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STANDING COMMITTEE ON RURAL AND REGIONAL AFFAIRS AND TRANSPORT
19/02/2008
INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT PORTFOLIO
Civil Aviation Safety Authority

CHAIR —Welcome. Mr Byron, do you wish to make an opening statement?

Mr Byron —I know the committee is familiar with Mr Shane Carmody, the Deputy Chief Executive Officer, Strategy and Support, but I would like to introduce the committee to a new arrival to CASA in the last two months, and that is the Deputy Chief Executive Officer, Operations, Mick Quinn. Mr Quinn has been with CASA for nearly two months and has extensive aviation, safety and regulatory experience in the major air transport sector and, interestingly enough, in the last couple of years, experience in rail regulations as well.

CHAIR —Thank you, Mr Byron.

Senator BOSWELL —My questions are in relation to the Boomerang aircraft that is being developed in Kingaroy. Are you familiar with that, Mr Byron?

Mr Byron —Yes, I am.

Senator BOSWELL —Can you tell me where it is up to at the moment? I understand that they have one certificate from you and are waiting for the next—or have you supplied them with both certificates?

Mr Byron —I am aware of the one aircraft. Under the oversight of the Boomerang project, it is my understanding that we are, as CASA, checking out each individual aircraft, which would not normally be the case for a manufacturer. Normally a manufacturer would have a process whereby we approve a system. So it is relying on a fair bit of CASA input. I do have an officer that I can call to the table to give you more detail about subsequent aircraft. Would you like that?

Senator BOSWELL —I would.

Mr Vaughan —We are currently working with Dean Wilson Aviation. We have issued them their type certificate for the aircraft, which is the certificate which recognises the design. We are currently working with the company for the production certificate, which is the certificate which allows them to manufacture and produce the aircraft. That is progressing well. At this stage they rely on CASA to actually determine that each aircraft manufactured conforms to the design that was certified. As such, we will be involved with them until such time as they secure the production certificate.

Senator BOSWELL —What was the end certificate? What do you call that?

Mr Vaughan —There are two certificates we are dealing with. The first one is the type certificate, which is the design of the aircraft, and the second one, which we are currently working on, is the production certificate.

Senator BOSWELL —When do you envisage the production certificate will become available?

Mr Vaughan —It largely depends on the capability of the company. We are keeping up with them. Just as fast as they can progress, we are working with them. It is in our mutual interest to get them to that point so they can run the business.

Senator BOSWELL —When do you think they will arrive at that point? What is holding it up?

Mr Vaughan —It is an intense process and it is largely the capacity of the resources, probably on the side of the manufacturing company, to meet all of the requirements to be granted a certificate. I think it is now looking like this will occur within the next six months. We have certainly scheduled resources to meet them over that period.

Senator BOSWELL —I was up at the factory, from memory, just before Christmas—after the election. CASA people were working there in the factory at the time. I understood that that production certificate would be issued in the next week or two weeks or something like that.

Mr Vaughan —That was not my understanding. Certainly we did issue the type certificate just prior to Christmas. Work is progressing on the production certificate.

Senator BOSWELL —Without a production certificate, is it possible to sell the aeroplane?

Mr Vaughan —Yes, it is. In that situation CASA actually issues the certificate for each aircraft. They produce it. Our inspectors then inspect the aircraft to ensure that every detail on the aircraft matches what was certified. They issue a certificate of airworthiness and at that point they can sell the aircraft.

Senator BOSWELL —If there was a production certificate available to Boomerang Aircraft Factory, you would not have to issue it. Is that correct?

Mr Vaughan —That is correct. This is a situation that we would like to progress to as quickly as we safely can. They actually have the systems in place to ensure that production is done. The word we use is that it ‘conforms’ to the design, at which point we would place them under normal surveillance—periodic inspections—just to ensure their systems are in fact working.

Senator BOSWELL —How many planes have you given the original or an initial certificate to?

Mr Vaughan —My understanding is that we have issued an airworthiness certificate for one aircraft and we are working on the second aircraft now. I can take the actual numbers on notice and respond to you.

Senator BOSWELL —Yes. I know that you have a job to do and I just hope that this production certificate can be issued at the earliest possible time.

Mr Vaughan —I certainly share that sentiment. As I say, as soon as we can safely issue this certificate it allows them to run their business. It allows us as a regulator to oversight the operation in a normal fashion.

Senator BOSWELL —Thank you.

Senator O’BRIEN —Can someone tell me about the Miller review of CASA and the ATSB?

Mr Mrdak —As you would be aware, the former minister commissioned Mr Russell Miller to undertake a review of the relationship between CASA and ATSB. This was one of the recommendations of the Queensland State Coroner. Mr Miller completed that report and provided it to the minister on 21 December. The minister is currently considering that report. It has been considered and advice has been provided on that report to the minister.

Senator O’BRIEN —Who from CASA oversaw and ultimately authorised the CASA submission to the Queensland State Coroner in what I will describe as ‘the Lockhart River inquest’?

Mr Carmody —I did.

Senator O’BRIEN —You no doubt have seen the coroner’s findings at page 9 of his decision, which stated:

CASA had senior, expert legal representation who I’m sure would not have made such a sustained attack on the integrity of the ATSB investigation report without explicit instructions.

Have you seen that, and, if so, did you give or authorise such instructions?

Mr Carmody —I have seen the coroner’s comments. I have read the report in some detail. As you well know, we had difficulties with some aspects of the ATSB report, but to categorise it as giving explicit instructions to attack the integrity of the ATSB, no, that is not the case. We certainly attacked the report. We had difficulties with aspects of the report. We made that plain at the beginning. The coroner found some aspects of our view on the report to be sustained.

Senator O’BRIEN —They are curious words—an ‘attack on the integrity’ of the report, rather than a word such as ‘accuracy’—and that is why I am asking the question It seems to me that you are suggesting that CASA was saying the ATSB was prosecuting some sinister motive or was incompetent, according to CASA’s submission.

Mr Carmody —The coroner’s choice of words is his own. As I indicated, we had difficulties with some aspects of the report. We made those very plain to the coroner, as we made them plain to ATSB, and we had differences of opinion very clearly in some aspects of the report and some aspects of the methodology that underpin the report.

Senator O’BRIEN —So there is no aspect of the instructions in relation to CASA’s role in the case that you think might have been over-the-top or out of order?

Mr Carmody —No.

Senator O’BRIEN —As to the coroner’s depiction of the way that the case was prosecuted by CASA, do you take issue with any other aspect of his decision in that regard?

Mr Carmody —At the end of the day, the coroner is in a position to make his recommendations, as he has done, and we have reviewed those. There are aspects of his report that I think probably went further than I would like, but he is entitled to make those views and there are aspects of his report that support our views that we put forward to the coronial inquest, and I support those.

Senator O’BRIEN —Would you categorise his report as being critical of CASA?

Mr Carmody —Some aspects certainly are, yes.

Senator O’BRIEN —So it is not the first time that a coroner has made substantial criticism of CASA in relation to an inquiry into an aviation fatality?

Mr Carmody —As far as I know, there have been criticisms made in the past.

Senator O’BRIEN —In the recent past. There are two in Western Australia that I can think of in the last few years. That is the inquiry. The accident may have been more than a few years ago, but two fatalities in Western Australia come to mind.

Mr Carmody —Sorry, that was probably before my arrival at CASA. I am not actually familiar with those, but I am familiar with the general construct that occasionally coroners have criticised CASA’s view.

Senator O’BRIEN —Or performance. In relation to the Lockhart River accident, CASA provided a written submission, which stated at paragraph 150: ‘Transair had adequate and appropriate safety management systems, operating procedures and pilot training having regard to those issues which are directly relevant to the cause of the accident. That is, no deficiencies in these aspects of Transair’s operation can be said to have caused or contributed to the accident.’ You authorised that submission?

Mr Carmody —I am certain I did, yes.

Senator O’BRIEN —Did the coroner agree with that view?

Mr Carmody —In terms of that specific view, I cannot answer directly with relation to that paragraph; I do not have it in front of me. As I said, the coroner agreed with some aspects of our submission and our report and disagreed with some others. At the end of the day, the coroner concluded, though, that CASA’s view on what was the most likely cause of the accident was in fact the most likely cause—which was a significant finding, if you like, out of the coronial inquiry which was not a finding of the ATSB report.

Senator O’BRIEN —The point about that passage that I read was the suggestion that: ‘Transair had adequate and appropriate safety management systems, operating procedures and pilot training having regard to those issues which are directly relevant to the cause of the accident.’ Is that an accurate statement, do you think?

Mr Carmody —The one area where I think there may well have been questions—but we were never able to resolve that particular issue—was the issue of pilot training. It was an issue that was raised very late in the piece, at the time when we grounded the aircraft under the ‘serious and imminent’ provisions. Up until that time we had no evidence that there were any inadequacies in pilot training. Furthermore, when we sought to find that evidence it was not available to us. The company would not provide it. So we took action and closed them down. So at that point in time we still had no evidence of that fact—that there was any inadequacy in the system—and we do not have the records.

Senator O’BRIEN —No, you could not get the records. They would not give you the records. The company closed down but CASA is asserting, on your instructions, that at that time things were hunky-dory in terms of safety management systems, operating procedures and pilot training, even though after a number of reviews you found it was appropriate to close the airline down and they were denying you information. It seems to be a blunt statement—’We are confident of these other facts’—whereas I would have thought you could not say that in the context of your experience with Transair.

Mr Carmody —It is difficult to take one paragraph out of the entire submission and use that to create a context.

Senator O’BRIEN —I am happy for you to come back and tell me that that is a misrepresentation of your submission.

Mr Carmody —The point I am making is that at the time it was very clear—at the time that we used the serious and imminent provisions under the act—that we could not acquire the information that we were being led to believe did exist. We had not seen that information in the past. In our experience in auditing that company, that information had not come to light. We still do not have the evidence, and the submission of the coroner is written in the context of the ATSB report, as you well know.

Senator O’BRIEN —It is also, I take it, written in the context of what CASA truly believed was the situation. I would not have thought you were trying to misrepresent what would be a reasonable view of the state of affairs in terms of safety management, operating procedures and pilot training—and you would have to be completely confident of what you were saying to the coroner, wouldn’t you?

Mr Carmody —The evidence that we had available was very clear and the evidence that we did not have available was not available to us. So we took the action that we needed to take.

Senator O’BRIEN —So, if you failed to find something at that time but subsequently discovered that things were being concealed from CASA, the only course open to you was to think, ‘If we failed to find it, it must have been all right.’

Mr Carmody —With respect, any subsequent findings of things that might or might not have been concealed from the organisation were in the coronial inquiry. We did not find any subsequent information on the operator after we closed down the operator. We had no information available to us after that time and we had no information to support that allegation prior to that time.

Senator O’BRIEN —So provided the operator closes down, shuts up its books and does not tell you anything, you have to think it is all right during the time of its operation. That follows from your statement, doesn’t it?

Mr Carmody —I do not think that does follow from my statement. I think you know where I am going in terms of the information that was available to us and the actions that we had taken with that operator from the period since the accident up until the time we closed the operator down. As soon as we had an indication that there might have been information that was not available to us, we acted within days and closed the operator down.

Senator O’BRIEN —Remind me of your view of the coroner’s finding as to the reason for the crash.

Mr Carmody —If I can take you to page 31 of the coroner’s report, if you have it in front of you, I will quote:

When he returned to the witness box as the last witness to give evidence at this inquest, Mr Madden agreed that, in view of the evidence given by Mr Hotchin at the Short inquest, scenario (b) had become the most likely explanation for the course taken on the incident flight. I am also of that view.

It is very clear to me that that situation had changed. If I recall, the ATSB was at scenario A.

Senator O’BRIEN —Did CASA put forward a view as to which was the most likely scenario?

Mr Carmody —We put a view forward as to which was the most likely scenario on numerous occasions all the way through the development of the report.

Senator O’BRIEN —That was scenario B, was it?

Mr Carmody —Yes, it was.

Senator O’BRIEN —So the finding was that it was the most likely. I guess it is difficult to find in the circumstances with precision, given the nature of the crash.

Mr Carmody —That is what the coroner said was the most likely cause.

Senator O’BRIEN —I am told that CASA provided advice for a letter signed on 9 May last year by the former Attorney-General, through his Queensland counterpart, in relation to the Transair 15 fatality accident that: ‘The Civil Aviation Act 1988 which CASA operates provides a regulatory framework for the maintenance and improvement of safety in civil aviation and relates to the prevention of aviation accidents and incidents, not their prosecution.’ Does that accord with your understanding of the sort of advice that you would provide?

Mr Carmody —I am afraid I am not familiar with that letter or that advice.

Senator O’BRIEN —Indeed, it would be wrong, would it not, because you are responsible for the initiation of prosecutions under the act in some cases.

Mr Carmody —Certainly, in some cases.

Senator O’BRIEN —And CASA, if it discovered—for example, with an organisation like Transair—transgressions of the law, it would be responsible for referring those matters to the DPP.

Mr Carmody —Senator, if we are going to a bit of detail on the legalities of the act, I would prefer to have Mr Aleck, our general counsel, come to the table because he is better equipped to answer these questions than I am.

Senator O’BRIEN —It is up to you.

Dr Aleck —I do not want to speak in detail about that letter at this point; I want to take it on notice. I do recall some questions were raised by the Queensland Attorney-General’s office, if I am not mistaken, about the basis on which CASA might initiate action, and as I recall it was against Mr Wright himself. I think the view that we put at the time, and I would want to confirm this, is that there was no basis under our legislation, and I would maintain that that is so, on which we could recommend prosecutorial action against Mr Wright at that point.

Senator O’BRIEN —So what you are suggesting is that you would not have given advice to suggest that in a general sense under the act which CASA operates your regulatory framework was to do with prevention of accidents and incidents, not prosecution?

Dr Aleck —No, I would not agree with that, and I would be surprised if what we said was precisely that in the letter. Virtually every provision of the civil aviation regulations and most of the requirements specified in the act contain offences and penalties which are designed to be amenable for prosecution should the occasion arise. CASA’s responsibility is to investigate these matters and, when the evidence supports it, to make recommendations to the Director of Public Prosecutions to commence prosecution.

Again, I am a little uncomfortable speaking without that letter in front of me, but I remember the discussion at that time and it had to do with the propriety of pursuing action against Mr Wright, which we said (a) was really a matter for state authorities and (b) in the circumstances, and it is so, there was nothing in our legislation that would permit us to initiate prosecutorial action successfully or recommend such action against Mr Wright. I have seen nothing since then that would suggest that that is so.

Senator O’BRIEN —So I guess if the passage that I refer to exists in a letter from the Commonwealth Attorney-General to his state counterpart, it would not be on the basis of advice from CASA?

Dr Aleck —If the Commonwealth Attorney-General wrote a letter to the Queensland Attorney-General stating that CASA’s legislation is not oriented towards or permissive of prosecutorial action, then that would be incorrect. I would be very, very surprised if that statement would have been made on the basis of any advice coming from CASA. But, as I said before, I will take that on notice and review that letter.

Senator O’BRIEN —Sure. The passage that I am referring to states the following, that ‘the Civil Aviation Act of 1988 under which CASA operates provides a regulatory framework for the maintenance and improvement of safety in civil aviation and relates primarily to the prevention of aviation accidents and incidents, not their prosecution’.

Dr Aleck —It relates primarily to the prevention of accidents and incidents, which is true. CASA is not a prosecutorial authority and we do not see our fundamental objective as initiating prosecutorial action against people who contravene our legislation. That is one enforcement option available to us and when it is appropriate to pursue it we do so, but I would not say that that is the principal objective behind the legislation, and our objects clause I think makes that clear. We do not resile from that kind of activity when it is appropriate, though.

Senator ADAMS —I would like to ask a question on the mandatory drug and alcohol testing program. Has it started? What sort of response have you had with it?

Mr Carmody —The program has not yet started. We are in the final process of developing the regulations. If you recall, our act was amended in August last year to allow for this to happen. We are in the process now of finalising the regulations with OLDP in the Attorney-General’s Department. We expect to have those finalised soon. We expect also to be undertaking some element of random testing before the end of the financial year.

Senator ADAMS —Have any of the organisations involved been unhappy with this system since the legislation went through?

Mr Carmody —We have had a few. We have consulted very extensively around the country—through working party meetings with industry, through I think 34 education and feedback sessions with industry and through a targeted survey of larger industry participants. I think I would summarise it by saying that the approach to random testing for drug and alcohol from the bigger end of town is that they think it is an excellent idea. There have been some complaints at the recreational and general aviation end of the spectrum, if you will, because I think fundamentally of the aspects of behavioural change that will be required.

Senator ADAMS —I think that is a positive, if that is the case. I have finished my questions now.

CHAIR —There are no further questions for CASA, so I thank you very much, gentlemen. We will move to Airservices Australia now.

[3.29 pm]