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GlenB embuggerance update: 17/02/21



Via AP email chain: 

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Formal submission of an allegation of misfeasance submitted to Mr. Anthony Mathews, Chair of the Board of CASA

Copied in: Senator Susan McDonald, Chair of the Senate RRAT Committee.

Attachment: Phase One of Commonwealth Ombudsman’s Report.
                     Australian Flying Magazine- APTA before CASA action
                     Australian Flying magazine- APTA after CASA action
                     Further information on misfeasance Legal briefing No. 98 | AGS
 
 
14th February 2021,

Dear Mr. Anthony Mathews, Chair of the Board of the Civil Aviation Safety Authority (CASA).
Dear Senator Susan McDonald and RRAT Committee. (for the attention of the Deputy PM if you deem it appropriate),
 
My name is Glen Buckley and I am writing to each Member of the Board of CASA, and the Senate RRAT Committee of Inquiry.

Employees of CASA, like all Government employees, occupy positions of trust. They are entrusted by the Government and the community to undertake important aviation safety work on the community’s behalf. With this trust comes a high level of responsibility which should be matched by the highest standards of ethical behavior from every employee of CASA.

These obligations placed on every employee of CASA by way of administrative law, criminal law and legislation, and CASAs own procedures are intended to provide the public and industry with confidence in the way CASA employees behave, including in the exercise of authority when meeting the responsible Ministers objectives. Strict adherence to these obligations will ensure CASA has a safe, well-intentioned, and effective organizational culture, and ensure that its employees act lawfully, which will optimize aviation safety.

The obligations placed on every CASA employee are found across several documents but not limited to the following.
·       CASAs own Regulatory Philosophy,
·       the APS Values, that CASA undertakes to comply with.
·       the APS Code of Conduct, that CASA undertook to comply with. Refer Note below.
·       the Public Governance, Performance and Accountability Act 2013. This in particular is one area where a direct link exists between specific legislative obligations and the Code. The PGPA Act provides, through the duties of officials, a set of expected behaviors necessary for high standards of governance, performance, and accountability,
·       CASAs Enforcement Procedures Manual, and CASAs own Enforcement Policy
·       Administrative Law, Natural Justice Procedural Fairness and the Rule of Law
Note regarding CASA Employees and their obligations to the APS Code of Conduct.
·        In November 2013, the Deputy Prime Minister at the time announced an independent review of aviation safety regulation.
·        One of the recommendations of that Review was that “CASA adopts the Code of Conduct and values that apply to the Australian Public Service”.
·        CASA agreed to this in principle and advised; “The Governments new Statement of Expectations to the CASA Board will reaffirm the requirement that CASA Staff adhere to a Code of Conduct and set of values consistent with those that apply to the APS.”
·        In the Implementation Report dated 31st July 2017, CASA advised that this matter was “Completed: The latest update to the SOE issued to the CASA Board in March 2017 continues to require CASA to have a code of conduct and values consistent with those of the Australian Public Service. CASAs Code of Conduct was amended in late 2014 and aligns with the APS Code of Conduct and Values.”

The purpose of this correspondence is to formally submit allegations of Misfeasance in Public Office in support of my presentation to the Senate Estimates Committee on November 20th, 2020. A link to that presentation can be accessed here on AOPAs website Senate RRAT General Aviation Inquiry Commences – AOPA Australia

Justice Deane in the High Court determined that misfeasance in public office requires an intentional but 'invalid or unauthorized act' to be committed 'by a public officer in the purported discharge' of their public duties which causes loss to a person. It requires that the person committing the act did so deliberately. In making this formal allegation I understand that the following criteria are essential in making that allegation. I am fully satisfied that the criteria have been met.

• the defendant must be the holder of a public office.
  
• the defendant must have purportedly exercised a power that was an incident of that office.
  
• the defendant's exercise of power must have been invalid/unlawful.
  
• the exercise of power must have been accompanied by one or other of the following forms of 'bad faith':
  

• • the defendant must have exercised the power knowing that he or she was acting in excess of power AND with the intention to cause harm to the plaintiff (sometimes referred to as targeted malice)
    
  • the defendant must have been recklessly indifferent to whether the act was beyond power AND recklessly indifferent to the likelihood of harm being caused to the plaintiff
    
  • the defendant must have acted with reckless indifference to whether the act was beyond power AND there must have been, objectively, foreseeable risk of harm to the plaintiff. This third form of bad faith is very controversial.
    
  • the exercise of power must have been productive of loss.
    

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At the time of my presentation to Senate Estimates, I made allegations against 3 CASA employees. Mr. Carmody, Mr. Crawford, and Mr. Aleck. I note that Mr. Carmody is no longer an employee of CASA.

I do however fully stand behind, and formalize my allegations made in Senate Estimates against current CASA Employees.

·       Mr Graeme Crawford the current Acting CEO of CASA and previous Executive Manager of the Aviation Group.
·       Mr. Jonathan Aleck the CASA Executive Manager of Legal, International, and Regulatory Affairs.

After a review of my information and careful consideration, I am also including Mr. Craig Martin the CASA Executive Manager of Regulatory Services and Surveillance in my allegations of misfeasance in public office.

I am fully satisfied that these three individuals worked complicity and collaboratively.

·       They have made considered decisions and taken considered actions that cannot be justified on the basis of safety or any regulatory breaches. The detriment caused by those actions and decisions has occurred. The conduct was unlawful, and that is supported by Stage One of the Ombudsman Report.
 ·       The actions and decisions of these CASA employees have caused harm to me and my family. It has caused mine and other businesses to close, and employees to lose their livelihoods. The detriment caused is significant and extends to many millions of dollars. These actions and decisions were deliberate and calculated, and the CASA employees were fully aware of the commercial and reputational impact that would, and did result.
 ·       Together they have made decisions that demonstrably reduce aviation safety. Each of the entities that were removed from APTA now has access to a significantly less resourced safety department, they have lost access to group expertise, and the sharing of group information to draw on a larger data pool and enhance safety outcomes. I am able to prepare a comprehensive safety case supporting my contentions. I note that CASA has been unable to provide any supporting safety case for their actions, which would normally have been part of their preparatory work.
 ·       They have breached Administrative Law obligations specified in CASA Enforcement manual particularly with regards to procedures for canceling, suspending, or varying an Air Operator Certificate (AOC) that can be found in CASAs Enforcement Manual. It is most likely that CASA will try and justify their actions by claiming that it was not a cancellation, variation, or suspension of an AOC. To all intents and purposes, it clearly was. Enforcement manual | Civil Aviation Safety Authority (casa.gov.au)
 ·       The Commonwealth Ombudsman’s report has found that CASA erred, and that detriment could have been caused. From my own personal experience, there can be no doubt that significant detriment has occurred.
·       Have provided false or misleading information, and willfully failed to disclose relevant information to the Ombudsman during his investigation, which was intended to affect the findings of the Ombudsman, Similarly information provided to the Senate Estimates Committee was “misleading”.
·       Failure to act with honesty and integrity, and with a callous disregard for the impact of their actions on my wellbeing, and that of my family, and other persons impacted by the conduct of these personnel. Their actions and decisions were not necessary, they were not compelled to make those decisions. Their conduct has been bullying and intimidating in nature.
 ·       Choosing not to follow clearly established CASA procedures.
 ·       When presented with options, those CASA personnel would choose the option that was more likely to cause harm to me and my business, when a less harmful option and the arguably more effective and safer option was available.

I request that CASA, or preferably the Deputy Prime Minister appoint someone who is independent and unbiased to conduct an investigation into the alleged misconduct of the named Employees. The purpose of that investigation would be to ascertain the lawfulness of the actions and decisions made by these individuals, and the "intent".

Ref: https://auntypru.com/wp-content/uploads/.../2020.docx

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Also via Oz Flying:

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Buckley calls for Investigation into Misfeasance Claims
16 February 2021
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Former Australian Pilot Training Alliance (APTA) CEO Glen Buckley has formalised his allegations of misfeasance against CASA managers and in the process called for an independent investigation into his claims.

Buckley leveled the accusations in his testimony to the senate inquiry into the general aviation industry in November, allegations which CASA later rejected stating that Buckley had presented no evidence.

In a letter sent to CASA Chair Tony Mathews and copied to Senator Susan McDonald on Monday, Buckley added detail to his claims before raising the idea of an independent investigation.

"When presented with options, those CASA personnel would choose the option that was more likely to cause harm to me and my business, when a less harmful option and the arguably more effective and safer option was available," Buckley declares in the letter.

"The actions and decisions of these CASA employees has caused harm to me and my family. It has caused mine and other businesses to close, and employees to lose their livelihoods. The detriment caused is significant and extends to many millions of dollars. These actions and decisions were deliberate and calculated, and the CASA employees were fully aware of the commercial and reputational impact that would, and did, result.

"Together they have made decisions that demonstrably reduce aviation safety. Each of the entities that were removed from APTA now have access to a significantly less resourced safety department, they have lost access to group expertise, and the sharing of group information to draw on a larger data pool and enhance safety outcomes.

"I am able to prepare a comprehensive safety case supporting my contentions. I note that CASA has been unable to provide any supporting safety case for their actions, which would normally have been part of their preparatory work."

Phase One of an ombudsman's inquiry released in August 2020 concluded that CASA had dealt with APTA in a way that had the potential to cause detriment. Phase Two, which is still in process, deals with CASA's informing Buckley's new employer that his role was "untenable" due to comments Buckley was making publicly.

Despite the ongoing ombudsman investigation, Buckley believes that another investigation into his misfeasance claims is needed.

"I request that CASA, or preferably the Deputy Prime Minister, appoint someone who is independent and unbiased to conduct an investigation into the alleged misconduct of the named employees. The purpose of that investigation would be to ascertain the lawfulness of the actions and decisions made by these individuals, and the intent."

Originally, the three named were CASA Director of Aviation Safety and CEO Shane Carmody, Executive Manager of the Aviation Group Graeme Crawford and Executive Manager of Legal, International, and Regulatory Affairs Jonathan Aleck.

With Carmody no longer at CASA, Buckley appears to have dropped the allegations against him, but maintained accusations against Crawford and Aleck, and raising new misfeasance claims against Executive Manager of Regulatory Services and Surveillance Craig Martin.

"Rather than seeking to punish any employee, I believe an investigation will provide the individuals I raise allegations against with the opportunity to defend their conduct and this process will protect the integrity of CASA and maintain public and industry confidence in the reputation of CASA," Buckley said. "As Australia’s aviation safety regulator, this must be an important consideration.

"My hope is that an investigation would proceed with as little formality and as much expedition as proper consideration of this matter allows. This matter has continued for over two years, and it is time now to bring both transparency and resolution to the process.

"I’m sure that the CASA Board will also appreciate the opportunity to bring good governance to the matter in as short a timeline as practical.

"By making these substantive allegations, it may have an adverse effect on the nominated employees’ ability to carry out their duties, and on the workplace in general. I appreciate that the CASA Board, and Mr Anthony Mathews in his role as the Chair of the Board, in consultation with the Deputy Prime Minister, will have to consider whether it is appropriate to stand these personnel aside on full pay pending an investigation, which I believe appropriate and reasonable in the circumstances."

Graeme Crawford is currently the Acting Director of Aviation Safety and CEO whilst the CASA board searches for a replacement for Shane Carmody.

CASA has been contacted for comment.

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MTF...P2