[Peetwo]

ATSB AQON - 04ATSB (82 pages)

QON 115-116:

Senator FAWCETT: There are a couple of points that come out of this. There is one about the trust of industry in the organisations that are supposed to be having an oversight around safety and regulation, but the other is a very real impact on people. At the time, the committee were concerned about what we saw as a breakdown in the relationship between you and CASA and the inadequacies of the report. Subsequent to the Canadian peer review, which was quite scathing about the fact that there were very clear systemic issues which were not addressed, people who have been affected by this accident—being the pilot involved and potentially the nurse— have sought some remedy for the situation they find themselves in as a result of this report. In the pilot's case, correspondence I have seen from him has indicated that that report has essentially finished his aviation career.

My understanding is that even after the Canadian report, when he has sought an act of grace payment from the Department of Finance, ATSB's recommendation is: 'Don't pay it. It was his fault.' Can you confirm that was the case?

Mr Dolan: I recall that there was some information sought from the Department of Finance in relation to an act of-grace payment. We provided the facts as we understood them. It is not a purpose of our organisation to assign blame, and we would not have said that to the Department of Finance.

Senator XENOPHON: Can you provide the advice that Senator Fawcett has asked you for?

Mr Dolan: I beg your pardon?

Senator XENOPHON: Can you table that advice?

Mr Dolan: I cannot see any reason why we should not, so I will obtain it and table it for the committee.

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Senator FAWCETT: That would be very useful. I look forward to the report.
….
Senator XENOPHON: So we will get a copy of that advice. Mr Dolan has been good enough to indicate that we would get a copy of that advice in this committee as to what was said and all the correspondence in relation to that. I have a couple of questions.

Answer:

The advice and correspondence in relation to the advice are set out in Attachments A-C of this answer.

Attachment A – Letter dated 18 August 2015 from Hon Michael McCormack MP, Parliamentary Secretary to the Minister for Finance to Turner Freeman Lawyers

Attachment B – Email Correspondence between the Department of Finance and the Australian Transport Safety Bureau dated from 13 June 2014 and 13 April 2015.

Attachment C – Advice dated 12 June 2014 from the Australian Transport Safety Bureau to the Department of Finance

(see ATSB AQON page 67 onwards for attachments)

..Reasons

Section 33 of the Financial Management and Accountability Act 1997 (FMA Act) provides that payments may be made to a person if there are 'special circumstances'. What may constitute 'special circumstances' is not defined although guidance is provided by Finance that special circumstances may apply where:

• the action or inaction of the Australian Government has directly resulted in a loss;

• the application of Commonwealth legislation or policy has caused an unintentional or inequitable outcome; or

• there is some other relevant anomaly or moral imperative.

The ATSB does not consider that those circumstances apply. As you state in your email dated 31 March 2014 while the majority of the applicant's claims relate to alleged actions of the Civil Aviation Safety Authority, mention is made of the ATSB. The application itself canvasses excerpts from the Inquiry into Aviation Safety Investigations by the Senate Standing Committee on Rural and Regional Affairs and Transport with respect to the ATSB's investigation of the ditching of VH-NGA, 5 km SW of Norfolk Island Airport, 18 November 2009.

The application does not reflect the substance oft he evidence given by officers of the ATSB to the Senate Inquiry or the written submissions made by the ATSB to the inquiry.

The Government response (released March 2014) to the Senate Inquiry's report clarifies the substance of the ATSB' s position with respect to any need for the ATSB to review the findings of its investigation. Specifically, please refer to the Government's response to recommendation 10 of the Senate Inquiry's report (attached).

The ATSB does not consider it necessary to add anything further. If you have any further queries please do not hesitate to contact John Taylor, Principal Lawyer, on 6274 6416.

Yours sincerely

Martin Dolan


Recommendation 10

That the investigation [of the Pel-Air Incident] be re-opened by the ATSB with a focus

on organisation, oversight and broader systemic issues.

Response

The Government notes this recommendation.

Consistent with undertakings given to the Committee, the ATSB will be amending the

Pel-Air investigation report to correct administrative errors which have been brought

to its attention, including at the inquiry hearings.

However the re-opening of investigations is ultimately a matter for our independent

aviation safety investigatory body, the ATSB.

In this regard, in accordance with ICAO Annex 13, the reopening of an investigation

should be considered by the investigating agency where significant new evidence

comes to light.

The ATSB's Commission has closely monitored the proceedings of, and submissions

to, the inquiry and has advised the Government that it does not consider that any

significant new evidence has arisen on issues that have already been considered

which are likely to have contributed to the accident.

The ATSB investigation report Included the identification of two safety issues which

are focussed on organisation, oversight and broad systemic considerations:

- the available guidance on fuel planning and on seeking and applying en route

weather updates was too general and increased· the risk of inconsistent in-flight

fuel management decisions to divert; and

- the operator's procedures and flight planning guidance managed risk consistent

with regulatory provisions but did not effectively minimise the risks associated with

aeromedical operations to remote islands.

Further organisation, oversight and systemic issues have been assessed and

addressed by the operat<?r, CASA, and other parties, which is acknowledged in the

ATSB report.

Therefore the ATSB does not consider that re-opening its investigation will add further

safety benefits, but would unnecessarily divert Investigative resources currently

involved in other ongoing investigations.

The Government also notes the Committee's concerns regarding aspects of the

investigation and these will be examined as part of the Canadian Transportation

Safety Board peer review of the ATSB investigation methodologies and processes

having regard to Australia's obligations under ICAO Annex 13.

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