Additional Comments by Senator Nick Xenophon
Who guards the guards themselves?
1.1
I would like to acknowledge the many submitters to this inquiry, and in
particular the individuals who were involved in the incident itself. Their
information and testimonies were invaluable to the committee and I appreciate
their contributions, particularly in light of how distressing it was for them
to relive the accident.
1.2
As the committee states, this inquiry was not an attempt to re-examine
the circumstances of the ditching of Pel-Air VH-NGA, or to conduct an aviation
accident investigation. Instead, it focussed on the reporting standards and
activities of the ATSB and CASA in relation to the ditching, and general
governance, transparency and accountability issues.
1.3
However, what is clear from this inquiry is that, while the pilot of the
flight did make some erroneous decisions, he essentially became a scapegoat for
serious regulatory failures on the part of CASA and the ATSB.
1.4
I strongly endorse the comments made by the committee in its report. The
evidence given by Mr McCormick of CASA and Mr Dolan of the ATSB was both
shocking and disturbing.
1.5
What at first seemed a fairly straightforward inquiry, instead turned up
evidence of withheld documents, poor reporting standards, institutional blindness
and what appears to be CASA's undue and potentially dangerous influence over
the ATSB and its investigation processes. It is clear to me that both agencies
have been allowed to operate to a sub-par standard with little knowledge or
intervention for too long.
1.6
The details of the ditching and subsequent report are complex and
technical. However, the core of the issue is that the ATSB produced a report
into the ditching over 33 months after the incident that, contrary to world’s
best practice and the ATSB’s own standards, did not even touch on the systemic
or regulatory environment in which the pilot was operating. Instead, it focussed
primarily on the pilot’s actions. It did not examine the organisation for which
the pilot was working, or the systems, procedures or environment in that
organisation. This is despite the fact that a CASA Special Audit of Pel-Air
after the ditching discovered serious regulatory breaches, and an internal CASA
report (the Chambers Report) found significant failures in CASA's oversight of
the operator. While neither of these documents were provided to the ATSB in a
timely manner (the Chambers report was not released to them until after the inquiry
had commenced), the ATSB's investigation should have discovered these problems.
That there was no indication of this in the report is a serious concern.
1.7
Further, among the many documents provided to the committee by the ATSB
and CASA, the committee discovered the following email, from an ATSB officer to
Mr Dolan and Mr Sangston. It reads (bold emphasis added):
We 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 CASA might have got itself into by its interventions
since the ditching, and how you might have identified an optimum path that will
maximise the safety outcome without either agency planting egg on the other
agency’s face.
Right now, I suspect that CASA is entrenching itself into a
position that would be hard to support. If we were to contemplate an exit
strategy, or an ‘out’, then CASA would need to recognise that it is ‘in’
something in the first place. This is my take on how I see their position
at the moment.
When the aircraft ditched, both the flight crew and the
operator stopped their Westwind Aeromedical operations. CASA coached and
guided the operator very well as they collaborated to develop a much safer
process to avoid a repetition of this accident. This has happened, and
Pel-Air are now operating again. The same thing hasn’t happened to the
flight crew. While they may not have been the ‘Aces of the base’ they were
following the relevant procedure provided by both CASA and the operator.
This is an opportunity for CASA to follow the same approach with the flight
crew as they have done with the operator.
...
As we discussed yesterday, following the ditching, everything
went (metaphorically) ‘up in the air’. CASA has done a good job in realigning
Pel-Air while it was still in the air so that it returning to earth with a much
better take on how to manage this risk. Unfortunately, they took action on
the flight crew without first contemplating their end-game. If they re‑frame
their pre-emptive action with the flight crew to show that they had managed all
the levels of safety management simply by putting the pilots’ permissions to
fly on hold until they had found the problem and remedied it, then they would look
far better than if they tried to prosecute the probably indefensible and hardly
relevant.
We will be telling this story in our final report (if not
earlier;) so why not make the most of this opportunity for both agencies to
publicly work harmoniously, in a parallel direction?[1]
1.8
It is important to note that 'this story' never made it into the final
report, or into any other arena. This email clearly indicates there was a
belief inside the ATSB that CASA had 'got itself into a hole', and that the
ATSB’s priority was avoiding conflict between the two agencies, rather than
holding CASA to account. Indeed, the ATSB's report makes no mention of the
officer's concerns, and does not even hint at the whole 'story' outlined in the
email.
1.9
It also makes it clear that, at least initially, the focus of the
investigation was on systemic issues, and that the ATSB officer believed CASA's
actions against the pilots were premature and unnecessary. Why the emphasis of
the report changed is open to conjecture.
1.10
The report itself is of such a poor standard that many believe it could
be considered a breach of Australia's international obligations under the
International Civil Aviation Organisation's Annex 13 guidelines for accident
investigation reporting.
1.11
Without distracting from the excellent work of the committee's report, I
believe it is important to draw attention to two issues that the committee, due
to time restraints, was not able to examine more closely.
1.12
Firstly, I believe relationship between CASA's Bankstown Office (responsible
for the oversight of Pel-Air and run at the time in an acting capacity by the
author of the "Chambers Report") and Pel-Air's management in terms of
probity, transparency and impartiality deserves further scrutiny.
1.13
Secondly, I believe it would have been beneficial to publicly examine
whether the "demonstrably safety-related" actions taken by CASA
against the pilot by CASA were appropriate, reasonable and consistent with
other such enforcement. I believe these two issues deserve further consideration.
1.14
Both of these issues could have cast some light on why the ATSB's focus
shifted from systemic and human factors to the behaviour of the pilot.
1.15
Beyond the ATSB report itself, the committee also considered the
regulatory environment in which such flights operate. As discussed in the committee
report, there are significant industry concerns about the low safety standards
for aeromedical operations, which come under the category of 'aerial work'.
This category includes activities such as crop dusting and aerial surveys.
1.16
One of the significant issues in relation to the ditching was whether or
not the pilot should have chosen to divert to an alternate destination due to
the weather at Norfolk Island. The committee report discusses Mr McCormick's
response to whether CASA should provide guidance in these circumstances, and
whether the drafting of a new Civil Aviation Safety Regulation would address
this.
1.17
The committee report stated that CASA has drafted Civil Aviation Safety
Regulation (CASR) Part 135, which may assist in dealing with this issue.
However, CASA's website information on CASR 135 states:
A passenger transport operation is a transport operation in
an aircraft involving the carriage of passengers, whether or not cargo is
carried on the aircraft. A passenger transport operation does not include, cost
sharing operations, aerial work operations or an operation for the carriage of
passengers in an aircraft with a certificate of airworthiness other than a
standard certificate of airworthiness.[2]
1.18
Further, the CASA website on CASR 136 indicates that Emergency and
Medical Services Operations will remain under the category of aerial work.[3]
Therefore, it seems that even though CASA has drafted the guidance under CASR
135, it would not have applied to this flight then or indeed in the future.
Further, the guidance only states that alternates need to be provided for, not
under what circumstances pilots must choose to travel to those alternates.
1.19
It is also important to note the committee's discussion of the ATSB's Canley
Vale report. This incident (also a medical flight) tragically resulted in the
deaths of both the pilot and the nurse onboard. The ATSB's response to this
accident was similar to its report into the Pel-Air ditching. The ATSB also
made it very clear in its report that it did not consider CASA's failure to
oversee the operator appropriately as relevant. The validity of that view is,
I believe, a direct parallel to that exposed by this inquiry for the Pel-Air
ditching and equally alarming.
1.20
The committee also recommended the establishment of an expert independent
panel to oversee the ATSB's investigations and reporting. Given the
circumstances raised in this report, I believe there is merit in expanding the
role of this panel to oversee the performance of both CASA and the ATSB as a
whole. There is currently no system to measure the activities of these agencies
in an objective manner, and the need for expert oversight and monitoring has
been made abundantly clear.
1.21
It is my view that the panel should instead take the form of an
Inspector‑General of Aviation Safety. Such a body would have the
appropriate resources, expertise and powers to oversee the ATSB and CASA to a
greater degree. The current Inspector-General of Taxation would be an excellent
model to follow as an independent office aimed at conducting systemic reviews
and providing recommendations to government.
Recommendation 1
That the Government establish, as a matter of urgency, the
role of Inspector‑General of Aviation Safety, with the necessary powers,
resources and expertise to oversee and independently review the activities of
CASA, the ATSB and other relevant organisations to an appropriate level.
1.22
Ultimately, this inquiry has exposed serious and significant flaws in Australia's
aviation safety systems. The general industry attitude towards both the ATSB
and CASA is incredibly concerning; it is a mixture of fear, suspicion,
disappointment and derision.
1.23
It is my view that CASA, under Mr McCormick, has become a regulatory
bully that appears to take any action available to ensure its own shortcomings
are not made public. This poses great risks to aviation safety, and the safety
of the travelling public. Equally, the ATSB—which should fearlessly expose any
shortcomings on the part of CASA and other organisations to improve aviation
safety—has become institutionally timid and appears to lack the strength to
perform its role adequately. Both agencies require a complete overhaul, and I
believe it is only luck that their ineptness has not resulted in further deaths
so far. There is an urgent need for an Inspector-General of Aviation Safety,
entirely independent of the Minister and his department, to be a watchdog for
these agencies.
1.24
In the end, this report raises many questions. But if we wish to bring
about change and improve aviation safety, we will clearly need to look beyond
our inept regulators and ask: who will guard the guards themselves?
Senator Nick Xenophon
Independent Senator for South Australia
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