[Peetwo]

More Beaker bollocks & the nugatory section 25A.

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Kharon - For my sins...I strayed into section 25A of that Act; David Fawcett and his 'closing the loop' questions and remarks must have triggered some kind of subconscious thinking pattern which has been demanding answers for a while now.

Good catch Ferryman.... always was missing some dots with the Beaker SR disconnection (i.e. BASR) - which is so contrary to recognised world's best practice with addressing identified safety issues...

First your reference to Senator Fawcett and his 'closing the loop' QONs I believe initially was mentioned in budget & sup Estimates, & then in the initial hearing of the PelAir inquiry (22/10/12):

Senator FAWCETT: With the process you are describing whereby you use a process, and risk and consequence and all the good tables I have seen in your submission, do you consider balancing that against the cost of action? I will take for example the New Zealand flight information service where, in Australia, if there is a deteriorating weather situation they have an obligation to update the pilot and alert them to the fact that something is occurring, or the Unicom operator who was not legally allowed to use the HF radio to talk. But if either of them had said, 'The situation is getting worse,' as Unicom did to the New Zealand FIS who chose not to pass it on, surely, even including that kind of thing, there should be a recommendation that the Australian government should talk to the New Zealand government and ask for cooperation for safety reasons. Even if it is only for one in 1,000 flights and your probability of occurrence is very low, given the cost of action is also very low, why does your process exclude consideration of something that to the common man in the street seems like common sense? Why are we not seeing logical, reasonable recommendations coming out of ATSB reports to an address in this case two things, either of which probably would have prevented the accident?

To which Beaker replied - part in bold is I believe in reference to s25A:

Mr Dolan : There are two things there and I will go to the question of recommendations before I get to the specifics of your question. The ATSB at the point where it became independent of the Department of Infrastructure and Transport also got a shift in its powers in relation to the making of recommendations which raised the ante with recommendations and their significance. There is a legal requirement to respond to each of the recommendations we make. In recognition of that we set up the system of identifying safety issues that said there needs to be a critical or a significant safety issue before we will explicitly use that power to make a recommendation and require a response, and we would generally limits recommendations to those sorts of things. What you are talking about we would in our normal framework, given what you said about likelihood and consequence, deal with as a safety issue without going to recommendation. That is the context: it is still there but your question remains….

If we track the timeframe of amendments to the TSI Act we can see that with the change of ATSB governance (i.e. from Dept to an independent Commission) on the 01 July 2009 also saw the introduction of s25A.

The following from the ATSB website describes the conditions for possibly enforcing s25A (3):

Failure to respond to a Safety Recommendation


Sections 25A of the TSI Act requires a person, association or agency to provide a written response to a Safety Recommendation contained in a report released under section 25 of the TSI Act. The response is required within 90 days of the report being published. Responses to recommendations are published on the ATSB website.
Failure to respond may attract a penalty of up to 30 penalty points ($3,300 for a natural person and $16,500 for an incorporated organisation), and advice of any such failure to respond will be published on the ATSB website.

Policy

Responses to Safety Recommendations are to be provided within the timeframe (within 90 days of the report being published) as required by the TSI Act.

Where responses are not received, a decision about appropriate enforcement action is taken. Choice of an appropriate action is based on a graduated response that focuses on the primary objective to achieve an appropriate safety outcome, including to:

• continue to engage with the responsible person, or class of responsible persons, to ensure compliance; or if necessary
  
• refer the apparent breach to the Australian Federal Police (AFP) for investigation, with the potential for a brief of evidence to be provided by the AFP to the Commonwealth Director of Public Prosecutions (CDPP) to assess for possible prosecution action.
  

The ATSB's policy is that the option of continued engagement is used where the apparent breach does not meet the criteria for referring it to the AFP for investigation. The matter must be serious for a referral.

Criteria for referral

Where there is an apparent breach of section 25A of the TSI Act it is likely that it would only be considered serious if:
a) the person or organisation was aware of their obligations to respond, or should have in the circumstances been aware of their reporting obligations, and there is evidence to indicate that the person or organisation:
i. deliberately decided not to respond in accordance with their obligations; or
ii. was reckless in their failure to respond; and
b) the matter or matters that required a response:
i. have the potential for serious safety consequences if not addressed; or
ii. have the potential for less serious safety consequences but there is no other means to ensure that the person or organisation explains to the industry and the public how the matter or matters are being addressed; and
c) an investigation by the AFP, with potential prosecution by the CDPP, is thought necessary to:
i. obtain compliance from the person now and in the future; or
ii. deter other persons or organisations from failing to respond.

Okay so what possible reason suddenly precipitated the necessity for the introduction of s25A to the Act? Well to help explain I too have borrowed from a PAIN publication (thanks P7..):

Opinion : The following data compares ATSB v NTSB Safety Recommendations over a ten year period (2000-2010). This data highlights that Mr Dolan has used the above philosophy in regards to Safety Recommendations to significant affect:

Now when referencing the ATSB database for SRs - addressed to CASA on or shortly before the arrival of s25A - I noticed another disturbing trend that had been developing... To highlight this I have taken one of the three SRs that were addressed to CASA in relation to the Willowbank parachuting aircraft tragedy- R20070030.

Now refer to the date the SR was issued - 30 October 2007 - & the date the SR was responded to was 13 March 2008 which was outside of the prescribed and long accepted requirements of Annex 13 CH 6 para 6.10...

"...A State that receives safety recommendations shall inform the proposing State, within ninety days of the date of the transmittal correspondence, of the preventive action taken or under consideration, or the reasons why no action will be taken..."

And that I believe is one of the reasons for the introduction of s25A combined with the continued trend of CASA obfuscating adequate responses to SRs for sometimes over a decade.

However s25A under Beaker as Chief Commissioner has essentially been made nugatory with his adoption (see quote above) of the BASR approach to mitigating safety issues identified in the course of an investigation...

This point of contention was highlighted by David Fawcett further on in the Hansard:

Senator FAWCETT: With all due respect, to have a process that deliberately closes the door to suggestions that another agency, if they wished to say they would respond to that recommendation by saying no but if they chose to say yes may have saved this flight and may potentially save another flight, I suggest is process that is extremely poorly misplaced and prioritised...


...Senator FAWCETT: Mr Dolan, I think you have probably heard a number of the witnesses this morning indicate that in their view ATSB in the past has taken a far more proactive approach to identifying issues and being prepared to make a recommendation. The general consensus from witnesses has been that that is a far more value-adding document. With a technical issue, for example an A330 off the North West Shelf with a software glitch that causes the aircraft to plunge, in terms of probabilities it was very remote that that would never happen again. But there was a report, recommendations and the OEM put a fleet-wide alert out to look at a software reload or whatever. If that approach is taken on something that almost led to the loss of an aircraft, here we have the loss of an aircraft. Why did you take such a conservative approach as opposed to saying any information, any opportunity to preclude a further incident by including all of the regulatory and systemic issues in terms of the organisation, their training, they check-in training, the lack of control, the lack of standardisation around fuel planning—all the things that led to this occurrence—should be canvassed in the report? I have heard your process, but putting the process aside, is the process wise when after three years we end up with a report that deals quite narrowly with one element of the things that led to this incident?

The post above also references this PAIN report - Opinion :-ATSB since 2003.
I shamelessly copied the above post of mine from the infamous, closed UP thread - Merged: Senate Inquiry. Why you may ask? Well that post was written well over a year ago & perfectly highlights, very clearly, how nothing - except for the appointment of the invisible Manning - has changed. In fact, with the aiding & abetting of CASA with their embuggerance of Jabiru, it is IMO getting worse, way worse -
CASA Estimates #21:

Now compare that to the Mildura Fog Duck-up - see HERE, HERE & HERE -...

Kharon - "..ATSB, ASA, BoM and CASA need to resolve this situation; we now have escaped four times from disaster where bad weather and low fuel reserves have been intricately bound with poor, late weather forecast.  It’s a trend and ATSB should be screaming from the roof tops, demanding something be done to reverse that trend.  Do they? No sir, they do not.  We get presented with a snide, trite, puerile little report which tries to shift the spotlight off the piss poor service to the travelling public delivered by our expensive ‘safety watchdogs’..."  

 ...where there has been no safety recommendations issued, yet the safety risk identified is yet to be effectively mitigated and still puts at risk potentially hundreds of travelling public at anyone time...       

MTF...P2