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Rural and Regional Affairs and Transport References Committee
15/02/2013
Aviation accident investigations

DOLAN, Mr Martin, Chief Commissioner, Australian Transport Safety Bureau

SANGSTON, Mr Ian, General Manager, Aviation Safety Investigations, Australian Transport Safety Bureau

CHAIR: Welcome. I remind senators that senators 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 the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policy or factual questions about how and when policies were adopted. Officers of the department are also reminded that any claim that it would be contrary to public interest to answer a question must be made by a minister and shall be accompanied by a statement setting out the basis for the claim.

If you would like to make an opening statement, go for it.

Mr Dolan : There is no additional statement.

CHAIR: Welcome back once again.

Senator FAWCETT: Could I start off by clarifying: were ATSB aware of the existence of the Chambers report or the fact that CASA had conducted an internal inquiry specifically into the efficacy of its oversight of Pel-Air and like operations? Were ATSB aware of the existence of the special audit into the FRMS at Pel-Air. Until the lawyers of the captain raised it, were you aware of the special audit that was conducted into Pel-Air?

Mr Sangston : I had no knowledge until I heard this morning, of the Chambers report. The second part of the question was about the special audit report. We had an awareness of the special audit report.

Senator FAWCETT: When did you have an awareness of that?

Mr Sangston : Via the draft report, the safety action that was reported by the operator Pel-Air was in response to the special audit report. So we had that awareness and it was included in the draft report and the safety action by Pel-Air. I am sorry, I have forgotten the third element of your question.

Senator FAWCETT: There were two special audits. The second one was on the FRMS of Pel-Air. Were you aware of that one?

Mr Sangston : I do not have an awareness of that one; no.

Senator FAWCETT: With the MOU you would have heard the previous witnesses and the discussion. There is a fairly clear onus in the MOU that if information exists that is pertinent to an inquiry, either CASA needs to make ATSB aware that it exists, or, if there is a parallel investigation conducted that results in a report, that that report be made available as soon as practicable. Is it your understanding of the MOU that if, indeed, CASA had some information that was pertinent to a report that was underway by ATSB that they would have provided that?

Mr Dolan : In broad, yes.

Senator FAWCETT: Do you think that it is a reasonable statement to say that a report was not provided because you did not ask for it, when you did not know of the existence of the report?

Mr Dolan : The relevant provision of the MOU—the key one, I think—is 44 10. Whenever there is a parallel investigation into something we are investigating CASA will, subject to requirements, provide us with a copy or other compilation of relevant details as soon as practicable. But it leaves the onus on CASA to determine what is relevant to our investigations. We were aware that there was a special audit being undertaken of Pel-Air. We were aware of that before we got the information that Mr Sangston referred to. But there is a decision for CASA, in some cases, as to what it is appropriate to provide us with, in terms of the MOU.

Senator FAWCETT: Can I take you to your supplementary submission. You talk about safety issue risk assessment. You talk about the use of the likelihood and consequence tables that are used to inform that. It says, 'Application of the worst credible scenario accounts for the effect of in-place controls and management processes.'

That is indicates that, if there is an assumption that those in-place risk controls and management processes are effective, that will influence how you apply that risk consequence table—is that a correct assumption on my part?

Mr Dolan : Yes, Senator.

Senator FAWCETT: In your report, you go to the issues of organisational factors. On page 24 it says:

Surveillance was carried out by CASA of operators' procedures and operations to ensure that such flights were conducted in accordance with those approvals and the relevant regulations and orders.

I notice that was added in one of the later drafts of the report, but it indicates that, largely, you felt as though those checks and balances, those protections, were in place. Is that a fair assessment?

Mr Dolan : That is our assessment.

Senator FAWCETT: If there is information that indicates that, in fact, the surveillance was severely deficient to the point where the safety outcomes desired were not being achieved, and in the assessment of one of the senior managers could not be achieved, would that information be pertinent to the process where you look at those existing protections in your risk tables?

Mr Dolan : It is worth reflecting that we apply those risk assessments to the safety issues to determine the significance of an identified safety issue and therefore the importance that we apply to those issues. I cannot, on the run in this room, give you an answer to that specific question, because there is a weighting against the specific safety issue we identified in the course of our investigation that might change in the light of what you are saying. That is not a methodology that I can apply on the run in order to give you a 'yes or no' answer to your question.

Senator FAWCETT: I guess I am just wanting confirmation of the fact that one of the considerations in terms of your process is the existence of existing controls.

Mr Dolan : Yes.

Senator FAWCETT: The report records those as though they were in place and effective. That is on page 24.

Mr Dolan : That is correct, Senator.

Senator FAWCETT: Therefore, if they are in place but they are not effective, that then becomes quite directly relevant information to your process regarding the factors you may consider in your report.

Mr Dolan : That is possible, in terms of a range of information and factors that were weighed up in the course of this investigation and where we change our assessments from time to time, based on new information and reconsideration. I understand your wish to get a yes or no answer. I would respectfully say I am not in a position until I have been able to review the various characteristics against—

Senator FAWCETT: I understand the difficulty it places you in, because a yes or no answer could be seen as being critical of other organisations. I understand that, as well as—

Mr Dolan : That is not my concern. My concern is that I would want to give you a reliable answer to your question rather than something I do on the run.

Senator FAWCETT: I accept that as well. Have you had a chance to read the chambers report?

Mr Dolan : I received it at most half an hour ago, so I have only had a chance to look at the broad headings in it.

Senator FAWCETT: I accept that. I also accept that so far you have not had a look at the fatigue special audit, because that is still being redacted prior to being distributed. Perhaps you could take this on notice: the committee would appreciate getting your feedback as to the content of those two reports and whether that would have changed some of your decision points in terms of the scope of the investigation.

I take you to emails of 9 and 10 February, between one of your officers and yourself, with a CC to Mr Sangston, where the officer talks about the fact that, from the systemic investigation perspective, there are three separate slices of the James Reason defences—that being the flight crew, the operator and the rule maker—and that it is important to look at all of those.

As I follow through the email traffic, it becomes clear to me that the scope of the operator and the rule maker appears to be reduced as a function of a lack of evidence. There is some discussion around evidence tables and what is hearsay versus what is clear evidence, and so those things are, essentially, scoped out of the report.

Mr Dolan : On the basis that we can only work on facts and evidence, Senator, and not on speculation, yes.

Senator FAWCETT: I understand that. If you had hard evidence that there were, in fact, issues with both the operator and the rule maker, is it therefore a logical conclusion for the committee to reach that you would have considered in more detail each of those elements of the factors leading to this accident?

Mr Dolan : At this point, Senator, I do not wish to get too theoretical about methodologies, but I think I do need to put something on the table. The methodology that we have designed for our investigations, which draws, among other things, on the accident causation model of Professor Reason, is essentially an inductive basis of reasoning. We start with the facts of a particular event, to the extent we can reasonably establish them, and then, from those, build possible hypotheses, further test them and so on. So we are building from facts to a bigger picture and seeing what we can assemble there with what certainty.

Your question is more in the nature of a deductive one, starting with a proposition and then seeing whether the facts are a reasonable test of that proposition. And so there are differing perspectives as to how we apply the approach. From our process, we would start with the facts, as we understand them, of the occurrence. We would take account of the layers in the Reason model that get, in the end, to organisational factors but start with individual actions, and therefore, work up—as appropriate, based on the facts we have available to us—towards, potentially, that organisational level. As a general rule, although it is useful to understand context of how a regulator is doing his job and a range of other things, we do not start with the alternative proposition that there is something wrong at the organisational level and we are trying to find evidence to prove that. That is some context in which I am answering the question.

Senator FAWCETT: I understand that. That context, in fact, reinforces the concern of the committee in that, if you are starting merely with a set of facts—your evidence table if you like—and significant chunks of that have not been provided when they were (a) available; and (b) required to be provided through an MOU, then there is some serious dysfunction in terms of the starting point for your investigation. You do not need to answer that, but I am just reflecting on the fact that you have highlighted that you start with a base of evidence, and our concern is that if the evidence is not as complete as it could and should be then there is a problem for you in terms of what you are working with, as well is for the travelling public.

Senator XENOPHON: Mr Dolan and Mr Sangston, in terms of what you have said regarding the Professor James Reason model, you start with the facts then go to a hypothesis. Clearly, the more relevant facts you have, the stronger the hypothesis will be.

Mr Dolan : The more relevant facts, yes, Senator. But there are assessments we need to make on the way through as to that question of relevance. And that is an iterative process, so it is not as simple as saying—

Senator XENOPHON: Are you backtracking from what you have said about the Reason model?

Mr Dolan : No. What I am saying about Reason is not that we have an inductive model based on Reason; we have an inductive model that takes account of Reason's model of accident causation. It is not an investigative model, it is an accident causation model and the various contributing factors.

Senator XENOPHON: But the Reason model is not enshrined in legislation. It goes as a tool to assist the ATSB to conduct their important work under the Transport Safety Investigation Act.

Mr Dolan : Yes, Senator.

Senator XENOPHON: So I put to you that in the Chambers report from CASA, which was not shown to you by CASA notwithstanding clauses 4.4.6 and 4.4.10 of the memorandum of understanding, which I will go to in a minute, there is reference made to there being 'no record of operational surveillance of line flight crew; rather all operational surveillance related to check and training personnel.' It says: 'CASA is concerned about some oversight activities,' and, 'We may be merely scratching the surface.' Furthermore: 'It is likely that many of the deficiencies identified after the accident would have been detectable through interviews with the line pilots, through the conduct of operational surveillance of line crews, in addition to surveillance of management and check and training personnel. If a systems audit is conducted with inadequate product checking, CASA is unable to genuinely confirm that the operator is managing the risks effectively.'

There is a discussion in the Chambers report about a lack of adequate resources on the part of CASA to do these checks. There is also an issue in relation to the diligence and skill of the individual inspectors in terms of their level of training. It says: 'It is apparent that the shortage of FOIs'—that is, the flight operations inspectors—'has had a significant negative impact on surveillance capability. In the current year, the surveillance achieved is behind scheduled surveillance targets by more than 25 per cent.' There are requests for corrective action, issues of product testing and enhancing data systems. I have just picked a number of matters directly from the Chambers report. It also says: 'Further, it raised the question of the veracity of the oversight conducted by CASA and also questions the effectiveness of current oversight policies, surveillance tools and available resources.' Are they the sorts of facts that you would have considered relevant to your investigation into this accident?

Mr Dolan : As I think I indicated to Senator Fawcett, I would prefer to give due consideration to this rather than answer on the run. I am happy to give a supplementary submission to the committee in detailed response to what you are saying. The point I would make at this stage is that, in applying the tool that Professor Reason's causation model helps us with in terms of clarity, we start with understanding the individual factors that were involved—

Senator XENOPHON: You have already said that, Mr Dolan, and I do not have much time. This report by CASA was not shown to the ATSB despite the memorandum of understanding making it clear that it should have been. I am not criticising the ATSB in respect of this, but CASA did not show you this report, notwithstanding an obligation under the memorandum of understanding, at 4.4.10, that CASA will:

… provide the ATSB with a copy of the CASA investigation report or other compilation of relevant details as soon as it is practicable to do so.

And at 4.4.6:

CASA agrees that if a CASA Officer is known to have information that could assist the ATSB in the performance of its investigative functions, CASA will undertake to advise the ATSB of the existence of the information.

Do you consider, just from the snippets you have heard from the Chambers report, that it would, on the balance of probabilities, have assisted the ATSB in the performance of its investigative functions in relation to this accident?

Mr Dolan : As I say, I would have to consider—

Senator XENOPHON: You cannot even answer that?

Mr Dolan : As I say, despite your irritation with it, the reason I started with the individual factors is that, in understanding the methodology and understanding the factors most likely to have contributed to this accident and then getting those appropriately assessed for our report, we have to start with individual action and then understand the context in which the individual action occurred. So to give a fair answer to your question I need to assess, having had a proper look at it, this report in the light of the process we applied to our investigation and give you a considered response.

CHAIR: Could I intervene?

Senator XENOPHON: Please do.

CHAIR: Given that you have only just got the report, and given that you may make an additional submission, I think it would be fair, if and when you make the submission, we had a short hearing—having got your head around whatever it is—and have another bit of a crack at it to make it easier, on you and the committee.

Mr Dolan : I am very happy to do that, Senator. I am not trying to be difficult to the committee. I am just saying that I am being asked a set of questions that I need to make an informed assessment of to be able to provide a reliable answer to the committee. If it would support the committee's work for us to provide a supplementary submission addressing what we see as those issues, we would also be very happy to have further discussions based on that supplementary submission.

Senator XENOPHON: Sure. I will not go beyond this—and I think my colleagues Senators Fawcett, Sterle and Heffernan have a series of questions as well in relation to other aspects of this—but if I can put a general proposition to both of you, Mr Sangston and Mr Dolan: there is an accident that CASA, given your memorandum of understanding between CASA and the ATSB, has prepared a report which relates to deficiencies with respect to oversight, deficiencies with respect to resources at CASA, systemic deficiencies with respect to pilot training—or, for instance, training manuals which could be relevant to an accident—as a general principle, shouldn't you at least be provided that so that then you, Mr Dolan, as Chief Commissioner of the ATSB, and you, Mr Sangston, given your key role in the ATSB, can say it is either relevant or not. I don't want to be legalistic here but, given the positive obligation contained in the MOU for the release of that information, don't you think it is reasonable that you make an assessment as to whether something is relevant or not, which you cannot do in the absence of knowing whether a document exists or not?

Mr Dolan : As a general proposition, Senator, more information is better than less.

Senator XENOPHON: And you get to determine whether it is relevant or not.

Mr Dolan : Yes, it would in some cases be better if we were in a position to assess the relevance of the information rather than another party. I would agree with that proposition.

Senator XENOPHON: Okay. I will not take it any further at this stage. Thank you, Chair.

Senator FAWCETT: Mr Dolan, can I go to the issue of the scope and content of the report. I have just been flicking through—I have not actually counted the pages, but there is clearly a bulk of the report that examines in quite some detail the sequence of the pilot's fuel planning, obtaining the weather, decisions he makes et cetera, and it leads through to the fact that he ended up having to ditch the aircraft. You go to a number of issues about that decision and why or why not some of those consequences occurred. There appears to be very little inquiry in the report about why was the pilot in a position where he felt his decisions were reasonable. There are two issues that come out of that: one is the issue of the culture and the practice of the operator and the oversight of CASA—we will come back to that in a minute—and the other one is fatigue. Did any of your own staff, or any of the directly interested parties, raise the issue of fatigue during the drafting of the report?

Mr Dolan : Yes.

Senator FAWCETT: There are two very short paragraphs that touch on the hours with respect to fatigue, but that is about it. Can you explain why the issue of fatigue was not pursued in any more detail by the ATSB?

Mr Dolan : This goes to discussions I have had with the committee earlier, which are that there is a lot more work behind this investigation than is necessarily reflected in this report. So we did a quite reasonable amount of work on assessing the relevance of fatigue issues to this accident. Where we came out, as a result of that assessment and reassessment, was a position where it was not possible on the basis of what was available to us to form the view that fatigue was a significant issue in the formation of this accident. That is what were reflected in the report.

There are two possible assessments, which we also reflect in shorthand in the report, one of which relies on the initial report to us of the amount of rest that was available to the pilot, and the second is an alternative report of the amount of rest available that he made to CASA. The reconsideration we did in the process was to try and assess the second of those, less sleep of the order of four hours, rather than making use of most of the available eight hours of rest time. What difference would this have made at the key points? We satisfied ourselves that it was unlikely but always possible that fatigue was contributing, but we did not see it as a major contributing factor.

Senator FAWCETT: To the point where in one of the emails you provide to us, one of your officers indicates that, 'We will put a comment about fatigue in just to deter or deflect any criticism about the report.' I am happy for you, in any subsequent submission, to give this some background on that.

Mr Dolan : If I could, Senator, I would not want there to be a misunderstanding of the intent of that comment. The concern that has been reflected there is the concern that others would form the assessment that we had not seriously considered fatigue issues in the context of the information available to us. We did. So we are including in the report those references, best assessments, as to the fact that fatigue did not seem to be a significant issue in play in the formation of this accident. Organisationally we were not seeing any basis for having a long discussion in the report of how we arrived at the conclusion.

Senator FAWCETT: If you had—in your initial evidence base that you keep coming back to about the facts—in that factual base, information that a peer regulator—in this case the UK—had looked at the patterns of sleep and cycle and said that under their system it would not have been acceptable, if you had in your facts base that CASA had done an audit of the operator and CASA's own oversight of the management system. I will quote from the report: 'It is considered that the oversight by CASA has been inadequate as there is evidence to support that many of the problems identified by CASA during the surveillance were never appropriately actioned. There is a lack of any clear evidence to support corrective action had been implemented and confirmed by CASA that they were effective. If the process is indicative of broader practices by CASA it is considered that CASA is exposed to unnecessary risk particularly if the requirement to provide evidence to support how it approves an operator system, in this case the FRMS.' If you had that in your evidence base, the fact that a competent body said. 'We think the fatigue would have been beyond us letting the person fly,' and the fact that the operator clearly had some problems and the fact that the regulator had recognised themselves that the oversight was not adequate of that, do you think you would have gone a little bit further in your report than just saying, 'Perhaps fatigue was a factor but we cannot actually assess it, so we will discarded it'?

Mr Dolan : The principal purpose of our investigation into an accident is to understand those factors that contributed to the accident and particularly those contributing factors that indicate a level of increased risk in the system of safety. On that basis, having carefully looked at contribution in relation to fatigue, we did not form the view that it was something we needed to highlight as a contributing factor that illustrated a heightened level of risk in the system.

Senator FAWCETT: Mr Dolan, sorry to cut you off. I hear what you did to. My question is: if you had had this additional information would it most likely have made a difference?

Mr Dolan : I was going on to answer the second part of that, Senator.

Senator FAWCETT: My apologies.

Mr Dolan : I understand you wish to cut through. The other opportunity available to us in the course of investigation is to highlight what we call 'other safety factors'. The focus is on what contributes, understand that and see whether something needs to be done to prevent a recurrence. In the course of investigation sometimes we will identify other factors that are of interest and that may represent an increased level of risk or an inappropriate level of risk in the system.

It is possible—we are dealing to some extent with hypothesis here—that, had a range of other information been available to us that had been acquired in the course of our investigation, we would have formed a view about another safety issue in this case. But it was not the primary focus of our investigation.

Senator FAWCETT: Can I come to your definition of 'contributing safety factors' versus 'other safety factors'. The end game, if you like, in this was the fact that an error was made in terms of the pilot's fuel planning et cetera. That is a conclusion CASA has clearly reached and that you have reached in your report, and I think the committee broadly accepts that there was an error made.

Mr Dolan : We could have a debate—as I think we previously did, a little—as to 'error' versus 'violation', but in principle I am with you on that, yes.

Senator FAWCETT: Sure. Call it a violation or call it an error—there is a part to play that is borne by that individual.

Mr Dolan : There is an individual action part to play in this accident.

Senator FAWCETT: Correct. Surely a contributing safety factor was why the individual made that decision, because nobody in their right mind would intentionally, wilfully, knowingly make a decision that would put their life and the lives of five other people at such extreme risk. Nobody in their right mind would do that.

Mr Dolan : I would agree.

Senator FAWCETT: Therefore, the factors that led to that situation—that person's habits or expectations, or the culture or the lack of rigorous procedures that allowed them to make that error—are surely contributing safety factors, as opposed to just other items of interest, that are really important for other operators in the industry, so they can go, 'This is something we need to look at because this could be a contributing factor to a future accident.'

Mr Dolan : This is why I did draw attention to why we need to turn our minds to both error and violation in analysing what is going on here. The two key questions to try and understand are why the level of pre-flight planning was not, with the wisdom of hindsight, adequate to the flight as intended and why—and this was partly conditioned by the content of the initial question—the en route management of the flight was not as good as it could have been. The underlying assessment we came to, based on the evidence and our methodology, is that there were individual decisions made here, and there was no evidence available to us that would have led us to the view that these were reflective of a systemic way of approaching this. We could not see other cases where similar decisions had been made or, effectively, not been made. That is the context in which we are looking at it and that is why we have focused more on individual action than on organisational factors.

Senator XENOPHON: When CASA conducts a parallel investigation on an incident or accident such as occurred here, does the CASA process have any relevance to the ATSB?

Mr Dolan : It has potential relevance to the ATSB, and that is why it is something that is covered off in the MOU between the organisations.

Senator XENOPHON: So the MOU anticipates that there could well be relevance between the two, that there is a link there?

Mr Dolan : It anticipates that we will in some cases be undertaking parallel investigations with different purposes and that there are times when one may have consequences for the other.

Senator XENOPHON: Going back to the issue of fatigue, Mr McCormick told the Four Corners episode that was broadcast in September last year:

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.

Do you agree with that?

Mr Dolan : In the context of a fatigue risk management system, yes—there is an ultimate decision of the pilot that needs to be made with appropriate knowledge and training as to whether or not their fatigue state makes them fit for the flight.

Senator XENOPHON: With all the things leading up to that, why have a fatigue risk management system, then?

Mr Dolan : The fatigue risk management system is meant to minimise the likelihood that a pilot will be put in a position where he or she has to make the decision that they are fatigued to the point where it would not be safe to fly.

Senator XENOPHON: In terms of Pel-Air's fatigue risk management system, is that something that you consider the ATSB adequately analysed?

Mr Dolan : Adequate for the purposes of our investigation, yes, having made the point that, having assessed and reassessed the contribution of fatigue to the formation of this accident, we did not see that we needed to understand a broader context for fatigue risk management, in this case.

Senator XENOPHON: Do you have software that can assist you in assessing fatigue? There are some mathematical models and software that assist with fatigue.

Mr Dolan : We have from time to time used models like FAID. My experts in this area always caution me against the use of such models. Essentially mathematic or arithmetic models can be useful indicators, but not much more, in understanding fatigue—

Senator XENOPHON: I am not saying they should be so prescriptive. I am saying there are software programs that relate to that, to help you at least consider the issue of fatigue; put it that way. Is that fair?

Mr Dolan : That is fair. And all I am saying is there is a lot of research that also says they are not particularly reliable.

CHAIR: I just want to seek some clarification, with your indulgence, Senator Xenophon. My difficulty with fatigue, and I clearly remember that trip to Perth where both pilots nodded off to sleep. Do you recall that one?

Mr Dolan : It was before my time, but I am aware of it.

CHAIR: It is pretty interesting. My difficulty with having a model for fatigue would be: would the model show whether the pilot was pole dancing or marathon running et cetera in his time off? A lot depends on what the pilot does in his time off.

Mr Dolan : I am probably less colourful than you, Senator. The question relates both to the opportunity for rest and the quality of rest and the extent to which that opportunity is appropriately availed of.

CHAIR: So in this case, you are not to know that it was not pole dancing but just a noisy motel room. How do you overcome that factor?

Senator STERLE: As we have heard, there were three different stories from the pilot as to how much rest he got. With the greatest respect, I think it deflects from the work of the committee, because if you have one man saying three different things—and no one knows about fatigue management more than me, because I do not do it too well. Coming from my ex-industry, that is all I was doing for four years—arguing the toss about fitness for duty.

Mr Dolan : I hope it will help the committee if I make one observation, so at least there is an understanding of why we gave the weighting we did to one particular version of that over another. The assessment we most principally rely on, that there was a reasonably adequate use of the available sleep for an extended period, was on the basis of our interview under the protections of the Transport Safety Investigation Act at an early stage, when memory was still fresh. We would give more weighting to that first not quite contemporaneous recall over some of the others.

Senator XENOPHON: Would recovering the cockpit voice recorder, even though it just covers those last two hours from however many metres it is in the ocean off Norfolk Island, have given you some indication of fatigue issues in respect to the pilot and co-pilot?

Mr Dolan : My personal view is probably not, and Mr Sangston may wish to add to this. I will elaborate a little on that. There are two ways in which, broadly speaking, fatigue can contribute to what goes on in the course of a flight or other transport activity. The first is what happens when, under pressure and with the need for immediate and good decision making, there is the snap, snap snap sort of decision making that sometimes comes to bear in these things. Fatigue is a much greater risk in those circumstances than when there is a considered and two-crew arrangement, considering options reflecting on them and discussing them. Fatigue is generally—based on the research available to us—less of a contributor to those sorts of discussions.

So that is the basis on which I—

Senator XENOPHON: I really have a lot of questions to ask you and very limited time, so I would like to move on—and it may be that you will have to come back. How many special audit requests have you made of CASA since 2009?

Mr Dolan : I do not have that number at my fingertips.

Senator XENOPHON: It is a pretty big deal to do a special audit request of CASA, isn't it?

Mr Sangston : I am aware of two. One being this investigation and the other one being the Canley Vale investigation.

Senator XENOPHON: When were those special audit requests made with respect to the issue date of the final report? Do you want to take that on notice?

Mr Dolan : I think we have already answered that question for this investigation.

Mr Sangston : It is in our most recent submission.

Mr Dolan : But we can get you the answer on the other investigation.

Senator XENOPHON: Mr Sangston, I do not know if you heard when CASA was giving their evidence, I asked them about minutes of an accident investigation meeting of CASA on Friday 18 November, 2011. The agenda item number 1 action description was: 'Talk to ATSB to work through the implications of the safety issue identified by ATSB in relation to the Norfolk Island ditching.' It was the responsibility of Mr Farquharson and Mr Boyd. The status was, 'Mr Farquharson contacted Ian Sangston. Mr Sangston will indicate if there are any changes to the ATSB position.' Do you remember those conversations you had with Mr Farquharson? How many conversations did you have with him and other members of CASA?

Mr Sangston : We had the meeting in early 2010, in which I was involved—

Senator XENOPHON: Yes, but this relates to minutes of 18 November, 2011.

Mr Sangston : I do not have a recollection of that, I am sorry.

Senator XENOPHON: I do not expect you to know about the minutes, because they are CASA's minutes. The minutes refer to Mr Farquharson contacting you, and for you to indicate if there are any changes to the ATSB position. Do you remember that conversation with Mr Farquharson?

Mr Sangston : I am sorry, I do not.

Senator XENOPHON: Do you have any notes in relation to that?

Mr Sangston : I do not think I do.

Senator XENOPHON: Were you the main point of contact with CASA in relation to this particular incident?

Mr Sangston : I am the primary point of contact with the Accident Liaison and Investigation Unit at CASA—with Mr Richard White—but my team managers and other staff do contact him in addition. As shown in our supplementary submission most recently, the investigator in charge did actually have interactions with Mr White as well.

Senator XENOPHON: When was it decided to downgrade from a critical safety issue for the whole issue of fuel planning and the like? In the draft reports, a number of issues that were identified as critical safety issues were downgraded. What month was that?

Mr Sangston : It was prior to the draft report. The draft report, as I recall, had two significant safety issues.

Senator XENOPHON: And they were?

Mr Sangston : In general, they go to the safety issues as per the final report, but the words have changed.

Senator XENOPHON: It has been downgraded from a critical safety issue to a minor issue.

Mr Sangston : Yes.

Senator XENOPHON: If I were to put to you that CASA, in their correspondence going back to August 2010, said that they have discussed the report with the ATSB and there were essentially no differences between the ATSB and CASA back in August 2010, would that be a fair reflection of what has transpired?

Mr Dolan : I might make a point here. Again, this is the disadvantage of only having some material available to us at short notice. I think you are commenting on a different discussion. There was a set of discussions about the safety issues that we drew to CASA's attention, initially as a critical safety issue. There was also a discussion which attempted to establish whether our investigation, effectively of the facts of the accident, was going to be at odds with the investigation that CASA had undertaken of, essentially, the operational aspects of the accident. That, as I read that paper, was what was at issue in the discussion with us.

Senator XENOPHON: I am just trying to establish whether the minds of the two organisations were made up from the discussions they had way back as August 2010 with respect to what the conclusions would be—that both organisations were essentially in agreement as to what the final outcome of the report would be.

Mr Dolan : No, Senator.

Senator FAWCETT: Along the same line of questioning, I take you to the email of 10 February 2010, from you to an officer in ATSB. It says: 'My discussion yesterday with Mr McCormick gave me some confidence that CASA was looking for systemic answers and amenable to our approach. Since then, CASA has changed its rhetoric and now seems to be hardening its view that there has been a regulatory breach that needs to be addressed.' That is in response to an email from your officer that says: 'We discussed the hole that CASA might have got itself into by its intervention since the ditching and how you might have identified an optimum path or maximised the safety outcome without either agency planting egg on each other's face.' There is the time frame of the changes in the report and the downgrading of that critical safety issue, which CASA pushed through with that statement about 'every pilot should know this', whilst not disclosing that, in their own internal work, they recognise there was a huge amount of contention amongst FOIs, legal opinion and other things as to whether or not that was actually correct. That advice was in parallel with discussions about agencies trying to not put egg on each other's face and ATSB going from a starting point of wanting a systems view to a report that is dominated by discussion about the regulatory breach. Can you explain that to the committee? It seems a remarkably strong coincidence.

Mr Dolan : As I think Mr Sangston indicated, it was not until the draft report that we formed a strong provisional view as to the fact that safety issues identified appeared to be minor. That was approximately a year—probably longer—after that discussion.

Senator FAWCETT: After who formed that view—was that the accident investigation team, was it you, was it Mr Sangston?

Mr Dolan : At the draft report stage, it was Mr Sangston in exercising his role in verifying that the processes in the draft report were consistent with our methodologies and reflected those appropriately. There was further discussion and consideration at the commission level before there was a final report. This was happening in the months leading up to the final issue of the report. The discussion you are referring to was at the stage where we had indicated to CASA, based on the facts as we had them at the time and our initial assessment, that we thought there was a very serious safety issue in relation to the guidance and support available for the management of weather and was other information. The point of the discussion with my officer was that he was trying to get an understanding—as we tried to reflect in the MOU—of the differing but related responsibilities of CASA and the ATSB in relation to maintenance and improvement of safety. The concern that the officer had was that CASA's attention, as the regulator, was shifting from changing the guidance and regulatory framework to saying, 'We believe the current framework is adequate and therefore appropriate administrative and regulatory action needs to be taken.' That is a decision for CASA. The concern was there on the part of my officer and I was trying to have that discussion with him.

Senator FAWCETT: Regarding CASA's decision, in the advice they provided you in the letter, am I correct in saying it was that advice that persuaded you to downgrade the issue from a critical safety factor to a minor safety factor?

Mr Dolan : No, Senator: Mr Sangston may wish to disagree with me, but my understanding is that, when the draft report was going through our normal quality assurance processes, that was the point at which the weightings given through our risk assessment of the safety issues and everything else were applied, and Mr Sangston formed the conclusion, and the commission at a later stage, subject to various iterations—

CHAIR: Do you have a matrix that does the weighting for you?

Mr Dolan : We have a matrix that guides the weighting, including something that is embedded in our safety investigation information management system. But in the end there is individual assessment and decision-making supported by these tools.

CHAIR: Could we see your matrix?

Mr Dolan : I think we have supplied it to the committee, but we could draw it to your attention.

CHAIR: Would there be anyone in your department who thinks that your department could possibly be bullied or influenced by another department? When does consultation become collusion? I would not like to think that you, or anyone in your department, was stood over by anyone else from another department. That might be unfair but—

Mr Dolan : Since you put it on the table I need to address it. I am not aware of any circumstance where my investigators feel that they have been stood over. They have certainly experienced very vigorous push-back by different parties in different investigations in relation to where an investigation is going. I have every confidence in their capacity to hold their own, and I think they do it very well.

I am also confident that they feel they have the support of their organisation to back them up in those areas. I would hope that they all feel the capacity to raise with both Mr Sangston and myself any concerns they have about pressure that is being applied, and to draw on us to deal with it as appropriate.

I am not aware of anything in this case that would constitute unreasonable pressure. More particularly, I am not aware of anything that led to a response to any sort of pressure.

CHAIR: So if you were to put out an internal flyer that said, 'Could anyone who feels they have been stood over, bullied or whatever, please put your hand up,' would that be a scary thing to do? I often deal with people who feel so intimidated by wanting to keep their jobs that they keep their mouths shut when probably they should not. People who are bullied by Coles and Woolies are a really good example.

Mr Dolan : There are two things. We have effectively asked that question. I will get back to that in a moment. My point also would be that our investigators are experienced professionals and are therefore in a somewhat different category. The power relationships and everything else is very different in their case than someone who is manning a check-out in a supermarket.

Senator FAWCETT: Chair, could I follow up on—

Mr Dolan : Please, Senator. We—

CHAIR: Just to put you right, there: I was not worried about the check-out. These are the people who are the producers who provide—

Mr Dolan : Fair enough.

CHAIR: We had better not wander—

Mr Dolan : As part of the ATSB I have no comment to make on that. I am stressing the professionalism of our people and their capacity to respond to what will often be tough circumstances. The other thing is that on a regular cycle we do staff surveys to find out how our staff are feeling about a range of issues. They are done on an anonymous basis and the last one was, in fact, done by the Public Service Commission, rather than by us as an organisation. One of the questions in that was about whether staff feel they have been subjected to bullying or harassment in the course of their work. While there were one or two cases where people said they had felt that they had had that, it was at a level that was substantially below the average for the APS.

CHAIR: Does that include by external forces, or was it just, 'Are you being bullied internally?'

Mr Dolan : It is an open question.

Senator FAWCETT: We are really running short of time. Can I just go to a different point. You have talked about the expertise and the robustness of your investigators. Did the investigator in this case support the narrowing of the scope and the downgrading of that critical safety factor?

Mr Dolan : No, he remained of the view that it ought to be given more weight than it ended up being given in the report.

Senator FAWCETT: Was he required, at any stage, to change the evidence tables in the report to match the final recommendations that came out?

Mr Dolan : I suspect—and perhaps Mr Sangston can help me—that there was some reworking of the evidence tables to reflect the consideration that had been given. I am not sure how that was brought about. Is there anything you want to add, Mr Sangston?

Mr Sangston : That does occur and has occurred. In fact, there is a QA, a quality assurance, process in our processes to ensure that our findings are reflected in our investigation management system. The words that are in our final report agree with things in our investigation management system, because those things go up on the web and so on. So there is a process for quality assurance, yes.

Senator FAWCETT: I am making the assumption here that that would be about checking that, as you said at the start, Mr Dolan, any reports you put out are backed up by facts. Does it also cover the case where facts are left out because they do not fit with the recommendations that the organisation wants to make?

Mr Dolan : I am not aware of anything in this case where we suppressed or left out facts that did not support analysis. What we had was some vigorous disagreement within the organisation, including with one officer in particular, about the analysis and what the analysis arrived at.

Senator XENOPHON: Just in the limited time available, and further to Senator Fawcett's line of questioning and the email that was sent to you, Mr Dolan, and copied to you, Mr Sangston, on 9 February 2010: that email that makes reference to either agency planting egg on the other agency's face goes on to say, 'Right now I suspect that CASA is entrenching itself into a position that it would be hard to support,' and that 'as a systemic investigator there are certain things that need to be done'. Your response to that was that, 'CASA has changed its rhetoric and seems to be hardening its view that there has been a regulatory brief that needs to be addressed'—in other words, going away from the broader systemic issues in terms of the operator; is that correct?

Mr Dolan : Yes.

Senator XENOPHON: And the ATSB fell into line with that with CASA, eventually?

Mr Dolan : No. The ATSB—

Senator XENOPHON: Well, the conclusion was the same as CASA's view essentially, wasn't it?

Mr Dolan : No, in that we still said there was a safety issue involved in the questions of the guidance and other things available, in terms of en route flight management, and the question was of the level of emphasis—the significance that we gave to that. That did change, and that changed as a result of the application of our processes and analysis. The discussion we were having was on a concern that the regulator was giving more attention to individual and operator conditions than to the adequacy of—

Senator XENOPHON: We are running out of time here. The ATSB was going down a certain path. Mr McCormick, in particular, from CASA, had 'changed its rhetoric'—in your own words—and 'seems to be hardening its view,' and it seems that you also changed your approach in relation to the direction that this particular accident investigation was going in. Is that not a fair summary of what has occurred—for whatever reason?

Mr Dolan : On the basis of facts, yes: they are two facts that are in place. What I would disagree with is that there is a causal relationship between those facts.

Senator XENOPHON: So it is just a happy coincidence?

Mr Dolan : No, I am saying there are two processes going on, with CASA carrying out its regulatory responsibilities and me reporting to the officer involved as to where they were going with carrying out their regulatory responsibilities, which was on a somewhat different paradigm to the one that we were applying. However, our processes were the ones that were applied internally in the organisation to, at a considerably later stage, arrive at the view that this was a minor safety issue.

Senator FAWCETT: But your processes were somewhat constrained by the fact that CASA did not provide to you evidence it had in its possession that would have in fact lent weight to your original position—

Senator XENOPHON: Exactly.

Senator FAWCETT: that there were systemic factors that needed to be pushed. So they came through with a very strong position in that letter that it should be downgraded. You, because of a lack of evidence, constrained your inquiry and so, by following your process, based on the information you had available, ended up in that position. But there is a confounding in this whole process in that information that would have supported your original contention and systemic approach was not provided to you when it was required to be under the MOU.

Senator XENOPHON: By CASA.

Senator FAWCETT: Also, in terms of that, was it the Canley Vale special audit that you mentioned, Mr Sangston?

Mr Sangston : Yes.

Senator FAWCETT: How did you become aware of that? Did CASA offer that up to you, did you have to seek it or did a third party tell you it existed? How did you come to be aware of it?

Mr Sangston : It was attained by what we call a section 32 request form, under our—

Senator FAWCETT: But how did you become aware of it? Did CASA tell you that they had done it?

Mr Sangston : I would have to take that on notice and get back to you, because I have not had that discussion with the investigator in charge.

Senator XENOPHON: Did you only ask for it after the Four Corners program was broadcast in September 2012?

Mr Sangston : My recollection is that it was after that.

Senator XENOPHON: So it was just a coincidence that it was only asked for after the Four Corners report?

Mr Dolan : Senator, we can get back to you with when we sought that report and any context we can supply after a conversation with the investigator in charge as to why that information was sought.

Senator FAWCETT: Sure. The more important question from our perspective is: were you apprised of the existence of the report by CASA, or did you find out about it through a third party and then request it? I fully accept the fact you requested it when you did.

Mr Dolan : We will take that on notice. I would like to just verify exactly what went on there.

Senator FAWCETT: Sure.

Senator XENOPHON: Is it fair to say that by May 2012 the ATSB had pretty much locked itself into a position as to where it was going with this report?

Mr Dolan : We had a position that was reflected in a draft report, but in terms of our normal procedures and processes we were still to have a round of engagement with directly involved parties, to get their feedback and so on. Feedback is always taken into account before we finalise our report.

Senator XENOPHON: Mr Dolan, I put to you that by that stage there were people within your organisation that wanted to look at the issue of fatigue more closely, to revisit it and perhaps reinterview the pilot, but it was all getting too late.

Mr Dolan : That was after we had sent the report around for the directly involved parties. We nevertheless, given the response of one of the directly involved parties, commissioned that extra work. But the thing we had to bear in mind was that, while we could have replicated the work that had already been done, we had staring us in the face the facts about the amount of rest available, and those are ones that we gave more weight to. So, yes, there was an enthusiasm on the part of one of our people to apply resources to further exploring this; it was not considered that it was necessary in the context of the investigation.

Senator XENOPHON: When did you ask for the CASA special audit conducted on Pel-Air?

CHAIR: It was a short while before you concluded your report, as I recall.

Mr Dolan : It was at a late stage in the process, yes. We can get you the exact date.

Senator XENOPHON: It was at a late stage in the process. Can I suggest to you the only reason you asked for that CASA special audit, which was not provided to you by CASA, was that Mr James's lawyers had contacted you, Mr Sangston, saying, 'We understand there's a special audit and we'd like to get a copy of it.'

Mr Sangston : Sorry, Senator; I was just looking up that date.

Senator XENOPHON: My understanding is that it took Mr James's lawyers until as late as 3 July 2012 to write to you saying, 'We understand there's a special audit; we'd like to get a copy of that special audit,' and that until that time you had no awareness of the existence of that special audit.

Mr Dolan : No, I do not think that is true. Mr Sangston may wish to disagree with me.

Senator XENOPHON: Or was it that you thought it was not relevant to provide to Mr James as a directly interested party?

CHAIR: As I understand it, there was a press release in 2009 from CASA saying that they were going to have the audit, so the world knew about it.

Mr Dolan : We were aware that CASA was undertaking a special audit.

Senator XENOPHON: When did you get a copy of that?

Mr Dolan : As I say, Senator, it was very late in the process.

Senator XENOPHON: After 3 July 2012?

Mr Dolan : Yes, Senator, I believe it was in late July or early August.

Senator XENOPHON: You are aware that CASA had conducted a special audit, but you did not think it was relevant to your investigations to get a copy of that special audit into Pel-Air?

Mr Dolan : We were happy that our investigations were covering the territory we needed to cover in understanding the facts.

Senator XENOPHON: Sorry, could you say that again, I could not hear you?

Mr Dolan : We were happy that our investigation was covering the relevant territory. On analysing the special audit report—and I believe we supplied a table reflecting this to the committee—we satisfied ourselves that the major lines of inquiry that had been undertaken through the special audit were ones that we had also turned our minds to.

Senator XENOPHON: But how do you know without seeing the document? How would you know that? How would you know that you are satisfied with a particular line of inquiry when you have not even seen the report? You were aware of the report but you did not bother to ask for it?

Mr Dolan : We do not as a matter of routine seek special audits. Special audits are for the purpose of CASA's regulatory activities. We try and keep our investigations, as much as we can, separate from what CASA has to do. It is not as a matter of default that we would see and try to rely on CASA regulatory investigations as a basis for our work.

Senator XENOPHON: But in the context of the memorandum of understanding about the exchange of information between the two agencies, in the context of this investigation, in the context of Mr McCormick expressing his views that they were changing their rhetoric and hardening their view and concerns within your organisation about egg on ATSB's face and CASA's face, you did not think it relevant at all to obtain a copy of a CASA special audit into Pel-Air, the very airline that was involved in this incident? I just do not get it. How can you explain it to—to use Senator Heffernan's terminology—the reasonable man, the reasonable person at the back of the room? What has gone wrong here that you did not get the CASA special audit?

Mr Dolan : As I said, Senator, we do not as a matter of routine seek special audits. CASA undertakes special audits for their purposes; we undertake investigations for our purposes. There are times when it may be helpful to us to take a look at what CASA has been doing but it is not something we would consider as a matter of default.

Senator XENOPHON: What a terribly glib answer, Mr Dolan. You are investigating an accident where six people could have died. You did not see the relevance of getting the special audit? This is not a routine matter. You are actually in the midst of an investigation and you deliver a report nearly three years after the event that cannot, on any reasonable standard, comply with ICAO annex 13. There are reports from Nigeria and Lebanon, from countries that could be seen as developing countries, that comply with ICAO annex 13. Do you consider you have complied with ICAO annex 13 with this report?

Mr Dolan : Yes, Senator.

Senator FAWCETT: Bearing in mind time, I note that we have just come to that issue of annex 13. I note in your submission you highlight that you have requested a number of exemptions or notified departures from that in a number of areas. My comment would be that I think, if those departures have resulted in this report, then they should be re-examined because they are clearly, in terms of the information flow from CASA to yourselves around the role of the regulator and operator as well as the individual, and all the other issues like fatigue that roll into that, there were clearly a number of contributing factors that were not considered in any thorough way in the report. I think those exemptions should, perhaps, be revisited because they do not meet the test, as Senator Heffernan would say, of the reasonable man at the back of the room.

Mr Dolan : I hear what you are saying and the only comment I feel I should make in that case is that I would disagree with you that there were significant contributing factors that existed and we did not detect and include in our report. But we have different opinions on that.

CHAIR: That just about does us for today; for now. I still am intrigued, as a broken-down farmer, how that guy transferred as the chief pilot from Pel-Air to CASA, that you would not over a beer or a glass of wine have some sort of conversations that may influence people around the building. Anyhow, there you go. Thank you very much for your evidence today.

Committee adjourned at 12:05