. Amidst copious exchanges of draft responses by email and file note, we were unable to identify any sentiment that reflected adversely on the false evidence given against Mr Rudd. There was a fleeting mention of the fact of Mr Rudd’s prior convictions which didn’t appear relevant to the MLO application, and one official took the trouble to circulate the entertaining opinion that;
If Mr Rudd is a pilot then I don’t think he will qualify for legal aid or a CLC [Community Legal Centre assistance], but you never know. Also, he spent $5000 defending the prosecution, so it would seem that he was able to afford legal representation. I would like the opportunity to discuss the matter with you over the telephone.
Mr Rudd observes that for an age pensioner like himself, a $5,000 penalty for somebody else’s negligence doesn’t leave many discretionary dollars in the family budget.
We would hope that the frequent email invitations to telephone chats weren’t a reference to off-the-record telephone conversations in which irrelevant matters such as Richard Rudd’s previous convictions for selling his aerial photographs could be aired.
Frankly, nothing in the entire flow of correspondence suggested to us that time and nervous energy spent on an MLO application, would be likely to be rewarded.
Compensation for detriment caused by Defective Administration
Warning: In dealings with CASA this appears to be a blind alley. The case studies we have published are rich in examples that would arguably support a claim for Compensation for financial Detriment caused by Defective Administration (CDDA). The scheme covers mechanisms for the treatment of payments made under the CDDA Scheme); and also of “Act of grace” payments made under section 33 of the Financial Management and Accountability Act 1997 (the FMA Act);
The Department of Finance points out that “The CDDA Scheme is not available to Commonwealth authorities and companies (our emphasis), which have a separate legal identity to the Commonwealth and operate under the Commonwealth Authorities and Companies Act 1997.”
As a statutory authority, CASA is accountable under the Commonwealth Authorities and Companies Act 1997, and as a result the CDDA scheme is not available in relation to CASA’s actions.
Dead end: the Act that covers CASA contains no provision that is parallel with the CDDA Scheme.
The following are some of the issues that arise from various matters discussed in this submission. Time hasn’t permitted us to seek answers to any of the questions below, but we trust the panel will find among them some useful guidelines.
Regulatory review program
1. What was the total budget for the program when it was launched?
2. What was the target completion date?
3. What is now the target completion date?
4. What policy changes were adopted during the program and on what authority?
5. What has been the total cost of the program to date?
6. What is the program’s budget for the current financial year?
Recruitment and training
7. Please define CASA’s current strategies for recruiting, training and retaining adequately qualified flying operations and airworthiness inspectors.
8. What strategies are in place to stem the flow to industry of Flying operations inspectors, including the continued provision of indemnity cover?
Compliance and enforcement
9. What legal, investigative and people skills training do FOIs and AWI’s receive on induction, and what program is in place to ensure continuous proficiency?
10. What technical flying operations and airworthiness background is provided in the recruitment and training of S22AA investigators?
11. What technical flying operations, airworthiness and investigative background are provided in the recruitment and training of CASA legal staff who will be involved in enforcement activities?
12. Over the past financial year, how many charges were laid in total against how many offenders, and what is ratio of charges to convictions?
13. What were the total costs to CASA in each of the following cases (as detailed) and what safety benefit analysis has been conducted in respect of each case?
We submit that the underlying regulatory problems which our narratives have described will never be resolved without unscrambling the chaotic body of regulation on which they are based. A starting point for that project would be enacting amendments to the Civil Aviation Act to remove anomalies and obstructions to sound regulatory practice that are identified by the “Rundle Analysis” published as part of this submission. Clearly, that process should not involve the Civil Aviation Safety Authority at any level, and we suggest that the Australian Law Reform Commission would be an appropriate body to guide the necessary processes.
We have limited our observations to the aspects with which we are most familiar, and are confident that other organisations will do the same. It is not unusual when one identifies problems, to be asked, “what would you do to fix it?” We respectfully submit the following recommendations.
1. A policy of outcome based regulation should be adopted and enforced, to replace the prescriptive micro-management regimen which current processes are seeking to expand.
2. The principles detailed in the Australian Law Reform Commission Report 95: Principled Regulation: and the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers should be set as the baseline in all new or rewritten regulation.
3. Regulation must be rewritten in a way that does not permit arbitrary administrative decision making to close businesses or destroy the welfare of individuals without due legal process.
4. The development (or re-development) of the regulatory structure should review and reverse the process by which the founding principles of the regulatory review program (RRP) were replaced by policies that overturned significant elements of the original program. .
5. Air operator certificates and AMO certificates of approval should be perpetual.
6. The alternatives of adopting the New Zealand regulations, either an interim measure or as a baseline for further development unded new guidelines, should be seriously considered.
Compliance and enforcement
7. The primary objective of CASA’s compliance and enforcement program should be to promote compliance with statutory and regulatory requirements. The initial priority of CASA personnel when a violation is detected must be to ensure safety and to correct any ongoing non-compliance, and this should normally be achieved by advice and education.
8. When enforcement is necessary, improved observance of the graduated scale of options available should be made with early intervention preferred over harsh actions that damage the viability of businesses and the careers of individuals. The options of administrative fines or prosecution, which currently appear to be almost completely ignored, should be considered in this context.
9. Within a revised structure a competent standardisation unit should be established with powers to coordinate various disparite decisions made by various CASA decision makers in all disciplines. The need to disband the various “fiefdoms” that now exist would bring much momentem to the restoration of trust between affected parties.
10. In the initiation of inevitable major reform, a clear, and concise policy document, framed around all the findings of the ASRR, should be developed and circulated by an interim “change team.”
Governance and management
11. Whilst the reform process is in progress, CASA must review its internal training and governance to improve the consistency of regulatory interpretation and decision making across the organisation.
12. CASA should seek to optimise its internal processes to improve efficiency and reduce costs.
13. In developing and adopting policies and procedures that support its regulatory obligations, CASA should consult with industry and strive to ensure the costs of compliance are minimised A structure needs to be developed in which genuine and effective consultation with industry is established and maintained in respect of regulatory development, policy and guiding principles. An Industry Council with a rotating fixed-term membership of industry representatives would be appropriate.
14. Because the word “safety” has received such undue exposure as to be an insult to the intelligence of the parliament, industry and the community, we submit that it should not be part of the title of a reformed regulatory body.
 Whyalla Airlines, the “Birds?” analysis and “To Hell with the Rules.”
 See separate article in this submission
 Comment dated October 2010
 As advised to us by a former flying operations inspector.
 Senate Estimates Hansard, October 21, 2010
 “Industry Complaints Commissioner” is the official title.
 “Senior Legal Officer,” “Principal Legal Officer (2),”
 A Freedom of Information application to CASA is currently in progress and may answer related questions; however the CASA FOI decision has recently been deferred to a date which is one week later than the Panel’s deadline for submissions.
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