[Peetwo]

Is Carmody the Iron Ring's Mr Fixit? 
 

AP references:

Midweek on the AP – 29/08/18



Timeline of Australian aviation safety regulatory embuggerance – 1988 till ???? 

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&..
Much like the PelAir TOE (timeline of embuggerance references: HERE & HERE ) eventually AP will endeavour to put together a TOE for the last 30 years of 'Iron Ring' big "R" regulator embuggerance of the industry...    

In the meantime working backwards with some factual OBS for the last half decade...  

On the IOS/PAIN_Net BRB grapevine I heard a rumour that there is talk amongst the RRAT committee Senators of doing a repeat of the 2008 Senate Inquiry into the administration of CASA -     

Well in the course of doing further research of going back a decade on the aviation safety embuggerance timeline - plus refreshing my memory on what was it that prompted the Senate RRAT committee to inquire into the administration of CASA in 2008 - I came across some very interesting and somewhat disturbing passages of Estimates/Inquiry Hansard, QON etc. which got me thinking that we are once again in some sort of bizarre timewarp...  

These extracts etc. also IMO beg the QON/ Is Carmody some sort of Iron Ring Mr Fixit?     

First from the 2008 Budget Estimates CASA QON:

Question: CASA 08
Division/Agency: Civil Aviation Safety Authority
Topic: Allegations of misleading the Senate – legal advice
Hansard Page: 54-55 (28/05/08)

Senator O’Brien asked:

Senator O’BRIEN—Did you receive written advice from that person?

Mr Carmody—I did. In addition to that written advice and subsequent to that response I
sought external legal advice from one of the lawyers on our external panel, subsequent to my response, to confirm the original advice that I had been provided with internally. That advice also confirmed that I did not in any way mislead the Senate. As I have said, the allegation being raised by a professional colleague is to say the least disappointing.

Senator O’BRIEN—Are you prepared to share those advices external and internal with the
committee?

Mr Carmody—As far as I am aware, I cannot provide legal advice. I am not allowed to
table legal advice.

Senator O’BRIEN—I do not know that you are not allowed to, but the government does not
table legal advice.

Mr Carmody—The government normally does not table it.

Senator O’BRIEN—You have sought advice in relation to the question of whether you
misled the senate. That is what you have just told us.

Mr Carmody—That is correct, and I could seek advice on that matter. Personally the advice, as far as I am concerned, is unambiguous, but it really depends on whether the advice falls in under that direction.


Senator O’BRIEN—It is not advice to government, is it?

Mr Carmody—It is not necessarily my interpretation to make. That is why I would like to
take the question on notice.

Senator O’BRIEN—It was advice that you sought for your purposes?

Mr Carmody—It was advice that was sought but it was sought for the organisation. It was
sought on the advice of the organisation’s legal panel so it is government legal advice.

Senator O’BRIEN—It was sought for CASA, was it?

Mr Carmody—Yes, it was. It was sought through our legal panel. When I am providing my
testimony I am representing the organisation so I suppose that is correct.

Senator O’BRIEN—Yes. I suppose in part you are. You are also representing yourself. In
terms of the suggestion that you misled the Senate it would be you who would be called to
answer for that rather than the organisation, would it not?

Mr Carmody—Correct. But as I have indicated, I am not aware of whether or not I am able
to provide this advice. I can check that matter. As far as I am concerned the allegations are closed.

Answer: Consistent with Government policy, CASA is unable to table legal advice.

        
Got to admit Carmody is consummate professional bureaucrat - that answer is classic...  
However to understand the context of the QON and I had to go back to the Budget Estimates Hansard.

From the bottom of page 78:

Mr Carmody—It was provided by Mallesons, I believe.

Senator O’BRIEN—As to the evidence that you provided back on 19 February, I think I
drew your attention to some comments from the coroner. I said, ‘You no doubt have seen the coroner’s findings on page 9 of his decision which stated’—and I quoted—‘CASA had senior expert legal representation who I am sure would not have made such a sustained attack on the integrity of the ATSB investigation report without explicit instructions.’ I went on and asked, ‘Have you seen that and, if so, did you give or authorise such instructions?’
You then answered:

I have seen the coroner’s comments. I have read the report in some detail. As you well know, we had difficulties with some aspects of the ATSB report, but to categorise it as giving explicit instructions to attack the integrity of the ATSB, no, that is not the case. We certainly attacked the report. We had difficulties with aspects of the report. We made that plain at the beginning. The coroner found some aspects of our view on the report to be sustained.

Is your answer to my question a fair reflection of the coroner’s view as to whether you had
attacked the integrity of the ATSB or, indeed, the tenor of your dealing with the ATSB
document, that is, CASA’s, in those proceedings?

Mr Carmody—As I have indicated the allegation was made that I misled the Senate in my
testimony. My view is—

Senator O’BRIEN—I am asking a different question at the moment. I understand you
have— 

Mr Carmody—I have answered that.


Senator O’BRIEN—You have said something in relation to that letter. I am asking in
relation to that particular comment that you made in Hansard then if that, in your view, is a fair reflection of the coroner’s finding in relation to CASA’s conduct in those proceedings?

Mr Carmody—I would just have to find and review that comment but I do not resile from
any of the comments I made in my previous testimony.

Senator O’BRIEN—You do not think that that in any way misrepresents the position the
coroner took?

Mr Carmody—No.

Senator O’BRIEN—There were a number of passages in the coronial finding that I have
had a look at since that hearing. On page 7, the first full paragraph on the page says:

A number of other aspects of the ATSB’s methodology also concerned CASA. The first was that the report did not disclose that this was the first investigation that had been managed under the new model which was untested.

The coroner then says:

This seems of little substance: the investigation processes and the reports findings are open for scrutiny and CASA has actively participated in that in various fora. If the methodology is flawed, whether on its first application or its fiftieth, that should be exposed and this inquest should be part of that scrutiny.

It is a rather scathing criticism of that submission, is it not?

Mr Carmody—I think it is a criticism.

Senator O’BRIEN—Sorry?

Mr Carmody—It is a criticism. It is very difficult, I must say, and I said it in my testimony
before to quote items from the coroner’s report selectively and then ask me to comment back on the relevance of those particular items.

Senator O’BRIEN—Sorry.

Mr Carmody—The report is as a whole.

Senator O’BRIEN—Was I quoting in some way improperly when I drew your attention to
that passage, was I? That is the implication of your response there.

Mr Carmody—No. The point I am making is that in a coronial if the organisation, as it did
in this case, raises the point that this is the first time that methodology has been used and
wishes to raise that point and raises it in the coronial we are quite entitled to, as the coroner is quite entitled to say that it is not relevant. But we are entitled to raise it and we did.

Senator O’BRIEN—I am certain you are entitled to raise matters that you see fit. I think
the fact that the coroner reflected on that submission as of little substance is a matter which would concern me if I was on the receiving end of that criticism. But he then went on to say:

Of more concern is CASA’s suggestion that in its efforts to look beyond the immediate physical cause of an incident, the ATSB has created a framework that is biased towards a conclusion that organisational factors contributed to the crash.

Then there are what I take to be comments which are much more supportive of the ATSB
approach, but I will not quote the whole passage. After the finding that your submission was of little substance, the coroner then says, ‘Not only was that of little substance but I am more concerned that you are looking to talk about the ATSB using some biased framework in its approach.’

I take you back to the original question that the coroner found on page 9 that CASA had, through legal representation, made a sustained attack on the integrity of the ATSB investigation report. Do you disagree with that?

Mr Carmody—As I said in my testimony, we were not attacking the integrity of the
ATSB. We certainly attacked the report. I will go on with that paragraph that you were
quoting where we made the statement, I think, that, ‘ATSB has created a framework that is biased towards a conclusion that organisational factors contributed to the crash.’

Towards the end of that paragraph the lead investigator, Mr Madden, acknowledges that, ‘the model assumed that there will never be an incident that can be adequately explained by either the occurrence event and some individual actions’. He did go on to say that ‘CASA’s submission that there will always be organisational influences’ he did not agree with. But he did actually agree with the fact that the model assumed that there will never be an incident that is adequately explained by either the event itself and some individual actions. I actually think that he has justified the point that we were making.

Senator O’BRIEN—He does not believe that, clearly. He goes on to say on the same
page:

This misconstruing of the investigation model is in my view significant. It leads CASA to assert that the systemic bias creates an unwitting focus on organisations such as CASA and encourage speculative attempts to link it to the cause of the accident. This tendency can is said to be counter-productive in terms of aviation safety …
And there are a number of reasons. Then he says:

In my view, this attack—
he uses the word ‘attack’—
on the methodology used by the ATSB is without substance.

You are entitled to take issue with it, but why would the coroner categorise the way that
CASA pursued this matter as an ‘attack’?

Mr Carmody—It was an attack on the methodology. We questioned the methodology. If
he wishes to use the word ‘attack’ that is his choice. But we questioned the methodology and we had reason to question the methodology. The methodology came to a particular conclusion that, at the end of the day, as I have indicated, the coroner actually swayed more towards our view of what had occurred so, therefore, in my view the criticism of the methodology was sustainable.

Senator O’BRIEN—So I should view that in isolation from the next passage which says:

CASA contends that the ATSB had a conflict of interest that should have led to its actions being identified as one of the organisational influences that may have contributed to the crash. Further, CASA asserted that the ATSB should have refrained from investigating the incident on account of it having such a conflict. -WTF?    

Was that a serious submission?

Mr Carmody—The two issues are running in parallel in the report but they are not quite
related—

Senator O’BRIEN—They are not the same issue. I do not think you need to argue that
point. I am not saying that. What I am saying is that the coroner has led from one point of
criticism to another and this one is a very substantial one. Because what he is saying is not
only were you going to take issue with their methodology but you were saying they were
biased and they should not have been investigating the report at all.

Mr Carmody—The point we raised in the coronial was the fact that confidential reporting
had been passed to the ATSB prior to the accident which had never been passed to the
regulator. Therefore, the point we raised was that concerns had been raised about the operator and passed to the ATSB that had not been passed to us. That was a reasonable point of view to put forward in the coronial. If the coroner did not agree with it, that is his choice.

Senator O’BRIEN—Is the coroner inaccurately recording your submission?

Mr Carmody—No. You read it to me. I have not actually got the page.

Senator O’BRIEN—It is on page 8.

Mr Carmody—Yes, which paragraph?

Senator O’BRIEN—It is the top of the page.

Mr Carmody—‘CASA contends that the ATSB had a conflict of interest.’ We were
entitled to contend that, so we did.

Senator O’BRIEN—Do you not contest that that is a recording of fact?

Mr Carmody—That was a point that was raised during the cut and thrust of the coronial.

Senator O’BRIEN—Later on the page the coroner says:

CASA submits that the ATSB had a conflict of interest as a result of the earlier contacts and that the agency failed to adequately manage it. I do not accept that to be the case.

Mr Carmody—Absolutely. But, once again, CASA submitted this was the case. The
coroner did not accept it. The coroner is able not to accept what we submit...

And so the argy bargy goes backwards and forwards till about page 96 of the Hansard. There are also other passages of Hansard that suggest at the time a very open and ugly level of antagonism between CASA and the committee...  

Less than 2 months later the inquiry into the administration of CASA was called.  

Here is some extracts from the CASA Hansard from 2 July public hearing:

CHAIR —Thank you, Mr Byron. I noticed in your opening statement you talked about genuinely consulting with industry. How do you determine ‘genuine’?
Mr Byron —To make sure that the stakeholders that we regulate are adequately consulted when we are making significant changes. I suppose the most visible part of that is when we want to change regulations. We have a consultative process, called the Standards Consultative Committee, with about 50 participants from representative organisations and staff associations who form part of that committee and part of the subgroups. From my point of view, as long as we maintain that process, I believe we are genuinely consulting with the key players in the industry.
In addition to that, people who actually hold certificates that we regulate always put themselves forward as people who want to have a say in various things. I try to make sure that, through our processes—particularly the SCC and industry briefings that we conduct—the major aviation organisations and associations representing those organisations have an opportunity to have a say.
CHAIR —And I would expect nothing less. But you would have heard the witnesses this morning—and quite a few of them were quite scathing against CASA’s inability to embrace all representative bodies on a number of issues. One that comes to mind are the pilots when you are developing a drug and alcohol policy. Sorry, Mr Byron, but what I heard I would not call being genuine in consulting all of industry.
Mr Byron —That is obviously a view that they have presented to you today.
CHAIR —That was one of a number.
Mr Byron —Clearly, from my point of view, I would want to make sure that they have the opportunity to have an input in a consultation process. You mentioned the drug and alcohol program. I might ask Mr Carmody to give his view about their involvement in that process.
Mr Carmody —I listened to the discussions on consultation this morning as well. In terms of the drug and alcohol program—and it has been discussed at the committee before—we cover, we think, about 120,000 people in the drug and alcohol program across the industry. The project team, which was decided by the Standards Consultative Committee, is made up of a number of representatives—a CASA representative, a representative from the Australian Airports Association, a representative from Regional Aviation Group, two representatives from Qantas, a representative from Aerospace Aviation, a representative from Flight Training Adelaide and Chris Howell, representing Airservices Australia. The Flight Attendants Association of Australia and the Australian International Pilots Association have had an observer at the five meetings that I have listed here. We have also had Virgin Blue, AOPA and the Australian Federation of Air Pilots at these meetings. The Australian International Pilots Association make the point that they represent pilots, and they do, but I said to them that they represent a couple of thousand pilots.
CHAIR —Are they not significant? Is that what you are saying?
Mr Carmody —With 120,000 people covered in the industry, we are constantly told in consultation that we need to have small working groups, and that is what we endeavour to do.
Senator NASH —What is the total number of pilots then, if the international association represents a couple thousand out of 120,000?
Mr Carmody —There are 37,000 pilots with licences in Australia, and they represent a couple of thousand.
Senator NASH —Out of those that you were mentioning, which of those are the pilot representatives who were actually on the group?
CHAIR —I understand where Senator Nash is coming from, but there is a bit of a difference between one pilot and controlling a plane with one person as opposed to 430 rammed on a jumbo, which she is very aware of.
Senator NASH —Absolutely.
Mr Carmody —If I may, one of the things that we do with all of the project teams and the working groups—
Senator NASH —Can you answer the previous question?
Mr Carmody —That is what I am endeavouring to do. We do not have representatives representing particular interests; we have representatives representing expertise on these working groups. That is what we endeavour to achieve. So we are not looking at having every representative body having a guernsey at every meeting—
CHAIR —No-one suggests that but I would have thought—I have negotiated many drug and alcohol policies, as you would know—that there is a bit of difference between a cleaner falling over a bucket while under the influence of alcohol or drugs compared to a pilot on a rather large passenger aircraft.
Senator NASH —Exactly.
Mr Carmody —I could not agree more.
CHAIR —Well, why were they not at the table if you are saying you are genuinely consulting industry?
Mr Carmody —We are genuinely consulting industry. They were represented at five of the working group meetings.
CHAIR —They were sitting in as—what was the word you used?
Mr Carmody —Observers. They participated very actively.
CHAIR —Did you invite them or did they have to put up their hand to be asked to be observers?
Mr Carmody —They put up their hand to come along. The Standards Consultative Committee, which is the industry body—
Mr Byron —If I might interrupt—I will let Mr Carmody continue in a moment—there is another pilots association that is fairly broad in this country, and I had a personal approach from the executive director of that organisation asking if they could participate. I immediately made sure that they were there.
CHAIR —That is honourable, but one would have thought they would have been invited to the damn table...

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...CHAIR —What I challenge is Mr Byron’s words ‘genuinely consulting’ all stakeholders. From what we have heard this morning, I do not think that is genuinely consultative. That is my view.
Mr Carmody —Senator, I understand your view.
CHAIR —And, from what I have heard so far, your answers do not bring warmth to me that you are genuinely consulting. And that is not just from the pilots.
Mr Byron —Chair, Mr Quinn wishes to make a comment.
Mr Quinn —If I may, I should add, knowing their involvement from an operational perspective, that what the International Pilots Association did contribute was considered some of the most effective contributory material to that. Putting aside the point about who was invited when, their contribution was important, it was constructive and my understanding is that it was taken on within CASA as a result.
Senator NASH —So what would have happened if they had not offered to come? You would have missed out on what was obviously very good advice, as you say.
Mr Quinn —Well, they were there, Senator, so I cannot comment as to what would have happened if they were not there. They were involved in the process. As for the point that you make about whether or not they were invited, I think I can only go on Mr Carmody’s comments.
Senator HEFFERNAN —Just to clarify: when this process began, did a circular go out?
Mr Byron —The Standards Consultative Committee?
Senator HEFFERNAN —Yes. Did people generally know there was a process underway, to say if you were interested—
Mr Byron —Absolutely, yes. It would have been very, very widely advertised throughout CASA’s website. It is very widely known and recognised. I went along to one of the initial meetings in 2004, and it was very widely represented, so it must have got the message out pretty well.
CHAIR —To the best of your knowledge, was everyone invited at the same time after you formed the consultative committee? Or were there any other people ringing up and asking about it?
Mr Carmody —To the best of my knowledge, the Standards Consultative Committee decided, as the committee does, who was going to be represented. My understanding is that AIPA then came to the committee and said, ‘We would like to be represented.’ The Standards Consultative Committee reviewed who was on the subcommittee and determined that the subcommittee was adequate. That is my understanding of the Standards Consultative Committee. As Mr Byron said, there are 38 plus another eight members—about 46 industry representatives. And, when these issues are discussed at the Standards Consultative Committee, AIPA are actually in the forum, in the committee.
CHAIR —They are now.
Mr Carmody —In the Standards Consultative Committee, they have always been there, Senator. They have been there all along. As I said, they have been at 23 formal meetings over the last 18 months, not including all of the things that are on the website or the telephone calls, emails and meetings. I have had meetings with them. I think that, given the other things that we have to do, we have consulted with that organisation quite extensively.
CHAIR —We covered that in estimates.
Mr Carmody —You did.
CHAIR —And I think you told us at the time that it was 60.
Mr Carmody —I thought it was. I have got the actual numbers here.
CHAIR —Whether it was 50 or 60, it does not matter; I fully understand that. But it still baffles me. But let us not focus just on the pilots. There was also a bit of a pisling coming to CASA from other witnesses today about not being consulted either. This is just one that I am highlighting for you.
Mr Carmody —Would you like me to deal with the others, Senator?
CHAIR —Yes, I would be more than happy.
Mr Carmody —We have had the discussion on the pilots. If I look at the other consultation mechanisms, if I may, the Licensed Aircraft Engineers Association attends the Standards Consultative Committee and a subcommittee. They have formally been in committee meetings 12 times in the past 18 months.
CHAIR —Sorry, Mr Carmody; I do understand. We are not arguing about the Standards Consultative Committee. When we talk about consultation, we mean that there are other forms of consultation or other areas of consultation where one would question how genuinely consultative CASA have been.
Mr Carmody —I think that, with these organisations and with others that I will go through, there is genuine consultation. I will make the point that they are not certificate holders. They are interest groups and representative groups, but we do not have a regulatory relationship with any of these groups. We have regulatory relationships with approximately 2,000 certificate holders in the country. That does not include, for example, AIPA, the ALAEA and it does not include AOPA. So we are consulting.
CHAIR —But, if we are talking about safety regulation, you would not just limit yourself to those who are licensed; you would certainly take briefs from all and sundry, would you not?
Mr Carmody —Yes, to the extent that we can. In the development of regulations we are being criticised for going slowly. Everybody wants a small consultative team; it is just that they all want to be on it. Somebody has to make a decision, and it is actually made by the Standards Consultative Committee, which has an external chair.

P2 comment - Well it is good to see that although the names/acronyms have changed (eg SCC vs ASAP), 'consultation CASA style' still remains consistent...   
Next, the war between former Senator O'Brien and Carmody continues...

Senator O’BRIEN —Mr Carmody, I believe you are disappointed that this inquiry is taking place.
Mr Carmody —I was, certainly. I was disappointed that the inquiry was taking place. After we had given our evidence at the last estimates, the inquiry was announced and certainly I was disappointed.
Senator O’BRIEN —Because you felt that whatever you needed to tell the Senate you had already told the Senate?
Mr Carmody —There are a couple of reasons. A number of these issues have been ventilated quite a lot and there is also management time and effort. We as an organisation have an enormous amount on our plate. As you know—and I am sure we will get to it—we have issues with regional airlines and have issues with oversight and Qantas maintenance. We have a lot to do. Therefore, essentially going through another estimates process and preparing for another estimates process—preparing witnesses and putting in a submission—involves a lot of work. So, yes, I am disappointed.
Senator O’BRIEN —How many witnesses have you prepared?
Mr Carmody —All of the general management team are here.
Senator O’BRIEN —How have you prepared witnesses?
Mr Carmody —At the end of the day, in the same way that we normally do Senate estimates preparation—and ‘preparation’ is probably too strong a word—we, like all departments and organisations, look at issues that may come up and we prepare briefs and make sure that we have an understanding of the issues. So managers are distracted from what they would normally do by going back and reviewing the issues. That is the preparation that I meant...

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...Mr Quinn —If I can add something there: being out in the industry in the last few weeks and consulting with various groups, the point has been made very clear to me—and it is also a point that is very clear in CASA—that the most important aspect of this inquiry is to come up with some sort of constructive outcome in the interests of aviation safety in this country. We certainly acknowledge that, I certainly acknowledge that and so does the industry. The point that is being made here is that, whilst this is going on, it takes some significant work to prepare ourselves when other significant work is going on—and there is a lot on our plate currently. We recognise the importance of this process to get to where we want to get.
Senator O’BRIEN —That is why I asked the questions about what was involved in preparing witnesses. The answer did not seem to indicate that it was a highly complex set of preparations given. I take it from the answer given that they were essentially the preparations for estimates which have only recently occurred.
Mr Carmody —If I may add—given that the question led with my disappointment—there still is work to go back and review any other issues that are around and in place. It is not for us—and nor would I think you expect it to be for witnesses—to take a blase approach to appearing before committees. We review our material very carefully, as we should, and we put a lot of effort into doing so. So there is individual preparation by managers to make sure that they are across all elements of their brief, or as many as they can be. The other side of the disappointment aspect—because I did not conclude that—is that there have been a lot of references to CASA over the last couple of years. One element of my disappointment—and I think it is covered eloquently in our submission—is that there has been a lot of change in CASA in the last five years. I am not sure that that is as broadly recognised in the community as it could be, and that is a disappointment.
Senator O’BRIEN —Here is your chance to make the case.
Mr Carmody —That is what we did in our submission.
Senator O’BRIEN —So it is actually an opportunity rather than a disappointment?
Mr Carmody —I think I said that in the all-staff announcement. I said that it is an opportunity to show what we have done. I do not have it in front of me but I can find it.
Senator O’BRIEN —No. You started with the disappointed, and you finally got to that; I will concede that.
Mr Carmody —Thank you, Senator.

With the exception of Carmody now being in the top job, how things have changed at Fort Fumble in the last decade - NOT! 

 
Hmm...much MTF...me thinks? P2