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Wednesday, 20 June 2001
Page: 24719

Senator O'BRIEN (1:33 PM) —During the last estimates, I asked a number of questions relating to the investigation of alleged breaches of aviation regulations by the Director of the Civil Aviation Safety Authority, Mr Mick Toller. My questions followed a statement by the then chair of CASA, Dr Paul Scully-Power, to the Rural and Regional Affairs and Transport Legislation Committee that addressed those alleged breaches. The three incidents referred to by Dr Scully-Power were: Mr Toller's failure to record a defect on a maintenance release after flying an aircraft operated by Brindabella Airlines, Mr Toller's operation of an aircraft without an endorsement, and the incorrect operation of an aircraft at Moruya Airport.

The breach involving Mr Toller's operation of an aircraft for which he was not endorsed came to the attention of CASA in early November last year. Immediately following media reports of the breach that appeared in the week of 4 and 5 November, discussions occurred between Mr Toller, Mr Ilyk and Mr Stephen Skehill about the matter. A meeting then followed between Mr Toller, Mr Ilyk and Mr Stephen Skehill, I understand, in Mr Toller's office. That meeting took place on the morning of 6 November. Mr Ilyk told the recent estimates hearing that the meeting had been called to get advice on whether or not there may have been a breach by Mr Toller.

I have concerns about the propriety of those meetings and discussions between Mr Toller, Mr Ilyk and Mr Skehill. Mr Ilyk's role at that time appears to have been one of damage control rather than ensuring that a proper and open investigation into the matter took place. He was, after all, at that time—or was shortly about to become—the senior officer responsible for investigation and enforcement of CASA's regulations, and Mr Skehill's involvement in the meetings meant that he was assisting Mr Toller to manage one of the breaches and at the same time was advising the authority about another of Mr Toller's breaches. I do not believe that Mr Skehill can credibly justify his conflict of interest in this case. So the initial response by Mr Toller, Mr Ilyk and Mr Skehill to the public disclosure of Mr Toller's breach of aviation regulations was inappropriate, to say the least.

I am advised that the Acting Assistant Director of Safety Compliance, Mr Farquharson, had similar concerns. In fact, I am given to understand that Mr Farquharson's concerns were such that he has committed them to writing. Now, if Mr Farquharson did express concerns about the relationship between Mr Toller, Mr Ilyk and Mr Skehill in relation to what has become known as the Uzu breach, either orally or in writing, the integrity of the internal inquiry into this matter must be called into question. Mr Farquharson was, after all, charged by the chairman of the board with the responsibility of ensuring that the investigation into the Uzu breach was carried out in a proper manner.

Around the time that this breach came to the attention of the authorities, there was a change in the reporting arrangements for investigations. Rather than reporting to the Assistant Director of Safety Compliance, the Manager of Enforcement and Investigations, Mr Peter Boys, was told to report to Mr Ilyk. Mr Boys told the committee that he did not investigate the Uzu breach, and someone else was tasked with the inquiry. Mr Boys confirmed that such an investigation would normally have been referred to him but that the investigation of Mr Toller was not. He said that the changed reporting arrangements should not normally affect the manner in which he progressed his investigations, but in relation to the Uzu matter they did. The treatment of Mr Boys in this matter and the Brindabella investigation was highly irregular, to say the least.

I now want to turn to the Brindabella Airlines breach. Mr Boys told the estimates hearing that the breach relating to Brindabella Airlines was initially referred to him. That incident took place on 24 June last year. During the last estimates hearing, Mr Leaversuch, the officer to whom Mr Boys was reporting at that time, initially could not recall there even being a file on this matter. He said that he could not recall any details relating to the Brindabella breach. He said that he did not control the file or did not recall controlling the file. He then said that he did not recall seeking special advice from an operational person in relation to the matter. However, Mr Leaversuch then told the committee that he had in fact taken the files from Mr Boys. Mr Leaversuch then told the committee that he had made an operational judgment that the matter did not warrant prosecution. It should be understood that Mr Boys was Mr Leaversuch's key adviser in such matters. Mr Boys is legally qualified, and he has, as I understand it, considerable experience in this particular area. His evidence before the estimates committee indicated that he has a very high success rate in relation to matters referred to the Director of Public Prosecutions as to ultimately proceeding to successful prosecution. However, Mr Leaversuch ignored Mr Boys's advice, effectively taking him off the case, and he sought no other advice. He then shut the Brindabella investigation down.

There are a number of irregularities in the investigation into the Brindabella breach. Firstly, the note which was left by Mr Toller in the Brindabella aircraft, advising of a particular defect, went missing. Mr Sherman, a lawyer who wrote an advice for the board, said that the loss of the note was:

... puzzling and perplexing because the note would have provided direct evidence of the DAS's state of mind when he wrote the note ...

Secondly, I understand that, while the licensed aircraft maintenance engineer who worked on the aircraft after Mr Toller reported the defect could not simulate the problem, he still took action to ensure that it did not recur. In other words, he fixed what was reported to be the problem. He then endorsed the maintenance release, which he was required to do. However, rather than endorsing the maintenance release with the date on which the work was done, the engineer backdated his endorsement to ensure his entry and Mr Toller's flight appeared to have occurred on the same day. I am advised that this matter was drawn to Mr Farquharson's attention, and I am also advised that a number of inconsistencies appeared in evidence given by witnesses in relation to this matter. I understand that all this information was provided to Mr Farquharson. If this is correct, it is difficult to understand how he could not have formed the view that there was significant doubt about the integrity of the process followed and, therefore, of the conclusions reached in relation to this investigation.

In relation to the Brindabella breach, that is my view. In relation to the Uzu breach, Mr Boys told the estimates committee that the investigation report raised two issues. One was a prima facie breach of the Civil Aviation Act and the other was a prima facie breach of civil aviation regulation 282 by Mr Toller. Civil aviation regulation 282 relates to the need for an endorsement to operate certain types of aircraft. Mr Boys said he discussed the report with Mr Farquharson and during those discussions he advised that there had also been a breach of civil aviation regulation 228. Mr Boys told the committee that, following a review of the file, he advised:

That, for scrutiny and for consistency in accordance with the procedures that have been in place, the matter should be considered for referral to the DPP.

Mr Farquharson told the committee that Mr Boys's view was one of many, and he referred the matter to external lawyers for advice. That was done through Mr Ilyk. Mr Farquharson said that neither supported Mr Boys's view.

If we assume that the evidence to the committee was correct, there is a problem with the advice provided to the CASA board by Mr Tom Sherman, a lawyer, on the Uzu matter. Mr Ilyk told the committee that he, Mr Ilyk, had only dealt with the alleged breach of civil aviation regulation 282 and he had never provided advice on the matter of civil aviation regulation 228. He also told the committee that Phillips Fox, a law firm, did not have access to the Horn Island file—that is, the Uzu matter. He said he raised a specific issue in relation to civil aviation regulation 282 with Phillips Fox. So, when Mr Farquharson told the committee that he was faced with a difference between the views held by Mr Ilyk, Phillips Fox and Mr Boys, that was not accurate. A possible breach of civil aviation regulation 228 was not considered at all by Ilyk or Phillips Fox.

Further, Mr Sherman, in his advice, is clearly of the view that the matter of Civil Aviation Regulation 228, in addition to 282 and section 20AB(1) of the Civil Aviation Act, had been referred to two independent law firms. He refers specifically to Civil Aviation Regulation 228 in response to questions asked on the last page of his advice. It is clear from the evidence—if we can accept it—that no such advice exists in relation to Civil Aviation Regulation 228. Either Mr Sherman formed some view that the matter referring the breach of 228 to the DPP had been considered by external lawyers and was rejected or he had been wrongly advised that such advice had been provided to the authority. So on the matter of referral of the Uzu breach to the DPP based on Civil Aviation Regulation 228, at best there are only two views: that of Mr Sherman and that of Mr Boys. As I said, Mr Sherman, in his opinion, incorrectly assumes that a possible Civil Aviation Regulation 228 breach had been considered and rejected by two independent legal assessors and gave some weight to that alleged advice. So there were not three legal views against Mr Boys at all; at best, there was one and one which would have to be qualified in that context.

Mr Elder of CASA told the committee in July last year that Mr Boys decides what is investigated and what is not investigated. In relation to the Brindabella investigation, we know that Mr Boys did commence an investigation but was taken off the inquiry and the files were removed from his possession. His reporting line was then changed at the time of the Uzu investigation and he was basically sidelined on the matter. Based on the evidence to date, it could be argued that Mr Boys as the Manager of Enforcement and Investigations was marginalised in order to prevent proper process being followed in relation to both the Uzu breach and the Brindabella breach. It appears that these actions were designed to prevent Mr Toller from being exposed to a normal investigative process.

We also have missing evidence, changing stories, an apparent backdating of a maintenance release coming to the aid of Mr Toller and irregularities in advice from Mr Sherman. The Civil Aviation Safety Authority took a number of questions on notice on a whole range of issues considered by the estimates committee. CASA has until 13 July to respond. However, given the issues I have raised today, all matters relating to Mr Toller's breaches—including the release of a number of files—must be provided to the committee as a matter of urgency. Only after the Deputy Prime Minister releases all the relevant files can we get to the bottom of these matters. If those files confirm my advice, Mr Toller's alleged breaches of the law must be subjected to a full and open investigation as soon as possible.

During the estimates hearings, Senator Ian Macdonald was doing his best to prevent the committee accessing this information. While Senator Macdonald was doing his best to ensure that this material was withheld, Mr Anderson's adviser was in the press gallery handing out copies of Mr Sherman's advice—that is, legal advice given to the CASA board. So from Mr Anderson's perspective, this material is in no way confidential. Providing a copy to every senior journalist in the press gallery is hardly a controlled release of legal advice to the board of the Civil Aviation Safety Authority. It is not in the interests of CASA, Mr Toller or the government to have only some parts of these files released. Until all the material is released, there will be continuing doubt about how Mr Toller was treated in relation to these alleged breaches. There is certainly considerable doubt at the moment.