The noble Art - Embuggerance.

Part II: Credulity – Slightly stretched? - Just a bit.

(11-27-2017, 06:04 AM)kharon Wrote:  P2 - "Q/ Coming back to the Gobbitt decision letter, one wonders why he didn't at least release the SFR, that is legally required to be forwarded to and signed by a CASA delegate assigned with the carriage of making an individual enforcement decision, that should have accompanied the Greg Hood original (24 December 2009) decision to suspend the DJ FCL?"

You could expect a fair percentage of pony-pooh to be contained in almost any ‘correspondence’ from CASA; they can’t seem to break wind without transmogrifying it into fully legally prescribed act of nature, with definitions, references and two paragraphs of wriggle room. It is simply the tiresome, self important, defensive nature of the beast; but…One has to draw the line somewhere and this current happy horse shit about ‘unsigned’ documents being ‘legal tender’ is way, way over the top. There is a clearly defined process and sound legal reasons for a document to be ‘signed’ (and dated). Simply stating that the ‘intent’ justifies an ‘unsigned’ howler turning up by pigeon post is bollocks.

Try to cash an unsigned cheque; or, just for fun don’t sign any flight associated ‘paper work’ like the MR. Can you imagine turning up in court and saying to the judge – “Well M’lud, my intention was to accept the legal responsibility as the Captain; surely that should satisfy the requirements”. “Furthermore, under legal professional privilege, I refuse to show the court any document, not fully redacted, which may indicate that I acted illegally – I do have the right to remain silent: thank you." You then sit down with a self satisfied, smug expression which lasts for the whole five seconds it takes the Judge to find the key to your cell, throw it away and call for the men in white jackets to come and take you away.

A few more breadcrumbs courtesy of CASA FOI officer Gobbitt... Rolleyes

.pdf Letter to Dominic James - sent 27-Nov-17.pdf Size: 1.01 MB  Downloads: 5


Merry Xmas DJ - L&Ks Hoody:

To begin, from the Wodger 23 December 2009 SFR to Hoody, we can establish that Hood basically copied & pasted the Wodger recommendation directly into the DJ 'notice of suspension' and posted off to DJ the very next day:

Quote:[Image: CASA-FOI-277.jpg]
[Image: CASA-FOI-278.jpg]
[Image: CASA-FOI-279.jpg]
[Image: CASA-FOI-280.jpg]
  
"..There will be no negative implications for CASA.." - Do you reckon... Huh

That aside do you notice the way the wording from Wodger implies that Hood will make no other selection other than option (a).

Hmm...wonder where the Hood signed version of the SFR is? Dodgy

Quote:[Image: CASA-FOI-276.jpg]

Note from the first page of the SFR and Richard White FYI above, we now get confirmation that the MALIU investigation, to that point in time, was relied on by Wodger and Hood to prove the enforcement action of suspending the DJ FCL.

Quote:[Image: CASA-FOI-275.jpg]

And five days before:

Quote:[Image: CASA-FOI-273.jpg]
[Image: CASA-FOI-274.jpg]

This would appear to indicate that Hood - with Dr A, McCormick and Farquharson cc'd - was fully engaged in the investigation into the actions of the Flightcrew at least a month before the DJ suspension decision... Dodgy

Therefore Hood should have been fully cognisant of the fact that Airservices had released the record of Norfolk aerodrome forecasts applicable to the last flight of VH-NGA two days before the ATSB vidcon. :
 
Quote:[Image: Untitled_Clipping_112017_105519_PM.jpg]

However despite someone underlining the 0803 AMD TAF White, Chambers and Hood seemingly glossed over the significance of the non-relayed wx forecast by Nadi... Rolleyes

As passing coincidence on the same day that CASA received the wx forecasts from ASA, Richard White formerly notified the ATSB of the CASA investigation into the flightcrew:

Quote:[Image: CASA-FOI-271.jpg]
[Image: CASA-FOI-272.jpg]
  
Hmm...that's passing strange? -  I thought White notified the ATSB that he would be conducting a parallel investigation (as per the 2010 MoU) the day after the ditching... Huh

Quote from White's cover-up masterpiece, the CAIR 09/3:

Quote:[Image: Untitled_Clipping_112717_114016_PM.jpg]

Much, much..MTF - P2 Tongue
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Passing strange? - Indeed it is....

“I realised as if for the first time, the menace of these queer shaven men in lace and petticoats who had been intoning, responding, and going through ritual gestures at me. I realised something dreadful about them. They were thrusting an incredible and ugly lie upon the world and the world was making no such resistance as I was disposed to make to this enthronement of cruelty.” (Wells H.G.).

P2’s post above requires a little ‘head scratching’ which I will leave up to the reader to do. There are some rather peculiar kinks in the time line, which, once I get them sorted into a simple, logical matrix may just open the door for a proper investigation into exactly what the hell CASA was playing at. Chambers and his two off-siders certainly appear to be playing fast, loose and dirty around the extremes of the law; White seems to operating under a MoU which was not in operation at the time and there seems to be a whiff of double shuffle regarding the timing of ‘investigation’..

It seems that even with prior knowledge of the weather forecast issued and despite the fact that the flight crew never received those updated reports; the mad hatters decided to have a tea party anyway. It is just a whisker too early to begin calling it an outright deception of a Senate inquiry; however, it is becoming clear that something was indeed very rotten in Denmark. Time and persistence will tell. We may, reasonably place Campbell (x2), Chambers, Hood, White and Worthington into the spotlight as willing accomplices; for the moment. The big question is, were they operating ‘off the reservation’; or, under direction? If so, then why?

It would be a great pity if the aviation world simply accepted the latest report into the accident at face value and forgot about it. The ‘accident’ and the cleverly rejigged report are only a piece of the jigsaw puzzle. The real story is yet to be told. I believe a decent ‘investigative’ journalist could make quite a story and a reputation from hunting this monster down.

Aye well, we’ll just keep plugging away and following the breadcrumbs. but do have a proper read of the P2 post above; note the dates and time lines; follow Hood’s pug marks and track the rest. All there, all the creatures of Sleepy Hollow, exposed by sunlight.

There will be more to follow – interesting stuff – if you can do the homework. Think on: it may you next time around, forewarned is forearmed and who would want to be part of making a mockery of a Senate Inquiry.

Toot toot.
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I find it interesting as a window to the character of the man, the frantic zeal with which Chambers reacted to the slightest hint of a victim. He displayed this in his pathological pursuit of Airtex, sure, driven to a certain extent by Mc Comic, but when one of his minions express "There's a whole load of shit about to descend on you" prior to a hostile audit one has to wonder why the difference with Pelair?
In Pelair's case he was all sweetness and light, couple of weeks of helpful advice and Pelair was on the road again, hell they even gave their chief pilot a job? The very chief pilot who was responsible for the deficiencies in Pelair's operation that lead Mr James into the trap.

James gets pilloried, the CP gets a six figure a year job with the very people doing the pillorying.

What or who put Chambers back on the leash in Pelair's case, but released him from the chain to savage Airtex?

Was Mr James thrown to Chambers to maul as a consolation prize because the bigger game was denied him?

Chambers is a career bureaucrat, one of the many that infect the upper echelons of the Public service whereby an appointment automatically bestows the mantle of "expert" upon an appointee. It would appear that he has very little real world experience in the industry other than as an ex RAAF load master.

So where does his apparent pathological hatred for anyone in the real world of aviation come from? Did he scrub out of a pilot slot in the RAAF which badly dented his ego?

Considering all the doubts, rumour and innuendo surrounding the Pelair ditching why was he moved to air services to suddenly become an expert in Air Traffic control? The rumour mill suggests he was pushed rather than walked, if he was pushed why?

It would appear from the Standard Form Recommendation that Chambers was the one pushing the embuggerance program on James, did something come to light to compromise his position at CAsA?

The above documents prove CAsA was conducting an investigation, so where are the formal minutes and other documents from this investigation? Or was the whole investigation formulated in the mind of one person strutting about the halls in thousand dollar suits, with a couple of yappie little mongrels snuffling at his heels?
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The tale of the little White lie & the snowball effect - Confused

Quote:[Image: Snowball-Effect.jpg]

...Lies propagate, that's what I'm saying. You've got to tell more lies to cover them up, lie about every fact that's connected to the first lie. And if you 
kept on lying, and you kept on trying to cover it up, sooner or later you'd even have to start lying about the general laws of thought. Like, someone is selling you some kind of alternative medicine that doesn't work, and any double-blind experimental study will confirm that it doesn't work. So if someone wants to go on defending the lie, they've got to get you to disbelieve in the experimental method. Like, the experimental method is just for merely scientific kinds of medicine, not amazing alternative medicine like theirs. Or a good and virtuous person should believe as strongly as they can, no matter what the evidence says. Or truth doesn't exist and there's no such thing as objective reality. A lot of common wisdom like that isn't just mistaken, it's anti-epistemology, it's systematically wrong. Every rule of rationality that tells you how to find the truth, there's someone out there who needs you to believe the opposite. If you once tell a lie, the truth is ever after your enemy; and there's a lot of people out there telling lies...

— Harry Potter and the Methods of Rationality

I believe it was Martin Luther who was originally attributed to the quote:

"A lie is like a snowball: the further you roll it the bigger it becomes"

Still not sure on the WHY? But I now firmly believe that the Luther quote is a perfect analogy for what has occurred over 8 diabolical years that the PelAir cover-up (x2) has been perpetuated.

Getting to the pointy end (i.e. the beginning) we are now close to finding the original White lie that has transmogrified into the PelAir snowball... Rolleyes

Reference: PelAir (timewarp) on MoU aberrations cont/-

Note in the White 23 November letter to Sangston, confirming that CASA will be conducting an investigation into the flightcrew, that there is no mention of any 2004 or 2010 MoU reference for 'parallel investigations'; or formal request by White to participate in the ATSB investigation.

However this particular White lie/deception of the original ATSB investigation IMO was the lesser of (how many???) evils/deceptions that is still being perpetuated and glossed over in the latest 531 page reiteration of the PelAir cover-up.

The bigger of the White lies at that particular point in time IMO was the one of not highlighting the significance of the Nadi lost in translation/missed 0803 AMD TAF that contained a legal operational requirement and the earlier 0739 SPECI that was the earliest sign of trending bad weather.

Quote from page 97 of the PelAir MK II report:

Quote:On 20 November 2009, the ATSB asked CAAF for ATS records for the flight and the weather information that was provided to the flight crew of VH-NGA. CAAF forwarded the request to the ATS provider and then obtained the records in December 2009 to pass on to the ATSB. This included copies of the 0630 METAR, 0800 SPECI and 0830 SPECI.

CAAF advised it was not aware of the 0739 SPECI and the 0803 amended TAF until it received the ATSB’s investigation report in 2012. CAAF contacted the ATS provider, who advised it had provided CAAF with all the weather reports it had received at the time (in 2009). The ATS provider advised CAAF it no longer held the hard copy print outs and therefore CAAF could not verify whether the 0739 SPECI or the 0803 amended TAF had been received.

The copy of the 0630 METAR indicated it had been retrieved within the Nadi ATS centre at 0757, consistent with the Nadi IFISO stating that it was the latest he had when queried about the time by consistent with the Nadi IFISO stating that it was the latest he had when queried about the time by the captain at 0802.132 However, this did not mean that other METARs (such as the 0700 and 0730 METAR) and the 0739 SPECI were not available at that time.

132 The Nadi IFISO who received the request from the captain for the latest METAR at 0756 was different to the IFISO who provided the 0630 METAR at 0801, indicating that a handover had occurred during this period.

The above quoted passages would appear to indicate that even if DJ had of requested (from Nadi at least) the latest amended TAF or the earlier 0730 METAR/0739 SPECI they would not have been available from Nadi IFISO.

However when Richard White made available his CAIR 09/3 final report to the CASA officers and executive management involved in the PelAir cover-up, he seemed to perversely; and by then, knowingly implicate that the 0803 AMD TAF was a part of the original Nadi ATC transcript:

Quote:[Image: CAIR-0931.jpg]
[Image: CAIR-0932.jpg]

Finally I draw attention to the Hood telecon file note No 4. where the recovery of the flight recorders seemed to be a foregone conclusion and only really dependent on the weather. However as we all know some weeks later the ATSB bizarrely had a shared funding request to CASA rejected - Ref - The 0739 key to the PelAir wx imbroglio.

Q/ Could this CASA rejection to contribute to the funding of raising the CVR/FDR have something to do with the fact that CASA became aware that CVR had recently been upgraded with a model that had two hours worth of recording instead of 30 minutes?
Q/ This could also indicate that CASA had insider information that the CVR record of two-way communications with Nadi and Auckland FS, would not support their enforcement investigation of the VH-NGA flightcrew?

   
 MTF...P2 Cool

Ps Given the 23 November correspondence from White to Sangston, where he promised to... '..document the progress of our investigation, and I will inform you once our record is completed..' - I find it passing strange, that although the ATSB was briefed on the CAIR 09/3 findings on the 28 July 2010, that Richard White did not forward a copy to the ATSB until March 2011... Huh

Quote:From the TSBC peer review report:

On 28 July 2010, CASA briefed the ATSB on the findings of its regulatory investigation into the ditching, which it had done in parallel with the ATSB investigation. Footnote 12 The team leader obtained a copy of the CASA investigation report in March 2011.

Footnote 12 quote...

"...Civil Aviation Safety Authority (CASA), Accident Liaison and Investigation Unit, Accident Investigation Report 09/3: Israeli Aircraft Industry Westwind: VH-NGA: Operated by Pel-Air Aviation Pty Limited: Norfolk Island, 18 November 2009 (Canberra: 21 July 2010)..."
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Part III: Credulity – Slightly stretched? - Just a bit.


(11-27-2017, 06:04 AM)kharon Wrote:  P2 - "Q/ Coming back to the Gobbitt decision letter, one wonders why he didn't at least release the SFR, that is legally required to be forwarded to and signed by a CASA delegate assigned with the carriage of making an individual enforcement decision, that should have accompanied the Greg Hood original (24 December 2009) decision to suspend the DJ FCL?"

You could expect a fair percentage of pony-pooh to be contained in almost any ‘correspondence’ from CASA; they can’t seem to break wind without transmogrifying it into fully legally prescribed act of nature, with definitions, references and two paragraphs of wriggle room. It is simply the tiresome, self important, defensive nature of the beast; but…One has to draw the line somewhere and this current happy horse shit about ‘unsigned’ documents being ‘legal tender’ is way, way over the top. There is a clearly defined process and sound legal reasons for a document to be ‘signed’ (and dated). Simply stating that the ‘intent’ justifies an ‘unsigned’ howler turning up by pigeon post is bollocks.

Try to cash an unsigned cheque; or, just for fun don’t sign any flight associated ‘paper work’ like the MR. Can you imagine turning up in court and saying to the judge – “Well M’lud, my intention was to accept the legal responsibility as the Captain; surely that should satisfy the requirements”. “Furthermore, under legal professional privilege, I refuse to show the court any document, not fully redacted, which may indicate that I acted illegally – I do have the right to remain silent: thank you." You then sit down with a self satisfied, smug expression which lasts for the whole five seconds it takes the Judge to find the key to your cell, throw it away and call for the men in white jackets to come and take you away.

Toot toot.

Hot off the wire today CASA sets precedent for Law Enforcement agencies Worldwide... Rolleyes

Via the CASA FOI minion Gobbitt confirms Wodger 23 December SFR to Hoody was not signed:
Quote:
Quote:From: "Gobbitt, David" <David.Gobbitt@casa.gov.au>
Date: 30 November 2017 at 09:14:28 AEDT
To: 'Dom James' <dom@cia.com.au>
Subject: RE: a quick request [SEC=UNCLASSIFIED]
Quote:UNCLASSIFIED
Good morning Dominic,

Thank you for your enquiry.

I have not been able to locate a signed copy of the SFR.

However, as stated by Adam Anastasi in his email to you dated 27 October 2017, even if the delegate had not signed the SFR, the fact of the delegate sending the decision letter to you on 24 December 2009 would clearly have signified that the delegate accepted the recommendations in the SFR.  

Thanks again.


Regards

David Gobbitt

Freedom of Information Officer

Legal Advisory, Drafting and Contracts Section Legal Affairs, Regulatory Policy and International Strategy Branch Civil Aviation Safety Authority

p: 02 6217 1281
GPO Box 2005 CANBERRA ACT 2606
www.casa.gov.au

Copy of the Anastasi 27 October 2017 email:

Quote:
Quote:UNCLASSIFIED
Dominic

I refer to  the documents released to you by CASA recently which included a copy of an SFR from March 2012 that was not signed by the delegate. I also refer to our recent telephone conversation where I identified a signed version of the SFR in CASA's records, and that is attached.

I note that even if the delegate had not signed the SFR, the fact of the delegate sending the attached decision letter to you would clearly have signified the delegate accepted the recommendations in the SFR.


Adam Anastasi Manager
Legal Advisory, Drafting and Contracts Section Legal Affairs, Regulatory Policy and International Strategy Branch Civil Aviation Safety Authority

p: 02 6217 1040
GPO Box 2005 CANBERRA ACT 2606
www.casa.gov.au

Reference: Carmody's proof & pudding 

"...Senator XENOPHON: Sure, but the normal course is that for the document to be a valid document, it ought to be a signed document—is that right?


Mr Carmody : Yes, that would be reasonable..."

& at 06:24 here:



Hmm...I guess that means we can already guess how QON 120 (refer QON index: Infrastructure and Regional Development Portfolio (PDF 610KB) & https://www.aph.gov.au/Parliamentary_Bus...mates/rrat) will be answered:

Quote:[*]Overdue No
[*]Asked Of Civil Aviation Safety Authority
[*]Proof Hansard Page/Written 26
[*]Portfolio Question Number 443
[*]Question Senator XENOPHON: So there's a question there: is the standard form recommendation incomplete? I asked you to take that on notice. If it is in some way incomplete or deficient, that may have some bearing on the decision-making process of CASA. It's a technical question, but could you take that on notice? Mr Carmody: I'll take it on notice, but if it's a current standard form recommendation, then, as I said before, that's why I'd like to review it. The standard form recommendation that I assume underpins the original decision probably has not changed. Anyway, I'll take it on notice and have a look at it.

Download question
Answer Unanswered.
[*]



MTF...P2 Cool
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Carmody détente on DJ embuggerance? Rolleyes

Finally some sense & sensibility, from thorny via the UP:

Quote:Well people,


I guess we (not the royal we) but supporters and them with malice and aforethought, can now put this debate to bed.

I understand that today Mr James completed a $25,000 Check flight with two CAsA "experts" who's time cost around $160 per hour, each, and has been cleared to complete his final command check to line, which will probably run to another $25,000.

Nice little earner for CAsA, one big expense for the operator, but maybe someone somewhere thought eight years in purgatory was enough.

After nearly 8 years of having one of the most ridiculous conditions placed on his FCL, DJ can now professionally utilise the full privileges of his ATPL - tips me hat Captain James Wink

The question is will this really be the end of Pelair related embuggerances? And can we now objectively look at the whole Norfolk Island ditching and the other important but dormant systemic aviation safety issues? 

Reading through some of the latest (over 1200+) posts off the UP thread, I keep pinching myself that there is still serious debate about the liability of the pilot in this unbelievable and costly ATSB topcover re-investigation. People like Lookleft seem to have some deeply grounded personal vendetta against DJ that simply beggars belief.

Loved this comment from kellykelpie... Wink  #1172

"..You sound like a blast to fly with lookleft..."


Fortunately there are some voices of reason and objective opinion that gives some hope that the real lessons of the PelAir saga will not be lost in aviation safety oblivion:

Quote:Lead Balloon  #1206



Originally Posted by Checkboard


234(1) requires a pilot to plan "sufficient fuel and oil to enable the proposed flight to be undertaken in safety.", and 234(3) gives instruction to the court, specifically, to consider those reasonable other items to be included in the "in safety" claus. That's pretty definitive for the pilot to also consider those elements.

In any case that quote was cut & paste from the new report.

At no point did I suggest Mr Davies was in error in his submissions - I don't know where you got that idea? I have simply not examined his submissions to that depth. Did he calculate for depressurisation & engine out scenarios?

The new report does include figures for those - and they came to (from memory) about 300 lbs above the main tank fuel that was loaded on the flight in question.

I have no idea why the pilot wasn't proscecuted under 234(1), by the way. Care to enlighten me? Are you privvy to CASA's deliberations on the matter?



No, I’m not privy to CASA’s deliberations.

I don’t need to be.

The facts speak for themselves.

The pilot didn’t breach 234(1). Even if he did, it follows that the operator breached 234(2).

You will note, from the operator’s submission to the Senate Inquiry, that the operator did not ‘throw the PIC under the bus’. The operator did not say that the PIC was off on a frolic of his own, having suffered a brain fart, in breach of the rules and procedures put in place by the operator and accepted by CASA:

Quote:


Pel-Air offers the following comments in relation to the findings of ATSB report AO-2009-072.

FINDINGS

At the time of flight planning, there were no weather or other requirements that required the nomination of an alternate aerodrome, or the carriage of additional fuel to reach an alternate.

Pel-Air agrees with this finding.

The aircraft carried sufficient fuel for the flight in the case of normal operations.

Pel-Air agrees with this finding.

The flight crew did not source the most recent Norfolk Island Airport forecast, or seek and apply other relevant weather and other information at the most relevant stage of the flight to fully inform their decision of whether to continue the flight to the island, or to divert to another destination.

The crew did request actual weather reports (either METARs or SPECIs).

WEATHER PROVIDED BY NADI:

The PIC requested a METAR from Nadi for Norfolk at 0756 and at 0801 was provided with an 0800 SPECI which indicated overcast (OVC) cloud at 1100 feet. This was the first indication to the crew that the weather at Norfolk Island was becoming marginal.

WEATHER PROVIDED BY AUCKLAND:

The aircraft transferred to Auckland at 0839 but did not request the latest Norfolk weather until 0904 when they were given the 0902 SPECI which showed broken (BKN) cloud at 1100 feet and OVC cloud at 1500 feet. This finally alerted them to the situation at Norfolk Island. However a much more severe SPECI was issued earlier at 0830 showing a marked deterioration of the weather with cloud BKN at 300 ft and OVC at 900 ft. This was well below the landing minima and if it had been passed to the aircraft on first contact with Auckland would have alerted the crew to the true situation with time enough to divert. At 0839 the aircraft was still around 32 min away from the last diversion point to Tontouta as shown in the timeline in the report. Additionally, if the Nadi controller had passed the 0830 SPECI to the aircraft when it was issued there would have been even more time for the crew to assimilate the changing weather and take appropriate action. As it was the critical 0830 SPECI was never passed to the crew. [NOTE: In the Pelair submission, the bolded text in the quote above is in red font.]

While the obtaining of up to date weather information is ultimately the responsibility of the PIC, controllers are in a position to see weather changes as they happen and should always alert the crew to any new reports they see as significant. The report does not address the question as to whether the controllers could or should have passed on the 0830 SPECI to the crew other than to say they were not required to do so by international agreement.

The flight crew’s delayed awareness of the deteriorating weather at Norfolk Island combined with their incomplete flight planning to influence their decision to continue to the island, rather than divert to a suitable alternate.

Pel-Air agrees with the first part of the finding on delayed awareness but disagrees with the second part. As explained in the preceding section, the accident would have been averted if weather information was obtained in a timely manner as there was more than enough time and fuel to divert had the up-to-date information been communicated.

The flight crew’s advice to Norfolk Island Unicom of the intention to ditch did not include the intended location, resulting in the rescue services initially proceeding to an incorrect search datum and potentially delaying the recovery of any survivors.

Pel-Air agrees that the crew did not make a proper mayday call as per the regulations. While this may be understandable in the circumstances, the failure to even provide the approximate ditching location meant additional delay to the rescue.

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.

Pel-Air disagrees with the second part of this finding and maintains that its procedures, compliant with CASA regulations at the time, are effective for minimising risks for remote island operations. Pel-Air supports the proposed rule changes by CASA to bring passenger carrying aerial work operations in line with regular public transport operations to remote islands including the requirement to always carry an alternate.
      
&..from kellykelpie again.. Wink #1214
Quote:For me there is a much bigger issue at play on PPRuNe. Did the pilot deliberately proceed knowing he would not get in? Were his actions wilful? Did he have a history of unsafe acts? His actions or inactions under discussion here were errors not violations. As pilots (in some cases highly trained airline pilots), I would hope that we wouldn’t eat our own. I’m not sure of the motivation of those that publicly condemn this man. Be careful because one day you may share a flight deck with him - I hope it’s your check flight and he’s sitting behind, because I’m sure that he would have gained the compassion that many of you lack and the experience of this to boot. Merry Christmas ?

I feel that Down and Welded isn’t a professional pilot - his comments are not written by someone with skin in the game, someone that deals with risk and risk assessments daily in a high hazard environment. He’s an observer.

If he is a pilot and doesn't think that something like this can happen to him, then he is are wrong. Fatigue, circumstance and lack of relevant experience/training can catch us all out on a bad day. To quote Reason “Errors are seen as consequences rather than causes, having their origins not so much in the perversity of human nature as in “upstream” systemic factors.”
Finally from the inestimable Sunfish: #1222  
Quote:Enough!

The pilot was not prosecuted because there was little chance of conviction and the operator and CASA would be dragged through the mud by the defence.

The operator was not prosecuted because there was little chance of conviction and CASA would be dragged through the mud by the defence.

The regulation says that the pilot and operator must take 'reasonable steps" to avoid running out of fuel. The regulation then goes on to state that the courts, not CASA, must determine what is reasonable under the circumstances of the flight.

What DJ did was 'reasonable". He complied with rules and regulations and still failed. This throws into doubt CASA's entire regulatory strategy - for which DJ is still being punished, unjustly.
MTF...P2 Cool
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PelAir & the wx gotchas of the APAC FIRs etc.

After 8+ long years bizarrely debate continues to rage on the UP on the degree of culpability of the pilot. In particular the issue of the pilot not proactively requesting timely wx reports and/or forecasts in flight. Most of the "it's all pilot's fault" crowd seem not to have properly read the applicable sections of the re-investigation report... Huh

Ref pg 177-178 (NB: My relevant OBs are in red bold) :


Obtaining weather information during flight

Regulatory requirements and guidance

As noted above, CAR 239 and the AIP required a pilot in command to consider forecasts and observation reports during pre-flight planning. There was no corresponding guidance for application to flight crews’ in-flight planning. As a result, the ATSB sought clarification from CASA on the extent to which pilots are able to use observation reports (including METARs) for in-flight planning decisions, such as to continue to the destination or initiate a diversion.

CASA, in its response, stated ‘ultimately the decision [to continue to the destination or initiate a diversion] rests with the pilot in command, but only can be based on available forecasts (TAF), Aerodrome Weather Reports (METAR/SPECI), Aerodrome Weather Information Service (AWIS) or observations’. In addition, CASA clarified that there was no ‘strategic difference between an in-flight scenario and a pre-flight plan’ in relation to the use of forecasts.

In relation to the use of observation reports for in-flight planning, CASA noted ‘weather
observations are not a legal instrument to determine if an alternate should be held or for fuel planning, unless the observation has a trend appended to it (eg TTF202…)…’.

However, it further stated ‘…a pilot is able to use both a valid forecast and observation information’.

Further to the use of observation reports, CASA’s advice noted:

The usefulness of the observation is dependent directly on how far away the aircraft is from the aerodrome. For example, a report showing an improvement in the weather may be useful to an aircraft in the holding pattern directly overhead the aerodrome, to decide on whether or not to fly the approach or not. Conversely, if the aircraft is a distance away (eg one hour) the observation should be viewed with caution.

In terms of obtaining forecasts and weather reports in flight, as noted in Flight information service, the provision of flight information services in the Auckland Oceanic FIR and the Nadi FIR was subject to the workload of ATS personnel, with the provision of aircraft separation functions having priority over the provision of FIS. The same principle also applied in other countries (see ATSB report AO-2013-100).203

Accordingly, flight crews could not rely on being automatically provided with relevant information, and hence they were responsible for ensuring they requested sufficient information to make effective decisions. The Australian AIP section on FIS provided very specific statements regarding the responsibility of the pilot in command to obtain information (see Provision of flight information service in Australian FIRs).

There was no specific regulatory requirement for a flight crew to check whether there had been an amended TAF issued during a flight. There was also no published guidance material discussing how to weight the relative importance of TAFs or observations during in-flight decision-making.

Operator requirements and guidance

The operator’s OM contained no specific requirements or guidance material regarding the types of weather information to obtain during flight and when to obtain this information. A review of other air ambulance operators’ operations manuals found they also did not provide any specific guidance in this area.

Flight crew practice

Westwind pilots reported they would generally obtain weather observations during long flights, and they would certainly obtain updated weather observations prior to the PNR for flights where a PNR applied. They stated they would not routinely request updated TAFs for the destination aerodrome during flight, and they would generally expect ATS to notify them if the TAF had been amended.

Some pilots noted that if weather conditions started deteriorating, they would request additional information. This may include asking about updated TAFs as well as other pilot reports of the weather conditions.

In addition, some pilots noted they generally would not expect to be proactively provided with updated weather information in the Oceanic/South Pacific region, except perhaps from Australia and New Zealand ATS. Therefore they would assume they had to obtain any weather information they needed.
  
P2 comment - anyone else see the contradictions and potential "gotchas" in the above passage? Confused


Now let us reflect (once again) on this AP post: The 0739 key to the PelAir wx imbroglio

Starting from..."This brings me to another omission of fact...

&.. this extract (from The 0803 lost in White rabbit obfuscation. ) :

[Image: T-file-7.jpg]

Next refer to this quoted text (reference post:  The tale of the little White lie & the snowball effect) from page 97 of the PelAir MK II report:

Quote:..CAAF advised it was not aware of the 0739 SPECI and the 0803 amended TAF until it received the ATSB’s investigation report in 2012. CAAF contacted the ATS provider, who advised it had provided CAAF with all the weather reports it had received at the time (in 2009). The ATS provider advised CAAF it no longer held the hard copy print outs and therefore CAAF could not verify whether the 0739 SPECI or the 0803 amended TAF had been received...

...The above quoted passages would appear to indicate that even if DJ had of requested (from Nadi at least) the latest amended TAF or the earlier 0730 METAR/0739 SPECI they would not have been available from Nadi IFISO...

P2 comment - I still find it passing strange that not more attention/inquiries were made on why the first relayed wx report to VH-NGA at 0801 was the 0630 METAR, which was manually inputted by the duty NFI BOM officer prior to closing the Norfolk Island BOM office. This left a 1.5 hr window of possible trending auto METAR information (including the 0739 SPECI) totally lost to the PIC of VH-NGA... Confused 
  
Finally I note that over on the UP there is several references to the fact that the PIC never included the FO, either prior to departure or inflight, in the fuel management and/or fuel planning process.

In the case of the inflight situation the FO as PF was conducting a 'cockpit nap' - apparently non-compliant with FRMS SOPs i.e. longer than 30 minutes and with headsets off - when the relay/non-relay of operationally critical wx reports and/or forecasts were/weren't transmitted.

On pre-flight the report said: "..The first officer reported that, prior to the refueller departing, she (the first officer) noted the aircraft had not been refuelled to full capacity (that is, full main tanks and full tip tanks). She asked the captain whether they should refuel to full fuel. [b][i]She recalled the captain said he had calculated the amount of fuel they needed and that full main tanks would be sufficient.[/i][/b]

The first officer recalled that the flight from Norfolk Island to Apia had taken 3 hours 16 minutes, and the return flight was expected to take 30 minutes longer due to the headwinds..."

Hmm...so why didn't the FO challenge the Captain and ask for a review of his fuel calculations and reasoning for not refilling the tip tanks? Especially when you consider that the FO was the designated PF and therefore technically ICUS.

MTF...P2 Cool

Ps IMO these 'normalised deficiencies' come back to the 'safety culture' of the company at that time. These types of 'safety deficiencies' should normally be captured by a properly functioning SMS. Therefore I will attempt to examine the company SMS in the context of the PelAir MKII final report over on the search 4 IP as I note P7 has given me a perfect leg-in... Wink : post #211 

P7 -"..Like feeling that the SMS is a lip service exercise; or, fatigue is only a figment of imagination; or, that company culture has no effect on the ‘upright’ pilot. There is more, lots more which, in the BRB opinion, shows clearly the deeply flawed approach ATSB is taking – without going into the Mildura bun fight or even the ATR events (now plural) and, heaven forbid we ever mention Essendon.."
Reply

For & on behalf of aroa... Rolleyes



A TRULY UNSAFE AGENCY.                                                                          p1
                                                                             
      
[Image: 20130526_VH-ONN_PZL-104_Wilga_35_Keith_Anderson.jpg]                                                                                                
A case study in bureaucratic bastardry and how CASA protects and condones the illegal behaviour of its personnel.

An episode at Mareeba tarmac in July 2007 resulted in 3 Airworthiness Inspectors all making patently false sworn statements to be used in a court of law to convict myself of a criminal offence.                                                                          

The CDPP withdrew from the prosecution case on the basis of advice as to the untruthfulness of the sworn testimony. The charge was struck out in Aug 2008.
                                                                                                                             
Conspiring with others to make false testimony and perjury are serious breaches of criminal codes.

In spite of CASA’s own ICC/ Industry Complaints Commissioner, investigating and finding…

” that they could not have seen what they claimed to have seen…and,.. it would be in public interest if they were dealt with by the AFP/Australian Federal Police”; that did not occur.

I am aware of the involvement of McCormick, Carmody, Anastasi, Aleck and others in corruptly subverting the criminality of the false testimony.
   
This was enabled by CASA contracting a very costly external investigation.

The Brief for that investigation was for ‘code of conduct’ breaches ONLY, (something CASA already knew since dishonesty is a code breach) thus a total corruption of my allegations of criminality and the findings of the ICC.

That brief was signed off by, and witnessed for, S Carmody, now  CEO, on 15 May 2009.
                                                                                                                     
Code breaches do NOT override criminal law breaches and for CASA to have done so constitutes a deliberate downgrading of the offences and is in itself a criminal fraud. A crime is a crime and a breach of a criminal code…not a breach of any agency code, and must be treated as such.

During a video re-enactment at Mareeba by the contract investigator, one AWI wished to alter his sworn statement and was advised - ” It’s a bit too late for that now”.

When asked afterwards what the investigator thought of the three perpetrators, he clearly stated his opinion...

” they should all be in jail.”                                                                            

His report to CASA of course, could only make the findings…All guilty of breaches of the CASA Code of Conduct”.  If there were any further comments by him, they were not allowed to me by FOI.  


A TRULY UNSAFE AGENCY.                                                                                 p2

Of the three AWIs involved, P. Larard, J. Retski and R. Clark only one remains.

Clark ‘bolted’/was allowed to leave unscathed (after my allegations of serious regulatory breaches that were never dealt with), Larard retired early citing “stress” and Retski has been promoted twice, having avoided legal punishment by courtesy of his employer.  That was his first ‘let off’ from criminal sanctions.

In late 2015 I was advised of Retski’s second promotion, at the CASA Townsville office.  To remind him of his earlier perfidy, I send him a card and a copy of a 2009 circular that I had forwarded to the GA industry in North Queensland.  In that circular industry participants were alerted to be aware of making sure to protect themselves with notes, witnesses, or video etc, in any dealings with any CASA persons, especially Larard, Retski and Clark.

At 13.35pm on Dec 4 2015 I received an angry phone call, laced with obscenities and threatening me with a bashing. Such a call is a criminal offence, Retski’s second. A complaint to the CASA CEO produced a severely biased ‘investigation’ (sic) by a Ms Buckland from the Peoples and Culture division.  She is a Human Resources Advisor, not an Investigator, or an independent one, for an alleged criminal offence which CASA again downgraded to a possible Code of Conduct breach only, in spite of the ICC noting possible criminality.

Her ‘Executive Summary’ of her “investigation” states…”it is reasonable to conclude, on the balance of probabilities..Mr Retski did not make that call, and the allegation is unsubstantiated”

If you consider yourself a ‘reasonable person’, make what you will of this list of the factual and circumstantial evidence….

1. The reminder card was addressed to, mailed to, and received by Retski.

2.Retski had the provocation and his anger to make such a response.
                                             
3. Retski has military experience, as claimed by the caller.                                          

4…Retski card details are referenced by the caller.
                                                             
5.The call was made during Retski’s out-of-office lunch time.                                      

6. Retski had the motive and the time.
                                                                   
7. Retski knows my private mobile number.
                                                                   
8. Retski knows my name.    
 

                                                                                                
A TRULY UNSAFE AGENCY..                                                                    p3                                                              

9. I have ‘provoked’ none other than Retski.                                                                        

10.. I have no other ‘enemy’ that I am aware of, only Retski.

If you consider the several remarkable coincidences* by the “phantom” caller (military experience, card detail, lunch hour timing ) as likely and ignore some of the circumstantial facts as above, then Ms Buckland could arrive at a the conclusion that protects her CAsA colleague.                                          
She does not lay any claim or postulate who else, as a result of that card to the receiver Retski, might make such a call. The Tooth (ex military) Fairy perhaps.?

What do you think and what conclusion might you draw from these details?
But wait, there’s more…!!

Following the card call , CAsA instituted an “investigation” as a possible code of conduct breach only, concluding that my allegation was unfounded.

I was never contacted by Buckland or advised of her final finding of 19 July 2016 until I applied for it under FOI. CASA denied the complete document, an OAIC review allowed about half…which was mainly historical material about myself. You may ask, where did all that come from …and by whom…and to what purpose.?  Smells like severe apprehended bias to me.

Her task was to look into Retski and the phone call.

Following her ‘investigation’ I started to receive phone calls from people who stated that they got my private mobile number from toilet walls. I declined offers of any meeting on the basis that this may be a ‘set-up’ for a bashing as advised by ‘The Phone Phantom’ or some involvement in an under age sex scam, or whatever Retski and his military and/or work colleagues have in mind.

On 24 Sept 2017 I received texts from a person in Darwin.  I continued the text conversation and the caller finally admitted my private mobile number came from a toilet wall in Casuarina Shopping Village, a suburb of Darwin. I asked that he verify this with a phone picture, and he stated he would when next at Casuarina.

By contact with the Mall and Village Centres at Casuarina, I was advised by both managements that cleaning staff remove such messages asap.  Thus I was unsuccessful in obtaining any image of the wall writings.

A TRULY UNSAFE AGENCY  p4
                                                                                 
The facts of this further episode of harassment are as follows…  
                                       
1. I have not been to Darwin for 10 years.                                                                                
2. I did not have then, the mobile number that I have now.
                                               
3.  I have never written my private mobile number on any wall, ever.
                       
4. Retski knows my mobile number.
                                                                                     
5. Retski has had the provocation card and thus the motivation.                                        

6. Retski spends time in Darwin in the course of his duties.  
                                                                                                               
7. I have provoked none other than Retski and have no other enemies that I am aware of.
                                                                                                                         
So who might be my harasser?  You can guess.

So there we have it.
                                                                                                                 
From an agency that has no over-sighting body or even ministerial control, CAsA has become a law unto itself. Self-serving, self-covering and corrupt.

IF it was not him, by the contents of the card, the recipient was Retski and the statements in that call, he has aided and abetted a crime by getting someone else to do it for him.  He claims he was with ‘an industry participant’ at the time the call was made just some 3 hours after receiving the card reminder. A perjured alibi no less ?

These sort of episodes with CASA the bully boy, well versed in the arts of (il)legal trickery are endemic throughout the GA industry. This is just a small sample.  In my case, in the tarmac event, I am $10,000 out of pocket, CASA has blown $350,000.oo (at last complaint) and the benefit for any ‘safety’ case was as usual.. NIL.

This can’t go on. ONLY, and only when there is POLITICAL WILL strong enough to reform the system, gut CASA and start again will changes be made. CASA won’t upset its Empire and ‘trough’, it has to be done for them. With the amended CAAct, s9a dealt with, R 206 and etc., denying free trade and commerce, with nothing to do with “safety” removed and FAA/NZ regulations introduced, only then will GA survive.

Nothing less than a Judicial Inquiry or a Royal Commission will bring out the countless tales of bureaucratic malfeasance, corruption of law, and blatant illegalities. CASA believes in the law of their rules, not the Rule of Law.


&..also:  Rudd and Civil Aviation Safety Authority [2017] AATA 1334 (24 July 2017)




MTF...P2  Cool
Reply

"Sheer bastardry" of the CASA Sydney Regional office.

Extract from SBG post: 

CASA Sydney Regional Office: The last bastion of the McComic Stasi era?

Quote:Quote from today's Alphabet's post: Industry feedback on Chester dumping;

Quote:Hmm...passing strange that this week's SBG - The trick that wins the rubber. - would appear to highlight that the CASA Sydney Regional Office has missed the Carmody memo on embracing the ASRR reforms and indeed the DAS's very own instruction/directive on CASA adopting a 'just culture' - refer: E is for?? Part II: Proof is in the pudding; or Legerdemain– a handy skill. - so who is a poor dumbass knuckledragger meant to believe?

On a quick ring around of operators across Australia, represented by different CASA regional offices, the word was (besides one or two minor aberrations), that there was a definite cultural shift within the CASA coalface ranks that seemed to reflect the recent Carmody initiatives:

Quote:Oz Flying article: Carmody - "Most of the Aviation Safety Regulation Review recommendations are now ongoing as they are embedded into CASA's new policies, processes and procedures. Many of these will take time to bed down but we are making significant headway."


Carmody also revealed he had been collaborating with ASRR chairman and report author David Forsyth to track progress.

In early 2016, Forsyth assessed that CASA had completed only 29% of the reforms that applied to them, but indicated today that progress had been made since then.

"While a number of issues are still in work, there is clear progress on necessary improvements and re-establishing a trust based relationship with industry," Forsyth said.
Carmody also reiterated his belief in the value of the ASRR and the impact reforms are having.

"The review was a very important and valuable benchmarking exercise that has focussed CASA on making worthwhile improvements that are now paying dividends to the aviation community," he said.
  
However from recent evidence in the DJ embuggerance etc. it would seem that the Sydney Regional office is either in open defiance thumbing it's nose at the Carmody adopted ASRR policies; or the Carmody initiatives are nothing more than a 'show and tell' exercise to appease the pollies and industry till such time as big-R regulator 'business as usual' can be enforced.

The following historical collective Aunty Pru post extract IMO almost perfectly highlights why Carmody (or someone at a Crown Minister level) needs to clean out these former McComic acolyte grubs from the CASA Sydney Office ASAP: Ref - On joining the dots and making of dashes. post #18...
  
Well it would seem that the McComic psychopaths at the CASA Sydney Office are at it again... Dodgy

From 'that man', via the Oz... Wink



Transplant air service grounded
[Image: c37fe27de04c086e5117ccb60f3b8f99?width=650]
Marc De Stoop, head of FalconAir. Picture: James Croucher


The Australian

12:00AM January 3, 2018
[size=undefined]7
EAN HIGGINS
[Image: ean_higgins.png]
Reporter
Sydney
@EanHiggins


A Sydney patient missed out on a heart transplant last month because the aviation watchdog decided to ground all seven pilots of an air ambulance company over what senior industry figures call a minor technicality involving one of them.
[/size]


The Civil Aviation Safety Authority refused to grant a short-term exemption for two days to charter flight company ­FalconAir, which would have meant it could have had one crew ready to fly ­urgent medical missions, including the later transplant flight.


Former CASA chairman and businessman Dick Smith described the regulator’s action as “absolute sheer bastardry” and a reflection of how bureaucracy and inflexibility were strangling general aviation.

But CASA said it had not been made aware of the problem of the heart transplant flight. “If we had been approached at the time, we would have done everything we could to facilitate that flight,” spokesman Peter Gibson said.

On December 8, CASA grounded not only FalconAir’s check pilot because an audit revealed he flew a competency flight on the wrong type of aircraft, but also the other six FalconAir pilots he had tested — because those checks were consequently deemed to be invalid.

An air ambulance flight broker contacted FalconAir on December 16 asking if the company could fly a St Vincent’s Hospital transplant team to Auckland on an urgent mission to take out the heart from a donor and bring it back to Sydney to transplant into the recipient ­patient. As a result of the groundings, FalconAir had to say no.

The broker, Nathan Gottle from NJP Aviation Services, wrote to FalconAir a few days later about the tragic outcome. “NJP was not successful in arranging a suitable aircraft for this mission from any operator on the east coast of Australia,” Mr Gottle said in the email. “After a period of approx. 3 hrs of attempting to source a suitable aircraft/crew, it was determined by the transplant team that the mission could no longer go ahead, as we would not be able to get the medical team to Auckland in time.”

A spokeswoman for St Vincent’s said the patient was “still on the waiting list” for a transplant.

FalconAir chief executive Marc De Stoop, who is also the president of the Aircraft Owners and Pilots Association, accepted that “CASA staff doing the audit on FalconAir were just doing their job”. But he said the complex rules, legal constraints and red tape they operated under meant the opportunity for sensible and collaborative solutions, which would have been possible under US air regulations, were unavailable here.

“I have pilots sitting on the ground,” Mr De Stoop said, adding that only three out of the seven had since been granted an exemption.

While Mr Gibson would not provide an absolute guarantee that CASA would have lifted the ban on FalconAir pilots, he said it had the power to grant “mercy flight” exemptions. Mr De Stoop, however, said he had repeatedly told CASA from the day his pilots were grounded that he and Careflight needed one crew to fly “life-saving operations”, but the regulator had not granted an exemption. Since the “non-compliant” tests, his two check pilots had passed simulator proficiency checks in the US.

FalconAir operates two Dassault Falcon F-20 twin-engine jets out of Sydney, and one Falcon F-50 three-engined jet out of Brisbane. It offers corporate jet charters but specialises in aeromedical services including patient and organ transfers and medical evacuations.

Mr De Stoop said his check pilot made an error in good faith in interpreting the rules under which some checks but not others could be done in different types of aircraft.

Mr De Stoop pointed to a CASA “double standard”. The check pilot had been allowed to conduct a flight review of one pilot, with CASA witnesses on board, the day after he was grounded, but the authority “refused to grant him our request for a very limited exemption — two flights — to allow him to check two other of our pilots”.



Quote:Graham

When will this government have the guts to put the cleaners through CASA. An authority who is destroying the very industry it regulates.


Steve

When I moved to Oz in 1980, I went about converting my private pilot license and Class 1 Instrument Rating [Airline Pilot standard]. Bureaucratic madness (Sir Humphrey at his best), 12 months and $20K later...

Les

As a person who has been lucky enough to receive a transplant I know what this means to the person who missed out on the heart transplant. CASA should be ashamed of their actions.

Les Qld 


William

I support Dick Smith's assertion that this regulator has gone too far. CASA saying that they weren't approached regarding the heart transplant flight is a lie. The patient should sue them for millions.


Peter

I am not an expert but from reports over the last few years, it seems as if the time has come for a review of the aviation industry and its associated bodies. It seems as if their has been a bit of empire building going on.


Oscar

CASA - staffed by public servants who love running meetings with no outcomes, with bosses that make decisions with no accountability. We need a Frank Lowy to fix this rotten organisation just like how he fixed Soccer Australia when it was infested with ethnic dysfunctionality.

Phil

CASA like the rest of the APS is there to cover its own butt and create jobs , plain and simple.

QANTAS And Virgin call the shots so the General Aviation sector is now so over burdened with regulation and complexity that it's is dying .

Not fuel prices or lack of business,no the regulator is literally choking General Aviation to death.

Only a complete reset of CASA back to the dual role of promoting aviation as well as regulating it (ie a CAA) will fix this.



Arthur

If the article is correct, someone is lying. The broker's statement seems to contradict CASA's statement. An Administrative Inquiry should be conducted from within the responsible Ministry, with the findings made public and officials held personally accountable for any poor decision making. This would supply evidence should the transplant non-recipient choose to seek compensation (from any individual as well as an organisation) - as it stands, that individual has only hearsay to support a claim. I don't believe that a Freedom of Information query would reveal where the failure lies, and a failure it surely is. Senior Management exists over peons to consider the bigger picture. Ambulances are required to follow the road rules until there is an emergency. It seems CASA doesn't understand that the same should apply to Air Ambulances.

Steve

Make no mistake, CASA is mostly responsible for the demise of aviation in Australia.

CASA public servants are out of control. No accountability and no scrutiny by either side of politics for decades.

No other country has an aviation regulator as incompetent or dysfunctional as CASA.


Ashley

Like everything else in Australia - over-regulated and antiquated bureaucracy stifles not only innovation, but just getting things done. This is why the smart money is moving offshore.


Vern

Bureaucracy, not common sense is running the country.

Kim

CASA has pulled more & more power into itself to justify its existence & provide it with plenty to do. It needs a thorough review and downsizing to get it back to being a public service and not a public supervisor. The other area that infuriated me is the delay these regulators like CASA take to investigate & report back on air accidents. Some of them take years for no logical reason. They need to have a boot up the tail to do their work quickly & efficiently.

Brian

Over the years, I have watched as this and another Aviation authority have seemed hell bent on driving general aviation in Australia to the wall. We need safety, but the sheer bloody mindedness of CASA over imposing petty rules at the expense of experience and common sense has long been apparent. The holy grail of absolute safety has been allowed to take over the day to day running of general aviation with impossible burdens and costs imposed which have not affected the already high standards. Dick Smith should be listened to and the Minister responsible should move quickly to an inquiry which could examine the red tape and recommend discarding the rubbish contained in the regulations


Hmm...TICK..TOCK...Barnaby - Confused


MTF...P2 Cool
Reply

Primal Scream Therapy.

Despite the intellectual, academic and medical disagreements relating to the ‘effectiveness’ of this theory – it remains in common everyday use – on a very basic human level. I’ve seen many variations on the theme – someone ‘looses it’ – and all hell breaks loose, in one form or another. How many here have witnessed the sound and fury of a two year old temper tantrum? It can be quite a show; but then the two year old ain’t constrained by the trimmings society requires; they just let it rip, full throttle, until the anger has passed or, is managed by the parent and the lesson that this behaviour is not acceptable is eventually learned (mostly).

Now then, our friend and comrade Mark, president of the AOPA and Falcon Air CEO is well past the time of having a full two year old temper ‘tanty’ or ‘chucking a wobbly’. He just can’t, can he? Not only do the Gods know he is fully entitled to one; but industry agrees. From day one his operation has been frustrated, mostly by two of the worst FOI’s to ever wear the CASA Guernsey.

Out of respect for Mark, we will not trot out the whole sorry tale; not yet. There are huge sums invested, jobs on the line and many other weighty considerations which prevent all this sorry tale from becoming public knowledge. However, in time, the tale will become seen as a litmus test for the Joyce administration; that you can take to the bank. There are documented cases which cover the entire gambit of ‘CASA - Bankstown’ actions from Pel-Air to Falcon which demand a full and open inquiry; conducted under the rules of evidence. Perjury is just one item high on the list for independent scrutiny, there are others, of equal weight and concern which cannot be ignored; not for too much longer.

Carmody is Chester’s man – as CEO he must be aware of the consequences related to CASA actions. Joyce is the latest incumbent of the transport seat; if he retains Carmody then we can see the future is more of the Falcon treatment; if he ‘get’s real’ and hires new CEO for both ATSB and CASA then we may yet see an end to the disgraceful behaviour on display at the moment.

There is only one thing certain – none of this is going away. Operators and their crews need to be free of the constant ‘threat’ of becoming ‘criminal’, fear of reprisal for disagreement with ‘opinion’; and, being forced to accept that there are no options other than complete acquiescence to any and all dictates of the less than competent bully boys. Those who not only believe they are above the law, but that their ‘opinion’ overrides the law, common sense, decency and experience; then spin faery stories to support the argument; which are always backed up by the ‘Ethics’ committee ruling.

Let the minister consider just one small element: the ‘Audit’. If a company bring in ‘independent’ auditors who are trained and qualified to use the IOSA system; then the ‘audit’ is always welcome. Areas which can be improved are noted, discussed and actioned; the next audit will examine the result of the ‘tweaking’; and, the ‘fix’ will be refined, again, to become of real value. In short, real safety improvement, real systems monitoring and efficient compliance is a direct result. That audit is looked forward to by the beneficiary. Mention the CASA version to any operator and measure the result, weigh the benefit and count the cost in time and money wasted defending the company from closure. Chalk and Cheese.

The rumour floating about needs some supporting data – but as it currently stands – the last CASA audit of Falcon has cost two lives and denied several others a chance of an improved life. As near as we can discover, there was a heart, lungs, liver, kidney and eyes lost through the inability of Falcon to perform. There was, allegedly, a critical patient in Noumea who passed away because transport to specialist treatment could not be provided. Should this rumour translate into fact then it is well past time to call a halt on the antics of CASA, it is time to bring charges and prosecute.

What a great way to start the New Year – another fatal and a grounded essential service. I say – no matter the black letter ‘technical’ reasons for preventing Falcon flight crew operating, there was no lack of either training, recent experience or competency. The crews could and would have performed safely, effectively and legally. This was a nasty little power play, ostensibly to demonstrate CASA power and prevent comment being made on social media. Disgusting.

What say you minister? There’s the pot – will ye piss or get off it?

[Image: DQtkQ-SVAAA7TzU.jpg]

Toot – toot.
Reply

The Fort Fumble attempted embuggerance of Ashby heats up - Rolleyes  

Via ABC's Radio Oz:


Pauline Hanson staffer James Ashby investigated for flying One Nation leader without proper pilot's licence

Updated 8 March 2018, 10:25 AEDT

Exclusive by political reporter Ashlynne McGhee and Jon Coghill

Pauline Hanson's chief of staff, James Ashby, is under investigation for flying his boss around Queensland without the proper pilot's licence.

[Image: 8414616-3x2-700x467_0.jpg]
The One Nation-branded plane is registered as a recreational aircraft. (Credit: ABC) 

The ABC understands Mr Ashby is being investigated by the Civil Aviation Safety Authority (CASA) for flying the Jabiru J230 during the 2016 election campaign.

CASA has declined to confirm or deny whether any investigation is underway.

If found guilty, Mr Ashby faces fines and could lose his licence.

The ABC understands Mr Ashby only holds a recreational pilot's licence and the plane is registered as a recreational aircraft.

That means it cannot be flown for commercial purposes or in controlled airspace above major airports.

Mr Ashby described the investigation as a "political witch-hunt".

"I will comply with CASA's request for documents, however this is just a further waste of taxpayers' money where their findings will result in the same outcome as previous investigations," he said.

The plane is plastered with a stylised image of Senator Hanson, and Mr Ashby used it to fly the One Nation leader around Queensland in 2015 and 2016.

In 2015, Mr Ashby boasted in a radio interview about piloting the then-candidate around for her commitments.

"I've made that commitment to her that I will fly her wherever she wants to go," he told ABC Sunshine Coast.

"We're off every weekend at the very least, we pick a spot, there's guest appearances, general invites that she wants to be a part of. We just jump in the plane.

"It's a Jabiru J230 … we've got it licensed as a light sport aircraft, it's two seats."

A recording of that interview was seized by CASA investigators yesterday.

Mr Ashby also said in the interview the plane was owned by, "a particular member of One Nation", but the bigger question is who paid for it.

That is being investigated by the Australian Electoral Commission, after allegations surfaced last year that it was secretly donated to One Nation by businessman Bill McNee.

Mr Ashby said in the 2015 recording it had been bought a few months prior.

"It's a great piece of machinery, I know when Pauline was looking at the prospects of a plane she was looking for something Australian-made, so we bought a plane that was made in Bundaberg," he said.



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(03-08-2018, 10:01 AM)Peetwo Wrote:  The Fort Fumble attempted embuggerance of Ashby heats up - Rolleyes  

Via ABC's Radio Oz:


Pauline Hanson staffer James Ashby investigated for flying One Nation leader without proper pilot's licence

Updated 8 March 2018, 10:25 AEDT

Exclusive by political reporter Ashlynne McGhee and Jon Coghill

Pauline Hanson's chief of staff, James Ashby, is under investigation for flying his boss around Queensland without the proper pilot's licence.

[Image: 8414616-3x2-700x467_0.jpg]
The One Nation-branded plane is registered as a recreational aircraft. (Credit: ABC) 

The ABC understands Mr Ashby is being investigated by the Civil Aviation Safety Authority (CASA) for flying the Jabiru J230 during the 2016 election campaign.

CASA has declined to confirm or deny whether any investigation is underway.

If found guilty, Mr Ashby faces fines and could lose his licence.

The ABC understands Mr Ashby only holds a recreational pilot's licence and the plane is registered as a recreational aircraft.

That means it cannot be flown for commercial purposes or in controlled airspace above major airports.

Mr Ashby described the investigation as a "political witch-hunt".

"I will comply with CASA's request for documents, however this is just a further waste of taxpayers' money where their findings will result in the same outcome as previous investigations," he said.

The plane is plastered with a stylised image of Senator Hanson, and Mr Ashby used it to fly the One Nation leader around Queensland in 2015 and 2016.

In 2015, Mr Ashby boasted in a radio interview about piloting the then-candidate around for her commitments.

"I've made that commitment to her that I will fly her wherever she wants to go," he told ABC Sunshine Coast.

"We're off every weekend at the very least, we pick a spot, there's guest appearances, general invites that she wants to be a part of. We just jump in the plane.

"It's a Jabiru J230 … we've got it licensed as a light sport aircraft, it's two seats."

A recording of that interview was seized by CASA investigators yesterday.

Mr Ashby also said in the interview the plane was owned by, "a particular member of One Nation", but the bigger question is who paid for it.

That is being investigated by the Australian Electoral Commission, after allegations surfaced last year that it was secretly donated to One Nation by businessman Bill McNee.

Mr Ashby said in the 2015 recording it had been bought a few months prior.

"It's a great piece of machinery, I know when Pauline was looking at the prospects of a plane she was looking for something Australian-made, so we bought a plane that was made in Bundaberg," he said.

Via 4BC:

James Ashby responds to CASA investigation
 
15 hours ago
Chris Smith

CASAjames ashbyOne NationPauline Hanson
[Image: One-nation-CASA.jpg]
Pauline Hanson’s chief-of-staff James Ashby is being investigated over suspicions he was flying a light aircraft without the correct licence.

If the Civil Aviation Safety Authority (CASA) finds he holds a recreational certificate or licence, but was operating as a commercial pilot during the 2016 election campaign, he could lose his registration.

Mr Ashby tells Chris Smith the investigation is a “witch-hunt”.

“I am licensed to carry a passenger. I do that on a regular basis.

“Their argument is that I’ve taken money for piloting Pauline around the country which is not true.

“Even though this has been investigated and I’ve been cleared once already by Recreational Aviation Australia… CASA seems to feel as though they’ve got to come in and do another investigation.

“I’m wondering whether I’ll be questioned over whether I’ve got a taxi licence seeing I drive Pauline to Rockhampton today.”

http://auntypru.com/wp-content/uploads/2...-staff.mp3

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The world of Justarse according to Dr (Hoodoo-Voodoo) Aleck - Dodgy  

In a 2015 FSA article Dr A explains strict liability offences and it's effectiveness in application to the Big Brother embuggerance of aviation participants:


Strictly liable, fairly enforced
By staff writers -
Sep 17, 2015
3654
[Image: 140528_News_brazil_photo.jpg]Image: Thinkstock | © liveostockimages

CASA’s Associate Director of Aviation Safety, (ADAS) Dr Jonathan Aleck, explains the concept of strict liability.

Breaches of most of the provisions of the Civil Aviation Regulations and the Civil Aviation Safety Regulations, and a few of the provisions appearing in the Civil Aviation Act, are offences of strict liability.

Dr Aleck says there is an unfortunate misunderstanding about what this means. ‘Many people believe that “strict liability” somehow involves a presumption of guilt, as opposed to the presumption of innocence that is central to our system of justice; and that it also involves a reversal of the burden of proof, shifting that burden from the prosecutor to the person charged with the offence. This is simply not so,’ he says.

The difference between strict liability offences and other ‘fault-based’ offences has to do with the mental element, the Associate Director says.

‘There is no requirement for (and hence no need to prove the existence of) a mental element, that is a particular state of mind—intent, knowledge, recklessness or negligence—on the part of a defendant charged with a strict liability offence. This is the norm for a wide range of legislative requirements involving public health and safety matters.’

The parallel is in traffic law, where most ordinary road traffic offences are offences of strict liability. ‘So, for example, if a driver decides to dispute a charge of driving without a seat belt, the prosecutor need not prove that the driver intended not to wear, knew they were not wearing, or simply forgot to wear, their seat belt. All that needs to be proven is that, in fact, the driver was not wearing their seat belt,’ Dr Aleck explains.



Importantly, however, strict liability does not reverse the burden of proof, and there are no provisions in any CASA legislation (current or proposed) that do so. ‘Every element of a strict liability offence must be proven by the prosecutor, and proven beyond a reasonable doubt. It is not and has never been the case that the defendant must prove that they did not commit the offence.’

Moreover, the defence of ‘reasonable mistake of fact’ is always available to a person charged with a strict liability offence under the civil aviation legislation. Section 9.2 of the Commonwealth Code Act expressly provides that a ‘person is not criminally responsible for an offence that has a physical element for which there is no fault element if: (a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and (b) had those facts existed, the conduct would not have constituted an offence.’

If, for example a driver charged with a strict liability traffic offence was able to show that their vehicle’s speedometer had suddenly begun reading wrongly, or a pilot charged with a strict liability offence involving unauthorised low flight was able to show that the altimeter had, without reasonable warning, begun to read incorrectly, that would be a ‘reasonable mistake of fact’ because belief based on the mistaken readings of the instruments would be reasonable (provided the driver had no other reason to believe they were driving too fast or the pilot had no other reason to believe they were flying too low.)

The fact that the breach of a regulation constituting a strict liability offence, will not necessarily mean that CASA must pursue the matter on that basis, Dr Aleck says: ‘In keeping with CASA’s regulatory philosophy, the responsible exercise of discretion by CASA decision makers (and those who advise them) will, in many cases, obviate the need to progress a matter to enforcement action based on the apparent commission of a strict liability offence.’
Dr Aleck also points out that making the breach of a safety requirement set out in the civil aviation regulations an offence of strict liability is entirely consistent with long-standing Commonwealth criminal justice policy. ‘This is and has been the norm for the vast majority of the Civil Aviation Safety Regulations, the Civil Aviation Regulations and the Air Navigation Regulations that preceded these,’ he says.

‘CASA’s regulations are made by the Governor General, not “by CASA”, Dr Aleck says, ‘and they are subject to disallowance by the Parliament. They are drafted by the Office of Parliamentary Counsel and, as with all Commonwealth regulations involving criminal offences, they must be acceptable to the criminal law branch of the Attorney-General’s Department before they are finalised.’

Consistent with the Government’s response to the recommendations of the Aviation Safety Regulation Review, CASA is reconsidering the nature and propriety of the offences and the penalties imposed for breaches of the civil aviation legislation. In the meantime, however one may feel about the substance of the regulations, they cannot be said to have been developed or drafted in anything but complete fidelity to all applicable legal requirements, and in strict accordance with the protections that are the hallmarks of our system of justice, Dr Aleck concludes. 



For those of you (like me -  Big Grin ) who missed this wonderful pearl of wisdom from the guru of CASA embuggerance, not that FSA is still open to taking comments:

A cabaret in the temple of doom. | AuntyPru.com : Home of PAIN : Apr 15, 2018 at 6:55 pm
[…] Strictly liable, fairly enforced | Flight Safety Australia Flight Safety Australia […]
Reply

[Image: JA-for-IATA-Legal-Symposium-2012-300x225.jpg]
Strictly liable, fairly enforced | Flight Safety Australia
Flight Safety Australia

MTF...P2 Cool
Reply

“the responsible exercise of discretion by CASA decision makers”

Like many things it boils down to a matter of degree, certainly the present framework gives far too much power to officialdom. It becomes too easy for CASA to be policeman, prosecutor, judge and jury when the rules are inappropriately complex and they attempt to dictate actions of flight crew into a straitjacket of perfection as perceived by bureaucratic imaginations.

The seductive advantages of power, position and unassailable righteousness are writ large in the attitudes of the bureaucratic machine. So too obvious has been the utter disregard for the fortunes of the GA industry, let alone the lives of many individuals carelessly smashed and wasted. For many such vilified individuals a recourse to justice in the courts is not viable due to time constraints, lack of money and being up against a daunting opponent with unlimited means.

Considerations;  many of our aviation “offences” don’t even warrant a mention in other jurisdictions. There was no real problem before the rules were migrated into the criminal code and laced with excessively high penalties for the most trivial matters. Proportionately way in excess of comparable fines and penalties for road infringements. Therefore using the road rules as a model gives lie to the argument that its just a similar application of law. The other broad justification that all rules passed the various stages and processes of the Commonwealth only compounds our disquiet, and does not answer the decling trajectory of GA or the levels of distrust and dissatisfaction with the regulator.
Reply

Dr Voodoo speaketh in forked tongue
The witch doctor speaks through his ass. Nobody in the aviation industry, you know, the people who have actually worked in aviation and gotten their hands dirty, listen to the bearded fool. He is just an academic who gets his jollies interpreting archaic laws that should have been disbanded during the Stone Age. He has cross eyes and hairy palms from ‘entertaining himself’ while immersed, naked, in an office piled with legal books. FFS the little bloke couldn’t even produce babies without the help of IVF so god only knows what good he has ever been able to add to our aviation industry while employed for the past 25 years in the CAsA basement.

Aleck, you’re a fool. STFU.
Reply

(04-16-2018, 08:01 AM)Peetwo Wrote:  The world of Justarse according to Dr (Hoodoo-Voodoo) Aleck - Dodgy  

In a 2015 FSA article Dr A explains strict liability offences and it's effectiveness in application to the Big Brother embuggerance of aviation participants:


Strictly liable, fairly enforced
By staff writers -
Sep 17, 2015
3654
[Image: 140528_News_brazil_photo.jpg]Image: Thinkstock | © liveostockimages

CASA’s Associate Director of Aviation Safety, (ADAS) Dr Jonathan Aleck, explains the concept of strict liability.

Breaches of most of the provisions of the Civil Aviation Regulations and the Civil Aviation Safety Regulations, and a few of the provisions appearing in the Civil Aviation Act, are offences of strict liability.

Dr Aleck says there is an unfortunate misunderstanding about what this means. ‘Many people believe that “strict liability” somehow involves a presumption of guilt, as opposed to the presumption of innocence that is central to our system of justice; and that it also involves a reversal of the burden of proof, shifting that burden from the prosecutor to the person charged with the offence. This is simply not so,’ he says.

The difference between strict liability offences and other ‘fault-based’ offences has to do with the mental element, the Associate Director says.

‘There is no requirement for (and hence no need to prove the existence of) a mental element, that is a particular state of mind—intent, knowledge, recklessness or negligence—on the part of a defendant charged with a strict liability offence. This is the norm for a wide range of legislative requirements involving public health and safety matters.’

The parallel is in traffic law, where most ordinary road traffic offences are offences of strict liability. ‘So, for example, if a driver decides to dispute a charge of driving without a seat belt, the prosecutor need not prove that the driver intended not to wear, knew they were not wearing, or simply forgot to wear, their seat belt. All that needs to be proven is that, in fact, the driver was not wearing their seat belt,’ Dr Aleck explains.



Importantly, however, strict liability does not reverse the burden of proof, and there are no provisions in any CASA legislation (current or proposed) that do so. ‘Every element of a strict liability offence must be proven by the prosecutor, and proven beyond a reasonable doubt. It is not and has never been the case that the defendant must prove that they did not commit the offence.’

Moreover, the defence of ‘reasonable mistake of fact’ is always available to a person charged with a strict liability offence under the civil aviation legislation. Section 9.2 of the Commonwealth Code Act expressly provides that a ‘person is not criminally responsible for an offence that has a physical element for which there is no fault element if: (a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and (b) had those facts existed, the conduct would not have constituted an offence.’

If, for example a driver charged with a strict liability traffic offence was able to show that their vehicle’s speedometer had suddenly begun reading wrongly, or a pilot charged with a strict liability offence involving unauthorised low flight was able to show that the altimeter had, without reasonable warning, begun to read incorrectly, that would be a ‘reasonable mistake of fact’ because belief based on the mistaken readings of the instruments would be reasonable (provided the driver had no other reason to believe they were driving too fast or the pilot had no other reason to believe they were flying too low.)

The fact that the breach of a regulation constituting a strict liability offence, will not necessarily mean that CASA must pursue the matter on that basis, Dr Aleck says: ‘In keeping with CASA’s regulatory philosophy, the responsible exercise of discretion by CASA decision makers (and those who advise them) will, in many cases, obviate the need to progress a matter to enforcement action based on the apparent commission of a strict liability offence.’
Dr Aleck also points out that making the breach of a safety requirement set out in the civil aviation regulations an offence of strict liability is entirely consistent with long-standing Commonwealth criminal justice policy. ‘This is and has been the norm for the vast majority of the Civil Aviation Safety Regulations, the Civil Aviation Regulations and the Air Navigation Regulations that preceded these,’ he says.

‘CASA’s regulations are made by the Governor General, not “by CASA”, Dr Aleck says, ‘and they are subject to disallowance by the Parliament. They are drafted by the Office of Parliamentary Counsel and, as with all Commonwealth regulations involving criminal offences, they must be acceptable to the criminal law branch of the Attorney-General’s Department before they are finalised.’

Consistent with the Government’s response to the recommendations of the Aviation Safety Regulation Review, CASA is reconsidering the nature and propriety of the offences and the penalties imposed for breaches of the civil aviation legislation. In the meantime, however one may feel about the substance of the regulations, they cannot be said to have been developed or drafted in anything but complete fidelity to all applicable legal requirements, and in strict accordance with the protections that are the hallmarks of our system of justice, Dr Aleck concludes. 



For those of you (like me -  Big Grin ) who missed this wonderful pearl of wisdom from the guru of CASA embuggerance, note that FSA is still open to taking comments:

A cabaret in the temple of doom. | AuntyPru.com : Home of PAIN : Apr 15, 2018 at 6:55 pm
[…] Strictly liable, fairly enforced | Flight Safety Australia Flight Safety Australia […]
Reply

[Image: JA-for-IATA-Legal-Symposium-2012-300x225.jpg]
Strictly liable, fairly enforced | Flight Safety Australia
Flight Safety Australia




Sandy - “the responsible exercise of discretion by CASA decision makers”

Like many things it boils down to a matter of degree, certainly the present framework gives far too much power to officialdom. It becomes too easy for CASA to be policeman, prosecutor, judge and jury when the rules are inappropriately complex and they attempt to dictate actions of flight crew into a straitjacket of perfection as perceived by bureaucratic imaginations.

The seductive advantages of power, position and unassailable righteousness are writ large in the attitudes of the bureaucratic machine. So too obvious has been the utter disregard for the fortunes of the GA industry, let alone the lives of many individuals carelessly smashed and wasted. For many such vilified individuals a recourse to justice in the courts is not viable due to time constraints, lack of money and being up against a daunting opponent with unlimited means.

Considerations;  many of our aviation “offences” don’t even warrant a mention in other jurisdictions. There was no real problem before the rules were migrated into the criminal code and laced with excessively high penalties for the most trivial matters.

Proportionately way in excess of comparable fines and penalties for road infringements. Therefore using the road rules as a model gives lie to the argument that its just a similar application of law. The other broad justification that all rules passed the various stages and processes of the Commonwealth only compounds our disquiet, and does not answer the decling trajectory of GA or the levels of distrust and dissatisfaction with the regulator.
Reply

Stan in reply to Dr A's hocus pocus - Rolleyes


Subject: Strict Liability - explained in context of Australian aviation:


Read this in context with the woffle based on the all-knowing Jonathan
Alleck's (probably the original "smart Alleck") broad infallible knowledge.

http://www.mckeown.com.au/strict-liability.htm

http://www.flightsafetyaustralia.com/2015/09/strictly-liable-fairly-enforced
/#comment-1452

Quote:Strict Liability - explained in context of Australian aviation:

1.
CASA in the Civil Aviation Amendment Regulations 2003 has in no uncertain terms introduced the notion of making most offences, offences of strict liability. It first started to do so as it drafted the new Regulations (now known as Parts), I have heard, on the basis that the Criminal Code Act 1995 (the Code) said it had to make all new offences, offences of strict liability. This is not what the Code said. In lay terms the Code merely said that when drafting new laws after 15 December 2001 that involved creating an offence, it is a requirement to state what the fault element to the offence should be.
 

2.
There are four possible fault elements, namely “intention”, “knowledge”, “recklessness” and “negligence”. However, the Code also makes provision for the drafting of an offence that does not require a fault element, and now we see “strict liability”.
 

3.
Under the Code an offence is made up normally of two elements (I say usually because remembering that fault can be excluded). The physical elements and the fault elements. A physical element is conduct, a result of conduct, or a circumstance in which conduct or a result of conduct occurs. The Act defines conduct to mean an act, an omission to perform an act or a state of affairs. The Act also defines “engage in conduct” to mean, do an act or omit to perform an act.
 

4.
If an offence does not specify a fault element, the Code deems one of two fault elements to apply (s.5.6 of the Code). They are either where the physical element is conduct, “intention” is required or secondly if the physical element is circumstance or a result, then “recklessness” is the fault element. This deeming provision covered most of the pre 15 December 2001 aviation offences, which of course then did not need to specify a fault element. CASA introduced a new Regulation that came into effect on 6 August 2003 whereby most offences in the previously existing Civil Aviation Regulation 1988 were reworded not requiring a fault element, hence were stated to be offences of strict liability. (See the Civil Aviation Amendment Regulations 2003 (No.5). There was strictly speaking, no need for this amending Regulation given the deemed fault elements, which a Court would be required to determine after 15 December 2001.
 

5.
“Intention” is defined in the Code as “a person has intention with respect to conduct if he or she means to engage in that conduct.” As to circumstances, “a person has intention with respect to circumstances if he or she believes that it exists or will exist.” As to result, “a person has intention with respect to a result if he or she means to bring about or is aware that it will occur in the ordinary course of events.” The bottom line on all these definitions is the fact that a person must have the intention of doing the conduct, or knows the circumstances, or means to cause the result. In conclusion, if intention is the fault element, the mere fact that an event occurred does not mean you have breached the law. Unlike that which applies if it is a strict liability offence.
 

6.
“Recklessness” is defined as if “he or she is aware of a substantial risk that the circumstance exists or will exist and having regard to the circumstances known to him or her, it is unjustifiable to take the risk.” As to a result, you are reckless with respect to a result if you are “aware of a substantial risk that the result will occur and having regard to the circumstances known to him or her, it is unjustifiable to take the risk.” Interestingly, if the fault element is said to be recklessness, proving of intention or knowledge will also satisfy the fault element of recklessness. For completeness I should add that the definition of “knowledge” is “a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.”
 

7.
Would you not think recklessness would be the preferred fault element for an aviation offence? Of course a prosecutor, being required to show more than the mere event took place, has more to do. Whereas an offence that is said to be one of “strict liability” has no fault element and thus no need to show more than the physical element of the offence. Easier for the prosecution I hear you suggest. Of course it is. However, we might be grateful for the fact that CASA did not make aviation offences one of “absolute liability!” Offences that are said to be one of “strict liability” at least have the defence of “mistake of fact.” Which is not available in offences of “absolute liability.”
 

8.
You can argue a mistake of fact (and thus avoid a conviction) if “at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts and had those facts existed, the conduct would not have constituted an offence.” (s.9.2). Put another way, if it was reasonable for you to believe that X was the case and you did in fact believe it, then you have successfully avoided a prosecution. You of course have the onus to show all this. An example might be, you are flying along and carefully reading your map as to controlled airspace boundaries. You penetrate controlled airspace. However, where you were at the time was shown on the map to be out side controlled airspace.
 

9.
One should add that there is another defence available and it is to all offences regardless of their fault element, and whether they are offences of “strict liability” or “absolute liability”, and that is the defence of sudden or extraordinary emergency. (s.10.3 of the Code). You are not criminally responsible if you carry out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency. You have to reasonably (thus an average person in your situation also has to believe) those mentioned sudden or emergency circumstances exist, and that committing the offence is the only reasonable way to deal with the emergency and (not to make it too easy for you), the conduct is a reasonable response to the emergency.
 

10.
All that said, should aviation offences be ones of “strict liability”? In my opinion, if an offence is not dependent upon the actions of others in any way, or upon interpretation of other facts, then strict liability might apply to that offence. For example if you incorrectly fill out a form. You alone are effectively (but you might have the mistake of fact defence) responsible for filling out that form. It’s a simple clear-cut error on your part. However, when you fly a plane there are any number of events that might cause the particular conduct that is said to be an offence. There are other forces at play instead of merely signing a document.
 

11.
Here is an example of an aviation Regulation that in my opinion should not create an offence of strict liability. Reg. 234 has been on the books since at least 1995, it was not an offence of strict liability, but it is now, following the 2003 mentioned amendments to the Regulations. It deals with fuel requirements. Instead of being clear cut, there are at least eight considerations that a court is said to be required to consider when determining whether an aircraft has sufficient fuel and oil. That’s not fair on a pilot. This particular Regulation gets even worse; the Court has to consider any guidelines issued from time to time by CASA for the purpose of this Regulation. Good grief I hear you cry. Is it fair to make this regulation an offence of strict liability? So you didn’t see that guideline issued by CASA? “No the dog must have cleared the mailbox the day it arrived.” Too bad, it is an offence of strict liability and you could be found guilty if it is proved that any one of the eight variables in the Regulation is relevant. Also, to determine the variables an expert would most likely have to be called for example, to tell the Court what are the metrological conditions the aircraft may have been required to fly in. Would it not be more appropriate to keep a fault element even say of “recklessness”, instead of abolishing the fault element by making it an offence of strict liability?
 

© C. P. McKeown - November 2003

Cheers Stan thanks for the input, choccy frog's in the mail...MTF - P2 Tongue
Reply

EMBUGGERANCE FOR AN EMBUGGERER??

One of CAsA’s chief Embuggerer’s, Gerard Campbell, fled the Regulator before they hung him out to dry. He went to Air Nauru as CEO, but has been punted already! Did Big Trev have one of his famous angry tanty’s already? TJ is the only person I know who is equal to the Screaming Skull on the ‘anger management richter scale’! Oh the irony, a CAsAmite receiving a dose of his own medicine. Too funny, no protection granted in the real world Gerard!!

“Safe pineapples for all”
Reply

Holy jumping coconuts Batman – we heard Wodger the Unspeakable was going to be ‘the Man’. No idea the infamous Gerrard has scuttled off to a tropical pair’ a dice doing the job old McComic didn’t get. What fascination does Nauru hold for these ex CASA rejects?
Reply

Tom;

What fascination does Nauru hold for these ex CASA rejects?

Oh Tom, the attraction is obvious. Anyone who has had any ‘intimate’ dealings with the airline knows exactly how they operate at all levels. Lots and lots of money at the top end of that company! A great place for an ex CAsA shonk to hide out and spend his/her days. Except poor old cue ball only lasted 4 months.

I wonder where he will pop up next - maybe throwing bags in the bowels of Brisbane airport? De-icing aircraft in Canada? Cleaning, feeding and nurturing the worm farms back at CAsA’s Brisbane office?

“Great laughs for all”
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