Chapter 7
Communication between CASA and the ATSB
Background
7.1
In Chapter 2 the committee noted the findings of the Miller Review into
the relationship between the Australian Transport Safety Bureau (ATSB) and the
Civil Aviation Safety Authority (CASA):
It is clear that the relationship between the ATSB and CASA
has, in the past, been sub-optimal. The applicable ATSB governance arrangements
have, in the Review's opinion, been a significant contributor to this
unfortunate state of affairs. CASA's internal arrangements have also
contributed significantly. The respective statutory roles and responsibilities
of each agency under the TSI [Transport safety Investigation] Act and the CA [Civil
Aviation] Act have contributed to an environment in which interaction between
the ATSB and CASA is not as it should be.[1]
7.2
This relationship remains problematic, and may, as far as the Norfolk
Island accident is concerned, have affected the course of the ATSB
investigation.
Withholding of key information
7.3
The Chambers Report[2]
is a key document constituting demonstrable evidence that CASA was well aware
of serious deficiencies in its oversight of Pel-Air operations prior to the
Norfolk Island accident.[3]
Along with other information known only to CASA and revealed by emails, for
example the even split among CASA Flying Operations Inspectors (FOIs) regarding
the legal requirement to divert,[4]
the report showed that CASA had withheld potentially critical information from
the ATSB.
Breaching the Memorandum of Understanding
7.4
The committee notes that the Memorandum of Understanding (MoU) between
the ATSB and CASA is not a legally binding document. It was, however,
negotiated in order to guide interaction and cooperation between the agencies
with the objective of enhancing aviation safety.
7.5
The intentions of the memorandum, as far as sharing information that
could assist ATSB accident investigations is concerned, are unambiguous. Paragraph
4.4.6 of the MoU clearly states:
CASA agrees that if a CASA Officer is known to have
information that could assist the ATSB in the performance of is investigative
functions, CASA will undertake to advise the ATSB of the existence of the
information.[5]
7.6
It is a fact that a number of people within CASA were aware of the
existence and contents of the Chambers Report. It was commissioned by the
Director of Aviation Safety, Mr John McCormick, and conducted by a senior CASA manager.[6]
7.7
Although the head of CASA, Mr John McCormick challenged this assertion,[7]
the committee maintains that a reasonable person would interpret paragraph
4.4.6 to mean that CASA must advise the ATSB of the existence of anything
it has in its possession that could assist an accident investigation. The
committee notes the specific use in the MOU of the phrase "could
assist" which in the committee's view establishes a wide range of possible
information that CASA should bring to the ATSB's attention. Presumably it would
then be up to the ATSB to determine whether the information could assist with
its investigation and require the information be provided under a section 32
request.
7.8
Despite this, CASA withheld a document which should have had a
significant impact on the ATSB's investigation on the basis that it was 'an
internal document'.[8]
Breach of the Transport Safety Investigation Act?
7.9
The committee remains very concerned by CASA's actions in this regard,
and has cause to ask whether the agency is in fact also in breach of the Transport
Safety Investigation Act 2003 (TSI Act). Section 24 of the Act
clearly states that it is an offence to hinder an investigation:
(1) A person is guilty of an
offence if:
(a) the person engages in conduct; and
(b) the person is reckless as to whether the conduct will adversely affect
an investigation:
(i) that is being conducted at that time; or
(ii) that could be conducted at a later time into an immediately reportable
matter; and
(c) the conduct has the result of adversely affecting such an investigation
(whether or not the investigation had commenced at the time of the conduct);
and
(d) the conduct is not authorised by the Chief Commissioner.[9]
7.10
At a public hearing the ATSB confirmed that the agency had no prior
knowledge of the existence of the Chambers Report, that is, that it had not
been supplied by CASA.[10]
The ATSB subsequently had this to say about the likely impact had the Chambers
Report been made available to the agency:
The Chambers Report could have been an indicator to the ATSB
of potentially relevant organisational issues within Pel-Air and CASA. The
report’s availability to the ATSB investigation would likely have led to a
review of the scope of the investigation to determine whether there needed to
be further examination of possible organisational factors in the accident. That
said, it is unlikely that the Chambers report would have led to substantive
re-scoping of the investigation, since the CASA accident investigation report
already indicated the existence of organisational deficiencies and the ATSB
safety factor identification processes include the consideration of
organisational factors as part of the scope of an investigation.
The ATSB does not consider that lack of access to the
Chambers Report was a constraint or limitation to the ATSB investigation and
its assessment of factors contributing to the accident.[11]
7.11
Given evidence on the lack of analysis of systemic issues in the ATSB
investigation report, as outlined in previous chapters, the committee questions
the plausibility of the statement above. On the weight of evidence reviewed,
the committee questions CASA's motivation in withholding the Chambers Report from
the ATSB.
7.12
This leads the committee to conclude that CASA may have breached section
24 of the TSI Act by withholding the document. To ensure that any appropriate
action is taken, the committee will write to the Australian Federal Police,
providing a copy of this report and supporting evidence for review.
Committee view
7.13
Irrespective of how highly either agency head is inclined to speak on
the public record when describing the ATSB/CASA relationship, this inquiry
exposed not only a predilection by CASA to withhold information when it suited
them, but also a willingness to engage the ATSB both formally and informally in
ways that have not always been transparent. In both regards, CASA's actions
have influenced the conduct of the ATSB investigation to the detriment of
aviation safety. Based on the documentation available to the committee, it
appears that the two agencies have placed maintaining the veneer of a
productive working relationship ahead of public safety.
7.14
The committee is of the view that CASA has adopted a rather self-serving
interpretation of the MoU, which allows the agency to laud the spirit of the
document whilst simultaneously failing to adhere to its contents when
convenient. Whilst aware that the MoU between the ATSB and CASA is not a
legally binding document, it nonetheless has an intended aim, and therefore
fails to serve its purpose if not adhered to. The committee concludes that
CASA's decision to withhold important documents from the ATSB has, as outlined
in Chapter 6, had a severe impact on the ATSB's investigative process.
Recommendation 14
7.15
The committee recommends that the ATSB-CASA Memorandum of Understanding
be re-drafted to remove any ambiguity in relation to information that should be
shared between the agencies in relation to aviation accident investigations, to
require CASA to:
- advise the ATSB of the initiation of any action, audit or review
as a result of an accident which the ATSB is investigating.
- provide the ATSB with the relevant review report as soon as it is
available.
Recommendation 15
7.16
The committee recommends that all meetings between the ATSB and CASA,
whether formal or informal, where particulars of a given investigation are
being discussed be appropriately minuted.
7.17
The committee emphasises that the recommendation above is intended to complement
and clarify paragraph 4.4.6 of the MoU, not replace it.
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