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Rural and Regional Affairs and Transport References Committee
22/10/2012
Aviation accident investigations

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

ANASTASI, Mr Adam, Executive Manager, Legal Services, Civil Aviation Safety Authority

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

FARQUHARSON, Mr Terry, Director of Aviation Safety, Civil Aviation Safety Authority

HOOD, Mr Greg, Executive Manager, Operations Regulations Implementation, Civil Aviation Safety Authority

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

[14:32]

CHAIR: Welcome. I remind senators that the Senate has resolved that an officer of a department of the Commonwealth or of a state shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of them 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 policies 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 shall be accompanied by a statement setting out the basis of the claim. Gentlemen, would you like to make an opening statement?

Mr McCormick : Yes, thank you. It may help in addressing some of the questions we have heard come through today. I would like to thank the committee for the opportunity to appear at this hearing and to respond as I am able to do to the questions I expect you will have for CASA. In the time available, we obviously are not in a position to address many of the issues contemplated by the committee's terms of reference as fully as we might like. Nor can we respond in detail to submissions that have recently been lodged with the committee or been made in the course of this hearing. We will continue to examine all of these matters, however, and will provide you with further relevant comments as soon as possible.

At the outset, I would like to comment briefly and generally on CASA's relationship with the ATSB. This is something about which there appears to be some misunderstanding. CASA and the ATSB perform different but decidedly complementary roles in the interests of air safety with a view to the prevention of aircraft accidents. From the time of CASA's establishment in 1995, it has been one of our statutory functions to cooperate with the ATSB and its predecessor, the Bureau of Air Safety Investigation or BASI, as it was known at the time. Similar functions appeared in the Civil Aviation Act at the time of CASA's predecessor, the Civil Aviation Authority, which was established in 1988 and corresponding provisions appear in the ATSB's governing legislation.

In keeping with our complementary safety related objectives—and CASA and the ATSB are the only government agencies whose organisational activities relate exclusively to the enhancement of aviation safety—CASA has consistently endeavoured to support and assist the ATSB in their investigative efforts to the extent we can do, remaining cognisant of the difference in our respective roles and functions and in a manner that accords with the applicable legislation. To that end, CASA and the ATSB, like the CAA and the BASI before them, have developed and worked to the terms of a series of memorandums of understanding. Copies of these memorandums of understanding, which date back to 1996, have been provided to the committee.

The ATSB conducts its investigations into aviation accidents subject to the explicit legislative proviso that it must not do so with a view to apportioning 'blame or liability'. Thus, while the ATSB can and does make recommendations about the steps individuals, organisations and other government authorities might take to minimise the likelihood of recurrence of an accident of a kind it has investigated, it has no authority to compel or require anyone to do, or refrain from doing, anything other than to provide the ATSB with certain kinds of information.

CASA, however, conducts its regulatory investigations into a wide range of occurrences, including, though certainly not limited to, aviation accidents, with the power and the corresponding obligation to take such action as may be appropriate to minimise the likelihood that a particular individual, organisation or aircraft may place others at risk of harm. In doing so, we will, where necessary, require people and organisations to do, or refrain from doing, certain things unless and until it is safe. CASA is the only authority authorised to take action of this kind, and we make no apology for doing so when such action is necessary.

So, whilst the ATSB and CASA have clear and complementary safety related objectives, the particular purpose and practical outcomes of our respective investigative activities can be quite different. It is with these particular differences in mind that the provisions of the MOU governing aspects of relations and exchanges between the two agencies during the course of our respective investigations into the same event have been very carefully crafted.

CASA's regulatory investigations may lead to enforcement action of a kind I just described. The ATSB's investigations do not. As a practical matter, however, both CASA and the ATSB may well be conducting their own parallel investigations into the same occurrence at the same time. The same individuals may be approached to provide their views about what happened, how and why, and the same organisations may be approached to provide documentary and other information to clarify and corroborate their claims about the facts and circumstances under investigation.

Without a clear understanding of the nature and purpose of these parallel investigations, there is a potential for confusion about these matters in the minds of those people with whom CASA and the ATSB must deal, and a risk that, in conducting its own investigation, CASA or the ATSB may complicate and possibly compromise the other's investigation. Much of the content of the interagency MOU is to avoid that confusion and to mitigate that risk.

In the wake of the tragic accident near Lockhart River in 2005, and for reasons that have been canvassed at length in other forums, including this committee in connection with its 2008 inquiry into the administration of the Civil Aviation Safety Authority, in 2007 the then Minister for Transport and Regional Services engaged Mr Russell Miller AM to conduct a review to:

… consider the respective statutory roles and responsibilities of CASA and the ATSB and the relationship that has developed between the agencies and provide advice on matters including—

amongst other things—

the adequacy of the current legislative provisions in ensuring that information which may contribute to improved aviation safety can be effectively and promptly obtained by agencies and communicated between the agencies;

the extent to which the interaction, or any overlap, of the respective Acts creates barriers to effective safety action, communication and interaction between CASA and ATSB;

…   …   …

the role and value of the Memorandum of Understanding (MOU) in place between CASA and the ATSB, and areas where the MOU can be strengthened or improved to achieve better working relationships between the agencies; and

potential areas for improved co-operation and better co-ordination of safety investigation and information sharing.

The Miller review made 19 specific recommendations, virtually all of which deal directly or indirectly with enhancing, expanding and generally improving the exchange of information between CASA and the ATSB. With particular regard to the CASA-ATSB MOU, the Miller review recommended:

The agencies should negotiate a new MOU and include matters such as … a means of encouraging more day-to-day interaction between the agencies when serious accidents and incidents occur …

That is recommendation 17. Pertinently too, recommendation 13 provided:

During an investigation, where CASA has expertise that might be brought to bear on the likely causes of an accident or incident, the ATSB should utilise that expertise as its investigation progresses … by regular inter-agency consultations.

Finalisation of the new MOU consistent with the recommendations of the Miller review was well advanced at the time of the Pel-Air ditching in November 2009, and I consider it a credit to both agencies and to the underpinning interests of aviation safety that the principles and protocols reflected in that MOU, which Mr Dolan and I formally endorsed in February 2010, effectively governed relations between our agencies over that period and guided the progress of our respective parallel investigations. With these considerations in mind, I completely reject any allegation that CASA has in any way colluded with the ATSB or encouraged it to produce a report less critical of CASA or Pel-Air. CASA's dealings with the ATSB throughout our respective investigations have been entirely appropriate, transparent and consistent with applicable laws and policies. Where there was no legal constraint on its ability to do so on request, CASA has provided the ATSB with all documentation it has been asked to provide and at no time has CASA asked, suggested or implied to the ATSB that it should focus with more or less severity on any individual or organisation in the conduct of its investigation or in the formulation of its findings.

In the case of the Pel-Air investigation, as in any other, CASA's primary concern for the ATSB reports is that they are factually accurate, correctly identify and consider the relevant provisions of the applicable civil aviation legislation, properly take into account current and forthcoming safety developments such as new and anticipated regulatory changes and that the ATSB is aware of and understands the basis for CASA's views on factors relating to the accident. CASA has a regulatory policy issued in August 2011 to guide the action of CASA staff in interaction with the ATSB.

CASA has an accident liaison and investigation unit, ALIU, headed by a senior manager to act as a central coordination point for dealings with ATSB. Regular meetings are held with the ATSB on accident reports as required and there is a six-monthly meeting to discuss broader policy and administrative issues. ATSB draft and preliminary reports are circulated to relevant CASA operational divisions for comment. More complex issues are often discussed with the ATSB to ensure there is a clear and shared understanding, which is not necessarily the same thing as agreement on, substantive points raised in a report before CASA provides formal comment as a directly involved party. These CASA comments reflect the product of consultations within CASA involving all relevant subject matter experts. They are then reviewed by the head of the ALIU before being passed to the ATSB.

CASA also provides the ATSB with any documentation it is required to provide under section 32 of the Transport Safety Investigation Act 2003. In the case of the Pel-Air accident, CASA provided the ATSB with a copy of the November 2009 special audit report, the aircraft file, flight crew licensing and medical details, and other relevant files under section 32 of the Transport Safety Investigation Act 2003. This process too was consistently followed in connection with other ATSB accident investigations. Safety actions arising from accident reports are monitored by the ATSB and progress is discussed at the formal six-monthly meetings conducted pursuant to the MOU.

CASA internally monitors developments with ATSB safety actions and recommendations through its own accident investigation review committee. This committee is made up of senior CASA officers and acts to help ensure that CASA's disposition of matters arising out of ATSB reports is complete and proper with a view to confirming that it has taken the appropriate responsive actions and conveying that information to the ATSB, which also tracks those actions and publishes status reports on its website.

Every year CASA receives between 300 and 400 communications from the ATSB including a number of accident reports. Whilst CASA's views on various elements of accident reports may on occasion differ from those of the ATSB, the content of the final report on any accident is entirely a matter for the ATSB. In respect to the Pel-Air accident, the ATSB contacted CASA in February 2010 and briefed CASA on what the ATSB regarded as an emerging safety issue which they characterised as critical.

The ATSB identified of lack of regulation or guidance for pilots when exposed to previously unforecast meteorological conditions on long flights to destinations with no nearby alternates. CASA agreed to review the safety issue and responded to the ATSB in March 2010 advising that, whilst civil aviation regulations are not prescriptive in relation to such in-flight decision-making, CASA considered the current legislative regime combined with sufficient aeronautical knowledge and compliance with applicable training requirements and published guidance material adequately conduced to safe and responsible in-flight decision making by the pilot command. CASA indicated it was reviewing the regulations and guidance material relating to fuel planning and the identification of alternate aerodromes with a view to seeking appropriate amendments to those materials as part of a CASA standards development project.

As CASA had accepted the proposed safety action for rules development as project OS 09/13 fuel and alternate requirements, the ATSB was aware of this action and presumably on that basis it did not issue a formal safety recommendation in connection with that issue.

To the best of my knowledge, CASA has never before been the subject of allegations of collusion with the ATSB in connection with any other accident investigation reports. In light of the evolving history of relations between CASA and the ATSB, I find it extraordinary to say the least that such a claim should be made in this instance. I suspect the reason these allegations have been made in respect to this particular report relate to the fact that certain parties with an interest in the substance and implications of the report are simply unhappy with the ATSB's findings and conclusions.

I will turn now to CASA's actions in relation to the pilot in command of the Pel-Air flight involved in the accident, Mr Dominic James.

Senator XENOPHON: Would it be possible to get copies of the statement?

CHAIR: Are we halfway through or three-quarters of the way through?

Mr McCormick : I am quite happy to table the rest if you like.

Senator XENOPHON: I am happy for you to read it but just so we could get copies of it.

CHAIR: One of the tricks of the trade is to just keep talking, as you know.

Mr McCormick : I did not know that. Thank you for that. Some submissions to the committee maintain that Mr James's conduct at that time was listed to determinedly influenced by a number of 'external factors' over which he had no control and CASA should not have taken the actions that took in some of Mr James's flight authorisations. CASA does not accept this and maintains that, on an objective measure of the facts and circumstances reasonably and fairly considered, it formed the view at the time that, as pilot in command, Mr James displayed sufficient aeronautical skills and knowledge appropriate to the licences and rating he held. On that basis in December 2009 in the interests of safety Mr James's commercial pilot licence, airline transport pilot licence and multi-engine command instrument rating were suspending pending the completion of specified testing and examinations. After Mr James met the examination and testing requirements relating to his commercial pilot licence and command instrument rating, the suspension of those authorisations was lifted on 25 July 2011. Once he completed the remaining requirements relating to his airline transport pilot licence on 27 March 2012, CASA lifted the suspension of his airline transport pilot licence permitting Mr James to seek employment as a co-pilot of a multi-crew aeroplane. Unless and until he first passes the aeronautical proficiency check he has been required to undertake, however, he may not conduct a flight as pilot in command of a multi-crew aircraft for which an ATPL is required. We are waiting for Mr James to tell us when he wishes to take that flight test.

I do not consider that Mr James has been treated unfairly by CASA. Pilots acting as pilot in command have critical safety related responsibilities including flight planning, the proficient management of fuel calculations, as well as the assessment of their own level of fatigue if any. A number of regulations relating to fuel planning were enforced and applicable to Mr James's conduct at the time of the ditching. Principle amongst those regulations was 234 of the Civil Aviation Regulations, which provides that a pilot must not commence a flight unless all reasonable steps have been taken to ensure that sufficient fuel and oil is carried for the planned flight. Regulation 224 of the Civil Aviation Regulations also imposes a duty on a pilot in command to be responsible for the start continuation, diversion and flight by the aircraft; the operation and safety of the aircraft during flight,; the safety of persons carried on the aircraft; and the safety of other members of the crew on the aircraft. A pilot in command who fails to take reasonable steps to ensure an aircraft carries sufficient fuel to enable a proposed flight to be undertaken in safety will contravene regulation 234 and will very likely be in breach of regulation 224. A pilot in command who does not make a careful study of the available information such as current weather reports and forecasts will also be in breach of the special obligation to do so specified in the Civil Aviation Regulation 239. Implicit in the obligation to consider the meteorological conditions affecting a flight, the pilot in command is also required to consider the possibility of an aversion to an alternate aerodrome, engine failure and loss of pressurisation.

The pertinent civil aviation advisory location, guidelines for aircraft build requirements, was published in 2006 to assist pilots and air operators to understand their regulatory responsibilities in connection with these matters. CASA's regulatory investigation of the accident flight identified an incomplete pre-flight plan and airport management of the flight by the pilot in command. The circumstances of this flight reveal that the flight planning which Mr James undertook in arriving at the figure of three hours and 30 minutes flight time and the amount of fuel required was well below the standard required of an airline transport pilot licence holder.

Five significant deficiencies were identified in Mr James's flight planning. First, Mr James did not receive an area forecast for the route he intended to fly from Samoa to Norfolk, nor did he source any information related to the strength of the prevailing high-level winds along the route. In the absence of this critical data, there was no sound basis for his estimated three hours and 30 minutes flight time nor for his estimate of the fuel required to be carried. Second, it does not appear that Mr James took into account contingencies, such as the possibility of depressurisation and/or an engine failure, in calculating the amount of fuel that he took on board in Samoa.

Third, Mr James did not take into account, as required by the regulations, the possibility of a forced diversion. Four, having commenced the flight from Samoa to Norfolk Island, the transcript of Mr James's communications with air traffic control in Fiji revealed that he received a weather report from Norfolk Island at 0801 UTC, universal coordinated time, which showed that the weather conditions at Norfolk Island had deteriorated from those forecast during his flight planning at Apia, in Samoa. Further communications with Auckland ATC revealed that Mr James received a weather forecast from Norfolk airport at 0904 UTC, which showed that the weather conditions at Norfolk Island were deteriorating and were below the minimum criteria at which an alternative aerodrome would be required. This information meant that the weather was unlikely to remain suitable for a safe landing at Norfolk Island, and Mr James should have diverted the aircraft to Noumea.

Further weather reports received by Mr James at 0934 UTC and at 0928 UTC indicated that Norfolk airport was no longer suitable as a destination. Therefore, when Mr James received the weather forecast at 0904 UTC, he was approximately one hour from Norfolk Island and in a position where it still would have been a viable option for him to have diverted the aircraft to Noumea. The fact that he elected to pursue a landing at Norfolk Island in light of the weather forecast that he received at 0904 UTC indicates that he may not have had the necessary aeronautical skill and knowledge to make appropriate command judgements about the likely effect of weather.

I would now like to turn to the operator, Pel-Air. In this connection, the suggestion has been made that CASA has in some way acted to shield this operator from appropriate regulatory action by CASA. This is manifestly untrue. Here too the claim seems to be intended, at least in part, to divert attention away from the actual facts of the matter. Immediately after the accident in November 2009, I directed, and CASA undertook, a multidisciplinary special audit of Pel-Air's operations under its air operator's certificate. As a result of this audit, CASA placed a condition on Pel-Air's operating certificate, requiring the company to implement a management action plan, with 57 action items identified to address deficiencies. By June 2010, Pel-Air had satisfied CASA that all the conditions had been met and, following a further audit, CASA removed those conditions from the air operator's certificate.

This course of regulatory action is no different from action CASA has taken with a number of other operators. It predicates on a procedural basis, the same kind as that on which the action taken in relation to Mr James was based. In neither case did CASA seek or pursue punitive action. Rather, in both cases, certain privileges could not be exercised or exercised fully unless and until certain safety related requirements were satisfied. In both cases, it was a matter for the authorisationholder to take the necessary remedial steps and to demonstrate to CASA that they had done so. Once those safety related concerns might be shown to have been adequately addressed, CASA would readily restore the privileges that had been delimited or suspended.

As an ASC-holder, Pel-Air was regularly subject to CASA surveillance prior to the accident. Between 1 June 2005 and 18 November 2009, CASA issued a total of 34 requests for corrective action and one safety alert to Pel-Air, with the key findings relating to deficiency in the operator's fatigue risk management and the training and checking systems. The allegation is made that CASA has kept these actions secret. That is false and misleading. CASA does not publish its ongoing regulatory actions in relation to any operator on the assumption, where such an assumption is reasonable, that a responsive correction action will be taken and effected in a timely manner. To do otherwise would be unfair and would serve no meaningful safety related interest. If an operator's deficiencies are of a sufficiently serious nature as to make it unsafe to allow operations to continue, appropriate administrative remedies are available to CASA, allowing for immediate action to be taken. Although it is rarely necessary to do so, CASA has not hesitated to exercise those powers when such action is required in the interests of safety.

In conclusion, CASA took a corrective and proactive approach in dealing with both Mr James and Pel-Air. In both cases their authorisations were, ultimately in Mr James's case, varied, with conditions imposed pending a demonstration to CASA's satisfaction that specified deficiencies had been addressed.

Finally, without suggestion that CASA accepts or agrees with other elements of his submission, I would like to conclude about certain aspects of Mr Quinn's submission to the committee, which I believe need to be clarified. In describing his qualifications and experience, Mr Quinn states in the first page of his submission that he has held senior executive roles in the regulatory arena at both the state and federal levels. Subsequently, on page 5 of his submission, Mr Quinn states that CASA 'failed to provide adequate oversight of Pel-Air operations'. While it is true enough to say that Mr Quinn held a senior executive position in the federal regulatory arena, I find it passing strange that he fails to say that in fact he served from December 2007 to June 2009 as CASA's deputy chief executive of operations, and from 1 July 2009 until he left CASA in January 2010, as its deputy director.

During that entire period, Mr Quinn's position was the most senior in the organisation below mine, with direct responsibility for CASA's Operations Division.

I will not discuss here the circumstance of Mr Quinn's departure from CASA in 2010. I do feel obliged to point out, however, that as DCEO of operations and as deputy director, he would have had penultimate accountability for any shortcomings or inefficiencies in CASA's oversight functions during the period preceding and following the action that has given rise to this inquiry.

I thank the committee for the opportunity to make this opening statement. I am now happy to take questions.

CHAIR: Did you come on board before Mr Quinn left?

Mr McCormick : Yes, I did.

CHAIR: We have had an interesting day. As you know, I am Australia's most disgraced senator and I am grumpy. The evidence we have received today is that you are also grumpy, a bullying and an intimidator of people. I presume you think you are just a calm and collected bossy boss.

Mr McCormick : I do not think I am a bully in any respect, but you have other people here who you can ask—

CHAIR: So you are just a bossy boss, are you?

Mr McCormick : No, I am not a bossy boss at all. What I found when I got to CASA, as I think we have discussed before, is that there was a significant lack of direction, and perhaps some of the things that we see and we are here discussing may be direct outcomes of some of that lack of direction and focus.

CHAIR: My understanding—and I have been referring to an independent person sitting at the back of the room on this—is that—

Senator STERLE: Sorry, Chair, because the officers were not in the room, this is your imaginary friend. You should just qualify that.

CHAIR: Yes. I am just saying: an independent person standing at the back of the room, listening to what we are saying today—on the omnibus to wherever it is. As I understand it, CASA did an audit into this episode?

Mr McCormick : Into?

CHAIR: Into the Pel-Air episode—was there an audit?

Mr McCormick : Correct—yes, there was.

Senator XENOPHON: There was an audit?

Mr McCormick : There was an audit into Pel-Air. It was an accident investigation.

CHAIR: It identified 20 breaches?

Mr McCormick : A request for corrective action.

Senator STERLE: Thirty-four.

Mr McCormick : Thirty-four is the—

CHAIR: Were there some identifiable findings of wrongdoing or misadventure?

Mr McCormick : We have two documents. One is the accident report, the investigation, which we did in parallel with the ATSB. Then there was the special audit into Pel-Air.

CHAIR: The special audit is the one. What did it find?

Mr McCormick : It made a number each of recommendations, which I think you have.

CHAIR: In essence, it said that Pel-Air, in certain areas—correct me if I am wrong—there were 20 episodes of inadequacy.

Mr McCormick : With the number 20, I think we are more talking about—

Senator STERLE: There were 57, you said—

Mr McCormick : In the management—

CHAIR: Anyhow, whatever it was—

Senator STERLE: See, I was listening, Chair. That has surprised you, hasn't it!

CHAIR: Someone in CASA looked at Mr James's qualifications to be doing the job he was doing?

Mr McCormick : That was part of the accident investigation.

CHAIR: But someone did that?

Mr McCormick : That is correct.

CHAIR: The evidence we have received is that the person who did that was not actually qualified to do it. Is that wrong?

Mr McCormick : That the CASA officer was not qualified to investigate? That would be incorrect.

Senator STERLE: That is not what we took, Chair. I think you wanted to take your questions to the chief pilot.

CHAIR: Yes, I will come to the chief pilot. Regarding the man who did the audit at Bankstown, what is his name?

Mr McCormick : There were 16—

CHAIR: But there would have been someone—

Mr McCormick : inspectors put on that audit. The lead was Mr Roger Chambers, who was the acting manager at Bankstown.

CHAIR: What is his role now, at this minute?

Mr McCormick : He is the acting manager of the Sydney office—the combined office of Mascot and Bankstown.

CHAIR: When did he conclude that audit?

Mr McCormick : It is on the actual audit itself. It says 8 January 2009; it should say 8 January 2010.

CHAIR: The commencement date and the finishing date are probably what we are after.

Mr McCormick : It completed on 8 January 2010.

CHAIR: And started?

Mr McCormick : It started on 26 November and ran on site from 26 November 2009 to 15 December 2009.

CHAIR: And when did Mr Wickham come on board CASA?

Senator NASH: Sorry to interrupt, but can you read out those dates again?

Mr McCormick : The audit dates on site were 26 November 2009 to 15 December 2009.

CHAIR: When did graciously Mr Wickham, who was mentioned as having, as chief pilot of Pel-Air, responsibility for some of the things that the CASA audit came up with, actually switch over to CASA? The man at the back of the room is intrigued by this.

Mr McCormick : 28 February 2011.

CHAIR: So how long after?

Mr McCormick : That is two years.

Senator XENOPHON: No, a year. It's a bit over a year.

Mr McCormick : Sorry, a bit over. It was January 2010. He came on board 28 February 2011 and he was quarantined from any activities with Pel-Air for 12 months since his employment.

CHAIR: My friend is pretty intrigued by that. The evidence we have received today, to take it down to a simple one-liner for some people—and there is a lot of people who have given passionate, as you are aware, responses to what was a terrible episode and there could be flaws at a whole lot of levels but some people are focused on the actual accident whereas there needs to be a look at what led to the accident—is there is a view that maybe the suitability of the plane for that task was wrong. If you are told as a pilot to get in a plane and fly to Timbuktu by the chief pilot, isn't the chief pilot bearing some responsibility to make sure the plane that you are told to fly is suitable for the job?

Mr McCormick : On one level.

CHAIR: Not on one level. Let us get to where the young bloke, James, found himself.

Mr McCormick : Mr James said that he did not use internet flight planning and he used manual flight planning.

CHAIR: No, we are not actually—

Mr McCormick : I am answering your question, Senator.

CHAIR: No, you are not.

Mr McCormick : Okay.

CHAIR: Start again.

Mr McCormick : If you are given an aeroplane to fly from Samoa to Norfolk Island and you work out it does not have the range to fly from Samoa to Norfolk Island then you cannot do it.

CHAIR: But if the chief bloody pilot, who should have some experience, nominates you, John McCormick: 'Young man, get in that plane and fly to Timbuktu,' you would, probably—if it were you taking the orders, and that is meant to be not serious.

Mr McCormick : That is all right.

Senator STERLE: Hansard has problems picking up body language.

CHAIR: Surely, the young guy would say, 'Shit, the boss knows what he's doing,' and to the best of his ability would do it. So surely the boss—in this case, Mr Wickham— should bear some responsibility for the capabilities of Westwind aircraft?

Mr McCormick : With all due respect, that is a nonsense.

CHAIR: That could well be but—

Mr McCormick : What we have here is that a pilot is told to fly from A to B in an aeroplane. Part of what the pilot is supposed to do is work out whether he can do it on the prevailing weather, winds, fuel—

CHAIR: But surely the boss would know the capability of his own aircraft?

Mr McCormick : I can pretty much guarantee as for any chief pilot, if the pilot, whether it be Mr James or anybody else, rings up and says, 'I haven't got enough range to do the mission; I've got to go via somewhere else,' it is an absurdity to say the chief pilot would say, 'No, even though you don't think it can happen, you get in and fly it.'

CHAIR: But the evidence we have received is that if they had fuelled the thing to the full capacity, it was not going to perform as to whatever it had to do, reach the altitude, have the separation et cetera. Is that wrong?

Mr McCormick : Whether it would have got there or not, the question here is that if the pilot in command does the flight planning and reckons it has not got enough range to go from Samoa to Norfolk then he has to go to somewhere else, Samoa to Nadi or somewhere else.

CHAIR: But my point is about this character of yours that works at Bankstown quietly now and has transferred over, and I do not know whether there was a transfer fee with him.

Mr McCormick : No, there wasn't.

CHAIR: Don't take the bait! Shouldn't he have borne, as the chief pilot, some of the responsibilities for the shortcomings found by the CASA audit and the suitability of these types of aircraft to fly that sort of mission? Surely it has got to get cleared and you have got to get busy, but you cannot just walk away and say, 'I work for CASA now. Shit, I got out of that.'

Mr McCormick : I do not know whether Mr Wickham has walked away. I am saying that what we have here is a case of the chief pilot. I agree the chief pilot is responsible. He is the chief pilot—that is why he has got the title.

Say a chief pilot said, 'Fly from A to B,' and the pilot who was going to do the trip worked out how much fuel he needed and it exceeded the amount of fuel he could fit on the aeroplane—assuming he actually worked out how much fuel he needed rather than guessed it—so he said, 'No, I can't do A to B.' In that situation, every single chief pilot in Australia—and I will say this without even canvassing them—would say, 'Well, then, you have to go via somewhere else and get fuel.'

Senator NASH: Are you saying the chief pilot does not have a responsibility to initially know that information, that the chief pilot does not have a responsibility, which is what the chair is asking, to know the capability of the aircraft in those circumstances?

Mr McCormick : I think you would find the Samoan and Norfolk leg has been flown by the Westwind before quite successfully—

Senator NASH: That is not my question. My question is: are you saying that the chief pilot does not have the responsibility to know the capability of the aircraft to that extent? Are you saying that he does not have that responsibility?

Mr McCormick : The pilot in command has that responsibility. The chief pilot is not responsible for deciding whether it has enough range to fly.

Senator NASH: So he does not need to know the capability of the aircraft?

Mr McCormick : He does, but the capability of the aircraft is not set in stone. The capability and range of the aircraft depend on wind, weight and fuel on board. They are all decisions for the pilot in command. Sure, the chief pilot should not set an impossible task, but in this particular case, Pel-Air have flown that sector many times before—

CHAIR: It has been suggested to us that the chief pilot, who is now the CASA Bankstown person, did not really have a lot of experience himself with these types of aircraft. Do you know what his experience was with Westwind aircraft? I presume he was endorsed to fly the damn things—was he?

Mr McCormick : He was, but I do not have the figure in front of me showing what his experience was at the time. It may be in some of the documents we gave you.

CHAIR: Could you take that on notice?

Mr McCormick : Sure.

Senator NASH: While we are on that issue, was chief pilot asked to apply for the job with CASA?

Mr McCormick : No. He applied for a role in late 2010. He was No. 2 on our merit list. When No. 1 declined the offer of employment, we offered him employment.

Senator NASH: So he came to you; you did not ask him.

Mr McCormick : He came to us.

CHAIR: So he applied in 2010. When did the audit report come down?

Mr McCormick : The date of the report is 8 January 2010.

CHAIR: So it was later that year.

Mr McCormick : That is correct.

Senator STERLE: As you can appreciate, there has been a lot of information put to us today. Just to clarify, in your opening statement you talked about the 57 recommendations from the report, 34 requests for action and safety alert. With the processes within CASA, obviously there were some problems to varying degrees with Pel-Air's operation prior to this accident. Is it fair to say that? There were concerns that CASA raised.

Mr McCormick : Yes.

Senator STERLE: Who has ultimate responsibility if there are 34 problems and one safety alert? Is it the owner of the company, the chairman in China or the chief pilot?

Mr McCormick : It is the actual certificate holder. They are the responsible person under section 28BE of the act.

Senator STERLE: Thank you. We should know that anyway from our Qantas inquiry. In the case of Pel-Air, when that plane was ditched, who was the certificate holder?

Mr McCormick : Do you want the actual name of the person who had the certificate?

Senator STERLE: Yes.

Mr McCormick : If you give us a couple of minutes we can look through our papers.

Senator STERLE: Sure. We are just trying to establish whether it was the chief pilot or—

Mr McCormick : I think it was actually a legal entity, Pel-Air Pty Ltd. We have their actual operator certificate here, which Mr Hood will find.

Senator STERLE: Thank you. The problem that I think some of us on the committee are having is that we have seen, through evidence, that the chief pilot of Pel-Air at the time of the ditching has now moved to a higher grade job but it is also within CASA. So we are thinking, 'Hang on, while this was all going wrong at Pel-Air, who did it slip past?' Is that fair to ask?

Mr McCormick : Yes. I will ask Mr Hood to give you a bit more on this.

Mr Hood : I have a few notes in relation to Pel-Air and the safety alert. In 2008, following the issue of the safety alert to Pel-Air, CASA raised with Regional Express, which is the owner, and with Pel-Air the question of whether the then chief pilot was effective in his role. Pel-Air subsequently said that their view was that the chief pilot in 2008 may not have been effective in his role and therefore appointed Captain Wickham as the chief pilot. Following our assessment on 21 November 2008 Mr Wickham was appointed to the role of head of flight ops.

Senator STERLE: Thank you. Would it be fair to say that anyone can hold that certificate, but in these small operations like Pel-Air is there a trend set? Is it normally the chief pilot or is it a mixture of everyone?

Mr McCormick : No. As far as holding the certificate goes, the chief pilot is an identified position under the regulations and we have to approve the person.

Senator STERLE: Okay. In 2008 there was a different chief pilot, as we have established, because CASA said that the fellow was not up to the mark. All of a sudden there is a new chief pilot appointed, which is Mr Wickham, but for some reason the holding of the certificate does not flow to the chief pilot; it disappears somewhere else.

Mr McCormick : No. There are two issues here. The certificate is not issued to the chief pilot. He is not the person responsible on the certificate itself. The chief pilot is a position under the regulations and we have to approve a person to be a chief pilot. The operator's certificate is held by Pel-Air and the responsible person in that. As we have discussed before, under section 28BE, we wrote to all organisations a couple of years ago and said that we regarded the CEO as a person who is responsible because they control the cash.

Senator STERLE: Sure. That makes sense. There is a view with some on the committee that, while some of Pel-Air's operations certainly were not up to the expectations of CASA, Mr Wickham was the chief pilot at the time of the ditching and now he is off, and it looks like he has been congratulated, rewarded or promoted—not within CASA. Who takes ultimate responsibility? It seems to be a buck-passing, which is from the information we have received today.

CHAIR: What is really asking is: would Mr Wickham have to take absence of leave from CASA if there are legal proceedings?

Mr McCormick : With that is a HR department issue.

CHAIR: I would have thought it is a conflict of interest issue.

Mr McCormick : Mr Wickham does not deal with Pel-Air.

Senator XENOPHON: Unless I am mistaken, Mr McCormick, you said that Mr Wickham commenced work with CASA on 28 February 2011 and that he was quarantined from dealing with Pel-Air for 12 months. That is the rule, is it?

Mr McCormick : That is the rule that we put in place.

Senator XENOPHON: So, there is nothing to stop Mr Wickham working on Pel-Air right now, notwithstanding the fact that he was the chief pilot?

Mr McCormick : Mr Wickham has not worked on Pel-Air other than to do a desktop review on some aspects.

Senator XENOPHON: But the quarantine period is only 12 months, correct?

Mr McCormick : That is correct.

Senator XENOPHON: Does that concern you?

CHAIR: At the same time he faces a legal liability from Pel-Air.

Mr McCormick : I cannot say what legal—

CHAIR: He is in a position where he is the referee and—

Mr McCormick : No, he is not involved in the oversight of Pel-Air.

CHAIR: I am sure that his boss is the bloke that did the audit, and I am sure that they go down to the pub and have a grog. I am sure you go and drink with ATSB occasionally, don't you?

Mr McCormick : No, I don't Senator.

Senator NASH: Could you clarify what the desktop work was that Mr Wickham was doing on Pel-Air and when that was?

Mr McCormick : Could you give us a couple of minutes to look for that, Senator. The end result is, Chair, the responsibility of all this will come back to Mr James. There is no pilot in Australia who will not stand up and say that the pilot in command is responsible for how much fuel he put on board an aeroplane. That is what the regs say and that is what aviation has said since the days of Orville Wright.

CHAIR: Fair enough. I want to go to Senator Fawcett. With the two pilots that went to sleep on the trip to Perth that time, did the responsibility for going to sleep go back to them?

Mr McCormick : It does, Senator.

CHAIR: Do you recall the case?

Mr McCormick : I do not.

CHAIR: Did the cabin staff have to wake them up because they both went to sleep? You might refresh your memory on that. It was not that long ago.

Senator FAWCETT: Going back to your statement that it all comes back to Mr James, I understand why you have reached that view. Does it surprise you, given the contemporary nature of aviation safety reporting, that this report does not consider organisational, regulatory or human factors in any depth?

Mr McCormick : Ultimately, the content of the report is a matter for ATSB. We provide information that the ATSB under section 32 demands from us. We get to see the draft report, as I said in my opening statement, as a directly interested party. We comment on the factual correctness of it from our point of view as we understand it, but we do not have any control over the content of the report in any way, shape or form.

Senator FAWCETT: Is it correct that ATSB came to you with a critical safety issue due to the lack of specific guidance around in-flight diversion decisions?

Mr McCormick : They informed us they were going to make a recommendation in that area.

Senator FAWCETT: Is it correct that CASA and ATSB agreed initially that it was a critical safety issue?

Mr McCormick : CASA—and, again, this was submitted to the committee—advised that we agreed that it was an issue that we should look at; however, we did not undertake to necessarily make a rule change when we put our final reply to that. Mandating in-flight diversions when weather goes below the alternate minima at an airfield is not something that is routinely done anywhere in the world and, in some instances, as again we have in the paper submitted to the committee, that can be detrimental to safety by enforcing someone to carry out a diversion.

Senator FAWCETT: Can I just come back to the fact that, initially, CASA and ATSB—this is in accordance with a 26 February letter—agreed that it was a critical safety issue that there was a lack of guidance around that fact.

Mr McCormick : We agreed that there was a critical safety issue that we would look at but, before we determined whether it was a critical safety issue, I think in the following correspondence you will find that we actually informed them that we did not think it was a critical safety issue and the ATSB agreed.

Senator FAWCETT: I have that and the paragraph goes to the fact that the current legislative regime combined with aeronautical knowledge training requirements contained in the DAY VFR syllabus and the published guidance material has the result the pilot should make appropriate in-flight decisions. Do you still stand by that as your position?

Mr McCormick : Correct.

Senator FAWCETT: The decision we are talking about here predominantly is around if the weather is below your alternate minima but not below your landing minima, should you divert or not—that was the issue at the heart of that.

Mr McCormick : Correct.

Senator FAWCETT: How many FOIs thought it was a legal requirement to divert your flying operations inspectors?

Mr McCormick : I do not have that information. We can find that on notice, if you like.

Senator FAWCETT: Does anyone on the panel have that information?

CHAIR: You have to have some idea.

Senator FAWCETT: I have got an email here from a fairly senior person within CASA saying: 'Our FOI perforation seems to be evenly split about the need or not to mandatorily divert from an alternate from the last possible diversion if the destination weather falls below the alternate minima. 'It goes on to talk about a range of things to do with that. That is followed up by another email—fairly senior again within CASA—on 20 March 2010, which says: 'I am happy with the path you are taking. My point is and you are addressing it that, as a result of reliance on the AIP, the Aeronautical Information Publication, which has no head of power and contains much that we need to revisit anyway, there is one group of pilots that have one view which leads to a mandatory diversion, and another group with the opposite view. Putting aside the practicalities, both groups believe that they are legally correct'—

and this is talking about FOIs—senior flying people within CASA. 'If we find ourselves in an AAT or a court, we once again could look a bit foolish if we, the regulator, find ourselves in a position where we have to say that there are two conflicting views, one of which has to be wrong, and we have done nothing to rectify that over the years—very untidy.'

What that says to me is that you have written the paragraph here aimed at Mr James which indicates that this body of knowledge and training should enable him to make the right decision in every circumstance, putting aside the fact of fuel planning and all the rest of it—and I understand that. The fact is, within CASA, 50 per cent of your FOIs disagreed with the other 50 per cent over what the legal interpretation of that was.

CHAIR: Before you respond to that, if you do not mind, just a procedural matter, Mr McCormick: would you care to make that a public document?

Senator FAWCETT: I am happy to.

CHAIR: Thank you. We will publish that.

Senator XENOPHON: If it is noted publicly, the author of that and these other documents should be redacted.

CHAIR: I am sure one of these guys up here is very familiar with it.

Mr McCormick : Turning to the matter of whether you divert when the weather is below alternate minima when you are in flight, that is an issue which does divide the pilot population. It does not divide the population just in CASA; it divides the population in airline operations as well. It has been a longstanding question of what constitutes when you divert. Of course the things you have to take into account via airmanship is the trend of the weather. If you had been following the weather, as Mr James had been given the weather numerous times, you develop a picture of where the weather is deteriorating or whether it is not; and whether you are going to an airfield that has only one runway or more than one runway. There are numerous things to take into account. My own experience everywhere around the world is: this is not a question that is hard and fast; it goes to the pilot in command to make that decision.

Senator FAWCETT: Mr McCormick, the issue is the way that has arisen and the way that has then flowed down to taking what was a critical safety issue to ending up in the report as a minor safety issue. You have just highlighted that there are many factors involved with that but it comes through in the report as being a very black-and-white sealed issue, such that there are no organisational factors that may have played a part in the pilot's decision-making process. You also just used the word 'them'—has a picture in his mind—which goes to the issue of human factors. So here we have a situation where, despite inadequate fuel planning, and I accept all of that, he takes off with a forecast that says the airfield is good; he does not need to plan for an alternate; he then gets an update from Fiji which albeit is incorrect. The picture it gives him is that there is a cloud base at 6,000 feet and most people do not expect a 6,000-feet cloud base within the next couple of hours to deteriorate to almost not being able to be used. So he has a picture that has been developing in his mind of a situation that is going to replicate the day before where Norfolk Island is going to be fine. I hear what the reports say that forecasts were given and perhaps there are issues that he should have done differently in updating, but all of that goes to the fact that there are significant human-factor issues here which are absent from the report. I guess the committee is very keen to understand this, given the very black-and-white picture that CASA has put on that, and yet your own FOI population is split 50:50 over this issue.

Mr McCormick : Whoever sent that email within CASA was expressing their view. As I have said, yes, you will have differences. There are differences between professional pilots flying large-capacity RPT aeroplanes whether you divert when the weather gets below the alternate minima. In the case of the weather that he was given, you are right. He was given incorrect weather as 6,000 feet. Less than one minute later, he was given the correct weather, on that report, showing that the cloud base was below the alternate minima. One hour later, he was given the same report. Half-an-hour after that he was given two reports, including an actual, saying the weather was below the landing minima then. Develop the trend? Yes. In the Four Corners interview, Mr James is seen sitting outside in the sun asking for the QNH and the temperature—that is the sea-level pressure, Chair.

In fact, if you look at the transcript with the briefing officer in Brisbane, when the briefing officer says to him, 'You can't guess these things'—they were talking about time intervals—he did not ask for the trends of temperatures and QNH, which would have indicated the weather had been deteriorating. So he did not prepare himself for this sort of pressure. Now, that it is specific to Mr James.

To get back to the generic question, do you divert when the weather goes below alternate minima? That is a matter to think about. If I was flying that aeroplane to a remote island with no possibility of a diversion to anywhere else, not only taking into account any of the factors I mentioned before, including the possibility of a forced diversion—à la somebody breaks down a truck on the runway, the lights fail, the navaids fail—that is required to be considered as well. To fly that far to that island, when, as you have said already, he did not have the fuel to do it anyway, to me borders on reckless.

Senator FAWCETT: Do not put words in my mouth, Mr McCormick. I did not say he did not have enough fuel.

Mr McCormick : I am sorry. I was referring to the Chair in that particular case.

Senator FAWCETT: I come back to the point that you are narrowing in very much on his specific actions on that day. The terms of reference for this committee are to look at the process of reporting. The concern that has been raised with us significantly is that the regulatory aspects and the organisational aspects and the human-factor aspects, which are writ large across this, have been excluded from the consideration. One of the questions which is vexing the committee is: why? One of the things that has drawn our attention is that we see emails from the regulator saying, 'We would look a bit foolish if we find ourselves in a position where we have to say there are two conflicting views and we have done nothing to rectify it over the years.' Why would that view be expressed within CASA?

Mr McCormick : Well, that is the opinion of an FOI. As I say, this is long after—

Senator FAWCETT: It is not an FOI.

CHAIR: Can I bring a sense of the present to this? Mr Farquharson, are you familiar with what we are talking about—the email?

Mr Farquharson : I suspect I know from where it originated and it possibly crossed my desk, yes.

Senator NASH: Can Mr McCormick answer Senator Fawcett's question?

CHAIR: Great things, those bloody email trails, aren't they?

Mr McCormick : Do I know what?

Senator NASH: I was wondering if you could answer Senator Fawcett's question?

Mr McCormick : Did he ask whether there should be human factors et cetera in the report?

Senator NASH: Why were they not included in the report?

Mr McCormick : That is a matter for the ATSB. What is in the ATSB reports is a matter for the ATSB.

Senator XENOPHON: You have got an opinion of the report though, haven't you? Do you have the view that it should have been included?

Mr McCormick : I do not know whether it is appropriate for me to express an opinion on their report.

Senator XENOPHON: But CASA is the regulator for aviation in this country. Surely you have an opinion as to whether you think human factors should have been included in that report?

Mr McCormick : If you include the given factors, I doubt very much whether you would see a difference to the outcome.

Senator NASH: That is not the question.

Mr McCormick : Whether the ATSB puts in human factors or does not is something that is beyond my remit. Do I think the report should canvass as much as possible? Yes, I do.

Senator XENOPHON: So should ICAO annex 13 reports comply with that international standard?

Mr McCormick : Again, that is matter for the ATSB.

Senator XENOPHON: Do you have an opinion? Does CASA have an opinion as to whether ICAO annex 13 is the standard that acts and reports should aspire to?

Mr McCormick : Australia has incorporated annex 13 into the TSI Act.

Senator XENOPHON: Did this report comply with annex 13, in your view?

Mr McCormick : I did not compare this report to the annex 13 requirements in the TSI.

Senator XENOPHON: So they generally comply with it.

Mr McCormick : I did not compare them. It is not my job. That is the ATSB's job.

Senator FAWCETT: How many attempts did CASA make to replicate the fuel planning for that trip that Mr James undertook?

Mr McCormick : I do not readily have that information, I am sorry.

CHAIR: That would be recorded somewhere though.

Mr McCormick : I do not know whether it would record the number of attempts to—

Senator FAWCETT: What I am getting at is pointing out that the criticism of Mr James as an individual in terms of his personal planning is quite separate in your mind from what you have been telling us about the organisation and all of the regulatory oversight of that. My understanding from going through some of the documents is that an FOI within CASA as part of this examination was tasked with doing a fuel plan to check if the trip was possible. In the calm of his office, with no pressure and the benefit of hindsight, his answer was yes. Twenty-four hours later, having had the chance to revisit his calculations, he went, 'Oh, in actual fact I think the answer is now no.' This points to the fact that the individual can make mistakes, even a very highly competent and qualified individual, in things such as an FOI.

The thing that the aviation industry has relied on for years to catch those omissions, mistakes or even very occasionally deliberate things that somebody does are the organisation defences. They get the whole heart of the reasoned model of safety, which is why organisational and regulatory factors are important. Given the nature of the special audit and the significant deficiencies found there in terms of check and training and people not being approved—it is CAR 217 check with trainers doing the training—I think the statement was made that the organisation had lost control of their pilots and their fuel planning. Those are significant structural regulatory and organisational factors that lead to an individual then making a mistake, just like your FOI did. Why are they not things that we should be considering in this case?

Mr McCormick : I have said all along that the company could have done better here. We have never resiled from that. The company could have supported the pilot in command more. We did not punish Dominic James, if that is the right word. We required him to show proficiency in the fact that he could calculate the figures. If he had made a mistake in the figures, that would be understandable, but as he did no planning whatsoever—he did none—then he cannot reasonably rely on a mistake of fact. As for the company supporting him, yes, the company could have supported him more. We have said that all along. I think also the fact that Dominic James rang the company—or attempted to ring them with one phone call—and no-one answered the phone is indicative that Mr James, by his actions, has demonstrated that the company could have been in a position to help him flight plan that flight. Mr James said to you earlier today that he does not use internet or computer based systems. He does it by manual calculations. If Mr James does it by manual calculations, as we have said before, that is quite possible. But you have to do the calculations.

Senator XENOPHON: My understanding of the evidence is that he could not get internet access.

Mr McCormick : He said that he could not get internet access, but he does not use a computer based system. And there is a difference between writing as an FOI and looking at figures and calculating them when flying a plane. He was flying the aeroplane some years before. I agree that in the cold light of day Monday morning quarterbacking, as the Americans call it, is a very easy thing to do. We are very cognisant of that. But when you have a pilot who is employed fulltime to fly the aeroplane you expect him to have a better level of knowledge of the fuel—

Senator FAWCETT: Yet again, the discussion has come back to the individual. The committee is concerned with the reporting process and why ATSB has been convinced, in contravention of the standards set and their normal reporting practices, to not look at regulatory, organisational or human factors.

Mr McCormick : I do not disagree with you. But they are matters for the ATSB. I do not control what the ATSB put in their reports. Many things were said this morning, some of which were basically wrong. Certainly in Mr Quinn's evidence there was information that was wrong. This matter has never been before the Federal Court; it never got to the AAT. It was withdrawn before it got to the AAT by Mr James.

Senator XENOPHON: The papers are with the AAT; paperwork was filed with the AAT.

Mr McCormick : But there was never an AAT hearing.

Senator XENOPHON: He never said that there was.

CHAIR: That filing prompted the email that said, 'If we find ourselves in the AAT or a court, we'll look a bit foolish if we the regulator have to say that there are two conflicting views, one which has to be wrong, and we have done nothing to rectify that over the years, which is very untidy.' Without dobbing the poor bugger in who sent this, he is very close to you.

Senator NASH: Why haven't you done anything to rectify this?

Mr McCormick : Because there is no possible way that you can delineate all the circumstances required to cover every possibility that a captain in charge has to take into account before he makes that decision whether to continue to a destination or to divert.

Senator NASH: If you have two conflicting schools of thought, and Senator Fawcett has raised that very clearly, about diversion, do you just let it roll and not try to find a solution—just not rectify it?

Mr McCormick : It is a situation in which it is not possible to come out with a definitive set of circumstances and say, 'Under these circumstances, you must divert.' No-one in the world does.

Senator NASH: So if you could not come to a conclusion about rectifying it, what were the steps that you took to try and rectify it?

Mr McCormick : We considered the number of items that would have to considered by the pilot in command. We also considered a previous example in which a flight did divert on this basis. The aeroplane had an issue with what is called the leading edge slat part of the flight controls. If they had continued on that diversion, they would not have had enough fuel to reach where they were trying to divert to. There are many issues that have to be taken into account here. But as I said, Australia is not unique in this. I know of no regulatory environment in the world—and there may be one, but I do not know of it—where there is a prescribed set of circumstances such that when the weather gets below the alternate planning minima you should divert the aeroplane. And I am talking about 747 400s down to any size aeroplane world wide.

Senator FAWCETT: What do companies do to alleviate the risk or to mitigate the risk in that?

Mr McCormick : That goes to the culture of the company. There has been no evidence placed in front of me that says that the company would have punished Mr James if he had diverted when the weather went below alternate minima. In actual fact, in our audit report you will find comments from the pilots that none of them thought that there would have been an issue if they diverted or did other than what they were asked to do. That is in the special audit report, so I do not think that there is a culture of intimidation in this organisation. It comes down to professional standards. I agree that there are company issues here—I have said that all along. Yes, they could have done better; yes, they could have supported the pilot in command. But the last line of defence here is not the company; the last line of defence is the person who signs for the aeroplane and says: 'Yes, it has enough fuel. Let's go.' You know that as well as I do, Senator, without being rude or in any way derogatory. There is no other defence in the end than the pilot in command. That is who it comes down to. We heard from Mr James this morning. He gave the chair a thumbnail sketch of his flying career. He failed to point out that he used to work for Qantas and that he was fired from Qantas for failing to maintain the standard.

CHAIR: You may have gone for a toilet break then.

Mr McCormick : You might have been in camera when this was discussed.

Senator NASH: I think we might have been. How did you find that information out?

Mr McCormick : That is part of the report, which is here in our submission and which would have gone to the AAT.

Senator NASH: That is right. But CASA found out about that Qantas issue. How did you get that information?

Mr McCormick : From Qantas.

Senator NASH: Through what process?

Mr McCormick : Their training records. We requested their training records.

Senator NASH: Why?

Mr McCormick : We have been nothing—

Senator NASH: No, stop there. Why?

Mr McCormick : Because we were trying to see what standard the person was operating at.

Senator NASH: Why did you specifically go there for a 20-year history?

Mr McCormick : Sorry: a 20-year history?

Senator NASH: Sorry: the 10-year flying history of the pilot. Why did you specifically go to Qantas?

Mr McCormick : Because we were looking at his professional flying career.

Senator NASH: Okay. Where else did you look?

Mr McCormick : We looked at the Pel-Air reports.

Senator NASH: Nothing else? Just Qantas?

Mr McCormick : That is as far back as his professional flying career, to my knowledge.

Senator NASH: So what made you go there?

Mr McCormick : Because we are looking to see whether there is a pattern. I will say it again: we did not cancel his licence; we suspended his privileges until he showed us he had the necessary technical ability to be able to flight plan and in some cases fly. So, naturally, you would look to where you have the records. You would look to see what the person's experience is. That is not unusual; that is completely within our head of power.

CHAIR: But if you have two conflicting views within your own department on what this is all about, conflicting schools of views—

Mr McCormick : Indeed. There are only two possible schools—either you do divert or you do not.

CHAIR: Shouldn't you sort that out?

Mr McCormick : In normal circumstances there is no way we can write a regulation which will cover every single possible combination of circumstances.

CHAIR: There are people who are medically unfit as a consequence of what happened who are being treated like dogs, with no financial assistance—and I am going to do something about that—and who, sadly, may have to go to court to get a remedy. And here is one of your people, a very senior person, saying, 'this is all very untidy for us,' and at the same time you have employed the chief pilot for the organisation that is going to cause all this to go to court. You have employed him, for God's sake!

Mr McCormick : It was a merit selection, Senator. And, as I said, there are only two possibilities about whether you divert or you do not divert, so you are going to have two schools of thought: either you do or you do not.

CHAIR: That is like me saying, depending on what side of the bed I get out of, I am either right or wrong. Right is right and wrong is wrong. One of them has to be wrong. Why don't you sort out who it is?

Mr McCormick : Because it is not possible to be definitive. Senator, if you can point me to someone who can tell me how to write that regulation I will do it.

CHAIR: That is what you call a legal vagary and a lawyer's feast.

Senator EDWARDS: Just one point of clarification: at what stage was the report on this accident at when Mr Wickham was employed by CASA?

Mr McCormick : Are you talking about our report or the ATSB's report? Our report?

Senator EDWARDS: Yes.

Mr McCormick : Our report was completed.

Senator EDWARDS: And the ATSB report?

Mr McCormick : I cannot speak for the ATSB. That has only just recently been released, so I imagine--\

Senator EDWARDS: So you employed him while that was still be drafted? Of course, he was employed some years ago now. Was it two years ago?

Mr McCormick : I said February 2011.

Senator EDWARDS: But subsequent to the accident in which he was the chief pilot. Did any one of you or your officers speak to the officers of the ATSB directly about the preparation of the draft at any stage of their drafting prior to their report?

Mr McCormick : I had no formal correspondence with the ATSB.

CHAIR: We are not asking you; we are asking whether your organisation or your officers had any.

Mr McCormick : We would have on the directly interested parties provision made comment, and, as the senator outlined there, we did have the exchanges of information about the possible safety recommendations.

Senator EDWARDS: So would there be one exchange or hundreds of exchanges or 50 phone calls or 500 phone calls or no phone calls between you or your officers?

Mr McCormick : I am pretty sure there would not be 500 phone calls. The exchange is generally on paper. So the exchange would have been what Senator Fawcett read out on the emails.

Senator EDWARDS: All right. Then I will ask anybody at the panel.

Mr McCormick : We can do some more research on that.

Senator EDWARDS: I am sure that we can research whatever. I am asking you here and now whether any of you people here know of or have any knowledge of the number of contacts made between the ATSB and your organisation specifically about the report which has just been released by the ATSB on this matter.

Mr McCormick : I will ask Mr Farquharson to make a comment on that.

Mr Farquharson : The discussion, as far as I am aware—

Senator EDWARDS: There have been discussions?

Mr Farquharson : I will ask Mr Boyd to elucidate a little bit more on this, but my recollection is that at the time the safety recommendations, the critical aspect in the ATSB's view, were put forward, that initiated a discussion between our standards branch and ATSB as to what could or could not be done in terms of prescriptive regulation.

Senator EDWARDS: In terms of recommendations, you are talking about forming recommendations?

Mr Farquharson : No, the ATSB's view as I recall was that this should be dealt with by way of a prescriptive set of legislation—rules that said 'if this, then that'; 'if these circumstances prevail, then you divert or make some other set of decisions'. My understanding is that the discussion took place between standards division and the ATSB and the next series of contacts would have been I presume in the DIPs process.

Senator EDWARDS: So there is formal communication, there is written communication, between you on this matter?

Mr Farquharson : I think that in the documents we have submitted to you there is a record of our responses.

Senator EDWARDS: Senator Fawcett acknowledges that we have it.

Mr Boyd : I can confirm that. That particular issue was discussed between the standards division and the ATSB but only on that—

CHAIR: So there is not a Chinese Wall?

Mr Boyd : No, it was putting forward the arguments that Mr McCormick has already put.

Senator EDWARDS: The point Senator Heffernan is making is: is it routine to have this type of discussion during—

Mr McCormick : It is as part of the MOU.

Mr Boyd : Apart from that discussion—

CHAIR: Are you a lawyer?

Mr Boyd : No.

CHAIR: Who is the lawyer?

Senator EDWARDS: I will finish now because there are people with far more knowledge of this incident than I have. You are confident that in the evidence that we are going to be able to collect there will be nothing outside of the routine of what you have just told me that took place in discussions between the two units of CASA and ATSB? Other people suspect otherwise, but we are not going to turn up any evidence and nobody is going to provide us with in camera evidence that there is any kind of collusion between the two bureaus?

Mr McCormick : There is definitely no collusion between us. The official communications—

Senator EDWARDS: I am handing you this ball so that you can deal with it.

Mr McCormick : The official communications between us are in the manner that Mr Boyd and Mr Farquharson have outlined in that a safety recommendation comes back to us and we reply. The people who are replying are in specific positions. That encompasses the grand total of our official communications with ATSB. I cannot rule out the fact that somebody who has a friend in ATSB may have picked up the phone and talked to them but that certainly would not feature in our official position as far as our position goes with ATSB.

Senator EDWARDS: Do you have any knowledge of those kinds of conversations?

Mr McCormick : No, I do not.

Senator EDWARDS: But it is possible?

Mr McCormick : I cannot rule it out.

CHAIR: Mr Boyd, given your recognition of the fact that there is this conflicted view within the department which 'looks very untidy', did you discuss the untidiness with ATSB?

Mr Boyd : No.

CHAIR: Have you ever had a discussion with ATSB?

Mr Boyd : No.

CHAIR: Do you think the divided view in CASA is untidy?

Mr Boyd : That is a difficult one to answer.

CHAIR: You know what I know. Is it untidy?

Senator STERLE: That might be bordering on an opinion there, Chair.

CHAIR: Mr Farquharson, do you think it is untidy?

Mr Farquharson : I think it bears resolution.

CHAIR: Do you think it is untidy?

Mr Farquharson : I do not think I would use those words.

CHAIR: Have you ever expressed that view?

Mr Farquharson : That it was untidy?

CHAIR: Yes.

Mr Farquharson : I do not know.

CHAIR: You don't? We got this from you.

Mr Farquharson : Yes?

CHAIR: It seems to be your name.

Senator XENOPHON: Let us go back 11 years. An ATSB investigation identified a safety issue with the classification of passenger-carrying operations in terms of flights being characterised as aerial work and not being afforded the same level of safety as fare-paying passengers. That relates to aeromedical flights. That was back in September 2001. CASA was going to look at that. Has that been rectified? Has it been resolved?

Mr McCormick : The actual classification of aeromedical flights as aerial work is contained in CAR 206.

Senator XENOPHON: Is that the same as it was 11 years ago, or has it been—

Mr McCormick : It goes back significantly further than 2001.

Senator XENOPHON: No, but there was a recommendation made back in 2001 raising issues about having aeromedical flights being in the same category as aerial work, which includes crop dusting—that is correct, isn't it?

Mr McCormick : Aerial work does include crop dusting.

Senator XENOPHON: So there were issues raised by ATSB back in 2001 about the classifications and that something needed to be done about them. That was a recommendation made to CASA; are they still under the same category 11 years later?

Mr McCormick : They are still classified as aerial work of a CAR 206, that is right.

Senator XENOPHON: So it has not been rectified?

Mr McCormick : No—well, I do not know what recommendation you have in front of you, but if that is the case—

Senator XENOPHON: Perhaps you could take this on notice: it is ATSB investigation BO/200100348. You could take that on notice.

Could I just go to an issue back, again, on the 22 February 2000? The ATSB made a recommendation to the Bureau of Meteorology about aviation safety issues inactions in terms of the reliability of Norfolk Island forecasts. Are you familiar with that at all?

Mr McCormick : No, I am not.

Senator XENOPHON: Okay. Perhaps you could take that on notice; it talks about the safety deficiency and the unreliability of the weather forecasts at Norfolk Island—

Mr McCormick : Sorry, that is a recommendation to BOM?

Senator XENOPHON: Yes, to the Bureau of Meteorology. But it does actually make reference to:

SAFETY ACTION

As a result of these occurrences, the Civil Aviation Safety Authority has commenced a project to review the fuel requirements for flights to remote islands.

The report on Norfolk Island, the recommendations to the Bureau of Meteorology and the safety action is that CASA had commenced a project to review the fuel requirements for flights to remote islands. Can you tell me when that review was concluded?

Mr McCormick : We did have a project on—

Senator XENOPHON: No, perhaps you mistake me. This is back on 22 February 2000—

Mr McCormick : Oh, I see.

Senator XENOPHON: saying that a recommendation was issued to the Bureau of Meteorology and there was a safety action. There was analysis and it said:

The present level of reliability of meteorological forecasts and the current regulatory requirements are not providing an adequate level of safety for passenger-carrying services to Norfolk Island.

That was the analysis, and therefore the safety action was:

As a result of these occurrences, the Civil Aviation Safety Authority has commenced a project to review the fuel requirements for flights to remote islands.

That was nearly 12 years ago—sorry, more than 12 years ago; what has happened since then?

Mr McCormick : I cannot speak for what the then regime did 12 years ago with those recommendations—

Senator XENOPHON: But you can tell me, surely? CASA obviously dealt with this pretty promptly. It was back in 2000. When was the review in relation to the fuel requirements for flights to remote islands concluded by CASA?

Mr McCormick : As far as that report goes and the recommendation and what the disposition was, we will have to take that on notice. None of us were involved, unfortunately, in the year 2000. There is a project at the moment involved in fuel for remote islands—

Senator XENOPHON: Surely, it cannot be the same project? Surely, it cannot be the same project from a recommendation issued on 22 February 2000? It cannot be!

Mr McCormick : That is the first I have heard of that recommendation, myself personally, so I do not connect the two. As I said, we will take on notice that particular report—

Senator XENOPHON: I reckon that we are going to have to have you back here, because it relates to a number of incidents in relation to a BAe 146 aircraft, a Piper Navajo Chief, a Chieftain and another BAe 146; it gives a number of instances where things got pretty hairy because of the unreliability of weather forecasts at Norfolk Island. CASA was undertaking a review in relation to fuel requirements for flights to remote islands—this is over 12 years ago—surely, it has been resolved? It must be! Please do not tell me that there is still an ongoing review of fuel requirements for remote islands 12 years after it was raised—nearly 13 years, rather, after it was raised.

Mr McCormick : Senator, I appreciate that what you have raised there is that people should be very prudent when they are flight-planning to Norfolk Island. I agree with that, whereas the project—

Senator XENOPHON: No, no, no! I am sorry, Mr McCormick—there was a role for CASA to take:

… the Civil Aviation Safety Authority has commenced a project to review the fuel requirements for flights to remote islands.

Can anyone at this table please tell me what the review involved? When was that review concluded?

Mr McCormick : Sorry, Senator, we were not involved in this. We were not in these positions in the year 2000. I do not know what has happened to that report; I will find it out on notice.

Senator FAWCETT: There is actually a broader issue, though, Mr McCormick. There is no closed-loop system so that recommendations that are made by ATSB, that CASA agrees—particularly we have seen a number where, in a coroner's court, the coroner has said, 'We'll close out this issue, because ATSB made a recommendation and CASA said they will do it,' and then a decade later there is has been no action. Is that an issue for the travelling public? I hear you that you were not there for that whole 10 years, but we are talking about a system now, not personalities. Is the system not working as it should?

Mr McCormick : I cannot speak for what happened in 2000. I only got here in 2009. But we have in place now a system where we do track all the recommendations—since 2009 and on-hand at the moment there are 121 recommendations that were made by coroners. There are 16 of those outstanding. Some of them are unfortunately beyond our ability to do, where the coroner may have made quite a reasonable finding but it is impossible for us to implement. Some others we have under review as well. We do have the safety recommendations of the ATSB. We do track those; we have been doing that since I have been here, and we know exactly how many of those are outstanding as well.

Senator NASH: Was anybody at the table employed by CASA in 2000?

Senator FAWCETT: Mr Boyd, were you around?

Mr Boyd : Yes, but not in that position.

Senator NASH: Anybody else? Mr Farquharson? Dr Aleck?

Dr Aleck : I was in Montreal.

Senator FAWCETT: You've got an alibi! Going to the terms of reference here, though, looking at an ATSB report into this incident at Norfolk Island, here are two regulatory issues, one to do with the categorisation of aeromedical flights—and that should have been upgraded to charter so there was more protection granted, and that did not occur—and that we should be more prescriptive about fuel requirements for remote islands. I understand that Pel-Air has actually implemented that, post your special audit, and I understand CASA has undertaken again to look at that issue—both of which point to the fact that here is a regulatory issue that, if implemented 10 years ago, either of those, this accident probably would not have happened. As the regulator, don't you think that the ATSB report should have covered those factors? I know it is not for you to tell them how to do their report, but you are the regulator. Should they have not considered those broader regulatory issues as part of this report? Are you surprised they did not?

Mr McCormick : I think—and someone may have said it earlier; we did not get to hear all the testimony—the more that is in an incident report, not to be used for punitive measures but information which informs people of the background of what has happened, what some of the other factors are, even if they have no real bearing on the outcome, I think that is all to the good. That is a move to the good. The more that is in the report the better. That is my personal view, but I have no control—as I have said, and I will now say it again. You know I am going to say, 'I have no control over what the ATSB puts in the report.' But I think, in the sharing of information, it should all be available. In the particular case of remote island operations, there are six other operators conducting aeromedical evacuation flights. After the Pel-Air ditching we audited those six. We went and looked to see what they were doing. None of those had an issue. Norfolk Island has been flown to for many years, by Pel-Air as well in various iterations, without there being an issue. But it is a tricky place to fly to, I think we all agree.

CHAIR: We took evidence this morning that 13 per cent of the flights into Norfolk Island had a fuel critical issue when they got there.

Mr McCormick : From Pel-Air or in general?

CHAIR: In general.

Mr McCormick : We would not have that information—

CHAIR: We will get it to you.

Senator XENOPHON: Chair, could I just go back to this issue, and I will read the analysis to you of a report that is now almost 13 years old—the ATSB report:

Reports to the Bureau, including those detailed in the factual information section above, indicate that the actual weather conditions at Norfolk Island have not been reliably forecast on a number of occasions. Current regulations do not require pilots of regular public transport aircraft to carry fuel reserves other than those dictated by the forecast weather conditions. The safety consequences of an unforecast deterioration in the weather at an isolated aerodrome like Norfolk Island may be serious.

The present level of reliability of meteorological forecasts and the current regulatory requirements are not providing an adequate level of safety for passenger-carrying services to Norfolk Island.

Very serious matters were raised in that report. Is it fair to assume that in fact CASA has not, after almost 13 years, reviewed the fuel requirements for flights to remote islands?

Mr McCormick : In actual fact, we have reviewed the fuel requirements to remote islands, but not Norfolk Island. We have reviewed them to Christmas Island in relation to some of the flights being conducted on behalf of the Australian government.

Senator XENOPHON: But not Norfolk Island.

Mr McCormick : Norfolk Island as a specific issue is now included, as you said earlier—or somebody said in the committee on Pel-Air's list of remote island air fields, et cetera. The regular public transport that you are referring to there, of course, carry an alternate if required and carry the contingency fuel required, which is the difference to aerial work.

In aerial work, to put aeromedical evacuation into aerial work, as you heard earlier on, there was a policy about the classification of activities. The classification of activities policy was modified. It is in the front of our standards development. It is interesting to note that the comment at the time that the policy came to me was that it was being produced not to reduce the risk in the aviation sector; it was to reduce the risk to CASA. Of course, it relied on informed consent, informed consent being that you knew what risks you were taking when you got on board an aircraft. There is difficulty in that from the point of view of the Royal Flying Doctor Service, for instance, and the charter category. If they need informed consent, how could they pick up somebody from a road accident who was unconscious and then legitimately say the person had given informed consent to get on board the aircraft?

There are significant issues around charter and aerial work. My personal view is that there should be no difference between aerial work and charter when it comes to these matters. Public transport will disappear under its current guise in the new ops regulations. However, we have found no-one else who has had difficulty with this. This is an extraordinary set of circumstances where an aircraft that was otherwise serviceable has wound up in the water purely because it ran out of fuel. What we have in place as far as regulatory development goes, and again I cannot talk about what happened in 2000, is the removal of that anomaly. But we are also cognisant of ICAO's requirements.

Senator XENOPHON: Let's not take it any further, other than to ask you to please advise us on notice what action CASA took following recommendations made on 22 February 2000.

Mr McCormick : Yes, we will take that on notice.

Senator XENOPHON: Can I go to what you told Four Corners. I am looking at the transcript of your interview with the Four Corners program in relation to this incident. You said:

In the end it's only the pilot who can decide whether he is fatigued or he or she is fatigued and unable to conduct a flight.

Is that your position?

Mr McCormick : That is correct.

Senator XENOPHON: So what role do systemic and organisational issues play?

Mr McCormick : Systemic and organisational issues normally take place up to the rostering of the pilots to conduct the flight. In the end, the pilot himself is responsible. Again in the Pel-Air special audit we did, you will find that no pilot in Pel-Air that we interviewed considered that they would have difficulty if they told the operator that they were too fatigued to fly.

Senator XENOPHON: Let's move on, because I am very short of time. You must have an opinion as head of the regulator for aviation safety in this country as to the fact that the CASA special audit never found its way into the ATSB report into the Pel-Air incident.

Mr McCormick : I will stand by what I said earlier on to the chair. Any information that is out there, any information about anything that can help educate or inform views that relates to an accident, in my view, should be out and should be available. What ATSB or anyone else for that matter chooses to put in their report is unfortunately not something that I have control over. Should the information be available? We do not publish audit reports for reasons we have canvassed before—because quite often they could be unfair and they could be used for commercial advantage by competitors. What goes into the ATSB report on an accident should be all the information that is available about the accident, but that is a matter for the ATSB.

Senator XENOPHON: So you do not see anything in your report as being in any way related to the sequence of events that led to the ditching of that aircraft?

Mr McCormick : As I said, they certainly could have had more support from the company. No-one denies that, and I said that on the Four Corners program. I do not know whether they put that on—

Senator XENOPHON: I have just a couple more issues, because time is of the essence. There is a suggestion that Mr James received his endorsement or his approval to captain this aircraft from two check and training pilots at Pel-Air who in fact do not have approval to do so. They do not have the authority to give him the approval to fly that sort of aircraft. Are you able to comment on that from a regulatory point of view?

Mr McCormick : It is in the audit report, but Mr Quinn also said he thought the command endorsement was illegal. The endorsement training is five hours of training and, to our knowledge, was conducted legally by people who have signatures acceptable to CASA.

Senator XENOPHON: Could you please take that on notice so we can clear that up?

Mr McCormick : As I say, it is in the audit report. The command training to fly in the left seat, which is what he was undertaking, does not require CASA's approval. The people who conducted that—and it is in the special audit report—were not at the time approved by CASA as supervisory pilots. That is in our audit report.

CHAIR: Given that that happened, wouldn't the chief pilot be in the gun over that—allowing and approving the process?

Mr McCormick : If Pel-Air have a head of training, that is the person who would be responsible.

CHAIR: Yes, but the chief pilot, for God's sake, is the boss. He would have to take responsibility and two unqualified people gave him the left-seat endorsement.

Mr McCormick : It will come back to the chief pilot, that is true.

CHAIR: So shouldn't he stand aside from CASA?

Mr McCormick : In CASA there are issues on restriction on trade—

CHAIR: But he should never have got there in the first place with all this in the background.

Mr McCormick : Again, the times are—

CHAIR: I notice the lawyer is very quiet. If I was in charge, I would get rid of two out of three lawyers.

Mr Anastasi : I will have to comment on that issue, because those pilots were supervisory pilots approved by the company to conduct in-command—

CHAIR: But if they were not qualified—

Mr Anastasi : They were. They were in the sense that the operations manual required those persons be approved by the company. Yes, the CASA audit report made the comment that they were not approved by CASA, but those persons who were conducting that in-command under supervision flight were not required to be approved by CASA as check pilots. The civil aviation orders—

CHAIR: That is more then. Isn't that a fault line?

Mr Anastasi : No, because the civil aviation orders say when someone has to be approved by CASA as a check pilot. The orders distinguish between the types of activities that people can perform and—

CHAIR: But isn't that cowboy stuff? You are a lawyer.

Mr Anastasi : It is not cowboy stuff because what was being done was in accordance with the legislation.

CHAIR: But if they were not qualified to give—

Mr Anastasi : They were qualified. The view expressed in the audit report is not accurate in the sense that the officers who prepared the report assumed that those Pel-Air pilots had to have CASA approval to fly with Mr James when he was in-command under supervision when in fact that is only required where CASA under the orders requires that those persons be approved by CASA. In that case, that did not occur. The operations manual required that those pilots be approved—

CHAIR: But the ultimate responsibility is with the chief pilot.

Mr Anastasi : But he did nothing in that regard—

CHAIR: Oh, no, nothing!

Mr Anastasi : Those persons performed activities that they were authorised to—

CHAIR: But the legal responsibility would come back to him if in doing that the plane fell out of the sky or something.

Mr Anastasi : That is correct, but if there was something being done incorrectly—

CHAIR: If you go down the track several expeditions and a plane did fall out of the sky, based on the fact that he got an endorsement from people who were not qualified—

Mr Anastasi : No. Mr Aherne—and I think this is where you are taking this from—in his submission to the committee referred to an extract of the CASA special audit report that dealt with Mr James when he was in command under supervision, not leading to his endorsement training or—

CHAIR: It was his in-command test.

Mr Anastasi : No. What they do is fly a normal sector as part of the company's operation. He is in command under supervision for him to get experience in that role so that he can then qualify to be in command.

Mr McCormick : We are talking about the chief pilot. In actual fact, Mr Dominic James's training—and this is reading from the submission which we would have made to the Administrative Appeals Tribunal if Mr James had not withdrawn his action—

CHAIR: Can you table that?

Mr McCormick : I am not sure if you already have it or not, but I am quite happy to table it again.

Senator XENOPHON: Why did he withdraw his action? Wasn't there a change of position on the part of CASA?

Mr McCormick : Sorry?

Senator XENOPHON: You make it sound as though he withdrew his action in the AAT. That is because he actually got his licence back from CASA. He did not need to pursue it. Is that right?

Mr McCormick : I do not know whether Mr Anastasi wants to comment on that.

Senator XENOPHON: You gave it the complexion that he withdrew his action to the AAT, but—

Mr McCormick : He did.

Senator XENOPHON: Yes, but he withdrew that after CASA decided to not take the issue further with the suspension of his licence.

Mr McCormick : No, that is incorrect. On 25 February 2010, following correspondence with Mr James's lawyers, CASA modified the exam requirements requiring Mr James to only pass: flight planning (aeroplane), performance and loading (aeroplane), APLA, meteorology (aeroplane and helicopter), human factors (aeroplane and helicopter), AHUF—

CHAIR: Why did they modify it?

Mr McCormick : We modified it because originally we had other exams in there as well that we wished him to pass.

CHAIR: Can you say that again?

Mr McCormick : When we initially suspended his licence there were extra exams we wished him to pass. We modified the list down, and then on 26 February Mr James applied to the Administrative Appeals Tribunal for review of CASA's decision. On 31 August 2010 Mr James withdrew his application to the AAT without proceeding to a hearing.

CHAIR: Why did you modify it down? Was that because of the threat of legal action?

Mr McCormick : No, no, no. We reviewed the exams that we thought were relevant.

Senator NASH: Did you get it wrong in the first place?

Mr McCormick : Not at all.

Senator NASH: Then why did you review it?

Mr McCormick : We reviewed it because it was a belts-and-braces approach the first time around. We required him to sit the airline transport pilot licence theory subjects again.

Senator XENOPHON: But not navigation?

Mr McCormick : Originally navigation was in the list, but I do not think he has any difficulty finding Norfolk Island.

Senator NASH: But what prompted you to change the list?

Mr McCormick : It was because we had already asked him to pass a commercial flight test and a command instrument rating flight test, which he did.

CHAIR: What date was that?

Mr McCormick : 26 February 2010. As I said, following correspondence with Mr James's lawyers, we modified those exams. But it was not due to—

CHAIR: Was your new staffer on board by then?

Mr McCormick : No. In fact, I would like to go back to that, if I could. We are talking about the training of Mr James, and whether his training—

CHAIR: No, I am talking about whether the chief pilot, by the time that decision was taken, was now working for CASA.

Mr McCormick : Well, unfortunately it was a previous chief pilot. When Mr James's training was undertaken, we looked at the Pel-Air records, which showed that the applicant, throughout his training, demonstrated deficiency in the following areas: flight plan, including fuel planning and management, general handling skills, situational awareness, aircraft systems knowledge, instrument approach and competency, CRM coordination and monitoring, and competency in handling an emergency and abnormal situation and that he failed a proficiency check on 28 June 2008.

CHAIR: Can I just pull you up on a procedural matter? If Mr James decides to go back to the tribunal, are we in any way damaging his case by reading this out?

Mr McCormick : I do not think so.

CHAIR: What does your lawyer think? Or aren't you allowed to think?

Mr Anastasi : I am allowed to think. He would not go back to the tribunal, because—

CHAIR: No, that is not the question. That is a judgement that you cannot make. I want to know whether we are impairing his case if he does, if we read this into the public record now.

Mr Anastasi : There is nothing on foot at the moment.

CHAIR: That is not the question. I am a wool classer and welder and I can figure it out. You are a lawyer; you ought to be able to.

Mr Anastasi : I see no reason why it would prejudice any case of his when he can make any case he wants to.

CHAIR: You state that categorically?

Mr McCormick : Senator, this is in our submission to the AAT.

CHAIR: I know—which has been withdrawn.

Mr McCormick : Yes, but if we make a submission to the AAT, this will be the submission.

CHAIR: But this would have been like us providing you with warning on the email—that might pre-empt the case.

Mr McCormick : The bottom line to this—and I will not make any other comments—is that on 28 June 2008 there was a check flight with Mr James, conducted by Pel-Air. Regarding the Pel-Air training records for the period 28 June 2008 to 10 January 2009, suffice it to say that the reports are not available. But that was under the chief pilot, Mr Wally Meyer, if I got it right. On 21 November the chief pilot—

CHAIR: Had the chief pilot, Mr Wickham, transferred to CASA before or after you changed the terms of the test for Mr James to get his licence back?

Mr McCormick : No, Mr Wickham did not start with us until a year after these issues were changed with Mr James. My point here is that the training you were talking about—whether it was legal or not, and who did it et cetera—was not with Mr Wickham as the chief pilot. The chief pilot at the time was a Mr Wally Meyer—I think that is close—and in 2008 we issued a safety alert, as I said, to Pel-Air. CASA raised with Regional Express and Pel-Air whether the then chief pilot was effective in the role. It was Mr Wally Meyer, and Mr Wally Meyer was replaced by Mr John Wickham after the training that we are talking about.

CHAIR: We are going to have to wind up, but I can assure you that he is coming back.

Senator FAWCETT: Mr McCormick, perhaps you could clarify something. Does the fact that you asked Mr James to essentially re-establish his competence through these tests, both written and practical, imply that you felt that the incident flight was an error—using the reason model of safety—as opposed to a violation?

Mr McCormick : While there are undoubtedly violations of the regulations, we do not always take punitive action against anybody and we would like to always think that when we do take punitive action there is a very strong reason for it. So we try and rehabilitate the person as in this case.

Senator FAWCETT: The point is that the vast majority of accident reports, when you look at somebody who ends up committing either a serious error or a violation, it is not a conscious decision, it tends to drift over time and that drift is normally corrected where it is occurring by a supervisory structure that has things like proficiency checks and annual IRTs and things where people are actually checked to make sure you bring them in back into standardisation. So if in this case Mr James had drifted to the point where certainly in your view as stated he was clearly responsible for a string of incidents as a pilot in command that led to the accident, one of the precursors to that must surely be the fact that he was working within a system that did not impose suitable check and training activities to hedge that drift away from accepted practice. Therefore organisational factors are a key part of this investigation.

Mr McCormick : I take on board what you are saying here. I think the person has to operate within the system and, as I have said, the company could have done better as the system that we are talking about that surrounds Mr James's operations. However, the system, and we did point out deficiencies in our special audit report, also relies on a couple of things. It relies on one, that a person who is within that system will act in good faith. In other words, they will abide by the regulations that they know and they will act in their best interest of a safe outcome. Could I put my hand on my heart and say that Mr James, whether it has been a mistake or what, required both those things? He was clearly in violation of a number of regulations not all of which are strict liability offences, as other people have said. By the same token I think it bordered on reckless from an airmanship point of view to not do any flight planning whatsoever other than to fill the aeroplane not even full of fuel and head off to a remote island. The system defences most probably, and I cannot speak for Pel-Air, I think you would have to ask Pel-Air themselves, but me looking at it as a system would say that the system defences do not expect that sort of behaviour.

Senator FAWCETT: I bring it back to your comment before that an accident investigation should include as much information as possible for the benefit of everybody. Did CASA, did you or your officers, reflect when you had the opportunity to comment on the draft any concerns, surprise, even an observation that there were no systemic or regulatory issues in the report if you genuinely believe that that is an important issue that should be reflected in a report?

Mr McCormick : I personally did not. When we review a report as a directly interested party we are reviewing it for factual accuracy and where it affects us and regulatory development or not. I think I said that in my opening statement. That is the sum total of what we do. Again, we have a separate role from ATSB. Anything ATSB gets from us they get under a section 32 demand where we have to provide it. What they then choose to put in their report as the final report is not something that we get to comment on. It is for the ATSB to decide what should be in that report. I am fully cognisant of what we said about annex 13 and the factors that should be in those reports. I have no argument with that. As I said, information should be shared. What actually makes its way into the final report I have no control over, and neither should I.

Senator XENOPHON: Can I just follow through. AIPA in their submission—I do not know whether you have heard their evidence—

Mr McCormick : No, we did not.

Senator XENOPHON: The gist of it, and Senator Fawcett can pull me up on this if it is not accurate, at the moment if any incident occurs, something goes wrong in an aircraft, the idea of the just culture is you let ATSB know. That is basically what happens. It is an understanding amongst the AIPA representatives that were here today that that information stays confidential, that CASA only gets the same summary that is published by the ATSB, in other words it does not identify the aircraft or a pilot. There is that line that if it is reckless or deliberate or an imminent danger to safety. My understanding is that CASA actually gets a lot more information than many pilots think it does. In other words, you actually know the aircraft, the time of the incident, so you can pinpoint the pilot involved in those reports even though there is a section amongst AIPA itself, who I think do a pretty good job representing their members, that people can freely give information in order to improve the culture of safety. What actually happens? Can you clarify that for me?

Mr McCormick : I will ask Mr Farquharson and then Dr Aleck to comment, if I could. I appreciate the time.

Senator XENOPHON: It is a very important point.

Mr McCormick : It certainly is. One thing that we have reviewed is whether we have ever taken enforcement action on the basis of information we have been given from ATSB that has been identified—in other words, that identifies somebody. We have done that once. The issue was raised with us because the ATSB considered that the information they were getting from the individual constituted fraud. When we looked at the individual, yes, it was, and action was taken. The person was basically lying. We have not taken regulatory action, enforcement action, against anybody else.

Senator XENOPHON: I am just trying to work out this: when a pilot gives information about an incident, can that person be identified by virtue of the information that goes from the ATSB to CASA? Because I think you would find that 99 per cent of pilots think that whatever they tell ATSB does not lead them to be identified with CASA.

Mr McCormick : The accident or incident notification form from the ATSB—and I am not sure whether you have that, Chair; we can table a copy—has the following note at the bottom of it:

Privacy notice: The Australian Transport Safety Bureau collects information for the purposes of enhancing transport safety. The collection of aviation incident information is required in connection with the Transport Safety Investigation Act 2003. Some information may be disclosed to the Civil Aviation Safety Authority (CASA) and other bodies or individuals for the purpose of enhancing aviation safety. Where possible the identity of individuals will be protected. If the information is the subject of an investigation, it will only be used and disclosed in accordance with the Transport Safety Investigation Act 2003.

That is printed on the form that people select.

Senator XENOPHON: In practical terms, what does that mean? Anything that is notified to ATSB you can track down the pilot on?

Mr McCormick : No, we do not know everything that ATSB knows, and we do not need to know everything the ATSB knows.

Senator XENOPHON: But you can still identify the pilot, because you have the actual aircraft.

Mr McCormick : The risk comes—and the invidious situation the ATSB can find itself in—is if it knows of something that is a safety risk that could lead to an accident or a serious incident and withholds that from CASA. That would be an indefensible position.

Senator XENOPHON: I understand that.

Mr McCormick : The protections that are around it, though, are rugged and they are just. I do not know whether Mr Farquharson wants to add much about what reports we have or just culture.

Senator XENOPHON: Could you just take that on notice, and that might clear it up for the satisfaction of the pilots association.

Mr McCormick : We certainly will. Also, we will give you some information on how the NTSB and the FAA operate.

Senator XENOPHON: That would be very useful.

Mr McCormick : I think the committee has most probably heard slightly different to what the actual fact is.

Senator XENOPHON: Chair, can I also table the ATSB recommendations to the Bureau of Meteorology of 22 February 2000, given that I referred to it in my question.

CHAIR: Yes, it is tabled.

Senator NASH: Mr McCormick, I just want to clarify something. When I was asking you the questions around Qantas and the information regarding Mr James, you made a comment that Mr James had referred to that in camera. I was just trying to clarify what you meant. Maybe it was just an assumption that he may have.

Mr McCormick : It was just assumption.

Senator NASH: Can I ask you to take on notice also, just because of time, the issue of the black box. Whose call is it to require the retrieval of a black box?

Mr McCormick : I can answer that one. That is the ATSB.

Senator NASH: There are two to take on notice. In terms of the information regarding the weather, the initial weather report you referred to earlier was 6,000 feet in terms of the cloud, but then a second one was issued very shortly after with different information. How do you know it was received? Given some of the issues around the radiofrequency—and of course I understand that you know it was sent—how do you know it was received?

Mr McCormick : I can look to the ATSB report.

Senator NASH: Can I ask you to take on notice, given the evidence around, how do you and CASA know that information was received by the pilot? Also, just regarding Mr Wickham and his appointment to CASA, could you—again on notice, if you would not mind—provide for the committee how many applicants there were for that position and who was on the selection panel? I think, as the chair has raised, it looks extremely odd that CASA would employ the chief pilot from Pel-Air while ATSB was currently conducting the investigation around the report. It is very, very strange. So if you could take on notice for us the applicants and who was on the selection panel.

Mr McCormick : Certainly, Senator.

Senator NASH: Did it not strike you as odd that you were employing somebody to come and work for CASA who was the chief pilot of a company involved in an incident that the ATSB were doing a draft report on and also given that you said that there were concerns around Pel-Air and that there were things they could do better.

CHAIR: Good on you, Mr Hood, we knew you would rescue him.—

Mr McCormick : I am going to—

CHAIR: Rescue, Mr Hood. Rescue him.

Mr Hood : Thank you, Chair.

CHAIR: You get a free beer tonight.

Mr Hood : In the selection process and in fact during the previous couple of years when we moved to have the previous chief pilot changed with the Rex and Pel-Air management, we were delighted at the appointment of Captain Wickham as the new chief pilot. In fact—

Senator NASH: What date was the changeover?

Mr Hood : He was appointed on 21 November 2008.

Senator NASH: So more than a year before the incident?

Mr Hood : Yes, Senator, about a year before the incident. And with the three legs, we were very pleased with the work of the chief pilot in relation to the improvement of the safety standards. There were three elements to Pel-Air. One was the Adelaide-SAAB operation, one was the Nowra-Lear operation and the third was the Sydney based Pel-Air operation. It was certainly our experience that Captain Wickham was an above average chief pilot and was moving through—

Senator NASH: I take that. But it is the 'delight' that you expressed. 'To be delighted' is an unusual phrase for an agency to use in referring to somebody being appointed, isn't it?

Mr Hood : I am happy to withdraw that so that you are satisfied.

Senator NASH: Your delight was based on his pre Pel-Air employment.

Mr Hood : Senator, I am sorry: on his demonstrated performance as chief pilot during that 12-month period, particularly in relation to the Adelaide and Nowra operations.

Senator NASH: Okay. If you could take the other on notice.

Mr McCormick : Senator, I can give you the answer to one question.

Senator NASH: Yes.

Mr McCormick : The weather report, which is on page 6 of the ATSB report, says, 'These conditions will lessen the ultimate minimum'—this is the weather that was given one minute later. The report says, 'The pilot in command acknowledged receipt of that weather report but did not inquire as to the availability of an amended terminal forecast for the island.' That is how we would know that he received that report.

CHAIR: So your department had no part, no conversations, in the recovery of the black box?

Mr McCormick : No, Senator, we did not.

CHAIR: No input at all?

Mr McCormick : No, Senator.

CHAIR: Email trails are a great thing. That is why I have never sent one. The audit that was conducted criticised the systems of Pel-Air. Correct?

Mr McCormick : The special audit?

CHAIR: Yes.

Mr McCormick : Yes.

CHAIR: When you made the criticism, was the chief pilot at the time the guy you employed?

Mr McCormick : When the audit was done—

CHAIR: They are nodding.

Mr McCormick : Yes.

CHAIR: So he would have been related to and had some input into the system that you criticised.

Mr McCormick : That is fair to say, Senator. Yes

CHAIR: Yet you employed him. Best of luck. Thank you very much for your evidence today. We are most grateful for your patience, endurance and smiling faces. Best of luck.

Mr McCormick : Thank you, Chair.

CHAIR: If you think it is a bugger of a job, you could always take Mr Bowen's job as the minister for immigration. He has a worse job than you.

Mr McCormick : Sorry? Whose job?

CHAIR: Mr Bowen's.

Mr McCormick : Little risk I will run short of challenges where I am, Chair. Thank you very much.