[Peetwo]

Of being whelmed – Over or Under.

It takes a little time and some effort to follow the Glen Buckley tale of woe on Pprune – HERE -. The careful observer would see a familiar pattern emerging and note the road blocks being carefully placed to avoid any ministerial or departmental involvement; the endless changing of road signs directing to dead ends and; more importantly, the circling of wagons.  Faced with this type of barricade and dealing with insurmountable odds, it’s a small wonder that Glen_B would consider taking the Industry Complaints Commissioner (ICC) option. On the surface and as a legitimate requirement for mounting a challenge, it has to be done. Even if only to plug a legal escape path. I doubt he is holding his breath expecting any sort of ‘real value’ response. Time will trickle by until eventually a ‘milk and water’ response will be provided, a carefully crafted heart breaker which will serve to leave him no further along, treading water.  

Glen_B. – “I intend to file formal complaints against 5 X personnel within CASA including the Head of the Aviation Group, Mr Crawford. in order to lodge a legitimate complaints, the starting point for that must be the incumbents Position Description. Something that should be freely available, but it wasn't. It necessitated a Freedom of Information request, which arrived some time later.

Since the new chap took the ICC seat, AP has followed and measured the performance of this supposedly ‘independent’ agent. Close examination of results reveals only one statistic of any value; filing a complaint means that a box has been ticked on your ‘to do’ list; after that simply file the response and tick the box. All part of the endless grind needed to take a case to court, should your coffers still have enough spare cash to support such an action.  

McKenzie – “I’m the last person to discourage you (or Glen Buckley) from fighting CASA decisions and actions with which you disagree. However, don’t hold your breath expecting CASA or its employed ‘Complaints Commissioner’ to change anything without the threat of real external scrutiny and embarrassment. And there is, sadly, much truth in what 1a posted at #153.

Even if the ICC was not on the ‘Kool-Aid’ drip feed, any independent study of ‘powers’ and access to the CASA board would show that the placebo is very effective for the CASA hierarchy, protecting the minister. Glen Buckley has enough ‘complaint’ to goose the minister into an open, honest inquiry; that may even happen, who knows. But even if an ‘inquiry’ is mounted, one along the lines of David Forsyth’s effort – what boys and girls do you think the outcome will be? What was in that, some 60 odd recommendations from a Senate Committee and Forsyth – which changed SDA.

Until we have a minister who is prepared to step up, acknowledge the problem and actually ring the changes, Australia will continue to be not only the butt of international hilarity, but the recipient of much sympathy.

Toot – toot.

Addendum: 

ICC preliminary review of Glen Buckley's 28 complaints: see HERE. 

Was the letter a change in CASA’s approach to APTA?

Reviewing available records, I agree the letter of 23 October marked a significant divergence in CASA’s attitude towards APTA, both in tone and regulatory approach.

Whereas CASA had worked collaboratively with APTA at the time it sought to transition to Parts 141 and 142, the correspondence of 23 October was direct and unequivocal. With the fresh eyes that came about as a result of new oversight arrangements and legal advice, it presented a new interpretation as to the nature of APTA’s arrangements with Alliance members. The letter imposed a short deadline, and as far as I’m aware nobody within APTA had been given an indication prior to dispatch its significant change applications were likely to be considered differently. In terms of the ICC’s mandate to consider whether CASA’s actions were wrong, unjust, unlawful or unfair, I don’t at this stage propose to find the actions were wrong or unlawful. It’s any decision maker’s prerogative (and obligation) to consider an application on its merits. Just because a different interpretation was reached to a previous decision maker on substantively the same question, it doesn’t mean it was unlawful.

In terms of the other assessments the ICC can make, I don’t consider CASA treated APTA fairly when its approach changed on 23 October. That’s because collectively as an organisation, CASA had an awareness of the APTA business model for a significant period of time prior to its compliance with regulation being called into question. In changing its position so drastically, the circumstances were such that CASA’s actions weren’t fair, given APTA’s likely to have relied on CASA’s failure to highlight any concerns when conducting its operations and planning.

I’ve reached the conclusion CASA didn’t treat you fairly collectively, rather than it being an outcome ‘against’ Mr Jones or Mr Nuttall’s CMT. One reason for the broad conclusion is your specific request that I not review the actions or decisions of the CMT APTA was previously oversighted by, who you commended for their professionalism. Respecting that request means it’s impossible for me to draw any conclusions about which approach to the APTA business model is more likely to be legally correct.

At this stage, I also propose to conclude that as well as being unfair, having two opposing regulatory interpretations about the APTA business model meant CASA didn’t meet the principles it aspires to meet in its Regulatory Philosophy. In addition to APTA’s complaint the different approaches meant

CASA didn’t maintain its trust and respect (Principle 1), I also agree the divergence in the positions CASA took is also unlikely to conform with Principle 7.

Principle 7 provides ‘CASA will consistently employ the same processes criteria and have regard to the same criteria for the purposes of determining whether, and if so how, a regulatory requirement should be interpreted or applied in any given situation.’ There’s limited available information to conclude the Aviation Ruling’s applicability was considered when first assessing APTA’s business model; nor was there consistency about whether the model met regulatory requirements...

And ICC preliminary review outcome: see HERE.

Summary

In the outcome of my preliminary review dated 12 April 2019, I set out my proposed conclusions in response to APTA’s complaint about CASA’s regulatory oversight since a change in CMT in 2018.

Having reviewed APTA’s submissions in response, I believe I have insufficient information to change my provisional view. I therefore conclude didn’t act CASA unlawfully, or unreasonably fail to provide information.

But the timing of CASA’s change in regulatory approach, and the manner it was communicated to APTA were likely to have been unfair. Up until that point, APTA was likely to have relied on CASA’s failure to highlight any concerns when conducting its operations and planning.

Referral rights

You're able to ask the Commonwealth Ombudsman to review the ICC's consideration of your concerns, or CASA’s actions. Information about how to make a complaint can be found at www.ombudsman.gov.au. Alternatively, you can contact the Ombudsman on 1300 362 072.

And finally GB email to CASA Board secretary:

Good Morning Colin,
 
May I request that you forward this email to Mr Mathews.
 
Dear Mr Mathews,
 
I have held off sending this email a couple of days acknowledging the fact that you will have returned from Oshkosh to a significant workload. I had hoped to hear of CASA's final position after our meeting as this entire matter has consumed almost every waking moment of the last 9 months, and I want it brought to a close.
 
Accordingly, I am now following up on our meeting in Melbourne a little over 2 weeks ago. I had hoped to receive advice from either you or Mr Mc Heyzer on your behalf by last Friday the 2 August ’19 on whether CASA was:
 

1. Prepared to meet with me, in a well-intentioned manner to agree a ( x requesting x) fair and reasonable compensation or,
   
2.  CASA had a preference for the matter to proceed directly to a “determination" via due legal process.
   

 
This matter has been dragging on unnecessarily for over 9 months now, and I need to have clarity on the process moving forward.
 
Yours respectfully,
 
Glen Buckley.

MTF...P2