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Rural and Regional Affairs and Transport Legislation Committee - 19/10/2015 - Estimates - INFRASTRUCTURE AND REGIONAL DEVELOPMENT PORTFOLIO - Australian Transport Safety Bureau

Australian Transport Safety Bureau


CHAIR: I think generally you may face some questions about the MH370 stuff-up.

Senator JOHNSTON: Mr Dolan, could you very briefly tell us what we are doing as of right now?

Mr Dolan : At the moment we have two vessels with deep tow equipment in the Indian Ocean or en route to continue the search of the surface in the defined area for this event.

Senator JOHNSTON: That is pursuant to a contract which is worth how much?

Mr Foley : The contract value varies depending on a sliding scale in the contract. We initially started with a contract for 30,000 square kilometres and in three successive moves we have upped the number of square kilometres that we have been asked to search.

Senator JOHNSTON: To 90?

Mr Foley : We are currently at 80,000 square kilometres.

Senator JOHNSTON: You have 10,000 square kilometres to go?

Mr Foley : We have done 70,000 at this point. So, what we have got on AusTender, where we report periodically when we change the value of the contract, is $90 million.

Senator JOHNSTON: So, what is the value of the contract all up with what we have spent so far on the search?

Mr Foley : It is $97 million as of end of September.

Senator JOHNSTON: What is the term of the contract and how is it terminated?

Mr Foley : The term of the contract is two years from the date at which it started and it is terminated at our request, effectively, which is obviously triggered when we find the aircraft.

Senator JOHNSTON: So, two years or anytime thereafter on reasonable notice, I take it, is roughly right?

Mr Foley : No. Two years is the fixed term of the contract. We extend the contract in terms of square kilometres periodically to, if you like, pre-empt what we think we are going to need to search in the coming months.

Senator JOHNSTON: But after two years we finish?

Mr Foley : After two years we finish.

Senator JOHNSTON: And you estimate the total value of that contract after two years will be?

Mr Foley : It depends on how much we search.

Senator JOHNSTON: A rough estimate?

Mr Foley : That is a hard one. We do not know what our bottom line is in terms of funding as yet because it is reliant not just on the Australian government but the Malaysian government as well. So, in essence, the value of the contract varies depending on how much funding is provided by—

CHAIR: Do you have an open chequebook?

Mr Foley : Not at all. We have been given $60 million.

CHAIR: It sounds like you have.

Mr Foley : We were given $60 million by the Australian government at the start of the search. We have not spent that money yet. Other moneys which have been contributed by Malaysia we are using in tandem with the Australian government money.

Senator JOHNSTON: What is the percentage breakup between Australia and Malaysia?

Mr Foley : At this point it is around about fifty-fifty and it increases proportionately in terms of Malaysia's funding as time goes on.

Senator JOHNSTON: The aileron or whatever it was that was found on Reunion Island—I have been reading that it is from MH370, a Boeing 777.

Mr Foley : Correct.

Senator JOHNSTON: Are we certain that the serial numbers on the component parts of that piece of equipment indisputably match that of the aircraft?

Mr Foley : The French judicial authorities are actually doing the investigation. They are certain that there are unique identifying numbers within the flaperon which related to 9M-MRO, which is the accident aircraft.

Senator JOHNSTON: And Boeing have confirmed that?

Mr Foley : As far as we know, yes, but the French—

Senator JOHNSTON: Do we have anything in writing?

Mr Foley : The French have announced publicly that it is definitely from the accident aircraft.

Senator JOHNSTON: Thank you.

Senator GALLACHER: You have contracted a vessel. I presume it is a vessel to tow this equipment.

Mr Dolan : Two vessels.

Mr Foley : The contract currently allows that.

Senator GALLACHER: Are they the best suited vessels for this work? We have received representations that you have picked the wrong vessels, or at least the wrong equipment.

Mr Dolan : We went to the international market with a very clearly specified tender for the services for the search for the missing aircraft. We did a very serious technical assessment of bids that came forward from that. There were three bids that technically complied with our required specified tender conditions and we selected the one that was the best value for money. The vessels that we had available to us are fit for purpose, as is the equipment and the crews that they are using.

Senator GALLACHER: So, whilst it might have been the best value for money was it the one with the best proven success record of finding and utilising this equipment?

Mr Dolan : There has not been any exercise on this scale of this capability so we have no benchmark for it. The closest we have—

Senator GALLACHER: What about the Air France aircraft?

Mr Dolan : The Air France aircraft was talking about a much more constrained area with a much more specified last location of the aircraft. We are talking about a somewhat different ocean bottom as well. There is a whole range of different circumstances. There was nothing that we could directly compare our current exercise to and we are confident that we have the best value for money for the Commonwealth for the exercise.

Senator GALLACHER: The best value for money but we do not know how much we are going to spend or how long we are going to be active for, so is it the best piece of equipment to be doing the job?

Mr Dolan : The equipment is doing the job that we require of it.

CHAIR: That was not the question.

Senator GALLACHER: Is there a piece of equipment that will give you a wider span either side?

CHAIR: There is. You do not ask the question unless you know the answer and I am sure you know the answer.

Mr Foley : Yes, of course. We considered a number of options when we put together the statement of requirements for the tender. We got the best technical advice that we could, which is expertise that exists within the United States, and we specified, very carefully, the technical requirements for the systems that we would use in the search.

Senator XENOPHON: May we get a copy of that technical advice and all the other material that you relied on before you made your decision as to which search company that you went to and the equipment used?

Mr Foley : We can certainly provide that documentation. We have it in existence, of course. It is part of the tender assessment process. The normal, if you like, commercial-in-confidence rules apply, which do not apply here.

Senator XENOPHON: I am not interested so much as to what each of them were going to charge for it. I am interested in the technical assessment of those.

Mr Foley : In assessing the tender we firstly did not consider price at all. The panel was blind to the price of the bids until such time as we had actually assessed their technical merit. Once we had assessed their technical merit, taken advice on the technical merit of the various bids from an expert, we then—

Senator XENOPHON: Who was that expert?

Mr Foley : He is currently contracted to us as our sonar expert. His name is Andrew Sherrell who worked, amongst other things, on finding Air France 447.

Senator XENOPHON: So, you will provide us with that information.

CHAIR: I will just pause the committee. I propose to go through to finish ATSB now to a maximum of seven o'clock and then have half an hour for dinner and come back, because we are behind schedule. I would implore the committee to get it all done in the next half-hour.

Senator XENOPHON: I have a question while we were talking about recovering things. I am not sure if any of the colleagues have asked questions about the Pel-Air recovery of the black box.

Mr Dolan : No.

Senator XENOPHON: It has been a number of months now. I think we first raised it in the February estimates. Did that say 46 or 47 metres, Mr Dolan?

Mr Dolan : Approximately.

Senator XENOPHON: Yes, approximately. Where are we at? Have you got a black box yet?

Mr Dolan : I signed a contract on Thursday last week, I think it was, for the recovery services. Our current expectation is that the vessel with recovery equipment will be out there by the first week in November and we expect to complete the recovery within a week of their being at Norfolk.

Senator XENOPHON: Why did it take so long? It has been February to October, so that is about eight months.

Mr Dolan : We had to do an initial assessment of the conditions of the wreckage depth so that we could actually specify for a range of potential service providers what the task was that we were asking them to achieve for us.

Senator XENOPHON: Did we know where it was and how deep it was?

Mr Dolan : We had to verify that, given the number of ocean currents and so on around Norfolk Island. We had to specify that and then we had an open tender because this was a significant piece of government expenditure.

Senator GALLACHER: Just on MH370, could you supply on notice what you can about the tender process, the technical advice and the cost, because you may or may not be aware that there are people giving a lot of different senators—coalition, opposition and cross-bench senators—a very different view of what you are actually doing there. It is not a complimentary view, and it does not appear to be sour grapes. It appears to be a very different technical assessment, so you are going to need to justify your contract, your decisions, or at least publicly make them available to us, because we are getting an information source which is contrary to what you are saying. Are you aware of that?

Mr Dolan : We are aware that there is some fairly public commentary about an alternative approach to this. We have paid attention to that. Every time the question that has been asked of us as to whether our techniques are up to the necessary standards, we have provided the information. I am very happy to provide that information to the committee. I am very happy to provide a separate briefing to committee members if they wish it.

Senator GALLACHER: Thank you.

Senator FAWCETT: Mr Dolan, I saw on your website today that you have issued an update to the reopening of the investigation into the Pel-Air accident.

Mr Dolan : Yes.

Senator FAWCETT: Could you give the committee, in this forum, a brief on the status of that reopened investigation.

Mr Dolan : At this stage the update related to the contract that I said I signed last week. The information-gathering stage of the reopened investigation is essentially complete, and so the work is now going through to assess all the additional information that has been acquired to draw conclusions so that a draft report can be prepared before Christmas.

Senator FAWCETT: I would like to go to the information-gathering stage. Going back to an answer to a question on notice that you took at the time of the original investigation, you said:

… the Chambers Report does not contain any new evidence that organisational factors were likely to have contributed to the accident.

You go on to say:

… the Chambers Report reflected what was separately reported (and available to the ATSB) in the reports of CASA’s accident investigation and of its special audit …

I challenged that at the time, and so did your Canadian peers ,who have done an independent peer review and who have made numerous comments in their report that in actual fact regulatory systemic issues to the organisation and oversight of the organisation by CASA were significant and were omitted. They go into some detail about the process within your organisation that resulted in those being omitted even though they were significant. Can you provide me with an assurance that the rework of this report will be considering the quite detailed information contained not only in the special audit but in the Chambers report and in the fatigue report that go to the heart of how the individual ended up having that accident?

Mr Dolan : Yes, I can give you that assurance. We have acquired from CASA not just the various reports but the core material they relied on to prepare those reports as part of the process of undertaking the reopened investigation.

Senator FAWCETT: I am pleased to hear that cooperation. Could you also comment on whether you still stand by the remarks that you made in the questions on notice?

Mr Dolan : I am not in a position to comment on that until I see the results of the reopened investigation. It is entirely possible. The Canadians have already alluded to the fact that we did not give sufficient weighting as an organisation to the organisational aspects of this investigation, and that is what we hope we can determine through the reopened investigation.

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

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

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

Mr Dolan : I beg your pardon?

Senator XENOPHON: Can you table that advice?

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

Senator FAWCETT: In the light of the Canadian report, which indicates there were very clear systemic failures on the part of the company and in terms of CASA's oversight, the whole concept of systems safety is that whilst the pilot was the last link in the chain these other considerations had a significant impact, which was borne out by the fact that the company had to cease operations after these investigations until remedial measures were put in place. With that now on the public record, with this new focus, would you consider providing the Department of Finance with alternative advice if he were to come back and seek some compensation for the fact that as a direct result of the report that your organisation issued, with all of the failings and how that was put together, his career has essentially been finished and all the financial loss that has gone with that?

Mr Dolan : That is not a matter that I can answer on the spot here. I am happy to turn my mind to that if any such request comes forward.

Senator FAWCETT: That would be very useful. I look forward to the report.

Senator EDWARDS: We will be very interested in that.

Senator XENOPHON: Mr Dolan, do you think it is inappropriate that you provide any opinion as to the appropriateness of an act-of-grace payment to the pilot involved, given your involvement in this particular matter, that there might be an issue of apprehended bias on your part and on the part of the ATSB, and that it really should be a matter that the ATSB either needs to get someone independent to comment on or not comment on it at all?

Mr Dolan : I am between a rock and a hard place here. I am being urged, on the one hand—

Senator Colbeck: If, through the administration of the act-of-grace process, the department is asked to provide some advice, that would not be an unusual process, I have to say. But during the administration of the act-of-grace payment there would be advice sought from a number of areas. At the end of the day that decision is a discretionary decision for the person making the decision.

Senator XENOPHON: But you understand the importance of the ATSB advice.

Senator Colbeck: I understand it very well.

Senator XENOPHON: If the advice were a thumbs down to the pilot, that could be quite damaging to the act of grace. I am very grateful that Senator Fawcett raised that issue.

Senator Colbeck: Having administered that myself previously, I can say there are a range of pieces of advice sought and it is at the discretion of the decision maker at the end of the day.

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

Senator Colbeck: Further questions around that process probably should go back through the Department of Finance.

Senator FAWCETT: I am happy to do that. My last comment is that the other two people deeply involved in this are the person who was the patient on the flight and particularly the nurse, and part of the mental anguish that those families have suffered is the clear disconnect between the facts that have been laid out for all the public to see through that Senate inquiry and the position that ATSB has taken. So I hope, Mr Dolan, for the sake—

Senator XENOPHON: It is no longer live.

Senator FAWCETT: I know that, but for the sake of everyone involved, particularly those who are still with us, I hope that this will be a fair and accurate report of responsibilities that led to the situation where, rightly or wrongly, the pilot did what he did. But very clearly it is a result of a system failure—regulator, company and individual—and not just the individual as that original report stated. Thank you.

Senator BULLOCK: I have a couple of questions. How many accidents have there been in Australia in 2014-15?

Mr Dolan : I am afraid we will have to take that one on notice.

Senator BULLOCK: When you let us know, could you please let CASA know as well, because they have a question on notice that depends on your answer to that question and they say that they cannot get it out of you.

Senator XENOPHON: Just very quickly—and I am happy for you to take this on notice—I have asked about the issue of the REPCON on communications. This is about concerns about a loss of separation assurance between Essendon and Melbourne; it is a real criticism from people within the aviation community about the ATSB relying upon WebTrack, something that is publicly available that a lot of kids use to track where aircraft are. On notice, can you provide details of what has happened with respect to investigation in relation to the loss of separation assurance, whether there will be any further reports in respect of that and whether you have reconsidered your views on that. There was a concern that for several hours there was a lack of adequate communication between Melbourne and Essendon towers in respect of aircraft movements where they could have potentially intersected.

CHAIR: That is on notice.

Senator XENOPHON: That is on notice. The other one on notice relates to the double go-around on 5 July. Can you tell us where the ATSB is at on that in relation to that double go-around?

Mr Dolan : We are currently undertaking an investigation of that double go-around.

Senator XENOPHON: So, it might take several weeks or months before there is a report?

Mr Dolan : Months more than weeks.

Senator XENOPHON: Thank you.

Senator FAWCETT: Since we last spoke on the topic of colour vision deficiency and the pilot cohort—and we have many in Australia—could you take on notice if there have been any incidents, safety related incidents or accidents attributable to a pilot with a colour vision deficiency.

Mr Dolan : We previously answered that question on notice—I think about a year ago—and we have had no notification since.

Senator FAWCETT: Yes, and I am saying: since we last spoke have there been any?

Mr Dolan : No.

Senator FAWCETT: I am certainly not aware of any.

CHAIR: Thank you. We will resume at 7.30.

Mr Mrdak : So we will start with the Office of Transport Security and then AMSA at 7.30.

Proceedings suspended from 18:45 to 19:31