The complex and controversial issues surrounding ATSB, CASA and confidential reporting within safety management systems are among the central elements of a Senate committee enquiry which is deadlined to report to Parliament by the end of this month. The committee’s terms of reference are:

(a)     The findings of the Australian Transport Safety Bureau into the ditching of VH-NGA Westwind II, operated by Pel-Air Aviation Pty Ltd, in the ocean near Norfolk Island airport on 18 November 2009.

(b)     The nature of, and protocols involved in, communications between agencies and directly interested parties in an aviation accident investigation and the reporting process;

(c)     The mechanisms in place to ensure recommendations from aviation accident investigations are implemented in a timely manner; and

(d)    Any related matters.

This inquiry was initially scheduled to be completed by the end of November 2012, but due to an unexpected amount of input being provided by individuals and a reluctance on the part of the CASA and ATSB to answer questions promptly has resulted in extension of the number of hearings. The most recent session was held “in camera” on Monday 18th March 2013.

ProAviation will be following and reporting on the progress of this enquiry, which many in the industry believe may be a critical turning point in aviation regulatory affairs.

What is confidential reporting?

The following is an extract from an ATSB draft report recently published on the Internet:

Confidential reporting schemes play an important role in gathering safety information for the purpose of hazard and risk identification.  They work in conjunction with other information collection systems including  mandatory reporting, safety investigations, and audit and compliance related activities, to create a complete picture of the health  of a safety system.   It is important to have each one of them  playing its part to full  effect.  This includes confidential reporting, which because of its very nature, will be  able to capture some information the others cannot.

Confidential reporting  captures information the other systems sometimes cannot  because it protects the reporter’s identity.  In this environment, the reporter may feel  more confident about coming forward with safety concerns where they may otherwise be worried about relationships with employers, work colleagues and others in the industry.   Unsafe procedures, practices and conditions may come to light, which otherwise would have remained uncovered.

For example, someone may feel uncomfortable about openly raising a safety concern about how his or her company addresses fatigue management.  A confidential reporting system would give this person a secure way of putting their concern forward.  Once the worry is aired, there is the opportunity to do something about it. With the advent of ‘just cultures’ principles forming part of many transport operator safety systems, confidentiality may not always be required.  A ‘just culture’ is present in an organisation where there is a clear distinction between acceptable and unacceptable behaviour and people are treated accordingly.  Sometimes though, that extra level of protection still helps with people coming forward, which is the reason why confidential reporting exists.   Often transport operators will provide for confidential reporting internally to fulfil this need.

Increasingly around the world, confidential reporting is also  providing a means  for hazard and risk identification by administrative bodies, which have responsibility for regulating and/or providing safety information to an industry as a whole.   As noted above, confidential reporting is not replacing other forms of hazard and risk identification (i.e. mandatory reporting), it is seeking to pick up information that other systems may not capture and integrate the data.   Further, where administrative organisations operate confidential reporting their sole focus is not on trying to improve safety within one organisation.  Their overarching objective is to disseminate the safety information to all industry operators (while protecting identities) so that knowledge about  how  risks and hazards may eventuate, and be resolved, becomes  shared knowledge.

Unfortunately the ATSB seems to believe those altruistic philosophies are shared by all stakeholders. If that were so, why would CASA feel the need to impose what are effectively laws affecting selected operators? Remember that once you’ve been compelled to publish a procedure in your operations manual, you are constrained by law to comply, under penalty of having CASA’s “acceptance” of your manual withdrawn.  Ergo, your AOC becomes invalid and you’re grounded.

Here’s how it’s done:

The first dot point requires operators and staff to comply with provisions of the TSI Act and Regulations; but they’re already bound to comply with those instruments, and administration of the TSI Act is as far outside CASA’s jurisdiction as are the rules against littering.

The second dot point appears to be an attempt to compel operators and their staff to share their  reports to the ATSB with CASA, and this would normally include reports that should be protected by the principles surrounding confidential reporting.

CASA has responded to queries about this practice  by saying:

CASA is aware of the direction but advises that it was not “randomly” imposed. It was imposed in specified circumstances in which CASA considered its issuance was warranted…………Your email suggests the giving of the direction was “illegal.” That is not correct. Firstly, CASA considers that knowing whether an operator has an accident or incident is directly referable to the safe conduct of flight operations, so that a procedure requiring a report to be made to CASA is consistent with that. Secondly, receiving reports in the circumstances established by compliance with the direction does not place any officer of CASA in contravention of any requirement or prohibition in the Transport Safety Investigation Act 2003.

Although it was issued before the Government responded to the recommendations appearing in the Report of the Senate Rural Affairs and Transport References Committee Inquiry on Pilot Training and Airline Safety; and Consideration of the Transport Safety Investigation Amendment (Incident Reports) Bill 2010.”, the direction is consistent with the Government’s response to Recommendation 17 of the report, which recommended that CASA, in concert with the ATSB, consider developing and publishing guidance on model reporting to minimise understatement of the actual or potential significance of aviation events, as well as the Government’s response to Recommendation 18, which recommended that CASA require operators to observe the highest standards of incident reporting from their personnel and provide appropriate training as part of their SMS.

So what’s the problem with proclaiming CASA’s requirement in the relevant regulations, imposing the obligation on all operators, and exposing the legislation to parliamentary scrutiny?

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