[Peetwo]

GlenB embuggerance update: 22/06/2023

Via the UP:

glenb

FOI request clarification

20/06/23 (My reference – PPRuNe #2690)

Dear Keeley,

Thank you for getting back to me, and providing the opportunity for me to clarify the documents that I am seeking.

On 14/06/23 I submitted an FOI request. (My reference PPRuNe #2675)

On 14/06/23, you responded seeking further clarification. (My reference PPRuNe #2676)

I apologise for my delayed response and acknowledge that may impact on your proposed response times.

Let me again apologise to you in advance. Whilst I appreciate that you are the recipient of this email, I have added some additional detail to.

a.) assist you, and

b.) ensure that my Local MP Carina Garland remains fully briefed on this matter and is therefore included in this correspondence, as are some other Parties.

I have highlighted and italicised some points from your correspondence that I would like top put some additional clarity around.

As with previous correspondence, the “tone” of the letter is not intended to be directed at you or your Office in any way.

“I am requesting CASA provide me with copies of commercial contracts that CASA retains of any operator in the flight training industry. If more than 5 are located, the most recent five that CASA retain or have been involved in.”

To clarify this point.

In October 2018, CASA determined that my business of over ten years had suddenly overnight become unlawful, and unauthorised, despite it operating in the same structure for over a decade, and there being no change to the regulations.

Apparently, CASA had only just become aware of its structure after more than a decade, and that awareness by CASA occurred in October 2018, or at least that is what CASA led the Ombudsman to believe, and surprisingly and concerningly, the Ombudsman accepted.

CASA has recently confirmed that the truth is that it was likely to have been aware of the structure for many years, and that its previous position that it asserted to the Ombudsman’s investigation was therefore false and misleading.

Nevertheless, in October 2018, CASA placed trading restrictions on my business that made it impossible to operate, the most significant being the multiple subsequent short-term approvals to continue operating.

As a Registered Training Operator delivering courses of 18 months duration, it was impossible to enrol students in 18-month courses when the business was operating on multiple short-term approvals.

These CASA issued “interim approvals” to continue operaetrying in the short term were as short as minute by minute, sometimes 7 days, never more than weeks

The impact of these restrictions was crippling on the business, the Members that CASA had previously approved, and the Members left in limbo for 8 months while CASA considered it.

All I needed to do, to have the “interim approval to continue operations” lifted by was to come up with wording in my commercial contracts regarding operational control that would satisfy Mr Aleck.

With 25 years industry experience, I was completely unable to come up with the wording that would satisfy him, and therefore have my trading restrictions lifted.

I must clarify that on this matter, I have no doubt that CASA has provided false and misleading information to the Ombudsman.

CASA has led the Ombudsman to believe that they previously required Operators to outline matters of operational control within commercial contracts between two parties that CASA is not a signatory to, something that I was not able to achieve.

I know that to be false.

Matters of operational control are contained within the CASA approved Exposition, and not within Commercial contracts.

If for some bizarre reason, matters of operational control were suddenly required by CASA to be contained within a commercial contract that CASA refused to be a signatory to, then those procedures might replicate procedures in the Exposition. But! It is preposterous and unsafe to have matters of Operational Control outlined only in commercial agreements and not addressed in the Exposition.

However, the Ombudsman has accepted CASAs false and misleading information, and the purpose of this FOI request is to expose that false and misleading information provided by CASA to the Ombudsman.

So to add clarity to the query.

The Ombudsman has accepted CASAs “word” that CASA had previously required contracts to outline matters of Operational Control.

If CASA is able to produce 5 copies of contracts that they have required of other flight training operators to demonstrate matters of operational control, it would go someway to refuting my allegation that CASA never required contracts of other Operators, and that I was the victim of targeted malice by a CASA.

For clarity, I do not believe that CASA will hold 5 contracts over that 80 year date range that

The Agreements that CASA would hold and have required for both Ballarat Aero Club, and Latrobe Valley Aero Club who had an existing arrangement with previous Flight Training Operators, until the day before they transferred to APTA

To clarify this request.

CASA claimed that the structure that I adopted had never been adopted before, that it was unlawful, unauthorised, subjected me to possible prosecution etc.

What makes this entire matter so concerning is that the exact structure that I adopted had been standard industry practice since, and fully CASA approved since I first entered the industry in 1982, and I presume for many decades prior.

For CASA to assert that what I was doing is unique is truly beyond comprehension, and the industry in its entirety would be fully aware of that.

However, the Ombudsman was unable to determine at the end of the four-year investigation if it was never permitted by CASA or if it was always permitted by CASA.

The undeniable truth, and something that the Ombudsman Office failed to address is that both Ballarat Aero Club and Latrobe Valley Aero Club had the same arrangement with two different flight training Organisations until the very day before they joined APTA.

This makes a mockery of CASAs assertion, and the subsequent acceptance by the Ombudsman investigation that the structure was unique, and never previously permitted by CASA.

It was the application to join APTA by these two aero clubs that CASA used to determine what I was doing was unlawful, but could possibly be deemed lawful if I could come up with the required wording in my contracts.

It would be logical that if two Aero clubs had been permitted to continue under an arrangement with other Flight Training Operators the day before they went to join APTA, then they must have held contracts that satisfied CASA.

After all, I had been determined to be unlawfully operating, subject to prosecution, given 7 days continuity of operations, because my contract wording wasn’t acceptable. Obviously the contracts required by CASA of the other two flight training operators the day prior to them joining APTA had been acceptable.

The reason that I am seeking these two contracts as part of the five contracts, is because these two contracts, if they exist, would clearly demonstrate what was acceptable to CASA and highlight “whose” and “what” responsibilities it was that I failed to attend to. Something that I still have no idea about, despite multiple requests for CASA to be more specific about what “matters of operational control” needed to be attended to in commercial contracts, and something that the Ombudsman investigation was unable to identify.

If CASA was unable to produce the contracts that they required of those two aero clubs in their previous agreements, yet the next day declared my business unlawful then that would support my assertion that I was personally targeted by CASA.

I do not believe that CASA ever required commercial contracts of any other operator in the flight training industry. I do not believe that these contracts exist, and I believe the 4-year Ombudsman investigation consistently took the Agencies (CASA) ‘word.”

A copy of the contract between APTA and Latrobe Valley Aero Club, that was finalised in or around June 2019.

Immediately after I handed control over to the new Owners they were able to resolve the issue, and a contract was promptly finalised with CASA.

These two new owners were not flight instructors and had no experience in the flight training industry. One owned a “security” business, and the other admittedly had some flying experience overseas. Their knowledge of Australian legislation was negligible, yet they worked with CASA to produce an acceptable document.

That contract that CASA finally approved, is I believe the first ever such agreement that CASA has required of any flight training operator in the industry.

That document that CASA accepted is being requested by me.

It is a major industry document, because it will clearly highlight what was acceptable to CASA regarding matters of operational control, and it will highlight what it was that I could not achieve in 8 months despite my best intent and effort.

“I am not interested in any of the financial information, signatories to the agreement, and matters of operational control that are already replicated in the CASA approved Exposition, any names, titles, positions, or any information of a sensitive nature”

To clarify this matter.

I am specifically requesting that these documents be highly redacted. I would ask that the redactions remain in place to assist me in assessing the size of the document.

The ONLY component that I need is matters of operational control. Everything else can be redacted.

To maintain consistency the same person highlighting CASAs acceptable matters of operational control, would most likely have to be the same person within CASA that deemed my contracts unacceptable.

Date range: 1 November 1938 – 31 October 2018

The date range was admittedly long, the purpose of that was to clearly demonstrate that since Australia had a an aviation safety Body, they never required matters of operational control to be contained exclusively within commercial contracts.

My suggestion was that if in fact CASA had truthfully required contracts of other operators doing exactly what I was doing, and that has occurred on hundreds of occasions, then 5 contracts would be in existence from the 12 months prior to CASA determining my structure unlawful in October 2018.

In order to reduce the workload, I will reduce the date range from 2006 until October 2018, being the duration that I operated my business in that structure without CASAs knowledge apparently.

“I will liaise with the relevant CASA Officers to locate the documents in scope and will be in touch in due course.”

On this matter I must insist that Mr Aleck CASA Executive manager of Legal, International and regulatory affairs is involved.

I met personally with Mr Aleck. I met every legislative requirement. It was Mr Alecks opinion that I needed to appease and could not do so for 8 months.

If CASA had previously required contracts, which I doubt, then those contracts must have been acceptable to Mr Aleck and his Department previously. In order to determine what is acceptable to Mr Aleck, then it seems reasonable that he be involved.

If CASAs narrative has changed, and there was a different decision maker other than Mr Aleck then that employee should be involved in this process. Perhaps clarify with Mr Aleck as to whether or not he was the decision maker.

Respectfully, Glen Buckley

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08/02/23 Ombudsman advising that my matter is closed

Our ref: 2019-713834

Dear Mr Buckley

Finalisation of Complaint – Civil Aviation Safety Authority

I am writing to confirm the Office of the Commonwealth Ombudsman (the Office) has finalised our investigation into your complaint about the Civil Aviation Safety Authority (CASA).

I note that you contacted the Office in November 2022, asking to withdraw your complaint. I apologise that I did not respond earlier.

While I understand you requested the complaint to be withdrawn and finalised during your contact in November 2022, I had formed the view with the support of my supervisor that we would send a final request for information to CASA to bring outstanding issues raised in your complaint to a close. I flagged this with you as a possible course of action on 3 November 2022.

I received additional information from CASA in December 2022 and am now satisfied that further investigation by the Office is not required in relation to the matters you raised. I am satisfied that the matters of administration raised by your complaint have now been adequately responded to by CASA, and further investigation would not obtain a different or better outcome for you. We will notify CASA of the outcome of our investigation and may provide feedback to CASA for its consideration as part of that notice.

Consistent with your previous request not to receive detailed findings of our investigation, I have not set out the details of my findings in this email. If you would like additional information, please let the Office know and further details about my conclusions can be provided to you.

Ombudsman’s Office satisfied that CASA has not mislead the Office

In advising that your complaint has been finalised, I would like to reiterate my earlier advice that I do not believe CASA has mislead the Office in responding to our investigation. The Office will advise CASA of this as well.

I understand your concern that CASA may have told us that it did not have awareness of the APTA model prior to October 2018. I apologise if information conveyed to you by the Office in the past seemed to suggest that CASA did not have any awareness of the APTA model prior to October 2018.

Complaint Officer Mark’s email to you dated 23 December 2020 concluded that the evidence available suggested the legal area of CASA had not been made aware of the business structure used by APTA prior to October 2018. This should be distinguished from CASA more broadly. My review and subsequent inquiries confirm that CASA has acknowledged it had an awareness of the APTA model, including in the Industry Complaints Commissioner decision dated 18 July 2019.

Act of Grace

We have previously discussed the availability of the Act of Grace Scheme with you. If you wish to pursue this, further information can be obtained from the Department of Finance, including at their website - Act of Grace Payments | Department of Finance. This is a discretionary scheme, and there is no automatic entitlement to payment.

Legal Advice

If you wish to pursue legal action against CASA, you should obtain independent legal advice in relation to whether there is a possible cause of action and relevant time limits that may apply to your circumstances.

Closure of your file

Thank you for your patience as we have considered your matter. I hope you can see that we have taken your concerns seriously, engaged with yourself and CASA to obtain relevant information, and reached the conclusion that no further investigation is warranted after carefully considering the concerns you raised.

We review complaints only once. This means that as I have looked at the matter afresh, the Office will not consider the same complaint again, unless you can present us with new evidence that would cause us to change our decision. We will consider, but may not respond to, further correspondence received once this review and complaint file is closed.

Yours sincerely[/size]

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10/02/23- My response to above

Could you please forward me a copy of your report.

Thankyou. Glen

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Response from Ombudsman 17/02/23

Dear Mr Buckley

Thank you for your email of 10 February 2023.

You have asked Catherine (Senior Complaints Officer) for a copy of the report relating to your complaint. As Catherine is currently on leave, I am responding on her behalf.

I understand that your request relates to Catherine’s advice to you in her email dated 8 February 2023 that she had not sent the details of her findings to you as you had requested for this not to occur. Prior to taking leave, Catherine had produced a more detailed letter which she asked me to send to you if you requested it. Please find that letter attached to this email.

Yours sincerely

Tom

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2019-713834
8 February 2023

Mr Glen Buckley
Sent by email only to: defendapta@gmail.com

Dear Mr Buckley

Finalisation of complaint about the Civil Aviation Safety Authority

I am writing to provide my findings in the review and further investigation of your complaint about the Civil Aviation Safety Authority (CASA).

I would like to thank you for your ongoing patience while I have completed this investigation. The Office of the Commonwealth Ombudsman (the Office) aims to provide fast and efficient review and
investigation outcomes, however there are times when the nature of a complaint means it will take us longer to complete than we anticipate. Over the past 12 months, the Office also experienced very
high demand for service, and this has also contributed to the delay. I apologise that you have not received the level of service we seek to provide in your contact with the Office in this matter.

Our role
When assessing complaints, our jurisdiction is limited to ‘matters of administration’ by the Ombudsman Act 1976 (Ombudsman Act). While we can look at the merits of a decision, we only do
so to the extent necessary to determine whether an agency has met the standards of administration we expect of Commonwealth agencies.

Where decisions require judgement or discretion, such as an assessment of the operational model adopted by the Australian Pilot Training Alliance (APTA), we accept there can be more than one outcome available to an agency, and we focus on whether the outcome provided was reasonably open to the agency to make, rather than whether there might be a different or more preferable,response. We do not have the power to direct an agency to change its decision or take particular action as we do not provide the type of merits review conducted by tribunals and courts, which look at what the ‘correct or preferable decision’ should have been and, unlike the Ombudsman, also have the power to make orders to substitute a better decision.

In my role as Review Officer, my role was to assess whether the process Mike and Mark followed was fair and adequate to address the concerns you raised and to determine if the conclusions they
reached were reasonable and properly explained to you. In the review I considered the information on your complaint file. This included your original complaint to this Office, your correspondence with
CASA, information provided by CASA and your contact with our Office over the course of your complaint and our review. I was satisfied the conclusions reached in the initial complaint were
reasonable, but that there were additional questions we could ask of CASA to clarify issues of concern to you.

After I finalised the review, I asked further questions of CASA. I have received a response from CASA and am now satisfied that no further investigation of your complaint is required at this time. I will
explain my reasons for this conclusion in this letter.


Background

On 26 November 2019, you complained to the Office about an email sent by Mr Jason McHeyzer on 27 August 2019 to the new CEO of APTA. You asked for a statement from CASA as to whether the
direction in the email from Mr McHeyzer was lawful, and for an apology. Our initial assessment noted that the only practical outcome the Office may be about to achieve was an apology from CASA. You told us at this time that you did not intend to pursue your rights regarding a possible ‘unfair dismissal’ by APTA.

Your complaint was allocated to Investigation Officer Mike Buss. In December 2019, Mike commenced investigation into your complaint. He asked questions of CASA about Mr McHeyzer’s
role within CASA, the email sent by Mr McHeyzer and additional questions about the Part 142authorisation process by CASA and the notice issued to APTA on 23 October 2018. CASA responded to our investigation and provided numerous documents in support of its response.

On 14 January 2020, you provided a summary of your complaint to our Office. You stated that you believed you had been treated deliberately and unfairly by CASA. You said you did not believe CASA
was engaging with you in good faith and stated that despite multiple attempts to contact the CASA Board, your contacts were ignored and not acknowledged for over 6 months. You complained about
restrictions being placed on your business and stated that there had not been any safety concerns raised by CASA.

Mike asked further questions of CASA in late January 2020, including about the email from Mr McHeyzer, CASA’s reliance on Aviation Ruling 1 of 2006, and about the ability of a Flight Training
Organisation (FTO) to operate under the Air Operators Certificate (AOC) of another FTO. CASA once again provided a detailed response to the questions asked.

On 20 April 2020, the Office sent CASA ‘preliminary views’ under s8(3) of the Ombudsman Act 1976.These views made comments about the relevance on Aviation Ruling 1 of 2006 in the context of the
updated regulatory framework that came into effect in 2014 and the reference to this ruling in the notice of 23 October 2018. It also provided views about CASA’s knowledge of the APTA model from as early as October 2016. CASA provided a response to the view on 22 May 2020 and the Office wrote to CASA again on 23 June 2020. Mike then provided a summary of his conclusions to you in a
letter dated 25 June 2020.

In August 2020, Mike asked for additional information from CASA, which was received in September 2020, around the same time that Investigation Officer Mark became responsible for your complaint. I can see that you continued to contact CASA regarding your complaint while it was being considered by the Office.

You had asked for a statement of reasons from CASA regarding its use of the Aviation Ruling and concept of a franchised AOC. You asked CASA to stop misleading the Ombudsman’s
Office. You also made detailed submissions to this Office regarding ‘Phase 2’ of the investigation.Mark spoke with you on 23 November 2020 and then wrote to you with his assessment of your
complaint on 23 December 2020. In that email, Mark advised that he had formed the view that further investigation of your complaint was not warranted as our Office could not achieve a substantially different outcome for you. You provided 3 detailed responses by email on 19 January 2021, 10 February 2021, and 19 February 2021. You spoke with Mark again on 4 May 2021. You then
provided further information and submissions to the Office.

Mark wrote to you on 1 July 2021 to advise that he had considered the information you had provided, and that he was affirming his decision not to investigate further. He concluded that CASA
had given our Office a reasonable explanation for its view that it was not ‘fully aware’ of how APTA was operating and acknowledged your differing view. He was not satisfied that CASA had misled this
Office. He explained that he did not believe further investigation would cause him to form the view that CASA’s concerns about the APTA model were unreasonable.

Mark provided a further response to you on 11 August 2021 and 23 September 2021. You provided responded to both the Office and CASA following this, expressing your view that CASA had misled
the Office about its knowledge of the APTA model.

Review of complaint

On 19 November 2021, we wrote to you advising that the Office would review how we had handled your complaint, and that this would be done based on the information received from both you and CASA.

The review was initiated due to:
1. Correspondence received from you following Mark’s decision to finalise his investigation of your complaint, and
2. Contact from the CEO of CASA, Ms Pip Spencer, in light of your correspondence to CASA following Mark’s decision.

You have provided further information to the Office, and I have spoken with you on 17 February 2022, 20 April 2022, 10 August 2022 and 24 August 2022. As explained earlier, I have considered the
information contained in our records, as well as information obtained during my discussions with you. I was not involved in the original decision.

Review Findings

Email from Jason McHeyzer on 27 August 2019 Mark considered the information obtained from CASA about this issue and concluded that we were not able to obtain a different practical outcome regarding the email, and that further investigation of this issue was not warranted. He acknowledged that the new owner of APTA may have felt some pressure from CASA regarding your role when they received the email from Mr McHeyzer, but that ultimately any decision about employment was for APTA to make. I reviewed the information we hold about this issue, including your submissions that the email amounted to a ‘direction’ from CASA to your employer, and that the email amounted to a finding that you were not a ‘fit and proper person’ to hold a CASA approved key position with APTA. I am satisfied that CASA did not intend the email to be a direction to your employer to cease your employment, and I am satisfied the evidence supports CASA’s position that Mr McHeyzer took steps to clarify this shortly after the email was sent.

You were able to complain to the CASA Industry Complaints Commissioner (ICC) about Mr McHeyzer’s email and the ICC issued a preliminary decision dated 16 October 2019 where it found
the email was ‘unreasonable and inappropriate’. Mr McHeyzer responded to the preliminary decision, providing a written apology to you on 19 October 2019. I note that you asked the ICC not
to speak with Mr Naser Qushair, the new owner of APTA. This prevented the ICC obtaining information from him that may have been relevant to its assessment of your complaint.
I understand that you also had the option of making an unfair dismissal claim against APTA, and that you decided not to follow this path. That was a choice that was yours to make.
In your conversation with me on 10 August 2022, you said you were entitled to know what statements you had been making that led to Mr McHeyzer’s email. I am satisfied that Mr McHeyzer
provided an explanation in his apology to you on 19 October 2019 and referred to your contact with the Prime Minister. In addition, on 7 December 2020 you acknowledged to the Office that you had been commenting on PPRuNe about CASA around the time of Mr McHeyzer’s email.

I am satisfied that on review no further investigation of this issue is warranted in all the circumstances.

Notice to APTA - 23 October 2018

Mike considered CASA’s reliance on Aviation Ruling 1 of 2006, Franchise AOC Arrangements in the Notice to APTA dated 23 October 2018. He formed a preliminary view that no Australian legislation prohibited the ‘franchising’ of an AOC and noted the Ruling referred to a regulatory scheme no longer in place. In response, CASA agreed generally with the fact that a ‘franchise-like’ arrangement was not prohibited but referred to legislation and regulations stating that authorisations were not transferrable. CASA also noted that any agreement between an authorisation holder and a third party must demonstrate the authority of the authorisation holder over the third party. I can see this is consistent with the advice CASA gave you in your discussions in 2019 that there may be ways for the APTA model to work within the scope of existing civil aviation legislation and regulations, provided it could be satisfied that APTA maintained full control of operators working under its authorisation. When Mark considered the complaint, he concluded that despite the reference to the Aviation Ruling in the Notice, our Office could not be critical of CASA for forming the view that the APTA model may not have been complying with aviation legislation and regulations.

This is because it had obtained information and advice suggesting the model used by APTA was different to what CASA understood it to be when it had transitioned APTA to the new regulatory scheme, and when it had previously added new bases to ATPA’s authorisations. Mark also told you that he was satisfied that CASA had provided us with a reasonable explanation for its view that CASA was not ‘fully aware’ of the APTA model prior to October 2018. I understand that prior to October 2018 CASA had accepted that APTA was itself conducting flight training in the various locations, under its own authorisations. In October 2018 CASA sought legal advice about the possibility that it was separate legal entities, not APTA itself, conducting the flight training operations. In my review of your complaint, I accepted that the conclusions Mark reached were open to him to make, and that he explained his decision to you. I can see that you have provided information to the Office showing you had discussed the APTA model with CASA prior to October 2018, and it should have had a general understanding of what you were trying to achieve. I would like to make it clear that CASA has also provided substantial
information, including emails between you and CASA in 2016 and 2017 that also demonstrate that you had discussions with CASA about the APTA concept during that time.

I note your advice that CASA had approved significant change requests for both MFT and APTA prior to October 2018 to add new operating bases to relevant authorisations and can see this did occur.
However, I do not believe this means CASA could not reach a different view about how the regulations applied to APTA. I can see that CASA obtained legal advice regarding the APTA model for
the purpose of the Significant Change application. After receiving advice, CASA sent the notice dated 23 October 2018 where it advised you of its intention to refuse the request to add new bases and
invited APTA to provide additional information. It is important to note that the wording of the notice was not a decision to close APTA.

When I completed the review, I decided there were further inquiries our Office could make with CASA to clarify parts of its earlier response to us about the Notice. The scope of my additional inquiries was limited to questions about the requirement for contracts to show operational control
and clarification of information regarding CASA engagement with MFT and APTA prior to October 2018. The purpose of the further inquiries was to provide assurance about the way CASA engaged with you, noting the ICC has already concluded that the way CASA advised you of its change to regulatory approach was likely unfair and not in line with its Regulatory Philosophy. Operators using substantially the same model as APTA

Part of your complaint was that you believed APTA was treated unfairly and differently to other Flight Training Organisations (FTO’s). You told us that there are other FTO’s operating under the
umbrella of a third-party AOC. At the conclusion of my review, I asked questions of CASA about this issue as part of my further inquiries for the purpose of obtaining assurance APTA wasn’t treated
unfairly.

Request to meet with the CASA Board You complained that you made multiple requests to meet the CASA Board, and say these requests were ignored for at least six months. Your complaint record shows that you did make multiple requests to meet with the CASA board, and that this was declined. CASA has provided information showing it advised you that the board was being kept updated on your matter, but that it deemed your concerns to be an operational matter, and more appropriately dealt with by CASA staff. I have no reason to be critical of this response in the circumstances. I can see from emails provided by you and by CASA that you had ongoing communication with CASA following the October 2018 notice,
including multiple meetings, including with senior staff such as Peter White, Craig Martin and Shane Carmody, then then CEO of CASA. I am satisfied that no further investigation of this issue is warranted in all the circumstances.


Temporary bases

You complained that in the October 2018 Notice, CASA told you that the use of ‘temporary bases’ was likely unauthorised, but that you had adopted a model recommended by CASA and used CASA’s
own sample document as the basis for this procedure. In a report prepared by CASA in December 2018, CASA acknowledged that APTA was referred to its
own sample manuals for Part 141 and Part 142, which included a broad ability to conduct flight training at temporary bases. I acknowledge that you likely relied on information from CASA in
developing your process for using temporary bases, and that CASA’s change of position on this issue would have been a shock to you.

I considered this issue as part of my review of your complaint. I am satisfied that while there was scope for CASA to engage with you in a more informal way prior to the notice of 23 October 2018, its
concern as to whether the use of temporary bases complied with the legislation was reasonable and it was appropriate for it to seek more information from APTA about this. I understand that when
CASA identified its own documents had been used by APTA, it did not pursue this issue. This was open to CASA to do.

I am satisfied that no further investigation of this issue is warranted in all the circumstances.

Complaint outcome – further inquiries
I asked further questions of CASA about its engagement with you and APTA both before and after the notice dated 23 October 2018 was sent. I asked about the requirement to show operational
control, the requirement to provide contracts and CASA’s engagement with you when it sought information about the APTA model. CASA responded to further inquiries from the Office in November 2022 and has provide information and evidence to satisfy me that:

 Operational control was not a new concept that was created by CASA and applied to APTA in
this matter.
 CASA has previously required evidence of contracts from other operators as evidence of
operational control before it made this request of APTA.
 Legislation and civil aviation regulations do support the basis for CASA’s request for
contracts from APTA, notwithstanding the legislation does not specifically require contracts.
 While you had provided sample contracts to CASA prior to the notice, it was not
unreasonable for it to request signed contracts to show the actual agreement in place
between APTA and its affiliates.
 CASA engaged with you and your father in a collaborative way following the notice of 23
October 2018, despite your view that CASA did not engage with you fairly.
 CASA had been provided with information from you about the intent of the APTA model
prior to October 2018, and there may have been opportunities for CASA to engage with you
in a more collaborative way to raise its concerns, prior to sending APTA the formal letter of
23 October 2018.

I can see that you had a close working relationship with your CASA inspectorate team during the time that Melbourne Flight Training / APTA transitioned to the new regulatory regime. I accept that you had provided information to CASA about the APTA model prior to October 2018, and it was reasonable for you to believe that CASA understood how the model worked. However, at the point
in time when CASA inspectors became concerned that the APTA model may not have been consistent with what civil aviation legislation and regulations permitted, it was reasonable for CASA
to take steps to clarify how APTA worked, and to seek evidence to support the model’s compliance.

While the notice of 23 October 2018 that CASA intended to refuse the Significant Change application likely came as a shock, it was an invitation for APTA to provide further information to CASA to allow
the application to be finalised. I acknowledge that it may have been beneficial if CASA had taken a more collaborative approach to seeking this information, including by having a more informal
discussion with you first.

Allegations that CASA has mislead the Ombudsman’s Office

I note that you have made allegations that CASA has mislead the Office. I can see you raised this concern as early as July 2020 after Mike sent you an update regarding ‘Phase One’ of his
investigation. You raised further concerns following Mark’s email to you dated 23 December 2020 and during the course of my review of your initial complaint. Having considered the information provided to the Office by yourself and CASA during the investigation, I do not believe CASA has mislead our office, or sought to withhold information from us. The information and evidence provided by CASA has been detailed and showed its engagement with you both before and after the October 2018 notice. The information does show that CASA was, and should have been, aware of the APTA model prior to October 2018. CASA has acknowledged this to our Office and to you.

The information provided by CASA also supports its position that it engaged with you following the October 2018 notice and sought to assist you to provide information that would have satisfied CASA
of the ‘operational control’ requirement. As set out above, I am satisfied the change in regulatory
position was open to CASA, while acknowledging the process could have been managed better. I appreciate the circumstances of the notice in October 2018 must have come as a shock to you, and
do not seek to diminish the impact of the regulatory change on your business model and yourself personally, however I do not agree with your view that CASA has misled the Office about material aspects of your complaint.



Conclusion

Having considered the issues raised in your complaint and assessing the information obtained during the investigation of your complaint by the Office, I am satisfied that no further investigation of your
complaint is warranted in all the circumstances. As I advised in my email dated 8 February 2023, we have now closed your complaint file. While this may not be the outcome you were hoping for, I hope you can see we have taken your complaint seriously and have thoroughly considered the concerns you raised. Thank you for bringing your concerns to the attention of the Ombudsman’s Office.

Yours sincerely
Catherine
Senior Complaint Officer
Complaints Branch

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My follow up 15/04/23

To The Ombudsman's Office,

I am just following up on the previous email. Once the Ombudsman's Office has been able to determine whether CASA always or never permitted this arrangement, can you confirm that I would be entitled to that information, which is integral to this entire matter, and i would have expected to be fully clarified at the onset of the investigation over 4 years ago. This truly should be a black and white matter.

Respectfully, Glen Buckley

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Ombudsman Response 15/04/23

Dear Mr Buckley,

I refer to your email dated 28 March 2023, in which you expressed dissatisfaction that Catherine’s decision letter did not express a view about whether APTA had been treated fairly compared to other Flight Training Organisations (FTO). Catherine is on leave from the Office but, in her absence, I reviewed her records of investigation. From these, I can see that she considered, and sought information from CASA about this issue and ultimately decided she could not confidently conclude who (within CASA) knew what about your business model at what time, to assess the way your business was treated compared to other similar organisations. I apologise that this conclusion was not explained more clearly in her letter of decision.

Noting this investigation is closed, our Office may file but not necessarily respond to any further correspondence you send on the matter.

Kind regards

Some UP response posts:

More weasel words- my bolding.

Good to see its starting to fall apart.


“After I finalised the review, … no further investigation of your complaint is required at this time…”

“had given our Office a reasonable explanation for its view that it was not ‘fully aware’ of how APTA was operating and acknowledged your differing view. He was not satisfied that CASA had misled this Office”

“and the ICC issued a preliminary decision dated 16 October 2019 where it found the email was ‘unreasonable and inappropriate’. providing a written apology to you on 19 October 2019.”

“suggesting the model used by APTA was different to what CASA understood it to be when it had transitioned APTA to the new regulatory scheme,”

“I would like to make it clear that CASA has also provided substantial information, including emails between you and CASA in 2016 and 2017 that also demonstrate that you had discussions with CASA about the APTA concept during that time.”

“the ICC has already concluded that the way CASA advised you of its change to regulatory approach was likely unfair and not in line with its Regulatory Philosophy.”

“I acknowledge that you likely relied on information from CASA in developing your process for using temporary bases, and that CASA’s change of position on this issue would have been a shock to you.”

“I accept that you had provided information to CASA about the APTA model prior to October 2018, and it was reasonable for you to believe that CASA understood how the model worked.”

“I acknowledge that it may have been beneficial if CASA had taken a more collaborative approach to seeking this information,”

“The information does show that CASA was, and should have been, aware of the APTA model prior to October 2018. CASA has acknowledged this to our Office and to you.”

“As set out above, I am satisfied the change in regulatory position was open to CASA, while acknowledging the process could have been managed better.”

“I can see that she considered, and sought information from CASA about this issue and ultimately decided she could not confidently conclude who (within CASA) knew what about your business model at what time,”

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Clinton McKenzie

Originally Posted by glenb [url=https://www.pprune.org/pacific-general-aviation-questions/620219-glen-buckley-australian-small-business-v-casa.html#post11454801][/url]

Dear Mr Buckley,

I refer to your email dated 28 March 2023, in which you expressed dissatisfaction that Catherine’s decision letter did not express a view about whether APTA had been treated fairly compared to other Flight Training Organisations (FTO). Catherine is on leave from the Office but, in her absence, I reviewed her records of investigation. From these, I can see that she considered, and sought information from CASA about this issue and ultimately decided she could not confidently conclude who (within CASA) knew what about your business model at what time, to assess the way your business was treated compared to other similar organisations. I apologise that this conclusion was not explained more clearly in her letter of decision.

Noting this investigation is closed, our Office may file but not necessarily respond to any further correspondence you send on the matter.

Kind regards

As I said in one of our recent video discussions, Glen, the most appalling thing for me out of the RoboDebt Royal Commission hearings was the revelations as to the extent of the deterioration of the Commonwealth Ombudsman function.The Ombudsman’s Office was sent some ‘RoboDebt’s all fine and dandy and legal, nothing to see here’ correspondence from the policy Department, the Ombudsman’s Office asked ‘are you sure about that and have you given us all the legal advice you’ve received’, the policy Department said ‘yep’ and the Ombudsman just drank that Koolaide.

The Ombudsman’s Office was fed misleading information, the Ombudsman’s Office suspected the information was misleading, but didn’t dig any further.We know, from the hearings of the Royal Commission, what would have been dug up if the Ombudsman’s Office had done its job properly.

The ‘explanation’ given to you for the ‘conclusion’ of and the closing of the ‘investigation’ of your allegation that ATPA was treated differently and unfairly compared to other FTOs by CASA is, in and of itself, an admission that the Ombudsman’s Office did not do a proper investigation! It’s breathtaking that the Office is now so busted that it thinks that a reasonable explanation for not finding out whether APTA was treated differently and unfairly compared to other FTOs is that the Ombudsman’s Office looked at some information provided by CASA and couldn’t work out who in CASA knew what.

Differing levels of knowledge and ignorance of different individuals within CASA could be the cause of the very problem which the Ombudsman was supposed to be investigating! The Ombudsman’s Office’s job was to first get to the bottom of whether APTA was actually subjected by CASA to regulatory requirements to which other FTOs were not subjected in similar circumstances, irrespective of the cause of that differential regulatory treatment. If APTA was in fact subjected by CASA to regulatory requirements to which other FTOs in similar circumstances were not subjected – such as APTA being required to provide copies of contracts, containing clauses to the satisfaction of CASA, because non-employees were engaged in the delivery of flying training under the authority of APTA’s AOC, but other FTOs who engaged non-employees were not required by CASA to provide copies of contracts with those clauses - that’s the failure of administration that the Ombudsman’s Office is supposed to identify.

The next step is to identify the cause of that failure and to fix the cause. For example, if it turns out that CASA is an internal governance basket case, such that different silos of the organisation have different levels of knowledge and views about what regulatory requirements apply to FTOs in similar circumstances, and interpret and enforce those requirements differently while having internal arguments about who’s right and who’s wrong, that governance failure is the cause of the problem. Best to fix that.

I shake my head in disbelief in much of what I read coming out of the Ombudsman’s Office on this and other matters in last few years. It’s no wonder to me that faith in politicians and the institutions of government is at an all time low.

MTF...P2