[Peetwo]

'Just culture' & incident reporting probity?

The above post title you might think would be much more appropriate on an ATSB thread?? However given the overwhelming evidence from recent Senate Inquiries, many of the ASRR submissions and evidence given to the Forsyth panel, one can only conclude that this is very much a CASA issue. This is also clearly evident in recommendation 17 of the Forsyth report & in the Miniscule's SOE: 

17. The Civil Aviation Safety Authority publishes and demonstrates the philosophy of ‘just culture’ whereby individuals involved in a reportable event are not punished for actions, omissions or decisions taken by them that are commensurate with their experience and training. However, actions of gross negligence, wilful violations and destructive acts should not be tolerated.    

 

CASA SOE: ..8. work closely with the ATSB to ensure continued arrangements are in place, consistent with the current Safety Information Policy Statement and informed by ‘just culture’ principles, for the appropriate sharing and use of safety information by CASA and the ATSB;


ATSB SOE: ...Work closely with CASA to ensure continued arrangements are in place, consistent with the current Safety Information Policy Statement and informed by 'just culture' principles, for the appropriate sharing and use of safety information by the ATSB and CASA;

Here is a link for -  Safety information policy statement

From this policy statement it is stated:

This policy is consistent with contemporary practice in leading aviation States.  It is also in line with the new ICAO Annex 19 – Safety Management.  Standard 5.1.1 of the Annex requires that:


Each State shall establish a mandatory incident reporting system to facilitate collection of information on actual or potential safety deficiencies.

Recommended practice 5.3.1 states:

State authorities responsible for the implementation of the State Safety Program should have access to appropriate information available in the incident reporting systems.

  
However from the footnote it would seem to indicate that there has been no updates to this policy since 2012-13:

* In 2012, the ATSB sought comments on proposed regulatory changes covering mandatory reporting of accidents and incidents and confidential reporting of safety concerns in Australia. CASA sought comments on proposed new Part 119 of the Civil Aviation Safety Regulations dealing with the certification and management of Air Transport Operators.

This was despite the findings & recommendations of the Senate AAI (Pel-Air), TSBC & Forsyth review reports..

Although OST (Skidmore) would seem to have taken note of the Government's support of the Forsyth R17 (ref OzFlying) & the DPM SOE...

 "In the coming months, I will be leading CASA in the implementation of a just culture approach to aviation safety regulation in Australia. We will work to develop a regulatory and an operational environment where genuinely honest mistakes are recognised for what they are—opportunities for learning and improvement.


"CASA’s response will be to understand why the mistakes were made and how the likelihood that the same mistakes will occur in the future can be reduced. Where the people and organisations involved demonstrate a willingness and ability to address errors and omissions in a responsible and constructive way, CASA will not need to take enforcement action. Certainly no punitive action will be necessary.


"We will encourage the individuals and organisations involved to identify and understand the factors behind mistakes."


However, the new approach doesn't mean that NO action will be taken, with Skidmore pointing out that some action will need to be necessary in the interests of safety.

According to Skidmore, the advantage of a just culture approach is more opportunity for everyone to learn.


"The advantage of a just culture approach is that it encourages people to be open and accountable about their mistakes, so there is a better reporting of errors and the ability to learn from them is enhanced.


"Fear of punishment doesn’t stop people from making mistakes. But mistakes can be avoided by robust safety systems, training and an overarching commitment by everyone to achieving the best possible safety outcomes."

   
We all know from recent evidence that this is merely rhetoric (spin and bulldust ) and until someone has the balls to undertake a top to bottom purge of the perfidious, sociopathic subculture of individuals within, we will continue to get miscarriage of power (embuggerance) to circumvent government policy.

Potential embuggerance example:

 Point of difference - CAR 301 notices to the ATSB?

I know it is early days yet but the ridiculous, flippant comment from CASA (in the above article) would seem to indicate that Fort Fumble is not remotely interested in this incident.

Turning back time some 20 months to another incident occurring during the take off sequence, at Kununurra Airport WA, 22 January 2013 - AO-2013-023:  

On 22 January 2013, the pilot of a Cessna 182R aircraft registered VH-OWZ (OWZ), took off from Kununurra Airport, Western Australia on a charter flight with one passenger. When at about 100 ft above ground level, with insufficient runway distance remaining to abort the takeoff, the pilot retracted the landing gear. Immediately after, the engine failed.


Due to the low altitude, the pilot confirmed that the engine controls were in the full forward position and that the fuel tank selector was on ‘both’. The pilot then looked for a suitable place to land and saw a suitable field to the north.

After extending the landing gear and selecting full flap, the main landing gear touched down in long grass and the aircraft decelerated rapidly. When the nose gear touched down, it dug into boggy ground and the aircraft flipped over, coming to rest inverted. The pilot and passenger received minor injuries and the aircraft sustained substantial damage.

An examination of the aircraft was carried out by an independent Licensed Aircraft Maintenance Engineer (LAME). No contaminants, including water, were found in the fuel or filters. An engine tear down was not performed and the reason for the engine failure could not be determined.

As a result of this occurrence, the aircraft operator has advised the ATSB that they are taking the following safety actions:

• Fuel contamination procedures: They will create a log for all company aircraft that will contain details of any water contamination found in fuel drains. In addition, after heavy rain is experienced, all aircraft fuel tanks will be tested for water contamination.
  
• Emergency response equipment: Equipping a vehicle with an ‘accident kit’, which includes fire extinguishers, a fire suit, and first aid kit for use in an on-airport emergency.
  
  

This accident highlights the benefits of conducting a self-briefing before takeoff and ensuring that emergency procedures, particularly those related to critical phases of flight, are clear and familiar. This assists pilots with responding to an abnormal or emergency situation promptly and ensuring the best possible outcome can be achieved. Generally speaking, if you self-brief your plan of action just before flight, you have more chance of ‘staying ahead’ of the aircraft and being able to concentrate on flying.
 
Aviation Short Investigation Bulletin - Issue 18

Okay all good, we end up with yet another wishy-washy desktop investigation & short investigation bulletin report from the ATSB...

However what perked my interest with this incident, was the apparent disassociation with the ATSB/LAME findings & safety message and the apparently unprompted safety actions by the operator:

Aircraft operator

As a result of this occurrence, the aircraft operator has advised the ATSB that they are taking the following safety actions:

• Fuel contamination procedures: They will create a log for all company aircraft that will contain details of any water contamination found in fuel drains. In addition, after heavy rain is experienced, all aircraft fuel tanks will be tested for water contamination.

• Emergency response equipment: Equipping a vehicle with an ‘accident kit’, which includes fire extinguishers, a fire suit, and first aid kit for use in an on-airport emergency.

Hmm..passing strange? To me those actions smack of other external influences (i.e. the micro-managing big "R" regulator).

And then I happened upon a recent ATSB FOI request release: FOI 14-15(12) - Disclosure Log Documents_Redacted

Q/ First question is why would anyone want to request this information?

Q/ Why would CASA be even remotely interested in this incident?

Q/ From the ATSB responses to the CASA CAR 301 'demand', it would appear that it is an accepted SOP for CASA to issue such a demand. So is this normal procedure for CASA? It seems very OTT and also seems to be impinging on the independence of the ATSB and in direct conflict with certain principles as outlined in the TSI Act?

Anyway that's my Sundy OBS & QON - Gobbles..anyone

    
Finally I would like to draw attention to the following statement from Nick Xenophon in his additional comments - Who guards the guards themselves? - to the Senate AAI report:

1.23      It is my view that CASA, under Mr McCormick, has become a regulatory bully that appears to take any action available to ensure its own shortcomings are not made public. This poses great risks to aviation safety, and the safety of the travelling public. Equally, the ATSB—which should fearlessly expose any shortcomings on the part of CASA and other organisations to improve aviation safety—has become institutionally timid and appears to lack the strength to perform its role adequately. Both agencies require a complete overhaul, and I believe it is only luck that their ineptness has not resulted in further deaths so far. There is an urgent need for an Inspector-General of Aviation Safety, entirely independent of the Minister and his department, to be a watchdog for these agencies.

1.24      In the end, this report raises many questions. But if we wish to bring about change and improve aviation safety, we will clearly need to look beyond our inept regulators and ask: who will guard the guards themselves?

 
Take out the names, change the date to today's date and ask would the NX comments & Q ( who will guard the guards themselves?) be any less relevant today? Has anything changed? - I think not...
TICK...TOCK Miniscule; and Malcolm you now own this...P2  

[thorn bird]

"1.23 It is my view that CASA, under Mr McCormick, has become a regulatory bully that appears to take any action available to ensure its own shortcomings are not made public. This poses great risks to aviation safety, and the safety of the travelling public. Equally, the ATSB—which should fearlessly expose any shortcomings on the part of CASA and other organisations to improve aviation safety—has become institutionally timid and appears to lack the strength to perform its role adequately. Both agencies require a complete overhaul, and I believe it is only luck that their ineptness has not resulted in further deaths so far. There is an urgent need for an Inspector-General of Aviation Safety, entirely independent of the Minister and his department, to be a watchdog for these agencies."

Oh so true Nick, the tragedy is With the Murky mandarin in charge, all will be ignored. The Mandarin wants his "Payoff" he couldn't give a fig for the lives put at risk, nor the lives and aspirations his minions destroy, his focus is on the end game and his pot of gold.

[Peetwo]

"1.23      It is my view that CASA, under Mr McCormick, has become a regulatory bully that appears to take any action available to ensure its own shortcomings are not made public. This poses great risks to aviation safety, and the safety of the travelling public. Equally, the ATSB—which should fearlessly expose any shortcomings on the part of CASA and other organisations to improve aviation safety—has become institutionally timid and appears to lack the strength to perform its role adequately. Both agencies require a complete overhaul, and I believe it is only luck that their ineptness has not resulted in further deaths so far. There is an urgent need for an Inspector-General of Aviation Safety, entirely independent of the Minister and his department, to be a watchdog for these agencies."

Oh so true Nick, the tragedy is With the Murky mandarin in charge, all will be ignored. The Mandarin wants his "Payoff" he couldn't give a fig for the lives put at risk, nor the lives and aspirations his minions destroy, his focus is on the end game and his pot of gold.

'Just Culture' & incident reporting probity?- Part II 

Fair comment Thorny but I do wonder if Murky & OST maybe underestimating the Worldwide aviation leadership (ICAO, FAA & EASA) & community sentiment on embracing 'Just Culture',  advancements in best practice SMS & safety risk mitigation (i.e. Annex 19).

From CASA meets the Press:

Dear Ken (FSF), Please take note??   


While the tensions were high in the lead up to, & at the RAAA convention - see The Emperor's new clothes - MKII & Skidmore's 'vision splendid' Part I-III - apparently this did not discourage the 'Flight Safety Foundation' from endorsing the FAA & Oliver's bunch for their embracing a 'Just Culture' approach to regulatory & enforcement policy:

FSF endorses changes to Aust/US enforcement

Tuesday, October 27, 2015
The Flight Safety Foundation (FSF) has confirmed its endorsement of the US Federal Aviation Administration’s (FAA’s) and Australian Civil Aviation Safety Authority's (CASA’s) recent changes in enforcement and regulatory philosophy focused on performance-based and ‘Just Culture’ approaches to compliance and enforcement.

Addressing the National Convention of the Regional Aviation Association of Australia in Hunter Valley, Australia, FSF's general counsel Kenneth Quinn praised FAA and CASA.

"These national civil aviation authorities are embarking on enlightened best practices to compliance and enforcement by emphasising the importance of proportionality, discretion, and remedial action to address safety issues. The vast majority of deviations from the rules are due to human factors, honest mistakes, or diminished skills, where training and education are appropriate corrective measures, not punishment or enforcement," Quinn said.

"All countries should closely examine CASA's and FAA's new, forward-thinking compliance and enforcement philosophies and get away from outdated 'cop-on-the-beat' mentality, where inspectors are looking to write up violations, instead of helping organisations and individuals become compliant and enhance safety."

The FAA’s new Compliance Philosophy Order, issued  03 September, 2015, Order 2150.3B, Change 9, recognises that the FAA’s goal is to use the most effective means to return an entity holding a certificate or approval to full compliance and prevent recurrence. If a person is willing and able to comply with regulatory standards, FAA is now willing to use non-punitive ‘compliance actions’ to address the underlying root cause through airman training, counselling, or education, with agreed-upon corrective actions.

When FAA determines that compliance actions are deemed insufficient, the new policy emphasises the use of ‘Warning Notices’ or ‘Letters of Correction’ to set forth the facts and circumstances of non compliance and a specific agreement to institute corrective actions within a specified time frame. Legal enforcement action with findings of violation remain appropriate for willful or flagrant violations, or a refusal to co-operate in remedial actions.

In the same spirit, CASA's new ‘Regulatory Philosophy’ issued 15 September, 2015 sets out ten key principles to guide their regulatory powers. The principles include embracing a ‘Just Culture’ approach, taking actions that are appropriate and in proportion to the circumstances, exercising discretion fairly, avoiding punitive measures, with a focus on encouragement of training and education, with a view to remedying identified shortcomings and correcting deficiencies.

“These modern safety management enforcement philosophies, which need extensive training and 'buy in' from front-line inspectors to senior management can rapidly re-establish trust between the regulator and the regulated, and encourage people to come forward to admit mistakes, turning them into teaching moments that can save lives," said Quinn.

The inaugural meeting of FSF’s Legal Advisory Committee, comprising aviation lawyers from around the world, will be held at FSF’s upcoming International Air Safety Summit in Miami Beach, USA ( 02-04 November, 2015).FSF endorses Oliver's ten commandments??

Can't comment on the veracity of the FAA initiative but perhaps the FSF should have asked around before endorsing Oliver's 10 commandments and associated rhetoric on 'Just Culture'.

 For old mate Ken's reference - 'Just culture' & incident reporting probity? & PelAir - 'Lest we forget' Part III

And now an excellent contribution from off the Cr APA  :

Aviation safety vs the “prosecutorial imperative”. Indiscriminate prosecutions erode safety culture




This report contains extensive extracts from the Keynote Remarks of Jeff Shane, IATA General Counsel, to the Tort Trial & Insurance Practice Section of the American Bar Association Aviation and Space Law Committee National Program, in Washington, DC on 22-Oct-2015. Mr Shane addresses a key area of concern to those dedicated to applying lessons learned from airline accidents in the cause of improving air safety.

Major improvements in safety management have come with the advent of voluntary reporting systems, dating back to the 1970s. Mr Shane recounts that these systems have been encouraged by regulators in a number of countries as part of a non-punitive, “just culture” approach to safety regulation. There is an emerging consensus among regulators and airlines alike that a “just culture” approach yields greater benefits than a regime characterized by enforcement penalties. Essential to the success of such systems is that the information furnished through such systems be held in strict confidence.

However, Mr Shane was concerned at a persistent “prosecutorial imperative” - that judges, prosecutors, and trial lawyers often seek access to this material and, “in a growing number of cases, they have succeeded.” If this trend were to continue, says Mr Shane, “the essential flow of safety information would simply dry up” as those with valuable knowledge fear the legal consequences of sharing information.

About the intersection between law and the safety of air travel

2015 is turning out to be a record year for the airline industry. Speaking a couple of days ago at IATA’s World Passenger Symposium in Hamburg, our Director General, Tony Tyler – my boss – announced that for 2015, we expect an industry net profit of $29.3 billion on revenues of $727 billion, for a net profit margin of 4 percent, generating a return on invested capital of 7.5 percent. For the first time, we actually expect the industry on average to create value for its investors. It’s hardly a robust performance compared to other industries -- Apple earned $13.6 billion in the second quarter of this year alone for a 23.4 percent margin -- but for the airline industry, 4 percent is something to celebrate.

But my theme today isn’t the quest for elusive profits in commercial aviation. I want to talk instead about the intersection between law and the safety of air travel, with a focus on some interesting recent developments. 

Safety Information Protection - and learning from accidents

A good way to start the discussion might be by reference to the Montreal Convention of 1999. My guess is that the people in this room know better than anyone what things were like before that treaty came into force. Under the old Warsaw/Hague regime, airlines had strict liability for mishaps, but the victims of an accident were entitled to no more than some absurdly low recovery amount, depending on the jurisdiction in which they were eligible to sue. Even in the United States, where airlines were compelled by regulators to increase the damages available through the treaty, the maximum recovery was $75,000 per passenger.

The only way claimants could break those limits was to prove in court that the carrier had been guilty of “willful misconduct” – a gross negligence, reckless endangerment test that engendered many years of costly litigation that was excruciating for claimants and defendants alike.By the mid-‘90s, the airline industry had had enough.

In 1996, through inter-carrier agreements brokered by IATA and the Air Transport Association of America – today’s A4A – the airlines waived the liability limits of Warsaw/Hague. The Montreal Convention of 1999 effectively ratified that waiver. Today, strict liability is still the centerpiece of the regime, but unless the airline can prove that the accident was not due to its own negligence – in other words, prove that it took all available measures to prevent the accident -- claimants are entitled to recover all provable economic damages. The net result is that, as long as a claim falls under MC99, there is no longer any reason to spend years fighting in court over whether the airline was guilty of “willful misconduct.”

Even in the very rare case where the airline successfully asserts the non-negligence defense, claimants are entitled to 113,100 special drawing rights, or about US$160,000 at current conversion rates.The Montreal Convention made the recovery process more humane, to be sure. But it had an even more important benefit. I know that the plaintiffs’ bar prides itself on using the evidentiary tools available in a trial to tease out important facts that might otherwise have gone undiscovered.

Thanks to the Montreal Convention of 1999, the litigation-driven incentive to construe the facts in ways most beneficial to one side or the other have largely gone away.

But we lawyers have a professional responsibility to construe those facts in ways most beneficial to our clients. Fact-finding thus can take a back seat to advocacy. Thanks to the Montreal Convention of 1999, the litigation-driven incentive to construe the facts in ways most beneficial to one side or the other have largely gone away.

After all, every accident, however regrettable, represents an opportunity to make flying safer, as long as we can find out what actually happened. We can say, thanks to these important developments in civil litigation over the past 20 years, that we now have a much better chance of exploiting that opportunity fully.

You should know that since 1996, when the airlines first waived the limits of liability under Warsaw, the fatal accident rate in commercial aviation has steadily declined. In fact, 2014 was the safest year we have ever had. Jet-hull loss per million sectors flown in 2014 was 0.23, the lowest on record. Whether or not you believe that the elimination of “willful misconduct” trials was a factor in that steady decline in accidents, at least we know that the reduction in such litigation had no adverse safety consequences.

The Prosecutorial Imperative vs. “Just Culture”

But there’s another worrisome impediment to learning from occasional mistakes. It is what I will call the prosecutorial imperative.

In too many jurisdictions, the instinct is to treat every accident as a possible crime. There is immediate tension between the technical accident investigators who simply want to find out what happened in the interest of making sure it doesn’t happen again, and the criminal investigators who want to determine whether the accident was attributable to culpable conduct and if so to punish that conduct. I don’t have to tell you what happens when the gendarmes put yellow tape around the scene of an accident and start quizzing witnesses.

Those closest to the event and with the most valuable information hire lawyers and are warned that anything they say may be used against them. Getting the facts becomes much harder.

the prosecutorial imperative can compromise in a fundamental way the over-arching safety ethic

Even more worrying is that the prosecutorial imperative can compromise in a fundamental way the over-arching safety ethic that has been so successfully embedded in the DNA of the aviation industry. I’m talking about the “just culture” approach that is widely treated within the industry as a sine qua non to optimal safety performance. The idea dates back to the 1970s, when the first voluntary reporting systems were established.

It is a simple concept: Companies and their employees are encouraged to report voluntarily any defect, any anomaly, any departure from the norm, anything that might compromise the safety of flight. The information and its source are held in strict confidence. And no punishment follows – either of the employee or of the company. No protection is accorded to criminal activity, of course, but short of that, the information remains sacrosanct.

The great thing about the just culture approach is not merely that it produces timely information that can save lives, but that the information is widely shared among those who can benefit from it. There are searchable online databases containing massive amounts of vitally important safety-related information. With today’s sophisticated analysis and artificial intelligence, it is possible to predict incipient dangerous conditions and remedy them well in advance of an actual system failure.

An Emerging Consensus: deficiencies are best addressed by a "just culture" approach

The value of just culture has been widely acknowledged by regulatory authorities. The FAA last June issued a new “compliance philosophy” (FAA Order 8000.373, June 26, 2015) that places new emphasis on non-punitive means of rectifying deviations from regulatory requirements when disclosed. Noting that some deviations arise from factors like flawed procedures, simple mistakes, lack of understanding, or diminished skills, the FAA believes that such deficiencies “can most effectively be corrected through root cause analysis and training, education or other appropriate improvements to procedures or training programs for regulated entities....” In other words, not through the imposition of penalties. The objective, quite clearly, is to encourage more voluntary reporting in the interest of ensuring that the safety management systems required of all airlines are working optimally.

“CASA embraces, and encourages the development throughout the aviation community of, a ‘just culture,’ in which people are not punished for actions, omissions, or decisions taken by them that are commensurate with their experience, qualifications and training.”

Just last month Australia’s Civil Aviation Safety Authority issued a new statement of regulatory philosophy that even more explicitly embraced the just culture approach. The agency wrote:
“CASA embraces, and encourages the development throughout the aviation community of, a ‘just culture,’ in which people are not punished for actions, omissions, or decisions taken by them that are commensurate with their experience, qualifications and training.” 

Earlier this month, the European Commission convened a meeting in Brussels to introduce a “European Corporate Just Culture Declaration.” The Declaration said: “It is acknowledged that, in an operational aviation industry environment, individuals, despite their training, expertise, experience, abilities and good will, may be faced with situations where the limits of human performance combined with unwanted and unpredictable systemic influences may lead to an undesirable outcome.”

There’s a bumper sticker that makes the same point in fewer words. It can be paraphrased as “Stuff happens.”

The declaration then continues: “Analysis of reported occurrences by organisations should focus on system performance and contributing factors first and not on apportioning blame and/or focus on individual responsibilities....”

Very clearly, there is an emerging consensus -- among regulatory agencies and the industry -- that encouraging voluntary disclosure of safety information is in everyone’s interest, and that the best way to do so is to apply non-punitive remedies to deficiencies that are voluntarily disclosed.

ICAO and Protection at the Global Level

we have seen too many cases in recent years in which judges, prosecutors, and plaintiffs’ attorneys have sought access to this vitally important safety information.

Despite this consensus, however, we have seen too many cases in recent years in which judges, prosecutors, and plaintiffs’ attorneys have sought access to this vitally important safety information. In a growing number of instances, they have succeeded. If that trend were to continue, you can be assured that the essential flow of safety information would simply dry up.

This danger is increasingly understood and it’s now an issue that’s being tackled globally, most importantly at ICAO.

Five years ago, an ICAO High-level Safety Conference recommended the development of new guidance – what ICAO calls “Standards and Recommended Practices” or “SARPs” – to be included in a new annex to the Chicago Convention devoted to safety management. The annexes to the Convention, as you probably know, are where the high-level principles enunciated in the treaty are turned into more specific and granular guidance. They aren’t self- executing; they have to be implemented through national laws and regulations in order to be effective, but that’s generally what happens. It happens because the quality of a government’s aviation safety oversight is measured by the extent to which it has implemented ICAO’s SARPs and other guidance.

The new SARPs envisioned five years ago were to spell out government responsibilities for the protection of safety information. The protection of information derived from accident investigations was already addressed to some extent in the accident investigation annex -- Annex 13. The new SARPs were intended to reinforce those protections and explicitly cover information reported via the safety management systems that are now a mandatory ingredient in airline operations – including, of course, the voluntary reporting I’ve been talking about. This new guidance will be included in the new safety management annex -- Annex 19. And lest there be any doubt, the protection contemplated is protection from prosecutors, judges, and yes, even trial lawyers.


Some of the most important provisions can be found listed under new “Principles of protection” proposed for Annex 19. The first principle is that “States shall ensure that safety data or safety information is not used for: a) disciplinary, civil, administrative and criminal proceedings against employees operational personnel or organizations; b) disclosure to the public; or c) any purposes other than maintaining or improving safety; unless a principle of exception applies.”


The “principles of exception” are what you would expect – cases in which the conduct in question clearly crosses the line from an honest mistake into the area of reckless endangerment, gross negligence, willful misconduct, or whatever you want to call it -- conduct that would always be subject to prosecution under applicable national laws.


But the overarching idea, simply put, is that penalizing honest mistakes merely impedes the flow of valuable safety information and thereby actually increases the risk profile of the aviation sector.

ICAO is moving towards a basis for a standard global approach by end-2016

The new provisions were circulated to governments for a final review last July in something ICAO calls a “state letter.” Any further comments from the governments were due a week ago, by October 15. The next step will be a review by ICAO’s Air Navigation Commission with the intention of presenting the language to the ICAO Council – ICAO’s governing body -- for final approval next March. Nobody expects to hear any dissent. The new provisions will then become effective in November of next year.

There is still an open question as to when the new provisions will become applicable to governments – 2018 or 2020 are the options being discussed. As I indicated earlier, nothing in an ICAO annex is self-executing; to be effective and enforceable, the guidance has to be translated into national law by governments. My guess is that a great many governments won’t wait for the new language to become effective but will start their legislative processes working even sooner.

All of this is good news for the airlines, of course, but it is even better news for their customers – including you and me. Aviation is already the safest mode of transportation, and by a wide measure. But air traffic is predicted to double over the course of the next 20 years.

That means that we have an obligation to do all we can to make the remarkable safety management systems we rely upon today even better. The changes in law that I’ve discussed will be an essential element in that improvement. 

 
This bit...
"..The new provisions were circulated to governments for a final review last July in something ICAO calls a “state letter.” Any further comments from the governments were due a week ago, by October 15. The next step will be a review by ICAO’s Air Navigation Commission with the intention of presenting the language to the ICAO Council – ICAO’s governing body -- for final approval next March. Nobody expects to hear any dissent. The new provisions will then become effective in November of next year..."

Dear Malcolm, Truss, Murky & Oliver...better hurry up & get those ducks all in a row...TICK, TICK TICK, TICK..  

 

MTF..P2    

[Sandy Reith]

Fine ideas and fine words, lets see what happens in practice, especially in Australia where we are hardly noted for timely or practical rule change.

One recurrent theme that is concerning, the notion that discretion by the regulators is an integral and necessary element in the pursuit of so-called 'just culture'. This smacks of rule by regulator not rule by law. In addition, tying in voluntary reporting to airline safety statistics is a bit of a stretch. Maybe the insurance companies, aircraft manufacturers and commercial imperatives, let alone self preservation of flight crew, are the real drivers. In this day and age the reputation of an airline is so readily available and there is much more choice of services and carriers than twenty years ago.

Perhaps the spectacular nature of an airliner accident, and the slim chance of surviving such an accident, creates the psychological background where the concept 'safety at any cost' prevails and the air safety industry flourishes. Our CASA being a prime example of the excesses in the air safety industry. More than 800 employed to regulate an industry where little would change if none were employed (except much growth in GA). This is the backward, costly and ill founded distortion in aviation that does not pertain to other means of transport.

[P7_TOM]

Now, I know it’s strictly ‘taboo’; but I figure I pay my dues and may get away seeking forgiveness, not permission.  Aunty Pru will understand a classic post and a good example of why Part 61 is lethal.  How 61 enhances, excuses, legitimises and provides an excellent platform for the time honoured tradition of the “Chop ride”.   Mach covers the ‘old’ school type of examination; the objective, passive, quiet, educational in debrief, role a ‘testing’ pilot should take.  The ‘new’ 61 test enshrines and lends it’s self to a more sinister application.  

Mach E Avelli - (legend).

The list of questions on the new form is far more extensive than before. In the 'good old days' some examiners would ask one from each section, or about five total.

Now, strictly speaking, all have to be asked, though how the examiner deals with that is probably somewhat an individual thing. Go to the check armed with your own AIP, ERSA and of course, charts.

If the examiner is a prick and wants you on the back foot you will know soon enough, because he will have his own AIP or extensive notes in hand and will start grilling you. Typically, examiners with that style need these 'props' themselves, so I think it is only fair that if he needs to refer to notes, so can you. Therefore, when you don't know the answer, or are a little uncertain, admit it and look it up on the spot.

A more relaxed examiner will simply work from the CASA form, ask questions in his own words and accept reasonably close answers in your own words. He will avoid 'open' questions and won't belabour trivia. Again, if you really don't know an answer, at least know where to quickly access the information Which, after all, is what you should do if you are planning a flight and something odd presents itself in a NOTAM or forecast.

Of course the 'biggies' relating to basic tolerances, terrain and traffic avoidance need to be absolutely known without reference. Most of the remainder is non life threatening.

If the examiner is a decent sort he will be trying to put you at ease, not winding you up into a lather before the actual flight.

The discretion of civilised ‘examiners’ is now severely compromised, with CASA in attendance; the hoops must be jumped through – and – should the FOI think a candidate ‘should’ have failed and the ATO did not do so; then the ATO delegation (or whatever it’s called now) is in jeopardy.  The sad case of ‘Pat’ and several others at least left open a thin (anorexic) line of defence.  Under 61, there is no such grace afforded.

Skidmore and his ilk think this is a good thing; safety through ‘paper-work’’  Load of old, chewed Bollocks – if you ask me; remote from the practical, estranged from routine and meekly accepted by industry.

Chock Frog Mach and thank you for a rare good post on the UP....

Addendum:-

I will, on reflection, add one more comment – a professional, current pilot should have no need of doubt going into any test; it should be an ‘educational’ process; the de-brief an informative discussion of how things could, perhaps, have been done better the check a formality, the ‘discussion’ priceless.  Now it’s simply pass or fail – for no examiner would dare to make notes or offer guidance; dare not and cannot do it.  Safety looses, in self preservation.  Sad, true and fully supported by your local, friendly CASA FOI (an “expert”).  

[Caravan Capers]

One recurrent theme that is concerning, the notion that discretion by the regulators is an integral and necessary element in the pursuit of so-called 'just culture'. This smacks of rule by regulator not rule by law.

Good point Sandy and of course not lost on those such as John Quadrio, Barrier Aviation, Polar Aviation, John O'Brien, Tony Taggart and numerous others.

The effects on users of the system, such as Karen Casey and the Shane Urqhart's of the aviation world who have used FOI's to get information, which have been improperly blocked by the regulator, must not be forgotten.

[Gobbledock]

Caravan Capers, welcome to AuntyPru. There is lots of fun and robust discussion to be had here amongst other justice and truth seekers. The rules are simple, play nice with the other kids!

Your first post is a good post. There have been many in our industry either directly or indirectly that have been morbidly brutalised by those very organisations  entrusted to keep our skies and people safe.

Indeed, those who live on and endure the pain of losing loved ones will never be forgotten by some of us. We will never give up the fight for them.

Gobbles

[Peetwo]

'From little things big things grow' - Seeds of embuggerance?

From the "K" posts - Bananas - in Pajamas? & CASA meets the Press #181

..P2 – I see your mate Joe-Bananas has latched onto Seth, can’t be bothered reading it all, just hope Seth can knock the James obsession out of it, at least to the point where JB can see there are much bigger issues at stake than stringing up a pilot who made a series of admitted mistakes.  Errors which, compared to the ATSB/CASA gross errors, pale into insignificance. Then maybe Seth could work on the unhealthy LL fetish for Aunties nether regions and the TBL obsessional hatred of those thing he don’t like.  There you go Seth – that’ll keep you busy until Christmas...

..Perhaps it’s a subtle attempt to turn down the heat CASA rightfully attracts through social media.  There really is no other way to expose the inane antics, cock-ups and pure bastardy of the CASA culture, the evidence stacking, the underhand, disingenuous methods employed, when CASA decide to go after a pilot.  There is no other avenue and when you analyse the CASA tactics you realise that there no depth they will not plumb to prove that they were right.  Reprisals, flimsy, subjective NCN parlayed into heinous crimes against safety, some companies feted and favoured, others moving targets.  Vendetta, pay-back, etc. and CASA is now all gooey eyed and PC, begging pilots not to gang up on each other, while the CASA fifth column are texting and whispering to their CASA sponsors – bollocks...

The above perfectly highlights why it is next to impossible to believe that 'Just Culture' will ever be an accepted philosophy within the Halls of Aviation House or the ranks of ALL the flight ops or airworthiness inspectorate.

From the Accidents Domestic thread I highlighted a classic case where there was a high probability of CASA embuggerance going on - Point of difference - CAR 301 notices to the ATSB?

To follow on from that post - & the "K" posts above - I came across a MMSM article that IMO could become a clasic example of how these cases of embuggerance & victimisation by the regulator begin..

A jet flying close to Broadbeach highrises caused locals to panic: ‘we’re being bombed’
November 19, 20159:02am

THE fighter jet which sent startled Broadbeach residents scurrying for cover on Tuesday will be back today and tomorrow with special approval to conduct more of the deafening low-level acrobatics.


On edge in the aftermath of the Paris terror attacks, some people initially feared the worst but when the A-37B Dragonfly began barrel rolling it was clear the Vietnam War era bomber was on a joy flight.

The stunt was organised by IT services provider Fastrack Technology for the 2500 delegates at the Microsoft Ignite conference being held at the Gold Coast Convention and Exhibition Centre this week. The company’s new product, Azure ExpressRoute for Office 365, accesses data from the cloud at high speeds much like the 463km/h reached by the Dragonfly when it flew at a height of 213m over the suburb.


Video grabs of a plane flying low. Courtesy: Domonic OrrellSource:Supplied

This isn’t the first time Sydney-based high flying pilot Chad Dunn of The Criddle Group has made headlines.

He previously attracted attention when he performed similar manoeuvres for controversial Auburn deputy mayor Salim Mehajer’s western Sydney wedding.

As in the previous occasion, Mr Dunn said he received special permission from the Civil Aviation Safety Authority and also the Department of Infrastructure to conduct the noisy display.

Chad Dunn, chief pilot of the Cessna A37 Dragonfly, parked here at Gold Coast Airport, scared the public in Surfers Paradise during a fly by. Picture: Glenn HampsonSource:News Corp Australia

He also informed the police, Gold Coast Airport and regulatory body Warbirds Australia.
CASA has confirmed it received and was investigating one complaint.

“I can imagine for some people in Oracle, Peppers and some of the other high rise buildings it would have looked like I was very, very close,” Mr Dunn said.

“We were well and truly clear — the closest I came to any building would have been approximately 500m.

People light candles at a memorial set in front of the Cafe Belle Equipe, one of the site of the attacks at on rue de Charonne in the 11th district. Picture: Bertrand GuaySource:AFP

“My approval was for a non-aerobatic pass of the convention centre at 700ft and aerobatics were approved at 500 to 3000ft, no closer than 200m from the shoreline.

“Because of the perspective anyone who was looking from a distance would assume that the aircraft was buzzing around buildings but I can assure you that was not the case.”
Surf Parade Resort manager Cathy O’Connor said she rushed out to her balcony after hearing an “almighty noise”.

“After about the third time it passed over I said to my husband and mother, ‘are we under attack?’ ” she said.

Video grabs of a plane flying low. Courtesy: Domonic OrrellSource:Supplied

“I just wondered what the heck was going on.”

Resort resident Domonic Orrell captured the display on his phone.

“We have had a few jets flying past but I’ve never seen anything like that,” he said.
Also relieved to hear it was nothing serious was marketing co-ordinator Melanie Muir, who saw people running from her office on Albert Ave.

“Everyone was panicked and I definitely felt uneasy and concerned,” she said.

Mr Dunn confirmed although the plane, one of only two in the country, is to remain based in Sydney his company was getting the necessary approvals should there be demand to bring it back.

The plane will also be taking bookings for joy flights to Tyalgum near Mt Warning for the rest of the week.

Chad Dunn, chief pilot of the Cessna A37 Dragonfly, parked here at Gold Coast Airport, scared the public in Surfers Paradise during a fly by. Picture: Glenn HampsonSource:News Corp Australia

 This bit - "CASA has confirmed it received and was investigating one complaint." - and a nasty NFI CASA investigator is all it takes...

MTF..P2  

[Gobbledock]

This bit - "CASA has confirmed it received and was investigating one complaint." - and a nasty NFI CASA investigator is all it takes...

Perhaps Wodger will be seconded to head the investigation??
Remember the movie Tombstone? One scene as follows;

Johnny Ringo: My fight's not with you, Holliday.
Doc Holliday: I beg to differ, sir. We started a game we never got to finish. "Play for Blood," remember?
Johnny Ringo: Oh that. I was just foolin' about.
Doc Holliday: I wasn't.

Now try viewing the scene this way;

Chad: My fight's not with you, FOI Chambers.
FOI Chambers: I beg to differ, sir. We started a game we never got to finish. "Play for Blood," remember?
Chad: Oh that. I was just foolin' about.
FOI Chambers:I wasn't.

[Peetwo]

Leopard & spots - UFB!

Here we go.. ..bloody Sociopaths can't help themselves:

Aviation safety body applies for 'metadata' access


CASA confirms that it wants ongoing access to telecommunications metadata
Rohan Pearce (Computerworld) on 04 December, 2015 13:10




The Civil Aviation Safety Authority has confirmed it has applied for ongoing warrant-less access to telecommunications ‘metadata’ under rules introduced by the data retention legislation.

CASA is in charge of Australian aviation safety regulation.

The latest annual report issued by the Attorney-General’s on the use of the Telecommunications (Interception and Access) Act 1979 revealed that CASA accessed telco metadata 11 times in the last financial year.

“CASA sometimes accesses telecommunications data when it conducts an investigation into whether a person contravened a criminal offence provision in the aviation legislation,” a spokesperson for the organisation said.

CASA was one of the 83 organisations that accessed so-called metadata during the 12 months to 30 June 2015.

In 2014-15, agencies authorised access to telco ‘metadata’ a total of 365,728 times, the report from the Attorney-General’s Department revealed.

The data retention legislation passed earlier this year pared back the number of organisations able to gain warrant-free access to metadata.
The new regime kicked in on 13 October.

The legislation initially restricted access to police and anti-corruption organisations, customs, the Australian Crime Commission, the Australian Commission for Law Enforcement Integrity, the Australian Competition and Consumer Commission, and the Australian Securities and Investments Commission.

There is provision for further organisations to be authorised, however, and the Australian Border Force has been added to the list.

The Victorian government recently revealed that it has sought metadata access for the state’s Racing Integrity Commissioner.

A parliamentary inquiry earlier this year recommended that the Australian Taxation Office be added to the list of authorised organisations.

CASA said it is also seeking access.

“Following the making of the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, CASA applied to the Attorney-General’s Department for ongoing direct access to telecommunications data,” the organisation’s spokesperson said.

The government won’t reveal which organisations or the total number to have applied to be authorised to access metadata.


Read more Data breach notification scheme ‘long overdue’
However, an in-progress freedom of information request has revealed that the number is likely to be greater than 40.

  
Definitely Leopard & spots..Skidmore & 'Just Culture' my ass! 

MTF...P2

[Kharon]

BOHICA – syndrome.

“CASA sometimes accesses telecommunications data when it conducts an investigation into whether a person contravened a criminal offence provision in the aviation legislation,” a spokesperson for the organisation said.

This statement both amuses and troubles.  Simply put CASA are NOT ‘the Police’ and their investigators DO NOT have the authority, the constraints, the checks and balance nor rules for conducting ‘an investigation’ the Police do.  If every item in the Regulation is to  be a ‘criminal’ offence, then the allegation of ‘criminal behaviour’ should be investigated by trained, authorised police and a case provided to the CDPP.  The ‘evidence’ CASA use in their ‘kangaroo’ court system or in proceedings at the ever obliging AAT is often anything but impartial and there are many cases – on record – where CASA have been economical with truth and fanciful with ‘evidence’.  

I have no quarrel with the AFP investigating a matter; I have even less of a problem with a clearly cut, properly investigated alleged ‘crime’ being taken to court and tested, under proper rules which protect both the ‘investigator’ and the accused.  But I do have a problem with the twisted, biased use of ‘law’ to bend an allegation in CASA’s favour, when a halfwit FOI decides a matter is criminal and wants to stalk a victim through cyber-space.

The legislation initially restricted access to police and anti-corruption organisations, customs, the Australian Crime Commission, the Australian Commission for Law Enforcement Integrity, the Australian Competition and Consumer Commission, and the Australian Securities and Investments Commission.

Furry muff - For law and security agencies this notion of using Metadata needs a legal framework – but do ‘civilian’ agencies like CASA or ATSB need that level of access – No, they should need to apply for a warrant and have responsible, properly governed agencies do the ‘digging’.

CASA is not the police force – despite attempts to be so – they are a regulator with powers to investigate; once they dream up a case it should be passed on to the impartial grown ups, who have a right to access your private, personal data.

Reading, from the - SMH -  and  - WIKI.

Toot toot.

[thorn bird]

Unbelievable!!!
I have to wonder how far in the future 1984 will become a reality?

Somehow the thought of some of the scumbags that inhabit Fort
Fumble snooping through ones email sends a chill up my spine.
They are already demanding access to medical records through a national
data base, whats next? bugged offices?, secret camera's in cockpits?, knowing the
predilection of some of them, bugged bedrooms? especially the kiddies.
They'll be bugging confessional boxes next!
CAsA really is getting crazy, they'll be demanding body armour and fire arms next.

[Gobbledock]

The next thing they will do is measure your old fella's length and girth. It's a practise they've already introduced for themselves.
And what about crim bracelets - they might make each pilot wear one the same way a Pedo is monitored in the community. I mean after all, CAsA does think we are all criminals.

It's an effing joke, who the hell is allowing CAsA to morph into the Attorney Generals department??

[Peetwo]

BOHICA – syndrome.

“CASA sometimes accesses telecommunications data when it conducts an investigation into whether a person contravened a criminal offence provision in the aviation legislation,” a spokesperson for the organisation said.

This statement both amuses and troubles.  Simply put CASA are NOT ‘the Police’ and their investigators DO NOT have the authority, the constraints, the checks and balance nor rules for conducting ‘an investigation’ the Police do.  If every item in the Regulation is to  be a ‘criminal’ offence, then the allegation of ‘criminal behaviour’ should be investigated by trained, authorised police and a case provided to the CDPP.  The ‘evidence’ CASA use in their ‘kangaroo’ court system or in proceedings at the ever obliging AAT is often anything but impartial and there are many cases – on record – where CASA have been economical with truth and fanciful with ‘evidence’.  

I have no quarrel with the AFP investigating a matter; I have even less of a problem with a clearly cut, properly investigated alleged ‘crime’ being taken to court and tested, under proper rules which protect both the ‘investigator’ and the accused.  But I do have a problem with the twisted, biased use of ‘law’ to bend an allegation in CASA’s favour, when a halfwit FOI decides a matter is criminal and wants to stalk a victim through cyber-space.

The legislation initially restricted access to police and anti-corruption organisations, customs, the Australian Crime Commission, the Australian Commission for Law Enforcement Integrity, the Australian Competition and Consumer Commission, and the Australian Securities and Investments Commission.

Furry muff - For law and security agencies this notion of using Metadata needs a legal framework – but do ‘civilian’ agencies like CASA or ATSB need that level of access – No, they should need to apply for a warrant and have responsible, properly governed agencies do the ‘digging’.

CASA is not the police force – despite attempts to be so – they are a regulator with powers to investigate; once they dream up a case it should be passed on to the impartial grown ups, who have a right to access your private, personal data.

Reading, from the - SMH -  and  - WIKI.

Toot toot.

Latest on this story from Hitch off the Yaffa... :

CASA has accessed mobile phone data in the past, but recent changes to the laws will prevent them from doing so in the future. (Composite image: Steve Hitchen)



New Laws ban CASA from accessing Mobile Phone Data
10 Dec 2015

Recent changes to the federal telecom laws will prevent the Civil Aviation Safety Authority from accessing mobile phone data in the future.

Amendments to the Telecommunications (Intercept and Access) Act mean that CASA will no longer be able to use data from private phone calls in enforcement action.

CASA made 11 applications for historical data in the 2014-15 period, which has enraged sections of the aviation community.

"The TIA Act permits enforcement agencies to authorise telecommunications carriers to disclose telecommunications data where that information was reasonably necessary for the enforcement of the criminal law, a law imposing a pecuniary penalty, or the protection of the public revenue," a CASA spokesperson had said in response to queries from Australian Flying.

"CASA makes applications during some investigations into whether a person has contravened a criminal offence provision in the aviation legislation."

The type of information CASA applied for was telephone account holder names and call records (information about telephone calls made, how long people talked to each other). CASA could not access the actual content of the phone calls.

However, CASA confirmed late today that under the changes to the TIA that came into effect earlier this year, they wouldn't have access to even those records any more.

The TIA amendments have limited the agencies that can apply for data to 14 criminal law enforcement agencies only, but there is provision for more to be added under ministerial declaration.

Ok so why does the Hitch post not give me a warm fuzzy feeling, when I think about the CASA confirmation given later in the day...

KC (AMROBA) explains it best:

"..Is CASA Australia’s Aviation Regulator or does it have an internal vision of being like one of the above?

Australia has created aviation requirements that are being prosecuted by a Regulator with a fixation on policing breaches of the criminal provisions they have created.

Aviation safety cannot be regulated into people as aviation safety relies on the safety culture of participants.

If CASA need access to metadata for ‘criminal’ offense then the Feds should be handling the offense.

This sought of dampens all the PR from CASA about working with industry.

This is a big brother mentality that does not improve trust or confidence in CASA.."

MTF..P2  

[Peetwo]

A Xmas tale of Embuggerance - One for the Sleepy Hollow Chronicles.

An the 18 December an AAAT decision was handed down that had all the hallmarks of a classic Sociopathic witch hunt from the McComic Years. Trouble is this sordid embuggerance tale has reached its climax under the Oliver Skidmore Twist (AVM semi-retired ) watch, which mean's he now has 99.99% ownership of this bollocks..

Being a classic (& in some parts quite humorous) here is some quotes from the good 'learned gentleman', Senior Member Bernard J McCabe decision..  : Pantovic v CASA [b]2015] AATA 992 (18 December 2015)[/b]

{Note - Paragraph numbering is out of sequence}

18 December 2015

1. The central allegation against the applicant, Jason Pantovic, reads like a producer’s pitch to a movie studio. The scene is set: three friends at a barbeque in the country run out of beer. Police officers lurking on the back roads to town threaten to disrupt the resupply process. Relief is at hand: the leading character, Mr Pantovic, is a daring-do helicopter pilot. His helicopter is stored nearby. The three friends climb into the two-seat helicopter and lumber into the air, bound for a quintessential North Queensland hotel with wide verandahs. Mr Pantovic lands outside the hotel and one of the party swaggers inside to purchase a slab. But when the purchaser returns to the helicopter with the beer and Mr Pantovic attempts a take-off, the helicopter is unable to clear the nearby trees. It lands heavily after clipping the branches. The additional weight of the beer makes take-off from that location impossible. One of the passengers is offloaded and cadges a lift from the bemused publican to a nearby oval. The helicopter picks him up from there and, using the open space, manages to take off in the direction of the barbeque.
   
2. If that story is true – and the  Civil Aviation Safety Authority  (CASA) says it is – the applicant’s various licences and approvals should be cancelled at once because the story suggests the applicant was not a fit and proper person to hold them, and because he recklessly disregarded his duties under aviation law. The applicant acknowledged at the hearing he should be in deep trouble if the story were true. But he says it is not. He denies the flight occurred, and says that aspect of the case against him rests centrally on the account of witnesses who are demonstrably unreliable. He acknowledges the truth of some other allegations made against him, and disputes others, but he rejects the central allegation about the beer run in a helicopter. He says his licences and approvals should not be cancelled in all the circumstances, although he has offered undertakings that are intended to address his admitted conduct.
   
3. I am not satisfied the central allegation against Mr Pantovic is true, yet regulatory action against him is clearly appropriate in light of the other conduct I will discuss. While I would vary the decision to cancel his private helicopter pilot’s licence, I affirm the decision to cancel his approval to act as chief pilot. I explain my findings and reasons below.
   

 
A background to the star & co-star.. :

Mr Jason Pantovic

1. The applicant in these proceedings is an experienced helicopter pilot who lives on a property in Biboohra, near the North Queensland town of Mount Molloy. Mr Pantovic obtained his commercial helicopter pilot’s licence in 2001. His licence is endorsed to permit him to operate Hughes 269, Robinson R-22 and Robinson R-44 helicopters. (At the relevant time, he owned and operated an R-22 helicopter – registration VH-HTD – that was stored on his property, although he also flew other helicopters. VH-HTD was destroyed in an unrelated incident on 9 December 2012.) His licence also permits him to conduct low flying, mustering and sling load operations. Since 2008, he has been the chief pilot of Panmer Pty Ltd. Panmer is, in effect, a family business in which he has played a central role. It holds an air operations certificate (AOC) issued under the Act. Mr Pantovic explained in his statement that he operates helicopters pursuant to the Panmer operations manual (and, it might be interpolated, in accordance with the conditions of Panmer’s AOC): exhibit 33 at [5]-[8].
   
2. Mr Pantovic accuses CASA’s principal witness of witness tampering, but the applicant himself was not above attempting to secure questionable witness statements. (I refer in particular to the statutory declaration obtained from Mr Eric Bale in uncertain circumstances: exhibit 6). After hearing all of the evidence in this case, I was left with the uncomfortable impression of Mr Pantovic and Mr Allan Gibb engaging in a shifting and unedifying contest to line up and neutralise witnesses. Mr Pantovic at least had a legitimate and understandable interest in gathering evidence, whereas Mr Gibb had darker motives.
   
3. Mr Pantovic gave evidence at the hearing, and provided two statements, exhibits 33 and 34.
   
   

Mr Allan Gibb

1. Mr Gibb looms large in these proceedings. He was CASA’s informant and (initially, at least) its principal witness. He claimed to be present on a number of occasions when Mr Pantovic transgressed – most obviously during the flight to the Mount Molloy hotel, but also on at least one other flight. He provided some video that was shot on his phone which appears to depict Mr Pantovic consuming beer whilst at the controls of the helicopter and flying very fast at low altitude, amongst other things. Mr Gibb gave evidence on the first day of the hearing, and provided two statements: exhibits 8 and 9.
   
2. The applicant attacked Mr Gibb’s credibility. Mr Pantovic says Mr Gibb is motivated by malice. It turns out Mr Pantovic had an affair with Mr Gibb’s former partner in May 2013, and Mr Gibb found out: exhibit 33 at [16]-[17]. The applicant said Mr Gibb peddled stories to CASA in order to even the score. As the evidence unfolded, it became clear Mr Pantovic was right about Mr Gibb’s motivation.
   
3. Mr Gibb agreed in cross-examination he was very angry when he learned of the affair. He agreed he vandalised Mr Pantovic’s home in July 2013 and made threats on the applicant’s life. Mr Pantovic called the police after that incident and Mr Gibb was subsequently charged with burglary. Mr Pantovic said he decided to withdraw the charges in August 2013 although he did obtain a restraining order: exhibit 33 at [22]-[25]. Mr Gibb agreed in cross-examination that he told the applicant he would talk to the police and make Mr Pantovic pay for what happened between the applicant and Mr Gibb’s former partner. When asked about his approaches to CASA, Mr Gibb agreed he wanted revenge. He acknowledged he wanted to make the applicant suffer, although he also claimed in his statement (exhibit 8 at [38]-[39]) that he made the threats in order to secure a confession from the applicant because “I wanted the full story”: transcript at p 53. When Mr Emmett, counsel for the applicant, suggested to Mr Gibb in cross-examination that he had made up the whole story, Mr Gibb responded flatly: “I told him if he rang the police on me that I would go to CASA”: transcript at p 78.
   
4. [Redacted paragraph]
   
5. [Redacted paragraph]
   
6. [Redacted paragraph]
   
7. [Redacted paragraph]
   
8. [Redacted paragraph]
   
9. [Redacted paragraph]
   
10. [Redacted paragraph
    

The cast of constabulary & their nefarious roles:

The CASA investigators

1. There were a number of CASA officers involved in the investigation into Mr Pantovic. Mr Stallard, for example, looked into the maintenance records and other information available in relation to the damaged rotor blades of the helicopter. He provided a statement (exhibit 19) and gave evidence at the hearing. His evidence was unremarkable. The evidence of some other investigators was more problematic.
   
2. CASA investigators knew the story was suspicious from the beginning. Mr Nick Coulson, a CASA officer, rang alarm bells early on in the investigation when he said in an email dated 29 August 2013 (exhibit 14) “...I find it difficult to believe the story with respect to there having been three grown men in the cockpit of an R22”. While Mr Coulson went on to accept it might have been possible, he asked: “So I am just wondering if they are having a lend of us?”
   
3. As well he might: the nature of the allegations and the way they were offered up to CASA should have prompted a measure of scepticism. But CASA investigators were quick – too quick – to embrace Mr Gibb, and they tended to interpret the rest of the evidence with Mr Gibb’s evidence firmly in mind. It was a classic example of ‘confirmation bias’.
   
4. Mr Leif Nystrom said he first became involved in the matter when he was tasked by the manager of investigations to take statements from, amongst others, Mr Gibb. Mr Nystrom insisted in his oral evidence that he was not carrying out an investigation as such. He said he was merely “working on a tasking” assigned to him by others: transcript at p 117; see also transcript at pp 95, 111-112, and 116-118. But other evidence suggested he was conducting an investigation, even if it was not an investigation under Part IIIA of the Act. He called it an ‘investigation’ in correspondence with another CASA officer: exhibit 16. Mr Nystrom’s insistence that he was merely completing tasks rather carrying out an investigation created the impression he was trying to minimise his role, and perhaps excuse his approach. Given how things turned out, that is not altogether unsurprising.
   
5. Mr Nystrom allowed Mr Gibb to organise Mr Graham Gear to provide evidence without warning either of them not to discuss their evidence: transcript at pp 109-110. The running sheets attached to Mr Nystrom’s statement (exhibit 13), which record his investigative activities, confirm he was aware Mr Gear and Mr Gibb were talking about their evidence, and that Mr Gear had read Mr Gibb’s statement. The running sheets also confirm Mr Gibb expressed a view about the likelihood of the hotel publican giving evidence against a client: one could draw an inference that Mr Gibb had already raised that question with Mr Scott Peters, the publican. (Mr Peters subsequently agreed to give evidence, albeit reluctantly.) Mr Nystrom also agreed he provided Ms Andersen, a potential witness, with copies of draft statements for Mr Gibb: transcript at pp 110-111. (Mr Nystrom said he was provided with an email address for Mr Gibb that was used by Ms Andersen.) Those statements named Ms Andersen, yet Mr Nystrom did not recall warning the two to keep their evidence separate. He conceded as much in the following exchange with Mr Emmett during cross examination:
   

Mr Emmett: Didn’t you say, “Look, it’s best not to talk about the substance of the evidence” knowing that they were both potential witnesses and that they were otherwise likely to talk about it together on a daily basis?
Mr Nystrom: I think it is likely that I did not brief Mr Gibb along those lines.

1. Mr Emmett also asked Mr Nystrom about an early comment from Mr Gibb (recorded in the running sheet attached to Mr Nystrom’s statement at exhibit 13) in which he claimed he was seated in the helicopter on the flight to Mount Molloy “with his knees up around his ears”. The email from Mr Coulson, from which I have already quoted, suggested that would not be possible: Mr Coulson, a test pilot, said the only way the third individual could fit in the helicopter was if he had his legs hanging out the door (exhibit 14). Yet Mr Nystrom said in cross-examination that he did not put that discrepancy to Mr Gibb. Mr Nystrom’s explanation for his failure to do so is worth noting. In cross-examination, he said:
   

I haven’t flown in a Robinson R22. I’m an investigator, I take on board any information that I receive. Mr Coulson made those comments as an expert pilot. Those comments are there for you to digest and deem if it’s appropriate. I have no views on the matter.

1. I am troubled by that view of the investigator’s role. Investigators are not cyphers who passively receive and collate information from witnesses – particularly witnesses who self-select, or who are selected by an outsider with an axe to grind – without exercising any judgment as to the veracity of what they are told. But it is not an accurate description of Mr Nystrom’s role in any event. He did not simply “take on board any information that [he received]”. There appeared to be an element of selectivity in his approach to the evidence. For example, Mr Nystrom did not approach another potential witness, Mr Allan Scott. Mr Scott was a friend of Mr Pantovic. Mr Gibb told Mr Nystrom that Mr Scott was unlikely to give evidence, and Mr Nystrom took his enquiries no further. When Mr Emmett asked in cross-examination why Mr Nystrom did not approach Mr Scott, who might help Mr Pantovic, but approached other witnesses who were suggested by Mr Gibb, Mr Nystrom again insisted it was not his investigation: transcript at p 118.
   
2. I have difficulty accepting Mr Nystrom’s argument that he could not be expected to exercise judgment or take responsibility for the investigative strategy because he was not conducting an investigation. But even if he was not in a position to direct the investigation, it is unclear who within CASA was responsible.
   
3. Mr Haslam also participated in the investigation, albeit after it had progressed somewhat. He provided a written statement dated 30 October 2014 (exhibit 20) and gave evidence at the hearing. He explained in his oral evidence that he was the investigator attached to CASA’s Cairns regional office but he was on leave when the Gibb allegations came to light. He said Mr Nystrom, who is based in Canberra, was tasked to provide “investigative assistance”. When Mr Haslam returned from leave, he was also tasked to provide assistance. Mr Haslam initially appeared keen to downplay his own role: he said he was assigned tasks by the head of the investigations branch (there were several persons acting in that role over time, it seems) at the request of the regional manager who wanted to obtain additional evidence for the purposes of these proceedings: transcript at p 138. In cross-examination, he agreed he worked “very closely in relation to this investigation” and pursued his own lines of inquiry: transcript at p 145.
   
4. Mr Haslam was invited to comment on whether he was satisfied the flights in question all occurred. Curiously, he declined to do so. He said he had not formed a view. He explained he was not present so he was not in a position to talk about whether the flights occurred as alleged. That is puzzling. When pressed to explain himself, he said (transcript at p 146):
   

All I can say that this is what has been reported to us, and on that basis then if they did occur, then this is CASA’s position.

1. I am not sure what that means. It certainly seems odd that an investigator has no view about the integrity of the evidence he provided to the Tribunal. As it happens, Mr Haslam subsequently gave a different view of his role when he said in cross-examination (transcript at p 158):
   

We get gut feelings, all sorts of things, all the time, and we act on those gut feelings.

1. Mr Haslam conceded he had some concerns from an early stage about the reliability of some of the witnesses – Mr Gibb in particular, and Ms Andersen. He said he was aware of the animus between Mr Gibb and Mr Pantovic. When Mr Emmett asked in cross-examination whether that knowledge informed his approach to his dealings with Mr Gibb, he downplayed the level of contact he had with Mr Gibb. He said he only spoke with Mr Gibb about twice on the phone and once in person when he needed to get a further statement to “shore up or clarify some issues in his first statement ...”: transcript at p 147.
   
2. It is unsurprising that Mr Haslam would seek to shore up Mr Gibb’s evidence. He must have been aware of the problems that were apparent from the running sheets recording the details of Mr Nystrom’s investigation: transcript at p 149ff. Mr Haslam must have been aware that Mr Gibb and Mr Gear were talking to each other about their evidence. He agreed in cross-examination that he never instructed Mr Gibb or Mr Gear not to talk to other witnesses about the evidence: transcript at pp 151-152. His own running sheets confirm Ms Andersen told him on 7 May 2014 that she had also read Mr Gibb’s statement. He agreed he did not caution her against discussing the evidence with Mr Gibb even though he anticipated obtaining a statement from her: transcript at p 153.
   
3. Mr Haslam said he was aware of the difficulties in the relationship between Mr Gibb and Ms Andersen – although he conceded he did not make any record of threats of violence being made by Mr Gibb against Ms Andersen: transcript at p 165. He said he kept those difficulties in the back of his mind but added (transcript, at p 154):
   

... I rely on the witness to tell the truth in relation to their dealings, and if they are prepared to sign a statement attesting to the evidence they’re giving me, then I have to have some faith that they are telling me the truth.

1. Interestingly, Mr Haslam did not take the same essentially trusting approach towards Mr Eric Bale. Mr Bale resided next door to the Mount Molloy hotel. CASA says Mr Pantovic landed his helicopter in Mr Bale’s yard. Mr Haslam confirmed in his oral evidence that Mr Bale initially told him the helicopter did not land on or near his property. But Mr Haslam was having none of that: he said there was something in the way Mr Bale spoke to him on the telephone that caused him to doubt Mr Bale’s denials. He decided to enlist the services of the local police. He explained in cross-examination (at p 157):
   

I asked [the local police] if they knew Mr Bale, and whether or not they could make some further inquiries in the area.

1. Mr Haslam decided to arm the police with Mr Gibb’s version of events. He agreed he informed them of his suspicions about Mr Bale before they went about whatever inquiries they made: transcript at p 158. Unsurprisingly, an obliging police officer confirmed Mr Bale “was being cagey” when the officer paid him a visit on 13 May 2014: transcript at p 168; see also running sheets annexed to exhibit 20. Mr Bale subsequently withdrew his denial and agreed to attend the station to sign a statement making allegations about Mr Pantovic after his discussion with the police officer: see entries for 13-14 May 2014 in running sheet annexed to exhibit 20.
   
2. This is worrying stuff. Mr Haslam clearly formed an adverse view of Mr Pantovic and he was prepared to pressure witnesses into cooperating with his “investigative activities” by enlisting the assistance of the local constabulary in what was not, at that point, a criminal investigation. He demonstrated slightly more subtlety when he was discussing significant changes Ms Andersen wanted to make to her draft statement. She had indicated she wanted to remove a number of passages from the draft Mr Haslam had prepared and discussed with her previously. Mr Haslam contacted her and, in effect, talked her out of making the changes: transcript at pp 171-172. He denied he pressured, hassled or badgered her to sign the statement without making the changes she sought. She agreed to sign the statement without significant amendment after Mr Haslam visited her: transcript at pp 171-173. Given Ms Andersen has since renounced what she said in her statement, Mr Haslam’s role in convincing her to sign it is particularly unfortunate.
   
3. I have already noted Mr Haslam was aware Mr Gibb had an axe to grind. Mr Haslam was also questioned in cross-examination about his discussion with Ms Sally Morris. The investigator’s running sheet annexed to exhibit 20 included an entry for 19 May 2014 which recorded the following information:
   

She asked if I was aware that there are some nasty vindictive people trying to do awful things to [Mr Pantovic]. I said I was not interested in any potential personal conflicts and only interested in facts surrounding the operation of the helicopter ...

1. In cross-examination, Mr Haslam said he responded in that way because he wanted to focus on the aviation-related matters and did not want to be distracted by personal issues. He insisted (transcript at p 173):
   

I’m not interested in the private affairs of the persons involved. I want to get to the facts of the matter.

1. Unfortunately for Mr Haslam, the tangled “private affairs” of individuals in this community could not be separated from the allegations that were being made. It was, at a minimum, naïve to ignore the motivations of the witnesses.
   
2. The CASA investigators did not do a good job. They were clearly predisposed to believe Mr Gibb and ignored warning signs about the reliability of his evidence. They allowed him to contaminate the evidence provided by other witnesses when they failed to warn him, and the other witnesses, that they should not discuss their statements with each other. The investigators gave Mr Gibb too much credit and may have relied on him too heavily to identify and contact witnesses. They also appeared to bring pressure to bear on witnesses to cooperate – cooperation that was subsequently withdrawn.
   
3. I do not suggest the CASA investigators acted dishonestly or in bad faith. They were simply taken in by a story about Mr Pantovic and then pursued him in a determined and blinkered way, confident in their conviction that he had done that which was alleged against him.
   

The final climax to this classic tale of embuggerance...err maybe??

The correct or preferable decision

1. Having established Mr Pantovic contravened his duties, I am satisfied it is appropriate to take regulatory action. I must now decide what form that action should take.
   
2. I begin by acknowledging s 9A of the Act requires that I regard the safety of air navigation as the most important consideration.
   
3. I will next deal with the applicant’s approval to act as Chief Pilot of Panmer. CASA says his performance as Chief Pilot is no longer of an acceptable standard. I agree. A chief pilot occupies a leadership position within the organisation – even a small organisation like Panmer. He has no credibility in the discharge of that role if he becomes involved in contraventions like those I have identified. It is one thing for an individual to experience errors of judgment of this kind; such poor judgment is especially dangerous where the safety and culture of the whole organisation is at stake. Mr Pantovic cannot continue in that role.
   
4. I am satisfied the applicant’s approval to act as Chief Pilot should be cancelled pursuant to subclause 6.1 of Appendix 1 of CAO 82.0. CASA’s decision to that effect is affirmed. It shall take effect within 28 days of the date of these reasons.
   
5. What of the applicant’s flight crew licences? CASA says they should be cancelled pursuant to CAR 269(1). The power to cancel (or vary, or suspend) is engaged under at least three sub-clauses of CAR 269(1), namely:
   • CAR 269(1)(a), which refers to the holder of the authorisation breaching the Act or the regulations. I have already identified a series of breaches that occurred in connection with the flight over water on the way back from the Mt Carbine hotel.
     
   • CAR 269(1)©, which refers to the holder of the authorisation failing in his “duty with respect to any matter affecting the safe navigation or operation of an aircraft”. I have already referred to breaches of that duty which occurred while he was pilot-in-command.
     
   • CAR 269(1)(d), which says action can be taken when a person is no longer “a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation”.
     
6. The expression “fit and proper person” is not defined. I discussed the expression in my reasons in Jones and  Civil Aviation Safety Authority  [2014] AATA 820. In that case, I concluded the applicant had demonstrated remarkably poor judgment in the operation of a helicopter, while accepting he was a skilful pilot. Good pilots have good judgment, although I accept even good pilots occasionally make errors of judgment. Errors of judgment are a problem where they suggest the person’s judgment is flawed. A person with bad judgment (as opposed to a person who has merely made a mistake) is not fit to hold a pilot’s licence, no matter how skilful he or she may be.
   
7. Flying low over water at high speed while consuming alcohol demonstrates remarkably bad judgment, as opposed to a series of individual errors in judgment. (Leaving the helicopter unattended while the engine was running in the mistaken belief that the collective lock was an adequate safeguard was an error of judgment, as was failing to insist that passengers wore life jackets. Either of these transgressions might not, in isolation, reflect on the applicant’s fitness.) It follows I accept the applicant is not a fit and proper person to hold the flight crew licences. But what action should be taken?
   
8. I decided Mr Jones’s judgment was not irredeemably flawed in Jones and  Civil Aviation Safety Authority . I accepted he had the intelligence and insight to appreciate his errors and learn from them. On that basis, I decided a more lenient regulatory response was justified. The position of Mr Jones can be contrasted with that of the applicant in Quadrio and  Civil Aviation Safety Authority  [2011] AATA 709. In that case, the applicant actively ignored the rules in order to entertain his passengers. The Tribunal took a tougher line. Mr Pantovic’s errors were in at least one respect more serious than those of Mr Jones: I concluded Mr Jones did not knowingly flout the rules, whereas Mr Pantovic knew he was not permitted to consume alcohol while flying, for example. Having said that, Mr Pantovic’s judgment does not strike me as being as flawed as that of Mr Quadrio, who apparently regarded the regulatory action against him as a form of persecution.
   
9. I also concluded in Jones and  Civil Aviation Safety Authority  that it was appropriate to take into account the need for specific and general deterrence. In all the circumstances, I accepted Mr Jones did not require much in the way of specific deterrence: I was satisfied after observing him give evidence over a lengthy period during the hearing that he had learned his lesson. Mr Pantovic spent less time in the witness box, so it is harder for me to gauge the depth of his contrition and the genuineness of his insight. But I must also acknowledge he endured – and paid for the costs associated with – a lengthy hearing in which a series of allegations were made against him and ultimately disproved. He has already borne a heavy financial burden as a consequence of what happened.
   
10. General deterrence was an important consideration in Jones and  Civil Aviation Safety Authority . Mr Jones was a prominent member of the aviation community, and his errors and transgressions were played out on national television. Mr Pantovic does not have anything like the same profile as Mr Jones, which counts in his favour. Even so, it is necessary to send a clear message to the aviation community that this sort of conduct is unacceptable.
    
11. I do not think it is necessary or appropriate to cancel Mr Pantovic’s flight crew licences. The decision to cancel is therefore set aside. Mr Pantovic has offered (in exhibit 4) to enter into enforceable undertakings to submit to a number of obligations and limits if he is allowed to continue flying, but I fear that will not send the right message to the wider aviation community. I am inclined to suspend his licence for a period of time. A period of suspension is required to confirm this sort of “cowboy” behaviour will not be tolerated. In all the circumstances, I think the correct or preferable decision is to vary the decision under review and suspend the applicant’s flight crew licences for a period of six months – but I am minded to order that the suspension will itself be suspended after one month if the applicant enters into enforceable undertakings pursuant to s 30DK of the Act along the following lines:
    
    1. The applicant undergo urine testing, at the beginning of each month for both drugs and alcohol and provide to the CASA Aviation Medicine branch the test results as prepared by an accredited laboratory in accordance with secure sample collection protocols.
       
    2. The applicant restricts his flying to commercial activities and will not conduct any other flying activities as pilot in command, with the exception of delivering a helicopter for any maintenance and positioning a helicopter for commercial activity.
       
    3. The applicant provide to the CASA Cairns Regional office at the end of each week, a complete listing of all flights conducted over the previous week, including details as to the purpose of the flight, duration and destination, the Air Operator’s Certificate under which the flight was conducted, and the identity of any persons carried as a passenger.
       
    4. The applicant will, when due for his Bi Annual flight test conduct that test with a CASA officer.
       
12. If the applicant complies with the enforceable undertakings, the decision to suspend the applicant’s flight crew licences would be discharged on the date the undertaking comes to an end.
    
13. I invite the parties to make written submissions as to the proper form of orders that would give effect to this aspect of my reasons. Subject to those submissions, I anticipate the decision to suspend the applicant’s flight crew licences would take effect within 28 days of these reasons.
    
14. I also invite the parties to make written submissions as to the form of any orders under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth). For now, I am satisfied that paragraphs [16]-[22] of these reasons should not be published to any person apart from the parties and their legal representatives by reasons of the confidential nature of the evidence referred to therein.
    

MTF..P2

[Peetwo]

A Xmas tale of Embuggerance - One for the Sleepy Hollow Chronicles.

An the 18 December an AAAT decision was handed down that had all the hallmarks of a classic Sociopathic witch hunt from the McComic Years. Trouble is this sordid embuggerance tale has reached its climax under the Oliver Skidmore Twist (AVM semi-retired ) watch, which mean's he now has 99.99% ownership of this bollocks..

Being a classic (& in some parts quite humorous) here is some quotes from the good 'learned gentleman', Senior Member Bernard J McCabe decision..  : Pantovic v CASA [b]2015] AATA 992 (18 December 2015)[/b]

{Note - Paragraph numbering is out of sequence}

18 December 2015

1. The central allegation against the applicant, Jason Pantovic, reads like a producer’s pitch to a movie studio. The scene is set: three friends at a barbeque in the country run out of beer. Police officers lurking on the back roads to town threaten to disrupt the resupply process. Relief is at hand: the leading character, Mr Pantovic, is a daring-do helicopter pilot. His helicopter is stored nearby. The three friends climb into the two-seat helicopter and lumber into the air, bound for a quintessential North Queensland hotel with wide verandahs. Mr Pantovic lands outside the hotel and one of the party swaggers inside to purchase a slab. But when the purchaser returns to the helicopter with the beer and Mr Pantovic attempts a take-off, the helicopter is unable to clear the nearby trees. It lands heavily after clipping the branches. The additional weight of the beer makes take-off from that location impossible. One of the passengers is offloaded and cadges a lift from the bemused publican to a nearby oval. The helicopter picks him up from there and, using the open space, manages to take off in the direction of the barbeque.
   
2. If that story is true – and the  Civil Aviation Safety Authority  (CASA) says it is – the applicant’s various licences and approvals should be cancelled at once because the story suggests the applicant was not a fit and proper person to hold them, and because he recklessly disregarded his duties under aviation law. The applicant acknowledged at the hearing he should be in deep trouble if the story were true. But he says it is not. He denies the flight occurred, and says that aspect of the case against him rests centrally on the account of witnesses who are demonstrably unreliable. He acknowledges the truth of some other allegations made against him, and disputes others, but he rejects the central allegation about the beer run in a helicopter. He says his licences and approvals should not be cancelled in all the circumstances, although he has offered undertakings that are intended to address his admitted conduct.
   
3. I am not satisfied the central allegation against Mr Pantovic is true, yet regulatory action against him is clearly appropriate in light of the other conduct I will discuss. While I would vary the decision to cancel his private helicopter pilot’s licence, I affirm the decision to cancel his approval to act as chief pilot. I explain my findings and reasons below.
   

 
A background to the star & co-star.. :

Mr Jason Pantovic

1. The applicant in these proceedings is an experienced helicopter pilot who lives on a property in Biboohra, near the North Queensland town of Mount Molloy. Mr Pantovic obtained his commercial helicopter pilot’s licence in 2001. His licence is endorsed to permit him to operate Hughes 269, Robinson R-22 and Robinson R-44 helicopters. (At the relevant time, he owned and operated an R-22 helicopter – registration VH-HTD – that was stored on his property, although he also flew other helicopters. VH-HTD was destroyed in an unrelated incident on 9 December 2012.) His licence also permits him to conduct low flying, mustering and sling load operations. Since 2008, he has been the chief pilot of Panmer Pty Ltd. Panmer is, in effect, a family business in which he has played a central role. It holds an air operations certificate (AOC) issued under the Act. Mr Pantovic explained in his statement that he operates helicopters pursuant to the Panmer operations manual (and, it might be interpolated, in accordance with the conditions of Panmer’s AOC): exhibit 33 at [5]-[8].
   
2. Mr Pantovic accuses CASA’s principal witness of witness tampering, but the applicant himself was not above attempting to secure questionable witness statements. (I refer in particular to the statutory declaration obtained from Mr Eric Bale in uncertain circumstances: exhibit 6). After hearing all of the evidence in this case, I was left with the uncomfortable impression of Mr Pantovic and Mr Allan Gibb engaging in a shifting and unedifying contest to line up and neutralise witnesses. Mr Pantovic at least had a legitimate and understandable interest in gathering evidence, whereas Mr Gibb had darker motives.
   
3. Mr Pantovic gave evidence at the hearing, and provided two statements, exhibits 33 and 34.
   
   

Mr Allan Gibb

1. Mr Gibb looms large in these proceedings. He was CASA’s informant and (initially, at least) its principal witness. He claimed to be present on a number of occasions when Mr Pantovic transgressed – most obviously during the flight to the Mount Molloy hotel, but also on at least one other flight. He provided some video that was shot on his phone which appears to depict Mr Pantovic consuming beer whilst at the controls of the helicopter and flying very fast at low altitude, amongst other things. Mr Gibb gave evidence on the first day of the hearing, and provided two statements: exhibits 8 and 9.
   
2. The applicant attacked Mr Gibb’s credibility. Mr Pantovic says Mr Gibb is motivated by malice. It turns out Mr Pantovic had an affair with Mr Gibb’s former partner in May 2013, and Mr Gibb found out: exhibit 33 at [16]-[17]. The applicant said Mr Gibb peddled stories to CASA in order to even the score. As the evidence unfolded, it became clear Mr Pantovic was right about Mr Gibb’s motivation.
   
3. Mr Gibb agreed in cross-examination he was very angry when he learned of the affair. He agreed he vandalised Mr Pantovic’s home in July 2013 and made threats on the applicant’s life. Mr Pantovic called the police after that incident and Mr Gibb was subsequently charged with burglary. Mr Pantovic said he decided to withdraw the charges in August 2013 although he did obtain a restraining order: exhibit 33 at [22]-[25]. Mr Gibb agreed in cross-examination that he told the applicant he would talk to the police and make Mr Pantovic pay for what happened between the applicant and Mr Gibb’s former partner. When asked about his approaches to CASA, Mr Gibb agreed he wanted revenge. He acknowledged he wanted to make the applicant suffer, although he also claimed in his statement (exhibit 8 at [38]-[39]) that he made the threats in order to secure a confession from the applicant because “I wanted the full story”: transcript at p 53. When Mr Emmett, counsel for the applicant, suggested to Mr Gibb in cross-examination that he had made up the whole story, Mr Gibb responded flatly: “I told him if he rang the police on me that I would go to CASA”: transcript at p 78.
   
4. [Redacted paragraph]
   
5. [Redacted paragraph]
   
6. [Redacted paragraph]
   
7. [Redacted paragraph]
   
8. [Redacted paragraph]
   
9. [Redacted paragraph]
   
10. [Redacted paragraph
    

The cast of constabulary & their nefarious roles:

The CASA investigators

1. There were a number of CASA officers involved in the investigation into Mr Pantovic. Mr Stallard, for example, looked into the maintenance records and other information available in relation to the damaged rotor blades of the helicopter. He provided a statement (exhibit 19) and gave evidence at the hearing. His evidence was unremarkable. The evidence of some other investigators was more problematic.
   
2. CASA investigators knew the story was suspicious from the beginning. Mr Nick Coulson, a CASA officer, rang alarm bells early on in the investigation when he said in an email dated 29 August 2013 (exhibit 14) “...I find it difficult to believe the story with respect to there having been three grown men in the cockpit of an R22”. While Mr Coulson went on to accept it might have been possible, he asked: “So I am just wondering if they are having a lend of us?”
   
3. As well he might: the nature of the allegations and the way they were offered up to CASA should have prompted a measure of scepticism. But CASA investigators were quick – too quick – to embrace Mr Gibb, and they tended to interpret the rest of the evidence with Mr Gibb’s evidence firmly in mind. It was a classic example of ‘confirmation bias’.
   
4. Mr Leif Nystrom said he first became involved in the matter when he was tasked by the manager of investigations to take statements from, amongst others, Mr Gibb. Mr Nystrom insisted in his oral evidence that he was not carrying out an investigation as such. He said he was merely “working on a tasking” assigned to him by others: transcript at p 117; see also transcript at pp 95, 111-112, and 116-118. But other evidence suggested he was conducting an investigation, even if it was not an investigation under Part IIIA of the Act. He called it an ‘investigation’ in correspondence with another CASA officer: exhibit 16. Mr Nystrom’s insistence that he was merely completing tasks rather carrying out an investigation created the impression he was trying to minimise his role, and perhaps excuse his approach. Given how things turned out, that is not altogether unsurprising.
   
5. Mr Nystrom allowed Mr Gibb to organise Mr Graham Gear to provide evidence without warning either of them not to discuss their evidence: transcript at pp 109-110. The running sheets attached to Mr Nystrom’s statement (exhibit 13), which record his investigative activities, confirm he was aware Mr Gear and Mr Gibb were talking about their evidence, and that Mr Gear had read Mr Gibb’s statement. The running sheets also confirm Mr Gibb expressed a view about the likelihood of the hotel publican giving evidence against a client: one could draw an inference that Mr Gibb had already raised that question with Mr Scott Peters, the publican. (Mr Peters subsequently agreed to give evidence, albeit reluctantly.) Mr Nystrom also agreed he provided Ms Andersen, a potential witness, with copies of draft statements for Mr Gibb: transcript at pp 110-111. (Mr Nystrom said he was provided with an email address for Mr Gibb that was used by Ms Andersen.) Those statements named Ms Andersen, yet Mr Nystrom did not recall warning the two to keep their evidence separate. He conceded as much in the following exchange with Mr Emmett during cross examination:
   

Mr Emmett: Didn’t you say, “Look, it’s best not to talk about the substance of the evidence” knowing that they were both potential witnesses and that they were otherwise likely to talk about it together on a daily basis?
Mr Nystrom: I think it is likely that I did not brief Mr Gibb along those lines.

1. Mr Emmett also asked Mr Nystrom about an early comment from Mr Gibb (recorded in the running sheet attached to Mr Nystrom’s statement at exhibit 13) in which he claimed he was seated in the helicopter on the flight to Mount Molloy “with his knees up around his ears”. The email from Mr Coulson, from which I have already quoted, suggested that would not be possible: Mr Coulson, a test pilot, said the only way the third individual could fit in the helicopter was if he had his legs hanging out the door (exhibit 14). Yet Mr Nystrom said in cross-examination that he did not put that discrepancy to Mr Gibb. Mr Nystrom’s explanation for his failure to do so is worth noting. In cross-examination, he said:
   

I haven’t flown in a Robinson R22. I’m an investigator, I take on board any information that I receive. Mr Coulson made those comments as an expert pilot. Those comments are there for you to digest and deem if it’s appropriate. I have no views on the matter.

1. I am troubled by that view of the investigator’s role. Investigators are not cyphers who passively receive and collate information from witnesses – particularly witnesses who self-select, or who are selected by an outsider with an axe to grind – without exercising any judgment as to the veracity of what they are told. But it is not an accurate description of Mr Nystrom’s role in any event. He did not simply “take on board any information that [he received]”. There appeared to be an element of selectivity in his approach to the evidence. For example, Mr Nystrom did not approach another potential witness, Mr Allan Scott. Mr Scott was a friend of Mr Pantovic. Mr Gibb told Mr Nystrom that Mr Scott was unlikely to give evidence, and Mr Nystrom took his enquiries no further. When Mr Emmett asked in cross-examination why Mr Nystrom did not approach Mr Scott, who might help Mr Pantovic, but approached other witnesses who were suggested by Mr Gibb, Mr Nystrom again insisted it was not his investigation: transcript at p 118.
   
2. I have difficulty accepting Mr Nystrom’s argument that he could not be expected to exercise judgment or take responsibility for the investigative strategy because he was not conducting an investigation. But even if he was not in a position to direct the investigation, it is unclear who within CASA was responsible.
   
3. Mr Haslam also participated in the investigation, albeit after it had progressed somewhat. He provided a written statement dated 30 October 2014 (exhibit 20) and gave evidence at the hearing. He explained in his oral evidence that he was the investigator attached to CASA’s Cairns regional office but he was on leave when the Gibb allegations came to light. He said Mr Nystrom, who is based in Canberra, was tasked to provide “investigative assistance”. When Mr Haslam returned from leave, he was also tasked to provide assistance. Mr Haslam initially appeared keen to downplay his own role: he said he was assigned tasks by the head of the investigations branch (there were several persons acting in that role over time, it seems) at the request of the regional manager who wanted to obtain additional evidence for the purposes of these proceedings: transcript at p 138. In cross-examination, he agreed he worked “very closely in relation to this investigation” and pursued his own lines of inquiry: transcript at p 145.
   
4. Mr Haslam was invited to comment on whether he was satisfied the flights in question all occurred. Curiously, he declined to do so. He said he had not formed a view. He explained he was not present so he was not in a position to talk about whether the flights occurred as alleged. That is puzzling. When pressed to explain himself, he said (transcript at p 146):
   

All I can say that this is what has been reported to us, and on that basis then if they did occur, then this is CASA’s position.

1. I am not sure what that means. It certainly seems odd that an investigator has no view about the integrity of the evidence he provided to the Tribunal. As it happens, Mr Haslam subsequently gave a different view of his role when he said in cross-examination (transcript at p 158):
   

We get gut feelings, all sorts of things, all the time, and we act on those gut feelings.

1. Mr Haslam conceded he had some concerns from an early stage about the reliability of some of the witnesses – Mr Gibb in particular, and Ms Andersen. He said he was aware of the animus between Mr Gibb and Mr Pantovic. When Mr Emmett asked in cross-examination whether that knowledge informed his approach to his dealings with Mr Gibb, he downplayed the level of contact he had with Mr Gibb. He said he only spoke with Mr Gibb about twice on the phone and once in person when he needed to get a further statement to “shore up or clarify some issues in his first statement ...”: transcript at p 147.
   
2. It is unsurprising that Mr Haslam would seek to shore up Mr Gibb’s evidence. He must have been aware of the problems that were apparent from the running sheets recording the details of Mr Nystrom’s investigation: transcript at p 149ff. Mr Haslam must have been aware that Mr Gibb and Mr Gear were talking to each other about their evidence. He agreed in cross-examination that he never instructed Mr Gibb or Mr Gear not to talk to other witnesses about the evidence: transcript at pp 151-152. His own running sheets confirm Ms Andersen told him on 7 May 2014 that she had also read Mr Gibb’s statement. He agreed he did not caution her against discussing the evidence with Mr Gibb even though he anticipated obtaining a statement from her: transcript at p 153.
   
3. Mr Haslam said he was aware of the difficulties in the relationship between Mr Gibb and Ms Andersen – although he conceded he did not make any record of threats of violence being made by Mr Gibb against Ms Andersen: transcript at p 165. He said he kept those difficulties in the back of his mind but added (transcript, at p 154):
   

... I rely on the witness to tell the truth in relation to their dealings, and if they are prepared to sign a statement attesting to the evidence they’re giving me, then I have to have some faith that they are telling me the truth.

1. Interestingly, Mr Haslam did not take the same essentially trusting approach towards Mr Eric Bale. Mr Bale resided next door to the Mount Molloy hotel. CASA says Mr Pantovic landed his helicopter in Mr Bale’s yard. Mr Haslam confirmed in his oral evidence that Mr Bale initially told him the helicopter did not land on or near his property. But Mr Haslam was having none of that: he said there was something in the way Mr Bale spoke to him on the telephone that caused him to doubt Mr Bale’s denials. He decided to enlist the services of the local police. He explained in cross-examination (at p 157):
   

I asked [the local police] if they knew Mr Bale, and whether or not they could make some further inquiries in the area.

1. Mr Haslam decided to arm the police with Mr Gibb’s version of events. He agreed he informed them of his suspicions about Mr Bale before they went about whatever inquiries they made: transcript at p 158. Unsurprisingly, an obliging police officer confirmed Mr Bale “was being cagey” when the officer paid him a visit on 13 May 2014: transcript at p 168; see also running sheets annexed to exhibit 20. Mr Bale subsequently withdrew his denial and agreed to attend the station to sign a statement making allegations about Mr Pantovic after his discussion with the police officer: see entries for 13-14 May 2014 in running sheet annexed to exhibit 20.
   
2. This is worrying stuff. Mr Haslam clearly formed an adverse view of Mr Pantovic and he was prepared to pressure witnesses into cooperating with his “investigative activities” by enlisting the assistance of the local constabulary in what was not, at that point, a criminal investigation. He demonstrated slightly more subtlety when he was discussing significant changes Ms Andersen wanted to make to her draft statement. She had indicated she wanted to remove a number of passages from the draft Mr Haslam had prepared and discussed with her previously. Mr Haslam contacted her and, in effect, talked her out of making the changes: transcript at pp 171-172. He denied he pressured, hassled or badgered her to sign the statement without making the changes she sought. She agreed to sign the statement without significant amendment after Mr Haslam visited her: transcript at pp 171-173. Given Ms Andersen has since renounced what she said in her statement, Mr Haslam’s role in convincing her to sign it is particularly unfortunate.
   
3. I have already noted Mr Haslam was aware Mr Gibb had an axe to grind. Mr Haslam was also questioned in cross-examination about his discussion with Ms Sally Morris. The investigator’s running sheet annexed to exhibit 20 included an entry for 19 May 2014 which recorded the following information:
   

She asked if I was aware that there are some nasty vindictive people trying to do awful things to [Mr Pantovic]. I said I was not interested in any potential personal conflicts and only interested in facts surrounding the operation of the helicopter ...

1. In cross-examination, Mr Haslam said he responded in that way because he wanted to focus on the aviation-related matters and did not want to be distracted by personal issues. He insisted (transcript at p 173):
   

I’m not interested in the private affairs of the persons involved. I want to get to the facts of the matter.

1. Unfortunately for Mr Haslam, the tangled “private affairs” of individuals in this community could not be separated from the allegations that were being made. It was, at a minimum, naïve to ignore the motivations of the witnesses.
   
2. The CASA investigators did not do a good job. They were clearly predisposed to believe Mr Gibb and ignored warning signs about the reliability of his evidence. They allowed him to contaminate the evidence provided by other witnesses when they failed to warn him, and the other witnesses, that they should not discuss their statements with each other. The investigators gave Mr Gibb too much credit and may have relied on him too heavily to identify and contact witnesses. They also appeared to bring pressure to bear on witnesses to cooperate – cooperation that was subsequently withdrawn.
   
3. I do not suggest the CASA investigators acted dishonestly or in bad faith. They were simply taken in by a story about Mr Pantovic and then pursued him in a determined and blinkered way, confident in their conviction that he had done that which was alleged against him.
   

The final climax to this classic tale of embuggerance...err maybe??

The correct or preferable decision

1. Having established Mr Pantovic contravened his duties, I am satisfied it is appropriate to take regulatory action. I must now decide what form that action should take.
   
2. I begin by acknowledging s 9A of the Act requires that I regard the safety of air navigation as the most important consideration.
   
3. I will next deal with the applicant’s approval to act as Chief Pilot of Panmer. CASA says his performance as Chief Pilot is no longer of an acceptable standard. I agree. A chief pilot occupies a leadership position within the organisation – even a small organisation like Panmer. He has no credibility in the discharge of that role if he becomes involved in contraventions like those I have identified. It is one thing for an individual to experience errors of judgment of this kind; such poor judgment is especially dangerous where the safety and culture of the whole organisation is at stake. Mr Pantovic cannot continue in that role.
   
4. I am satisfied the applicant’s approval to act as Chief Pilot should be cancelled pursuant to subclause 6.1 of Appendix 1 of CAO 82.0. CASA’s decision to that effect is affirmed. It shall take effect within 28 days of the date of these reasons.
   
5. What of the applicant’s flight crew licences? CASA says they should be cancelled pursuant to CAR 269(1). The power to cancel (or vary, or suspend) is engaged under at least three sub-clauses of CAR 269(1), namely:
   • CAR 269(1)(a), which refers to the holder of the authorisation breaching the Act or the regulations. I have already identified a series of breaches that occurred in connection with the flight over water on the way back from the Mt Carbine hotel.
     
   • CAR 269(1)©, which refers to the holder of the authorisation failing in his “duty with respect to any matter affecting the safe navigation or operation of an aircraft”. I have already referred to breaches of that duty which occurred while he was pilot-in-command.
     
   • CAR 269(1)(d), which says action can be taken when a person is no longer “a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation”.
     
6. The expression “fit and proper person” is not defined. I discussed the expression in my reasons in Jones and  Civil Aviation Safety Authority  [2014] AATA 820. In that case, I concluded the applicant had demonstrated remarkably poor judgment in the operation of a helicopter, while accepting he was a skilful pilot. Good pilots have good judgment, although I accept even good pilots occasionally make errors of judgment. Errors of judgment are a problem where they suggest the person’s judgment is flawed. A person with bad judgment (as opposed to a person who has merely made a mistake) is not fit to hold a pilot’s licence, no matter how skilful he or she may be.
   
7. Flying low over water at high speed while consuming alcohol demonstrates remarkably bad judgment, as opposed to a series of individual errors in judgment. (Leaving the helicopter unattended while the engine was running in the mistaken belief that the collective lock was an adequate safeguard was an error of judgment, as was failing to insist that passengers wore life jackets. Either of these transgressions might not, in isolation, reflect on the applicant’s fitness.) It follows I accept the applicant is not a fit and proper person to hold the flight crew licences. But what action should be taken?
   
8. I decided Mr Jones’s judgment was not irredeemably flawed in Jones and  Civil Aviation Safety Authority . I accepted he had the intelligence and insight to appreciate his errors and learn from them. On that basis, I decided a more lenient regulatory response was justified. The position of Mr Jones can be contrasted with that of the applicant in Quadrio and  Civil Aviation Safety Authority  [2011] AATA 709. In that case, the applicant actively ignored the rules in order to entertain his passengers. The Tribunal took a tougher line. Mr Pantovic’s errors were in at least one respect more serious than those of Mr Jones: I concluded Mr Jones did not knowingly flout the rules, whereas Mr Pantovic knew he was not permitted to consume alcohol while flying, for example. Having said that, Mr Pantovic’s judgment does not strike me as being as flawed as that of Mr Quadrio, who apparently regarded the regulatory action against him as a form of persecution.
   
9. I also concluded in Jones and  Civil Aviation Safety Authority  that it was appropriate to take into account the need for specific and general deterrence. In all the circumstances, I accepted Mr Jones did not require much in the way of specific deterrence: I was satisfied after observing him give evidence over a lengthy period during the hearing that he had learned his lesson. Mr Pantovic spent less time in the witness box, so it is harder for me to gauge the depth of his contrition and the genuineness of his insight. But I must also acknowledge he endured – and paid for the costs associated with – a lengthy hearing in which a series of allegations were made against him and ultimately disproved. He has already borne a heavy financial burden as a consequence of what happened.
   
10. General deterrence was an important consideration in Jones and  Civil Aviation Safety Authority . Mr Jones was a prominent member of the aviation community, and his errors and transgressions were played out on national television. Mr Pantovic does not have anything like the same profile as Mr Jones, which counts in his favour. Even so, it is necessary to send a clear message to the aviation community that this sort of conduct is unacceptable.
    
11. I do not think it is necessary or appropriate to cancel Mr Pantovic’s flight crew licences. The decision to cancel is therefore set aside. Mr Pantovic has offered (in exhibit 4) to enter into enforceable undertakings to submit to a number of obligations and limits if he is allowed to continue flying, but I fear that will not send the right message to the wider aviation community. I am inclined to suspend his licence for a period of time. A period of suspension is required to confirm this sort of “cowboy” behaviour will not be tolerated. In all the circumstances, I think the correct or preferable decision is to vary the decision under review and suspend the applicant’s flight crew licences for a period of six months – but I am minded to order that the suspension will itself be suspended after one month if the applicant enters into enforceable undertakings pursuant to s 30DK of the Act along the following lines:
    
    1. The applicant undergo urine testing, at the beginning of each month for both drugs and alcohol and provide to the CASA Aviation Medicine branch the test results as prepared by an accredited laboratory in accordance with secure sample collection protocols.
       
    2. The applicant restricts his flying to commercial activities and will not conduct any other flying activities as pilot in command, with the exception of delivering a helicopter for any maintenance and positioning a helicopter for commercial activity.
       
    3. The applicant provide to the CASA Cairns Regional office at the end of each week, a complete listing of all flights conducted over the previous week, including details as to the purpose of the flight, duration and destination, the Air Operator’s Certificate under which the flight was conducted, and the identity of any persons carried as a passenger.
       
    4. The applicant will, when due for his Bi Annual flight test conduct that test with a CASA officer.
       
12. If the applicant complies with the enforceable undertakings, the decision to suspend the applicant’s flight crew licences would be discharged on the date the undertaking comes to an end.
    
13. I invite the parties to make written submissions as to the proper form of orders that would give effect to this aspect of my reasons. Subject to those submissions, I anticipate the decision to suspend the applicant’s flight crew licences would take effect within 28 days of these reasons.
    
14. I also invite the parties to make written submissions as to the form of any orders under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth). For now, I am satisfied that paragraphs [16]-[22] of these reasons should not be published to any person apart from the parties and their legal representatives by reasons of the confidential nature of the evidence referred to therein.
    

There has been some recent MSM coverage on this story :



&..from the other Aunty:

Chopper pilot cleared over claims of beer run flight to Mt Molloy pub in far north Queensland

By Mike Donaldson
Posted about 6 hours ago Thu 24 Dec 2015, 12:07pm

Map: Mount Molloy 4871
A tribunal has rejected allegations a far north Queensland helicopter pilot flew two mates on a beer run to a local pub at Mt Molloy, north of Cairns, after running out of alcohol.

The Civil Aviation Safety Authority (CASA) alleged the trio piled into a two-seater helicopter after running out of beer at a barbecue, landing at a country pub and buying a slab, then clipping trees on take-off.

The pilot went to the Administrative Appeals Tribunal, successfully arguing he had not undertaken the beer run flight.

He said a key witness was motivated by malice, after the pilot had an affair with the witness's former partner.

However, because of a breach of flying rules on another flight, which included consuming alcohol, the tribunal upheld CASA's cancellation of the pilot's approval to act as a chief pilot but it allowed him to continue to fly commercially, after a period of suspension, under a series of strict conditions.

MTF..P2

[Kharon]

Tall tales – where fiction mingles with facts.

Senior Member Bernard J McCabe •  “The central allegation against the applicant, Jason Pantovic, reads like a producer’s pitch to a movie studio.”

McCabe has been onto the CASA style of fact, fallacy, fiction and fraud for a while now.  As a honest man in a responsible position in the course of a year he must hear many matters, attempt to untangle the fact from dribble in order to arrive at a fair and reasonable ruling.  He probably takes some pride in his work and it’s reasonable to assume that he would be aware of the “Quadrio” case and the dreadful miscarriage that produced.  His ruling boils down the CASA hysteria to within sensible limits and is probably fair, all things considered.  At least he denied CASA a full scalp.  

P2 – “An the 18 December an AAAT decision was handed down that had all the hallmarks of a classic Sociopathic witch hunt from the McComic Years.

There can be little doubt McComic fostered and promoted this style of persecution; rather than prevent it, particularly in QLD with NSW running a close second.  Biased full support of some of the most outrageous fairy stories ever brought to a hearing, facts twisted, half truth as sworn testimony, hearsay as empirical evidence and motive for the ‘treatment’ blurred.  But it’s not a hangover from McComic, it is endemic to the a sect of the CASA tribe.  Skidmore could, if he chose to do so, could snuff it out.  There is a perfectly serviceable Legal department which, if instructed could ‘test’ some of the outlandish claims made by the ‘inspectorate’ and shape a case that would reduce, rather than amplify the charges brought.  The fact that CASA LSD still actively support this type of witch hunt is indicative of the DAS mind set, much as the approach to medical matters and Part 61. It underscores the CASA pushback, led by the top dog against reform in any meaningful way, shape or form.  The fact that Skidmore allowed this travesty to even get to the AAT should promote calls for resignations, his first.

The article by Kate McKenna – Booze Bird Bungle - in the Courier Mail is the first of what I hope will be many similar offerings.  We can only hope that the MSM catch onto the rest of the CASA legal machinations and publish everyone damn one of ‘em.  It would be a very good thing to let the public see how their hard earned is pissed away, feeding what is laughingly referred to as watchdog, but is, in fact, a serial sheep killer; needing a bullet rather than a pat on the head and an ‘attaboy”.  

CASA unmasked in headlines; what a lovely Christmas present – Thanks Santa.

MTF - Oh, I hope so.

Toot toot.

[Peetwo]

The worrying rumour that doesn't die??

Latest on this story from Hitch off the Yaffa... :

CASA has accessed mobile phone data in the past, but recent changes to the laws will prevent them from doing so in the future. (Composite image: Steve Hitchen)

New Laws ban CASA from accessing Mobile Phone Data
10 Dec 2015

Recent changes to the federal telecom laws will prevent the Civil Aviation Safety Authority from accessing mobile phone data in the future.

Amendments to the Telecommunications (Intercept and Access) Act mean that CASA will no longer be able to use data from private phone calls in enforcement action.

CASA made 11 applications for historical data in the 2014-15 period, which has enraged sections of the aviation community.

"The TIA Act permits enforcement agencies to authorise telecommunications carriers to disclose telecommunications data where that information was reasonably necessary for the enforcement of the criminal law, a law imposing a pecuniary penalty, or the protection of the public revenue," a CASA spokesperson had said in response to queries from Australian Flying.

"CASA makes applications during some investigations into whether a person has contravened a criminal offence provision in the aviation legislation."

The type of information CASA applied for was telephone account holder names and call records (information about telephone calls made, how long people talked to each other). CASA could not access the actual content of the phone calls.

However, CASA confirmed late today that under the changes to the TIA that came into effect earlier this year, they wouldn't have access to even those records any more.

The TIA amendments have limited the agencies that can apply for data to 14 criminal law enforcement agencies only, but there is provision for more to be added under ministerial declaration.

Ok so why does the Hitch post not give me a warm fuzzy feeling, when I think about the CASA confirmation given later in the day...

KC (AMROBA) explains it best:

"..Is CASA Australia’s Aviation Regulator or does it have an internal vision of being like one of the above?

Australia has created aviation requirements that are being prosecuted by a Regulator with a fixation on policing breaches of the criminal provisions they have created.

Aviation safety cannot be regulated into people as aviation safety relies on the safety culture of participants.

If CASA need access to metadata for ‘criminal’ offense then the Feds should be handling the offense.

This sought of dampens all the PR from CASA about working with industry.

This is a big brother mentality that does not improve trust or confidence in CASA.."

Hitch basically put the bad news rumour to bed - or did he?

Knowledge of four state-level agencies requesting metadata access could damage state-federal relations: AGD


The Australian Attorney-General's Department has said that releasing the names of four departments requesting access to metadata stored by telecommunications companies could harm the relationship between the agencies and the Commonwealth.

By Chris Duckett | January 15, 2016 -- 01:49 GMT (12:49 AEDT) | Topic: Security

The names of four state-level agencies that have requested to gain authorised access to telecommunications metadata will be withheld by the Australian Attorney-General's Department (AGD) from a Freedom of Information (FOI) request, with the department stating that knowledge of such requests could damage working relationships.

Initially filed in November, the FOI request originally asked for correspondence from organisations seeking to gain access to stored telecommunications metadata. The department denied this request on practical grounds, stating that 2,661 pages spread across 288 documents were related to such a request, and that 45 third parties needed to be consulted before the information could be released.

Eventually, the request was narrowed down to merely a list of agencies looking to be declared as an enforcement agency as defined under the Telecommunications (Interception and Access) Act.

"Agencies objected to disclosure on the basis that it would compromise the trust they place in the Commonwealth," AGD said in its decision on the FOI request on Friday.
"During consultation, these four agencies clearly indicated that disclosure of this information would damage the relationship between the department and the relevant agencies, and could affect any future cooperation with the department."

AGD said that disclosing the names of the agencies would be contrary to public interest.

A similar request was made by privacy advocate Geordie Guy, for which the department requested a fee of AU$424 to complete the request -- a fee that Guy was able to raise through crowdfunding.

An identical fee was issued to ZDNet for its request -- which the department reduced by 75 percent on appeal, and said the release of such documents is in the public interest, as it would provide background on how the metadata legislation is operating.
[/url]
In October, the ACMA said in its annual report that [url=http://www.zdnet.com/article/government-accessed-820000-customer-records-in-2014-15/]more than 820,000 customers had their account details revealed to law-enforcement, emergency services, and national security agencies by telecommunications providers during 2014-15.

During 2015, 3,926 telecommunications interception warrants were issued, a 2 percent fall from the year prior, and 365,728 authorisations for the disclosure of historical telecommunications data were made by agencies.

Agencies and departments given access to existing information or documents to enforce a criminal law over the 12-month period included the Australian Securities and Investments Commission; the Australian Financial Security Authority; the Australian Fisheries Management Authority; the Civil Aviation Safety Authority; the Clean Energy Regulator; Customs; the Department of Agriculture; the Department of Defence; the Department of Health; the Department of Immigration and Border Protection; the Department of Social Services; the Department of the Environment; SA Consumer and Business Services; Corrective Services NSW; the WA Department of Commerce; the Vic Department of Economic Development, Jobs, Transport and Resources; the WA Department of Environmental Regulation; the Vic Department of Environment, Land, Water and Planning; Corrections Victoria; the NSW Environment Protection Authority; the Vic Legal Services Board; the NSW Office of Environment and Heritage; Roads and Maritime Services NSW; RSPCA Queensland; RSPCA Tasmania; RSPCA Victoria; The Hills Shire Council; the Vic Transport Accident Commission; Workcover NSW; and Worksafe Victoria.

It is already known that the Victorian Department of Racing and Civil Aviation Safety Authority are seeking to be granted access to stored metadata.

The Australian data-retention laws allow the nation's approved law-enforcement agencies to warrantlessly access two years' worth of customers' call records, location information, IP addresses, billing information, and other data stored by telcos.

The Joint Parliamentary Committee on Intelligence and Security recommended in February 2015 that Australia have data-breach notification laws in place before the end of 2015, prior to the implementation phase of the data-retention laws.

No data-breach notification laws are in place, despite the start of the metadata retention regime, and the earliest that Australia will now have a working data-breach notification scheme is set to be sometime in 2017, after the AGD has released its exposure draft of amendments to the Privacy Act.

Well I'm confused -

There is either some serious misinformation being mistakenly disseminated or someone is telling porkies


MTF...P2  

[snorky]

CASA: 

A story of ruthless, untrammelled abuse of power, an institution that seems to be untouchable precisely because it is too big to be allowed to be seen as incompetent.

Shysters who are nothing more than keystone cops attempting to wield more power than they've been given. If I were a psychologist, I'd be making a fair guess as to what their extra-curricular activities were.


What a RORT!

There is a thing called karma you know.. it's only a matter of time. 

[Peetwo]

Embuggerance & investigative probity - In the Sleepy Hollow shelf-wared tales of embuggerance, there is one case, that of Airtex, that keeps on rearing its ugly, festering head.  Like the long trail of industry exemptions, the Airtex ET provides many puerile examples of CASA double standards in regulatory enforcement. How this - vindictive, hypocritical trail of nonsensical, big "R" embuggerance - all began is hard to define but it escalated not long after the fatal accident into Botany Bay of Metro VH-OZA and culminated with the tragic accident on 15 June 2010 of Skymaster (sister company) VH-PGW Mojave at Canley Vale.

Either way the Airtex case now sits as a benchmark of the extreme lengths of enforcement persecution that CASA deployed throughout the McCormick years.   
 
Another Airtex 'point of comparison'.

At PAIN we have quite often compared the treatment/oversight by CASA of PelAir versus Airtex, with there being 'passing strange' aberrations/differences in enforcement policy from the very same overseeing CASA Office. Even more bizarrely this interpretation dichotomy was also reflected within the supposedly independent ATSB investigations of accidents involving both (one former) AOC holders & associated owner companies & management. This dichotomy may also be a reflection of the fact that the Airtex/Skymaster accidents involved fatalities & with the PelAir ditching pax & crew survived.   

Okay now, as luck would have it, we have a completed ATSB investigation of an occurrence very similar to VH-OZA, which fortunately this time did not end in a tragic accident or survived ditching. It also occurred in the jurisdiction of another CASA region.      

Two weeks ago the ATSB released a Final Report for investigation AO-2014-147, here is the summary for what happened in that incident:

On 3 September 2014, at about 0215 Eastern Standard Time (EST),[1] a Fairchild SA227 aircraft, registered VH-UUO, took off from Brisbane Airport, Queensland for a freight charter flight to Bankstown Airport, New South Wales, with one pilot on board. Following the take-off, when at about 200 ft above ground level, the pilot observed the horizontal situation indicator (HSI) indicating a right turn although the aircraft was still maintaining runway direction. The pilot reported that the attitude indicator (AI) displayed alternately a nose up and nose down attitude.

When at about 1,600 ft above ground level, the pilot advised air traffic control of a ‘minor problem with heading’ and was directed to conduct a right turn onto an easterly heading to avoid noise sensitive areas. The pilot turned the aircraft to the right, towards the Pacific Ocean, while referring to the HSI on the co-pilot’s instrument panel, which was providing more accurate heading information. The pilot was aware that the captain’s AI and HSI instruments were providing erroneous indications, but became disoriented by continuing to scan those instruments. The pilot looked out of the window in an attempt to gain a visual reference but could see only blackness.

The pilot continued a shallow right turn until the lights of runway 19 became visible. The aircraft landed back at Brisbane, on runway 19 about 150 kg above the aircraft’s maximum landing weight.

 
This incident had some very real similarities to the tragic accident of VH-OZA  (reference: ATSB - AO-2008-026): 

On 9 April 2008, at 2325 Eastern Standard Time, a Fairchild Industries Inc. SA227-AC (Metro III) aircraft, registered VH-OZA, departed Sydney Airport, New South Wales on a freight charter flight to Brisbane, Queensland with one pilot on board. The aircraft was subsequently observed on radar to be turning right, contrary to air traffic control instructions to turn left to an easterly heading. The pilot reported that he had a 'slight technical fault' and no other transmissions were heard from the pilot.

Recorded radar data showed the aircraft turning right and then left, followed by a descent and climb, a second right turn and a second descent before radar returns were lost when the aircraft was at an altitude of 3,740 ft above mean sea level and descending at over 10,000 ft/min. Air traffic control initiated search actions and search vessels later recovered a small amount of aircraft wreckage floating in the ocean, south of the last recorded radar position. The pilot was presumed to be fatally injured and the aircraft was destroyed.

Both of the aircraft's on-board flight recorders were subsequently recovered from the ocean floor. They contained data from a number of previous flights, but not for the accident flight. There was no evidence of a midair breakup of the aircraft...

There were even similarities in the 'contributory factors' sections:

VH-UUO:
 
Contributing factors

• The pilot did not correctly configure some of the cockpit instruments and systems prior to taxiing, or detect or correct the problem with the primary heading reference prior to take-off. This led to erroneous heading information being presented to the pilot.

• The primary attitude indicator probably malfunctioned intermittently after take-off, leading to the pilot being presented with erroneous attitude information.

VH-OZA:

Contributing safety factors

• It was very likely that the aircraft’s alternating current electrical power system

was not energised at any time during the flight.

• It was very likely that the aircraft became airborne without a functioning

primary attitude reference or autopilot that, combined with the added workload

of managing the ‘slight technical fault’, led to pilot spatial disorientation and

subsequent loss of control.

However that is where the reports rapidly start to diverge:

VH-UUO:

Other factors that increased risk

• The attitude indicator had been in service for 1,783 hours, which exceeded its recommended time in service of 1,200 hours.

• The pilot did not declare an emergency or communicate the magnitude of the problem to ATC, but only advised of a minor heading issue. ATC issued a right turn due to noise abatement (and away from the city lights), and two frequency changes in accordance with normal ATC service provision. Had the pilot communicated the issue to ATC, they could have provided assistance.

Other findings

• The flight data recorder did not have any valid recorded data for vertical acceleration.

VH-OZA:

Other safety factors

• The pilot’s Metro III endorsement training was not conducted in accordance with the operator’s approved training and checking manual , with the result that the pilot’s competence and ultimately, safety of the operation could not be assured. [Significant safety issue]

• The chief pilot was performing the duties and responsibilities of several key positions in the operator’s organisational structure, increasing the risk of omissions in the operator’s training and checking requirements.

• The conduct of the flight single-pilot increased the risk of errors of omission, such as not turning on or noticing the failure of aircraft items and systems, or complying with directions.

Okay extracts from the individual safety issues & actions sections.
First from VH-UUO FR:

Safety issues and actions

Additional safety action



Whether or not the ATSB identifies safety issues in the course of an investigation, relevant organisations may proactively initiate safety action in order to reduce their safety risk. The ATSB has been advised of the following safety actions in response to this occurrence.



Operator of VH-UUO



The operator of VH-UUO created a simulator exercise based on the incident. The training managers are working towards a cyclic pattern for the company flight crew base checks to ensure systematic coverage of test scenarios.


Following the incident, the operator’s Quick Reference Handbook (QRH) reference for inverter failure was amended to become a ‘memory item’. Thus if an inverter fails, particularly at a critical phase of flight, the pilot can take the necessary steps to swap inverters without referencing the QRH.

The operator has subsequently removed the AIM 500 AI from the captain’s instrument panel and fitted an AIM 510, which carried the appropriate authorisation. The operator replaced the vertical accelerometer to provide valid FDR data. The engineering order (EO) was amended to label the accelerometer as a single vertical axis accelerometer. The test procedure for the accelerometer was amended to check for vertical acceleration data only.

 
That's it, finished, no further mention of the AI being 583 hrs overdue for replacement, no mention or apparent interest from CASA in this incident. All of which is fine because the operator has apparently heeded the safety message and has put in place effective risk mitigation measures.
Next VH-OZA:

SAFETY ACTION


The safety issues identified during this investigation are listed in the Findings and


Safety Actions sections of this report. The Australian Transport Safety Bureau


(ATSB) expects that all safety issues identified by the investigation should be
addressed by the relevant organisation(s). In addressing those issues, the ATSBprefers to encourage relevant organisation(s) to proactively initiate safety action,rather than to issue formal safety recommendations or safety advisory notices.


All of the responsible organisations for the safety issues identified during this
investigation were given a draft report and invited to provide submissions. As partof that process, each organisation was asked to communicate what safety actions, ifany, they had carried out or were planning to carry out in relation to each safetyissue relevant to their organisation.



Conduct of training not in accordance with operator
and regulatory requirements.

Significant safety issue

The pilot’s Metro III endorsement training was not conducted in accordance with
the operator’s operations manual and Civil Aviation Safety Authority regulationsgoverning training and checking requirements, with the result that the pilot’scompetence and ultimately, safety of the operation cannot be assured.

Action by the Civil Aviation Safety Authority


On 10 July 2008, Civil Aviation Safety Authority (CASA) officers met with the aircraft operator to discuss the results of the June 2008 risk-based audit. As a result of those meetings, on 11 July 2008 CASA imposed the following conditions on the air operator’s certificate:


• no passenger carrying charter or aerial work operations were to be conducted whilst the then chief pilot held that position, with such operations only to resume upon CASA approval of a new chief pilot.


• the operator was required to develop multi-crew procedures in order to crew Metro aircraft with two qualified pilots when carrying passengers, with those procedures to be in place prior to such operations.


• by 18 July 2008, the operator was required to implement a system that printed pilot flight and duty time records to ensure a permanent record is kept.


• by 25 July 2008, the operator was to implement a confidential reporting system to provide the chief executive officer (CEO) with information relating to poor operational standards or hazards and risks within their operations.


• by 31 July 2008, the operator duplicate, via a secure back-up process, all computerised operator records and keeps these back-ups in a secure place


• by 31 August 2008, the operator was to employ an appropriately-qualified independent auditor that was acceptable to CASA. The auditor was required to conduct comprehensive quality and aviation safety systems audits on a 6-monthly schedule, and provide CASA with a copy of each audit report within 3 weeks of the completion of the audit


• by 30 September 2008, the operator was required to develop a comprehensive, company-wide safety management system that was fully supported by the CEO

• by 30 September 2008, the operator was to review and where required, amended the operations manual, any amendments were to be submitted to CASA for acceptance.


Action by the aircraft operator


In response to the issues that were identified in CASA’s risk-based audit of June 2008, on 30 July 2008 the operator advised CASA of the following actions to rectify those issues:


• the operations manual was being rewritten to:


– bring the operator’s training and checking into line with the regulations and address multi-crew operations


– ensure that base and line checks accurately reflected the operator’s procedures and testing requirements by reference to specific test-content forms


– include the requirement for all inducted pilots to complete ‘wet drill’ training on the use of life jackets and life rafts. The results of that training would be recorded and renewed annually


– ensure the review of ground course theory examinations and that they were corrected to 100% knowledge of the subject


– ensure the completion of formal ground courses and that the training and syllabuses were documented


– ensure that pilots undertook pressurisation endorsement with a minimum training criteria


• several pilots were being retrained as required to meet the operator’s endorsement training requirements


• the operator’s computer-based flight and duty time records were password protected and a monthly copy of each crew member’s record would be printed out and placed on the individual’s file


• flight crews had been informed about the importance of accurately completing paperwork


• the head of training and checking had resigned and a new individual had been approved by CASA


• one pilot who had been identified as not having sufficient in command under supervision hours had been recertified.


Subsequently, on 17 September 2008, the operator provided an amended operations manual to CASA for review. That included amendments to Part C of the manual.


On 16 December 2008, CASA issued a new Air Operators Certificate to the operator.


ATSB assessment of CASA and operator action


The ATSB is satisfied that in combination, the action taken by CASA, and response to the CASA action by the aircraft operator, adequately addresses the safety issue.

Additional safety action

Aircraft operator

Although no safety issue was identified as a result of this investigation, on 6 August 2008, the operator notified CASA that, as part of its new safety management system, a safety committee had been implemented that comprised the CEO, general manager, chief pilot, head of training and checking, safety manager and a pilot or engineering representative.

Now again I am not being critical of the outcome, on the contrary it is a perfect example of how the system is supposed to work, the ATSB identifies significant safety issues with the AOC holders operations, which implicate CASA through some lack of oversight issues.

CASA (much like with PelAir) puts in place requirements they feel need to be addressed before granting the company an AOC renewal.

The company embraces & proactively addresses these requirements and even further to the CASA expectations puts in place a SMS to help identify & mitigate any future safety issues.

The trouble for Airtex was that Wodger (backed by McComic) then came on the scene and finally they were done by association with Skymaster & the Canley Vale tragedy. 

So ends my POC...


MTF...P2