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Rural and Regional Affairs and Transport References Committee
27/05/2011
Pilot training, airline safety and the Transport Safety Investigation Amendment (Incident Reports) Bill 2010

ALECK, Dr Jonathan, Associate Director of Aviation Safety, Civil Aviation Safety Authority

BOYD, Mr Peter, Executive Manager, Standards Division, Civil Aviation Safety Authority

FARQUHARSON, Mr Terence, Deputy Director of Aviation Safety, Civil Aviation Safety Authority

HOOD, Mr Greg, Executive Manager, Operations Division, Civil Aviation Safety Authority

McCORMICK, Mr John, Director of Aviation Safety, Civil Aviation Safety Authority

McGREGOR, Mr Max, Manager, Southern Region Operations, Civil Aviation Safety Authority

MAZIWITA, Mr Grant, Manager, Standards Development, Civil Aviation Safety Authority

WARD, Mr Nicholas, Manager, Certification and Airworthiness, Civil Aviation Safety Authority

CHAIR: I now welcome officers from CASA. I remind senators that senators resolved that an officer of the department of the Commonwealth or a state shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policy or factual questions about when and how policies were adopted. Officers of the department are also reminded that any claim that it would be contrary to the public interest to answer a question must be made by a minister and be accompanied by a statement setting out the basis of that claim. Mr McCormick, would you like to make an opening statement?

Mr McCormick : Thank you, Chair. I would like to thank you and the committee for asking us to be here today. We do not have an opening statement. We are quite happy to take questions after the introductions are done.

Senator XENOPHON: I know you have been back to this inquiry a number of times, and your attendance today has been triggered as a result of the media reports of a show cause notice issued with respect to Tiger Airways. You may have heard Tiger's evidence today, and I think they were circumscribed to an extent as to what they could say in the sense that they would prefer to comment more after the process has been dealt with. I will go to the process that you provided Tiger with a show cause notice on 23 March, and there was a response on 13 April. What can you tell us about the process and the show cause notice and the content of that notice in the context of your ongoing investigation?

Mr McCormick : The issue of a show cause notice, in general terms, if I could start there, is really just another option that we have available in a hereditary framework. In other words, there are numerous escalations of levels. There are things that we do because our primary focus, of course, is the safety of the Australian public. Whether there is an actual vehicle, or what vehicle is used, depends on the amount of information we have, et cetera. To us, this is business as usual. This is what we do. I think I have said here before that we try not to conduct our business on the front page of the Sydney Morning Herald.

Senator XENOPHON: I think it was the Daily Telegraph in this case.

Mr McCormick : Thank you for that correction. As for actual timelines or the show cause notice process, if a show cause notice is issued to someone, there is a period of 21 days in which they have to respond to the issues we raise.

Senator XENOPHON: That was done in the 21 days in this case?

Mr McCormick : We had a meeting with Tiger on the times that you have mentioned. At the end of the 21-day period, there is normally an opportunity for what is called a show cause conference where the operator brings back their answers to the issues we have raised. It is an ongoing process. When these things are in place, it does not end there because we have to assess the responses from the particular airline or operator, whichever one it is that has had the show cause notice. We work with them, and continue to work with them until the issues are completed to our satisfaction.

Senator XENOPHON: I want to go to the issue of culture, and something that Mr Davis, the Managing Director of Tiger Airways said. I asked him a question as to whether the show cause notice in whole or in part related to information that Tiger had volunteered. As I understand it, there is a culture where you encourage airlines to provide information about incidents to build up that culture of safety. That is pretty axiomatic, is it not, that you encourage people to come forward with information?

Mr McCormick : Very much so. I think how we become aware of an operator's status, shall we say, is a mixture of our own surveillance. We see the electronic safety incident reports; we see the information from ATSB; we see information that has come to us by whistle-blowers; we see information that has come to us on the mandatory reporting that each operator has, so it is a mixture of all of those things that inform our regulatory opinion.

Senator XENOPHON: If I could just to the ICAO guidelines and occurrence reporting, with which I am very familiar, where it says, in part:

The objective of mandatory occurrence reporting is to prevent safety occurrences, such as accidents and incidents, not to attribute blame or liability if they happen. The person filing a safety report needs to have the strong assurance from the regulatory authority and the employer that prosecution or punitive action such as suspension of licence will not be sought unless the unsafe act is deliberately committed or gross negligence is demonstrated.

That is axiomatic to just culture, is it not?

Mr McCormick : Yes.

Senator XENOPHON: Further to that, I asked Mr Davis whether in whole or in part the show cause notice was as a result of material that was volunteered by Tiger to CASA. If that were the case, how does that work in with the ICAO guidelines in relation to that? I am just trying to understand how that works in terms of the just culture environment.

Mr McCormick : Dr Aleck, as I think I have said before, is the chair of the ICAO committee or task force looking at just culture. Perhaps I will ask him to give you some background information on that.

Senator XENOPHON: Sure, and in the context of what I understood Mr Davis's evidence to be. I do not think he was complaining; he just stated it as a direct answer to a question, that if they have copped a show cause as a result of volunteering information, does that militate against a just culture environment?

Dr Aleck : I think the answer to that has to be no, it does not compromise the principles. The reason for that is in the information that we tabled with our submission that reflect Australia's position on the development of that concept. ICAO as the secretariat is certainly on side with this. The just culture environment was really generated for ensuring and encouraging reporting within an organisation. If that information is provided to the regulatory authority, and if on the basis of that information it becomes necessary or appropriate to take safety related action, in no case should that process prevent or impede such action from being taken. I must say the provisions in the ICAO guidance material are under review. One of the remits of the task force for which I represent Australia and of which I chair, is to revisit that language to, in part, examine some of the problems that can arise.

Senator XENOPHON: Can we go to the existing language? Dr Aleck, I know that the pilots I speak to speak very highly of your expertise and your input with ICAO. The current wording is that prosecution or punitive action, such as suspension of licence, will not be sought unless the unsafe act is deliberately committed or gross negligence is demonstrated. So there is that proviso, unless it is deliberate or gross negligence. Presumably, the intent of that is that, if they slipped up on something and they have made a mistake, they report it, the idea of that is for everyone to learn from that and for there to be an improvement in the safety culture of the organisation, presumably across the board if it is a systemic issue. I know you are constrained in terms of what you can say about this investigation, but if an airline, any airline, volunteers information and it is not gross negligence—let us make that assumption—and it is not a deliberate act, may some airlines think, maybe we should just volunteer the absolute minimum stuff that we have to. Would that militate against people being as open as possible as part of the just culture?

Dr Aleck : It could do. I would make a comment in response to what you said, with which I agree, and you have correctly expressed what the guidance materials suggest. The problem there is that the notion of a suspension—and I am not predetermining any action that CASA may or may not take—is that a suspension is necessarily punitive action. A suspension of an authorisation may in fact be a step necessary in the interests of safety. It is sometimes necessary to prevent an individual or an organisation from continuing its operations in the interests of safety, and I reiterate, I am not suggesting what the outcome here will necessarily be. That is the problem with that notion.

Senator XENOPHON: I think for everyone here in this room, safety has to be the absolutely priority. I turn to the CASA 2009-10 report at page 158. It refers to show cause notices issued. In 2007-08, 21 show cause notices were issued; in 2008-09, 33 were issued; and in 2009-10, 27 show causes notices were issued. Of those show cause notices in 2009-10, did any suspensions arise out of that?

Dr Aleck : Yes. I can actually give you those figures now for 2009-10. In fact, I can give you some granularity in relation to holders of air operator certificates authorised to conduct regular public transport and charter operations. In 2009-10, of the 27 show cause notices issued, nine of those were issued to holders of AOCs that are authorised to conduct those kinds of operations. As a result of those show cause notices, one resulted in a variation and there were no suspensions.

Senator XENOPHON: Can you explain what a variation is?

Dr Aleck : A variation means that conditions are imposed on the operator. They can continue to operate, but subject to some new conditions. There were no suspensions, because a suspension is effectively a temporal cancelation. It does not achieve anything other than take someone out of the air. There were five cancellations of AOCs in that period. That is about two-thirds resulting in enforcement action of one kind of another. If you are interested in the period of 2010 to yesterday, there were 21 show cause notices issued to holders of AOCs authorising RPT and charter operations. There were no decisions to vary. Two certificates have been suspended and two have been cancelled, so just over half resulted in enforcement action. The important point there is that far more show cause notices were issued than enforcement action is ultimately taken, just because of that process.

Senator XENOPHON: Before I get into some more specific details, we heard from the Tiger Airways representatives about the difference in the CAA because of their familiarity with the Civil Aviation Administration authority in the UK where it seems to me, as I understood it, there is a higher standard before a determination is made, but then the determination is made. As I understand the show cause process here in Australia, there is a lower standard but it is coupled with procedural fairness and natural justice. How would you characterise the two?

Dr Aleck : I am perhaps a bit biased. I do think that the Australian system is fairer. I do not think that the UK system is unfair, but the difference is that in the UK system, all of these determinations are made within the Civil Aviation Authority. Once the determination is made and notices served of that determination, if that matter cannot be resolved between the operator, the holder and the authority, the only recourse is to the courts. Our process builds in a much more rigorous procedural fairness regime in the sense that we are required by law to serve a show cause notice that specifies what our concerns are and what the reasons for those concerns are. I do not know that the bar is necessarily higher or lower in either case. I think that probably varies from instance to instance.

Senator XENOPHON: It was not a criticism to say the bar was lower. It just says that if it is a different system, you might bring things to your attention and issue a notice more readily than a determination can be made under the CAA, for instance.

Dr Aleck : I think that is certainly true. We would issue a show cause notice in circumstances more frequently than the UK might take the action to issue a determination, because a show cause notice is simply raising questions whereas a determination is that we have formed a conclusion.

Senator XENOPHON: Right. In your enforcement manual in terms of administrative action, it makes reference to another important part of the offering and holding part of the process which is to have a show cause conference. You had a show cause conference earlier this month with Tiger, is that the case?

Dr Aleck : There is evidence to that, yes.

Senator XENOPHON: How often does something go from a show cause notice to a show cause conference? Is that an inevitable part of the show cause notice or not?

Dr Aleck : It is an option open to the recipient of the notice. There is no obligation for them to participate. There is no legal requirement. More often than not, show cause conferences are convened, certainly when it is a larger organisation. I think it is probably the norm but there is no requirement that that occur. The requirement is that the written response to the show cause notice precedes the show cause conference.

Senator XENOPHON: Sure. It is inevitable; you do not have a conference unless you have had the notice.

Dr Aleck : No, I mean the response.

Senator XENOPHON: Sure. Presumably show cause notices are supposed to be confidential. It is something that is not out there in the public arena as a general rule, is that right?

Dr Aleck : That is correct.

Senator XENOPHON: Mr McCormick?

Mr McCormick : That is correct.

Senator XENOPHON: What is the reason for that? Because it is still an ongoing investigation?

Mr McCormick : The issue here is that we have quite wide powers, as you know. If we think someone is unsafe, we can stop them flying instantly, more or less.

Senator XENOPHON: Yes, entirely appropriately.

Mr McCormick : Correct. So the show cause notice process and what it represents is just that; it is a process. It is an ongoing process. What we are really saying about any operator that we give a show cause notice to is that we have concerns in these areas. We want to know specifically what you are doing in these areas to address our concerns, but you can continue to operate. Because of procedural fairness and natural justice, it is perhaps not in anybody's interest to have that sort of information out there. I stress: our primary job is to ensure the safety of the Australian public. We take whatever action we have to take. We are not draconian about it, but this is a process. There is no point putting a process out there because it really is not being quite fair to everyone involved.

Senator XENOPHON: Does it concern you that the information about the Tiger show cause notice is something that was publicly aired before your investigation was completed?

Mr McCormick : I do not condone that.

Senator XENOPHON: We have heard evidence of stick shaker incidents involving the Dash aircraft. Are you able to say whether Qantas received a show cause notice for the stick shaker incidents that this committee has heard evidence about?

Mr McCormick : Qantas did not receive a show cause notice in relation to the stick shakers.

Senator XENOPHON: Have any other major airlines in the last 12 months received show cause notices, without naming them? I might be guided by Senator O'Brien in relation to this.

Senator O'BRIEN: If the answer is positive then the story will run. I suppose it will run off the question now.

Senator XENOPHON: I am just trying to work out, if there is a leak about one particular entity getting a show cause notice, how do you deal with the issue of clearly there being a leak within the organisation?

Mr McCormick : My view is that the leak did not come from CASA of any of our activities. To answer your previous question, we may need a bit more clarity around the word 'major'; do you mean high capacity regular public transport operators?

Senator XENOPHON: Sorry, I should use the proper terminology; high capacity regular public transport.

Mr McCormick : We will take that on notice for a moment. We will try to get the answer to you before the committee ends. I do not have that information with me.

Senator XENOPHON: The FAA in the US looks at doing things differently. Our system is fairly unique, is that right, in terms of the process we have for a show cause notice compared to going straight to a determination?

Dr Aleck : It is different to the two countries you referred to, yes.

Senator XENOPHON: How different are we from Europe?

Dr Aleck : In this case, those enforcement related matters in Europe are left to the individual authority, so it varies amongst the different states. There is no single European approach.

Senator XENOPHON: That surprises me.

Dr Aleck : It is one area where they have not unified that at this point.

Senator XENOPHON: In terms of other major jurisdictions, how different are we? There is nothing wrong with being different. How different are we in terms of enforcement?

Dr Aleck : In principle, I think they are not all that different. Most states that operate under similar political and legal systems to ours, including civil jurisdictions in Europe, give people an opportunity to respond to the concerns that the regulator has raised, and give them an opportunity to be heard, either in a court or tribunal to contest those findings. I think in that sense it is not so different. I have found consistency certainly with the United States and I am not sure about the UK because it is a slightly different regime, but in Canada, that there is no public notice of this preliminary exercise. In the United States before action is taken to vary or suspend a certification, they issue what is called a letter of investigation. It is a letter to the holder of the certificate saying these are our concerns.

Senator XENOPHON: Similar to a show cause?

Dr Aleck : It is similar in that respect. In fact, it is very similar in that it invites the recipient to respond and say what they need to say. There is no obligation to do so, but it certainly puts on the table the issues that are of concern to the FAA and, as a result of their investigation, they will take appropriate action, but the individual or the company involved has an opportunity to respond. They are very clear in their policy manual and in their practice that that action is not made public. It is only after a decision has been made to take action of a particular kind that public notification is made.

Senator XENOPHON: I understand that your paramount brief is the safety of passengers, the safety of our skies. Going back to the ICAO guidelines, there is a potential tension there, is there not, that unless they have been grossly negligent, unless it has been deliberate, how do you get that balance to encourage people to come forward in the absence of gross negligence or a deliberate act to be upfront with you, to work with you in terms of improving their systems compared to if they feel that they may go down a show cause path or any other disciplinary path? How do you get that balance right where you encourage people but still maintain a safety culture?

Dr Aleck : I think we maintain that practice. I may say that certainly in my experience, that has been the approach we have taken long before the term 'just culture' was popular or the manual existed. We do not take a great deal of enforcement action unless and except when it is necessary to do so.

Senator XENOPHON: Are you able to indicate what timeframe you are looking at from Tiger to determine the Tiger Airways show cause notice?

Mr McCormick : Any process we have with Tiger will be ongoing. There is not actually an end date as such that we hit with any operator that we have concerns with and we get responses, whether it be via a show cause notice or whether it be via some lesser instrument, or perhaps even a more serious instrument. That process does not end. We do not sort of just pack up and go back home. There will be a point, there will be timelines given to an organisation by which we expect to see things. If we do not see things by then, we work with it and we reach another decision point.

Senator XENOPHON: I understand. You see it as a continuum?

Mr McCormick : Our oversight of all operators is a continuum, yes.

Senator XENOPHON: But if a distinct instrument has been issued such as a show cause notice, there must be a point at which you say the matters of concern in that show cause notice have been determined one way or the other. In other words, if you had a number of matters that you were concerned about in terms of procedural fairness, and obviously from the primary safety perspective, should there be some point in time when you say these matters have been dealt with either to our satisfaction or not to our satisfaction?

Mr McCormick : There is, yes.

Senator XENOPHON: What does that mean in the context of the issue involving Tiger?

Mr McCormick : Our issues involving Tiger are that we want to see some specific issues addressed, and we have given timelines by which we expect those issues to be addressed. I stress again, this is an ongoing process; we have not actually reached that point that we are trying to define here yet. Some of the issues are that we may wish to see a certain organisational structure which would be in perpetuity or until such time as they decided to propose something else to us. I am talking now in general terms but there will be specifics that we want to see done by a specific date, but there will be some other ones where we may say, we wish you to employ more people in this area, or you do not have enough coverage here, or you have to do this. We would expect that to be ongoing. The show cause notice process does come to an end, if that is your question.

Senator XENOPHON: For instance, in the general examples you gave, if you say we want some organisational changes, or we want to see more people employed here, or something like that, once an airline has done that, they have taken on extra staff or they have changed their administrative arrangements, would that then satisfy that aspect of a show cause notice?

Mr McCormick : Yes.

Senator XENOPHON: Because it seems that, in terms of procedural fairness, if it is hanging over an airline's head—

Mr McCormick : No, understood. That is not the intent. If we look at various operators where we have taken action, some via a show cause notice, some via a lesser instrument, in all cases there is a point where we say, that has satisfied that, that is closed.

Senator O'BRIEN: Could we just be clear: there is some indication that either the action has escalated or there is an indication to the operator that CASA then believes that its show cause notice process has been satisfied and the matter is at an end? Is there written information provided?

Mr McCormick : Back to the operator?

Senator O'BRIEN: Yes?

Mr McCormick : Yes, we do generally come back to them.

Senator O'BRIEN: In every case?

Dr Aleck : In every case.

Mr McCormick : In every case.

Dr Aleck : The show cause process is part of an administrative process. We are required by law to make a decision within a reasonable time. Now, reasonable depends upon the circumstances. That decision may involve elements, the performance of which are ongoing. We may decide to do nothing at all, but we are obliged to formally notify the recipient of a show cause notice that we have made a decision and this is what our decision is. That will happen in every case.

Senator XENOPHON: That means there is some point in time from an administrative procedural point of view that you say if one of the aspects of it, such as more staff in a particular area or a change of administrative arrangements, once they have done that, then you can write back to them saying you have satisfied us in relation to that?

Dr Aleck : If the decision on our part should be that more staff is required, we will put that in our decision. They are obliged to comply with that decision. If they do not, that can generate a new process.

Mr McCormick : But to answer your question, yes.

Senator XENOPHON: So there is some end date, but it depends on what matters have been raised in the show cause notice?

Mr McCormick : Yes.

Senator XENOPHON: Are you able to say whether Tiger Airways has cooperated with CASA in relation to the show cause notice?

Mr McCormick : I think it is fair to say that every operator that has a show cause notice realises the severity of the document and what could come from it, and we very rarely see anyone not cooperate.

Senator XENOPHON: So Tiger has been cooperating as far as this show cause notice is concerned?

Mr McCormick : In the issues that we have raised with Tiger, they have been responding to us. We have been assessing their responses, and it is two-way communication.

Senator O'BRIEN: Following on some questions I asked of Tiger, basically a show cause is the second most serious notification you could get from CASA. Maybe a suspension comes between that and cancellation of an AOC, but I am not sure whether there is a substantial difference between suspension and cancellation. Can you explain that difference?

Dr Aleck : A cancellation, if that is the decision taken, means that whatever authorisation you held no longer exists, subject to an appeal. A suspension simply means that the authorisation you hold cannot be used for a period of time. That might be temporal or it might be based on the performance of certain things.

Senator O'BRIEN: Okay. So that may be a lesser thing, although usually taking an operator out of the air is fairly fatal for their business, as I understand it?

Mr McCormick : Yes.

Senator O'BRIEN: So it is a marginal difference. Having said that, and forgetting about Tiger for the moment, are we able to presume that if we go down the process of issuing a show cause, there has been dialogue about the issues the subject of the notice, before the show cause is issued?

Mr McCormick : In building up towards a show cause notice stage, if that is the right sort of term, all of the issues will have been addressed as they have become apparent, whether it is through our surveillance, their reporting or whatever. It is not as if we suddenly decide one day that we have enough secret information to go around and put a show cause notice on someone's desk.

Senator O'BRIEN: Or in some other cases where you have secret information, if it is serious, it would not be a show cause, it would be a suspension, I presume?

Mr McCormick : We do have the provision of serious and imminent risk which, as you say, puts someone out of the air if we want to.

Senator O'BRIEN: Can I get some other statistical information from you? You have provided some information about show cause notices, variations, suspensions and cancellations, but can you tell me how many cases were the subject of proceedings before the Federal Court of Australia or other tribunals, and were there any variations to CASA decisions as a result of those proceedings?

Mr McCormick : I think we will take that on notice. We will try to get it back to you today.

Senator O'BRIEN: That is fair enough. That is the picture, is it not?

Dr Aleck : Did you mean in relation to all show cause notices or particular cases?

Senator O'BRIEN: You gave us some numbers today over the current financial year and the previous financial year. Because of my recollection of the history of some of these matters, it is often the case that, where there is a threat of suspension, often legal proceedings are initiated. Perhaps the committee would be made better aware if it was given some idea of how these things work out in the process. It is a process between you and the operator, but also the law allows the courts to become involved as well. Perhaps we should understand that as well.

Mr McCormick : One I could give to you is earlier this year we took action, and I think we have discussed it here before, where an operator at Bankstown had their operator's certificate cancelled. That went through the Administrative Appeals Tribunal process which upheld our decision. That particular matter was not appealed to the Federal Court.

Senator O'BRIEN: Will you be able to tell us where there was action, whether CASA's decision were overturned or varied, and on how many occasions that occurred?

Mr McCormick : At the Federal Court, yes, we will.

Senator O'BRIEN: In terms of the issues of show cause becoming public, and you have partially dealt with that issue, I take it that you are satisfied that the processes in CASA would mitigate against that information becoming public?

Mr McCormick : Yes.

Senator O'BRIEN: Given that in this case clearly the matter has become public, have you conducted any inquiries to satisfy yourself that there has been no leaking of information from CASA on this matter?

Mr McCormick : As best we could, yes.

Senator O'BRIEN: Your evidence is that you do not believe it comes from CASA?

Mr McCormick : I do not believe that that information came from CASA.

Senator XENOPHON: Further to that, in yesterday's estimates I was preoccupied with the Allan Kessing case, with which you may be familiar. That was about a whistle-blower in Customs, but that case was about circumstantial evidence as to where the information could have come from. Similarly here, it seems to me that the two parties who knew about the show cause notice would have been CASA and Tiger. There are only two sources of information; it would either be CASA or Tiger. It is probably not in Tiger's self-interest to release it. It is not in the interests, for that matter, of CASA for confidential information to be released. Has there been any inquiry, investigation or any overview to determine where the source of information may have come from in relation to these media reports?

Mr McCormick : No, we have not done a formal investigation.

Senator NASH: Why not?

Mr McCormick : In a lot of ways, with these issues, we try not to conduct our business publicly because of the reasons we have already stated here. Again, if one goes to the press and starts to clarify issues that are in the press, that quite often can inflate things.

Senator NASH: I understand that but internally, if information had gone public that you would have preferred not to as a matter of course, would you not have internally tried to determine who provided it or how that information came to be in the public arena?

Mr McCormick : We did review as best we could. As I said to Senator O'Brien, we carried out a review of where this may have possibly come from. We were satisfied that it had not come from our people.

Senator NASH: If you were satisfied that it had not come from your people, and I would be interested to know exactly what process the review took, then as Senator Xenophon said, by association, you are saying that it did not come from us, it must have come from Tiger, which is a long stretch of the bow, given this was certainly not in their interests.

Mr McCormick : I do not necessarily agree with that.

Senator NASH: Could you perhaps indicate to the committee what the review process was that you undertook that led to the satisfaction within CASA that the information did not come public from CASA itself?

Mr McCormick : In most of these issues, without actually formally starting an investigation on how information gets to the public domain or gets to committees or whatever, we go through the process of actually asking the people involved if they know how this information could have got into the public domain. The confidence I have that it did not come from us stems from the fact that, in this particular case, we were working around the issues of Tiger for some time before this matter reached the newspapers. I cannot comment on the culture within Tiger or their situation or who they interact with. As I said, as best as I can be, I am satisfied that the information did not leak from CASA.

Senator XENOPHON: Was there a formal investigation or review of confidentiality issues within CASA, or was it just a matter of a number of inquiries made of people that had access to the show cause notice?

Mr McCormick : The latter.

Senator XENOPHON: Was that over the course of a couple of hours, a couple of days—what was the depth of those inquiries?

Mr McCormick : I think it is fair to say as there were various media reports and various issues coming out, you may have noticed that we did not make any press statements as such. That is not because we did not want to, but there is little to be served when we are trying to maintain the safety for the Australian public. Apart from reviewing the people who were involved, there was more information probably coming out in the press which was in response to press statements that were made by Tiger, whereas we had not said anything.

Senator XENOPHON: Should the public be able to see the details of completed actions? What is your view from a policy point of view? A show cause notice has been issued for whatever reasons and it is out there now in relation to Tiger; should the public be able to see the outcome of that, now that it is already out there?

Mr McCormick : To my knowledge, in previous years, CASA has published on its website its decisions. I think Dr Aleck explained the FAA situation. We would be very much in the same frame, that we would not put out actions we were taking. If decisions were made, we most probably—and this is a bit of speculation on my part—went away from publishing our decisions because the act at the time allowed an automatic 90-day stay after we had reached a decision, so there was not really much point putting out a decision saying a certain operator is not going to fly, when people could see them going past their window, because they could continue to operate in that 90-day period. That automatic stay provision is down to five days, and we are currently reviewing internally, and in consultation with the department, whether we should publish our decisions when we have reached them, when we know that there is no appeal pending.

Senator XENOPHON: When would you know the outcome of those discussions with the department?

Mr McCormick : They are not high priority at the moment. It is fair to say this year we will know the position.

CHAIR: Who approves the issuance of instruments?

Mr McCormick : Obviously in my capacity, and as the act says, anything I do is deemed to have been done by CASA, I can sign any instrument.

Senator O'BRIEN: Do you mean a documentary instrument, not a flying instrument?

CHAIR: Yes, not a flying instrument. Do they have a life span before you have to regulate the instrument?

Mr McCormick : Some instruments do have a life span where they must be renewed.

CHAIR: Who approved instrument 405/09?

Mr McCormick : A very good question, Senator. What actually does it relate to?

CHAIR: I am asking the questions.

Mr McCormick : I will take it on notice.

CHAIR: I am going to deal with everything from the borrowing of air operators certificates to what has been put to me as illegal parachuting. You can take on notice the ones you do not feel inclined to answer.

Senator STERLE: What does this have to do with our inquiry? I am absolutely confused where you are coming from. You have had months and months and months to talk about this. We are here to talk about a show cause notice, I thought.

CHAIR: Do you not think that aircraft maintenance is a safety issue?

Senator STERLE: Absolutely, but I do not know where you come from half the time, Chair, with the greatest of respect.

CHAIR: Are you familiar with 405/09?

Mr McCormick : No, I am not.

CHAIR: Maybe I will have to put some questions on notice. As I understand it, 405/09 was replaced on 29 April 2011, which is just recently, on your website by 14/11. Are you not familiar with that either?

Mr McCormick : No.

CHAIR: Who would be familiar in CASA with this?

Mr McCormick : Within legal, we have the drafting people who actually write the documents. If it is an operations document that you refer to, without the title, I cannot help you. We issue a lot of these instruments to which you refer, as do some of our delegates.

CHAIR: So neither you nor anyone at the table or in the room who represents CASA is familiar with the laws surrounding parachute jumping? Does it come under your bailiwick?

Mr McCormick : It certainly is part of our bailiwick.

CHAIR: But no-one in the room—

Mr McCormick : Perhaps if I could be so bold as to ask you to ask a question, somebody who is here might be able to answer that?

CHAIR: There are several issues.

Senator STERLE: Are you talking about actually jumping out of an aeroplane and parachuting?

CHAIR: Legally, yes.

Senator STERLE: Can I just ask what the heck this has to do with respect to the terms of reference of our inquiry?

CHAIR: In and out of controlled air space.

Mr McCormick : Perhaps if you adopt your original proposal to put these questions on notice? That sounds like a question of the type on which we would have difficulty giving you a definitive answer.

Senator STERLE: This is an abuse of procedure. This is completely out of order.

CHAIR: It goes to pilot testing.

Senator STERLE: It has nothing to do with our inquiry, and you know that, Senator.

CHAIR: With great respect, as I understand it, this inquiry is about air safety, pilots, pilot safety, pilot training. I want to turn to an event in April 2009—

Senator STERLE: Chair, I think we need a private meeting, and I put that to the rest of the committee through you.

CHAIR: about an incident at Parafield—

Senator STERLE: Are you ignoring me, Chair? So you are just going to ignore me?

CHAIR: No, I am not.

Senator STERLE: I am putting to you that I request a private meeting.

CHAIR: When I am finished we will deal with it.

Senator STERLE: So, what does that mean? I can go jump, in other words. You are not going to have it. You are going to sit there and ask these questions; is that what you are going to do regardless of the thoughts of the rest of the committee? Is that what you are doing?

CHAIR: When I finish this particular matter, we will go into a private meeting.

Senator STERLE: Could this particular matter go for the next half an hour, Chair, or is it just one minute?

CHAIR: No, I just want to deal with a company. Let me put a proposition to you. Are you aware of instances of the borrowing of AOCs?

Mr McCormick : In general terms, yes.

CHAIR: Is that illegal?

Mr McCormick : Again I will ask Dr Aleck to give you the legal position.

Dr Aleck : The terms is a little problematic. There are circumstances in which operations can be conducted under another person's AOC, but the terms and conditions that govern that are specified in the Civil Aviation Orders.

CHAIR: Could you set out the circumstance in which it is possible for someone that does not have an air operators certificate to conduct charter flights with a leased plane in the name of a company that does not have an air operators certificate?

Dr Aleck : I would need to take that on notice.

CHAIR: But you are aware that it happens?

Dr Aleck : I am aware that there are circumstances under which operations under which what are sometimes referred to generally as 'borrowed AOCs' can be conducted lawfully. There are circumstances under which such operations are not lawful.

CHAIR: According to my information, at Bankstown, this particular person found 25 companies or individuals who did not have an AOC and the Bankstown office has not dealt with these issues. I found two CASA employees, one in breach of 206 and 210 and the other who was writing support documents when having a directorship of a company that had applied to CASA for a new AOC. I understand that CASA has dismissed the second employee but not had the person charged under the Civil Aviation Act section 20AC, the purported issue of an authorisation. CASA further issued the AOC to the company of which this employee is a director. Both surely are at gross dereliction of duty and malfeasance in public office. That is the nature of some of the material I have here, and I would now suggest we go into private meeting.

Senator XENOPHON: I have some other questions to do with the show cause notice, just for the sake of completeness, if I may. With the show cause notice involving Tiger, was any information in relation to the show cause notice provided to anyone outside CASA and outside Tiger?

Mr McCormick : I cannot speak for Tiger.

Senator XENOPHON: Sorry, in terms of your knowledge. Obviously you do not know what happened to any information once it went to Tiger, but with show cause notices, where else do they go apart from the airline to which they are directed?

Mr McCormick : The show cause notice process within CASA is from the field office that has direct oversight of the particular operator in question. In this case, that is Mr McGregor, and it comes under CASA operations, of which Mr Greg Hood is the executive manager. The two people to my left and right and I would also know about it.

Senator XENOPHON: Is the minister's office advised of a show cause notice? What is the standard operating procedure there?

Mr McCormick : I keep the minister's office advised of issues which I think are of interest to the minister and to the Australian public.

Senator XENOPHON: Which is entirely appropriate. I am saying as a matter of protocol, is something of the magnitude of a show cause notice something that the minister's office would be advised of?

Mr McCormick : As you know, CASA is an independent statutory authority, and we do operate at arm's length from the government as such.

Senator XENOPHON: Absolutely.

Mr McCormick : Our priority is the regulation of aviation safety. We are cognisant of the fact that we work within the portfolio, and if there are issues which I deem of sufficient gravity to inform the minister's office, then I would inform the minister's office.

Senator XENOPHON: I understand that, and I think that is entirely appropriate. I do not take issue with you in anything that you have said. I just wonder whether there is a protocol for something like a show cause notice for the minister's office to be advised as a matter of course, or is that on a case-by-case basis?

Mr McCormick : Going by the numbers that Dr Aleck gave you before and the number of show cause notices we issue, a lot of them do not reach any action from our part as a catch-all term. Our protocols with the minister's office are standard with virtually any department in that we keep the minister's office informed of our activities on a weekly basis. Of course, we publish our plans via the plan and via the internet.

Senator XENOPHON: As is entirely appropriate. With a show cause notice for a high capacity passenger airline, is that the sort of thing that the minister in your view ought to know about?

Mr McCormick : Yes.

Senator XENOPHON: So that would be the standard protocol, for a large airline in this country, you would let the minister's office know?

Mr McCormick : Yes.

Senator XENOPHON: I would imagine any minister would be unhappy if they did not know about it, I guess, in terms of something as significant as that. They would want to know about it.

Mr McCormick : I agree with you.

Senator XENOPHON: So that is why you let them know. Going back to the ICAO approach, has Australia formally adopted the ICAO approach to just culture? Is that part of the framework that I refer to, the ICAO approach to just culture? Is that a guide, or is it something that has been formally adopted? What weight does the ICAO guide have?

Mr McCormick : I will defer to Dr Aleck.

Dr Aleck : It is really advisory. The guidance material to which you refer is guidance material. There is no process by which ICAO would expect it to be formally adopted. We have not formally adopted the material in that manual. We certainly refer to it. We rely on it, but we are not bound by its terms. As I said before, that particular area is an area that is under review by ICAO itself.

Senator XENOPHON: Perhaps a question on six months' notice for the next estimates; I would be interested to find out what the progress of that is, in terms of whether that document has been altered in any way.

Dr Aleck : I would be happy to share that information.

Senator XENOPHON: I would be very interested. Finally, are there any other show cause notices current for high capacity passenger airlines? Are you in a position to answer that?

Mr McCormick : We are still looking at that. Our breakdown did not break down between high capacity, low capacity or charter. They were all put together.

Senator XENOPHON: The definition of high capacity is anything more than 50 seats?

Mr McCormick : There are currently no show cause notices issued to any other high capacity RBT operator.

Senator XENOPHON: I am very grateful for your answers.

CHAIR: Are you aware of maintenance providers borrowing licences?

Mr McCormick : Do you mean CAAP 30 approval licences or individual? Sorry to ask the question.

CHAIR: I will put it into context.

Prior to the event in 2009, I sought information from your regulator, and despite five calls to CASA, I was unable to get the Parafield provider who I won't name investigated. Finally, I pressed the matter further. The CASA officer involved investigated after 18 months and this particular operator handed in its so-called licence. This particular operator had been borrowing a licence from another organisation which it part owned.

And so it goes on. These are a series of issues which the committee is pretty agitated about.

Senator STERLE: I do not know anything about it. You have just pulled this one out of your pocket.

CHAIR: I will finally go to the Goulburn Flight Training Centre and the parachuting operation out of there, and I will put you on notice, where application was made and one of the directors of the company that is making the application is an employee of CASA. I want to deal with that as well. With that, we will go into private meeting.

Senator STERLE: Will you table that document, Chair?

CHAIR: We will go into private meeting.

Senator STERLE: Will you table it, because we have no idea what you are talking about?

Proceedings suspended from 11:39 to 11:42

CHAIR: Any further questions?

Senator XENOPHON: Referring back to the show cause issue, I am happy for you to take this on notice, but when was the minister's office advised of the show cause notice with Tiger?

Mr McCormick : We will take it on notice.

CHAIR: Any further questions? If not, thanks very much. See you all later.

Committee adjourned at 11:43