Chapter 2
Background
Aviation safety
2.1
Aviation transport, albeit the safest form of transport in Australia,
requires ongoing vigilance to remain safe. To protect and maintain public
safety, every facet of Australia's aviation safety system must operate and
cooperate in an environment which enables and encourages constant learning and
improvement.
2.2
Mistakes in the aviation safety system, however rare, have the potential
to produce catastrophic consequences. The ditching of Pel-Air's aircraft,
VH-NGA, into the ocean off Norfolk Island following several aborted landing
attempts placed six lives in jeopardy. That none were lost on impact is
attributable to the skill exhibited by the pilot in command in those critical
moments—but clearly something went wrong in the lead up to that moment.
2.3
In the interest of public safety it is imperative for the aviation
industry to understand what went wrong and why. However, the findings of the
investigation that followed the accident, culminating in a report on its causes
issued almost three years later, were and remain highly contentious. It was this
report, and the controversy surrounding it, that provided the impetus and focal
point for the committee's inquiry.
2.4
In looking at this report and the way in which it was produced, the
committee gained an insight into Australia's aviation safety system, within which
different agencies play individual roles whilst working together towards a
common goal. This chapter sets out the roles of key agencies and legislation
which governs the conduct of aviation accident investigations, and in doing so
provides context for subsequent chapters.
Role of the ATSB
2.5
As an independent Commonwealth statutory agency, the role of the Australian
Transport Safety Bureau (ATSB) is to improve safety and public confidence in the
aviation, marine and rail modes of transport. It does this, the ATSB advised
the committee, through:
a) investigation of transport accidents and other safety occurrences
b) safety data recording, analysis and research
c) fostering safety awareness, knowledge and action.[1]
2.6
The ATSB's functions are best understood by referring to the legislation
under which it was established, the Transport Safety Investigation Act 2003
(TSI Act). The TSI Act clearly sets out the agency's functions:
(1) The ATSB’s function is to
improve transport safety by means that include the following:
(a) receiving and assessing
reports of transport safety matters, reportable matters, and other safety information
that is prescribed by the regulations;
(b) independently investigating
transport safety matters;
(c) identifying factors that:
(i) contribute, or have
contributed, to transport safety matters;
or
(ii) affect,
or might affect, transport safety;
(d) communicating those factors to
relevant sectors of the transport industry and the public in any way,
including in any one or more of the following ways:
(i) by
making safety action statements;
(ii) by
making safety recommendations;
(iii) by issuing
safety advisory notices;
(e) reporting publicly on those
investigations;
(f) conducting public educational
programs about matters relating to transport safety;
(g) any other means prescribed by
the regulations.[2]
2.7
To this end, the ATSB investigates accidents and other transport safety
issues involving civil aviation, marine and rail operations that fall within
Commonwealth jurisdiction. The ATSB also participates in overseas
investigations involving Australian registered aircraft and ships.[3]
2.8
The extent to which ATSB investigations enhance aviation safety is limited
by the extent to which any safety recommendations made are actioned. The ATSB
has no enforcement powers.
2.9
ATSB accident and incident investigations are conducted independently of
transport regulators such as the Civil Aviation Safety Authority (CASA), the
Australian Maritime Safety Authority, Airservices Australia, rail authorities
and other parties. The independence of the ATSB is paramount to fulfilling its
functions and is discussed in the context of this inquiry in the next chapter.
2.10
The TSI Act underpins the ATSB's independence but emphasises the
importance of cooperation between Australian Government and state bodies.
Furthermore, the Act provides the ATSB with a mandate to conduct 'no blame'
investigations, also discussed in the next chapter in the context of this
inquiry. Briefly, under the Act, it is not the ATSB's function to:
a) apportion blame or provide a means for determining liability for transport
safety matters;
b) assist in court proceedings between parties, except as provided by the Act;
or
c) allow any adverse inference to be drawn from the fact that a person was involved
in a transport safety matter.[4]
2.11
As well as setting out the ATSB's functions, the TSI Act also provides
the legal basis and requirement for these functions to be performed in
accordance with relevant international agreements.[5]
Obligations under international
agreements
2.12
The principal relevant international agreement, the Convention on
International Civil Aviation (the Chicago Convention), binds 191 member
states, including Australia, to the requirements of the International Civil
Aviation Organization (ICAO).
2.13
Established in 1944 with the advent of the Chicago Convention, ICAO is a
specialised agency of the United Nations (UN) and the global forum for civil
aviation:
It sets standards and regulations necessary for aviation
safety, security, efficiency and regularity, as well as for aviation
environmental protection.[6]
2.14
Article 26 of the Chicago Convention obligates Australia to investigate
all accidents involving international carriers, while ICAO standards and
recommended practices (SARPS) in Annex 13 extend this responsibility to
accidents involving Australian aircraft.[7]
2.15
Australia's duty to conduct aviation accident investigations in
accordance with international agreements is clearly set out in section 12AD of
the TSI Act, which states:
(1) The ATSB must
ensure that the ATSB’s powers under this Act are exercised in a manner that is
consistent with Australia’s obligations under international agreements (as in
force from time to time) that are identified by the regulations for the purpose
of this section.
(2) The Chief Commissioner
must ensure that the Chief Commissioner’s powers under this Act are exercised
in a manner that is consistent with Australia’s obligations under international
agreements (as in force from time to time) that are identified by the
regulations for the purpose of this section.
(3) In exercising
powers under this Act, the ATSB and the Chief Commissioner must also have
regard to any rules, recommendations, guidelines, codes or other instruments
(as in force from time to time) that are promulgated by an international
organisation and that are identified by the regulations for the purposes of
this section.
2.16
In light of this, the ATSB's accident investigations and reports must be
assessed against its obligations under the Chicago Convention. The committee
received considerable evidence suggesting that the ATSB did not comply with
ICAO guidelines and standards in completing its investigation and report on the
Norfolk Island ditching. Examples are analysed in later chapters of this
report. The committee recognises that the ATSB has filed some differences with
ICAO but this recognition does not equate to agreement in all cases.
Role of the Chief Commissioner
2.17
In terms of organisational governance, the ATSB Commission comprises of
the Chief Commissioner, currently Mr Martin Dolan, and two Commissioners. The
Commission oversees three branches, including Strategic Capability, Safety
Investigations and Enabling Services. The Aviation section of the Safety
Investigations branch is headed by a General Manager, currently Mr Ian
Sangston.
2.18
The Chief Commissioner is appointed by the minister and must have 'a
high level of expertise in one or more areas relevant to the ATSB's functions.'[8]
Report approval processes
2.19
Under section 25 of the TSI Act, ATSB investigation reports are approved
by the Commission for release to the public. The responsibility for approval
cannot be delegated to other officers. Once reports are approved for release,
they are dispatched to directly involved parties (DIPs) by way of 'advanced
release', before being made public.[9]
2.20
In the case of the VH-NGA report, once approved by the Commission the
ATSB dispatched the advanced release report to DIPs and 'other parties' on 21
August 2012. It was then released to the public on 30 August 2012. The ATSB's
submission itself did not shed much light on the extent of the comments and
reactions of DIPs, but did say:
In the intervening period [between the advance release and
publication], comments were received from another of the parties in respect of
how the report might be misinterpreted or misunderstood by readers. As with all
other comments, they were also fully considered and changes were made to the
final report.[10]
2.21
Evidence received by the committee over the course of this inquiry
suggested that several DIPs were strongly dissatisfied with the content of the
report when it was released, and that lines of inquiry had been scoped out
during the process.[11]
Consequently, the committee went to some lengths to understand the development
of the report.
2.22
The ATSB advised the committee that responsibility for the development
of an investigation report rests with the relevant investigator-in-charge
(IIC). The IIC works with investigation team members to complete a draft report
ready for peer review. The ATSB's submission did not go into detail about the
process as it related to the accident and report in question, but did have this
to say regarding peer review:
In the case of the Norfolk Island investigation, the peer
review was carried out by an investigator from the ATSB's Brisbane regional
office. This was later supplemented by an operations investigator and the Team
Manager from that office. After the IIC and peer review(er) have worked through
any points of contention, addressed any need for additional evidence or work to
analyse evidence already held, or considered the amendment of the draft report,
the draft report progresses to management review.[12]
Concerns regarding the ATSB report
drafting process
2.23
The committee was concerned by this process as it related to the VH-NGA
ditching off Norfolk Island. Evidence received by the committee would appear to
suggest that senior ATSB staff may have intervened to alter the final report in
order to secure a desirable outcome for both the ATSB and CASA. An excerpt from
an internal email outlining an early discussion reads:
We [ATSB Officer and ATSB Chief Commissioner] were discussing
the potential to reflect the intent of our new MoU that describes the 2
agencies as 'independent but complementary'. We discussed the hole that CASA
might have got itself into by its interventions since the ditching, and how you
[Mr Martin Dolan, ATSB Chief Commissioner] might have identified an optimum
path that will maximise the safety outcome without either agency planting egg
on the other agency's face.[13]
2.24
The committee is concerned that the ATSB's independence and the quality
of its investigation report may have been compromised during this process. These
concerns are discussed in later chapters of this report.
Role of CASA
2.25
CASA is Australia's aviation safety regulator, established on 6 July
1995 as an independent statutory authority. Its key role is to conduct the
safety regulation of civil air operations in Australia and the operation of
Australian aircraft outside Australian territory by:
-
Developing and promulgating appropriate, clear and concise
aviation safety standards;
-
Developing effective enforcement strategies to secure compliance
with aviation safety standards;
-
Issuing certificates and licences;
-
Conducting comprehensive aviation industry surveillance, including
assessment of safety-related decisions taken by industry management at all
levels; and
-
Conducting regular reviews of the system of civil aviation safety
in order to monitor the safety performance of the aviation industry, to
identify safety-related trends and risk factors and to promote the development
and improvement of the system.[14]
2.26
CASA is headed by the Director of Aviation Safety, currently Mr John
McCormick. The Director is appointed by, and responsible to, the minister.
Although CASA is an independent body, the minister has the power to issue
written directions of a general nature.[15]
2.27
CASA is responsible for ensuring that Australian airspace is
administered and used safely.[16]
To achieve this, CASA works as part of an integrated system within a tripartite
structure along with Airservices Australia and the Department of
Infrastructure, Transport, Regional Development and Local Government.[17]
2.28
In performing its functions, CASA must act in a manner consistent with
Australia's obligations under the Chicago Convention. Except where CASA has
given ICAO notice under Article 38 of the Chicago Convention, it must comply
with international obligations Australia has accepted.[18]
Investigative activities
2.29
Like the ATSB, CASA conducts investigative activities. Although their
respective investigations into a given incident or accident may at times unfold
concurrently, the purpose and practical outcomes of these activities can be
quite different. As explained by Mr John McCormick:
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.[19]
2.30
Unlike ATSB investigations, CASA's may result in enforcement action
where appropriate in order to 'minimise the likelihood that a particular
individual, organisation or aircraft may place others at risk of harm.'[20]
2.31
The interplay between CASA and ATSB investigative activities is complex.
Although conducted with complementary safety-related objectives in mind, their
respective investigations require both independence and a degree of
cooperation. Striking the right balance, that is, ensuring independence whilst
navigating a largely shared space, is imperative. To this end, CASA and the
ATSB have developed and worked to the terms of a series of memoranda of
understanding (MoUs) which intend to define the space within which the agencies
operate and cooperate:
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.[21]
2.32
The current MoU was the source of some consternation for the committee
over the course of this inquiry. The implications and requirements of the
current MoU, as well as whether these were met, are discussed in later chapters
of this report. The general terms and objectives of the MoU are outlined below.
The Miller Review and the MoU between the ATSB and CASA
2.33
The current MoU between the ATSB and CASA came into effect in February
2010, with the aim of addressing a series of objectives:
a) maximisation
of beneficial aviation safety outcomes
b) enhancement
of public confidence in aviation safety
c) support
for the adoption of systemic approaches to aviation safety
d) development
of knowledge of the operations and the safety impact of each organisation's
actions
e) promotion
and conduct of ATSB independent no-blame safety investigations and CASA
regulatory activities in a manner that assures a clear and publicly perceived
distinction is drawn between each agency's complementary safety-related
objectives, as well as CASA's specialised enforcement-related obligations
f) to
the extent practicable, the avoidance of any impediments in the performance of
each other's functions
g) acknowledgement
of any errors and a commitment to seeking constant improvement
h) fostering
strategic discussion between both organisations.[22]
2.34
The origins of this MoU, and its emphasis on cooperation between the two
agencies, can be traced to concerns expressed by the State Coroner of
Queensland in bringing down his findings after the fatal 2005 airplane crash at
Lockhart River. Questions were raised then about evident friction in the
relationship between the ATSB and CASA, leading the then Minister for Transport
and Regional Services, the Hon Mark Vaile MP, to engage Mr Russell Miller AM to
conduct a review into this relationship in 2007 and assess whether high level
intervention was needed.
2.35
The Miller Review was primarily about improving how CASA and the ATSB
work together within the Australian aviation safety system, and was ultimately
required to assess whether the agencies' administrative and legislative frameworks
were conducive to them playing their roles in this system. Among its terms of
reference, the review was also required to assess:
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.[23]
2.36
The Miller Review made nineteen recommendations, of which Recommendation
17 called for a new MoU to be negotiated between the two agencies to foster
better communication and improved cooperation.
2.37
The wording of the current MoU reflects this aim. However, the committee
received a considerable volume of evidence suggesting that the reality of the
relationship between the two agencies may still fall well short of the
objective. This is examined in more detail in later chapters of this report.
Airservices Australia
2.38
Airservices Australia is the country's air navigation service provider
(ANSP). A Commonwealth statutory authority established under the Air
Services Act 1995, Airservices:
-
provides facilities for the safe navigation of aircraft within
Australian-administered airspace;
-
promotes and fosters civil aviation in Australia and overseas;
-
provides air traffic services, aviation rescue and fire fighting
services, and aeronautical information, radio navigation and telecommunications
services in line with the Chicago Convention and to ensure the safety,
regularity and efficiency of air navigation;
-
cooperates with the Australian Transport Safety Bureau in
investigating aircraft accidents and incidents;
-
adheres to regulations relating to impacts associated with the
operation of Commonwealth jurisdiction aircraft; and
-
undertakes functions as required under the Air Navigation Act
1920 and the Aviation Transport Security Act 2004 or by regulation.[24]
2.39
Airservices Australia conducts its management of Australia's sovereign
airspace on behalf of the Australian Government. Responsibility for air traffic
management is assigned to countries by ICAO, which divides the world's airspace
into 'flight information regions' (FIRs). Australian airspace consists of two
FIRs, known as 'Brisbane' and 'Melbourne', and covers roughly 11 per cent of
the Earth's surface.[25]
2.40
The airspace around Norfolk Island, where events leading to the ditching
of VH-NGA culminated, is not included in Australia's FIRs. It belongs instead
within the New Zealand FIR, and is managed by the Airways Corporation of New
Zealand on behalf of the New Zealand Government. Since the Pel-Air flight in
question did not enter Australian airspace, Airservices informed the committee,
it was not managed by Airservices Australia.[26]
The latter's direct involvement extended to the receipt and distribution of
VH-NGA's flight plan and providing pre-flight weather information.[27]
2.41
The involvement of New Zealand and Fiji air traffic controls as it
relates to the accident is discussed in later chapters of this report.
Bureau of Meteorology
2.42
The pre-flight weather information Airservices Australia provided to the
pilot in command of VH-NGA came from the Bureau of Meteorology (BoM), which
provides aviation meteorological services in accordance with Annex 3 of the
Chicago Convention.[28]
2.43
BoM forecasters produce aerodrome forecasts[29]
(TAFs) by collating information from past and present in situ observations,
satellite and radar imagery, climate information and weather forecasting
models. Amendments to these TAFs are issued if and when 'one or more the
forecast elements...varies by an amount that is significant to operations at the
aerodrome.'[30]
2.44
Other types of meteorological observations BoM issues are Meteorological
Aerodrome Reports (METARs) and special reports called SPECIs. METARs are
usually issued every thirty minutes at most airports with the necessary
instrumentation, while SPECIs are issued 'when one or more weather elements
meet specified criteria significant to aviation.'[31]
2.45
SPECIs are routinely issued when visibility drops below specified
'alternate minima' conditions:
Alternate minima are a set of cloud base and visibility
conditions...generated for each airfield that has a published instrument approach
procedure. The alternate minima are based on the minimum descent altitude and
minimum visibility of each of the available instrument approaches.[32]
2.46
The committee notes that Australia's State Aviation Safety Program
requires BoM to conduct investigations into aviation weather-related incidents.[33]
2.47
The committee heard during its inquiry that Norfolk Island, although
noted for its incidence of low cloud, nonetheless experienced a rare
meteorological event on the night in question.[34]
The handling of those rare conditions and the effect of this on the flight is
discussed in later chapters of this report.
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