There's a simple lesson in all this: don't put a pilot in charge!
9 July 1997 Ministerial Press Release:
Quote:
Two new appointments have been made to strengthen the Civil Aviation Safety Authority Board.
They are: Dr Paul Scully-Power, Australia's first astronaut (who travelled aboard the Challenger shuttle in 1984) and an aviation technical adviser, and Mr Bruce Byron AM, former RMF Wing Commander and expert aviation examiner.
Both appointments are in keeping with the Howard Government's commitment to have members on the CASA Board with the appropriate aviation experience, capable of questioning, challenging and monitoring the activities of the CASA bureaucracy - which in turn is responsible for enforcing aviation safety standards for all travellers.
The Government is determined to ensure that Australia has a world class aviation safety system.
The strengthening of the seven-member CASA Board, together with a range of other initiatives to improve the way aviation safety regulation is conducted in Australia, will enhance the effectiveness of our safety regulatory system.
Last year the Government launched the broadest review of aviation safety regulations in Australia's history.
Aviation is a complex and detailed industry that requires people to administer it who have appropriate qualifications relevant to aviation.
Attached are career details of the two appointees, who replace Ms Gabi Hollows and Mr Geoff Molloy.
Media enquiries:
Adam Connolly, 02 9251 9284
Quote:
DR PAUL SCULLY-POWER: (NASA Astronaut and Aviation technical adviser). Age 53. Born in Sydney and educated at St Pius X College, Chatswood and the University of Sydney.
Dr Scully-Power is an internationally awarded expert in aviation matters. He joined the Royal Australian Navy as a pilot in 1967 and is Australia's first astronaut, flying on NASA's space shuttle Challenger in 1984.
Qualified as a high-performance jet pilot, he has been a flight crew instructor in the astronaut office and was a principal investigator for NASA's infra-red HCMM satellite program and for the joint US-USSR Apollo-Soyux manned spaceflight program.
…
From the Senate Hansard of 8 November 2000:
Quote:
ANSWERS TO QUESTIONS WITHOUT NOTICE
Civil Aviation Safety Authority: Operations
Senator O'BRIEN (3.07 p.m.)—I move:
That the Senate take note of the answers given by the Minister for Regional Services, Territories and Local Government (Senator Ian Macdonald), to questions without notice asked by Senator O'Brien today, relating to the Board of the Civil Aviation Safety Authority.
If we are to believe parts of Senator Macdonald's answer today, we must conclude that he needs a quick lesson in history. Who was John Sharp? He was the second most senior National Party member of the first Howard government—in fact, he was a cabinet minister. So if Senator Macdonald would seriously have us believe that he does not know who Mr Sharp is, perhaps that quick lesson will bring him up to speed. Obviously he has some short-term memory problems.
Mr Sharp had a few ideas about aviation—which distinguishes him from his successors and particularly from the current Minister for Transport and Regional Services, Mr Anderson, who obviously has no idea about aviation. He certainly does not want to get his hands dirty because he has no idea what he is doing. Turning to Senator Macdonald's answer today—particularly his answer to my lead question—the minister said, as he did on Monday, that the government does not believe—I can believe that because it now knows—and has never believed that Dr Scully-Power is a high-performance jet pilot. That is, frankly, not believable; it is not the truth.
The press release of 9 July 1997 issued by the then cabinet minister Mr John Sharp—from which I will quote—contains a passage from the CV of Dr Paul Scully-Power. It states:
Quote:
Dr Scully-Power is an internationally awarded expert in aviation matters. He joined the Royal Australian Navy as a pilot in 1967 and is Australia's first astronaut, flying on NASA's space shuttle Challenger in 1994.
Qualified as a high-performance jet pilot ...
If the government did not believe in 1997 that Dr Paul Scully-Power was `qualified as a high-performance jet pilot' why did cabinet member and then minister for transport, Mr Sharp, issue such a press release? Of course the answer is because that is what he believed. He is telling journalists now that that is what he believed at the time and, more importantly, that is what he conveyed to other board members. It was an important factor in the appointment of Dr Scully-Power to his position. That is what the government believed.
I do not understand why Minister Anderson—through his representative in this place, Senator Macdonald—cannot fess up and say, `Look, we now know that Dr Paul Scully-Power was never a high-performance jet pilot. We now know that was never true. The cabinet was misled and we are looking into the matter.' The fact is that this minister does not want to look into such matters because he knows that a can of worms is lurking in aviation that he will have to do something about.
Can we really believe the government is completely satisfied with the performance of CASA, and of Mr Toller in particular, after a unanimous committee report about the debacle of an investigation of a company called Arcas led to the demotion of Mr Foley, Assistant Director, Aviation Safety Compliance? That action was occasioned by a Senate committee report. It was not initiated by CASA but provoked by the actions of the Senate. If it has cost CASA $90,000 to answer questions, I do not have any problems with that: if that is the cost of CASA's accountability, it is cheap. The fact is that CASA and Minister Anderson were doing nothing about the Arcas matter and something happened because of a Senate committee report. There has been counselling of Mr Toller. We have had misrepresentation by the chairman of CASA about his aviation qualifications and today we have had the revelations—which were confirmed by the minister—of a move by at least one of the two national airlines to see the director of CASA, Mr Toller, stood aside.
When will this government do something? If Mr Anderson is not prepared to act—if he does not want to get his hands dirty on aviation—why will the Prime Minister not step in and replace him? There has been a failure of government administration in this matter. Unless the government is prepared to act, the crisis of confidence in CASA and throughout the aviation industry will only grow. This government needs to act. We have ample evidence that there is a crisis in CASA and the government must act now. (Time expired)
"Mr Sharp had a few ideas about aviation—which distinguishes him from his successors and particularly from the current Minister for Transport and Regional Services, Mr Anderson, who obviously has no idea about aviation. He certainly does not want to get his hands dirty because he has no idea what he is doing."
An understatement I would have thought - and ample justification for the Senate to look at CAA/CASA performance over the last 20 years.
I suggest that you read the full Sherman report. No doubt you will suggest Mr Sherman was a CASA crony as well - given that he does not agree with your conclusions.......
30 May 2001 A75/2001
SHERMAN REPORT ON THE DIRECTOR OF AVIATION SAFETY
The former chairman of the National Crime Authority, Tom Sherman AO, has found that the alleged regulatory breaches by the Director of Aviation Safety, Mick Toller, should not be referred to the Director of Public Prosecutions.
The Deputy Prime Minister, John Anderson, released the Sherman report today. The report examines two incidents involving Mr Toller in 1999 and 2000.
"The first incident involved an allegation that Mr Toller did not fill in a maintenance release in accordance with the aviation regulations. CASA's compliance staff investigated the allegation and counselled Mr Toller. He then received special treatment. The allegation was investigated again. Mr Sherman concluded that there was no substantial evidence that Mr Toller has committed an offence. He also pointed out that the second investigation: () was initiated for the wrong reasons namely some criticism that was perceived as relevant in a parliamentary committee report. If the principles of enforcement now set out in the Enforcement Manual was observed, the investigation would not have been commenced, particularly in circumstances where informal counselling had already taken place.
"The second incident involved an allegation that Mr Toller had taken the controls of a Cessna Caravan, even though he was not endorsee for the aircraft type. Mr Sherman concluded there was evidence that Mr Toller had committed a technical breach of one regulation, and said that: I am however of the view that the matter should be the subject of formal counselling in accordance with the procedures of the CASA Enforcement Manual rather that refer the matter to the DPP. This is because the contravention was relatively minor and there appears to have been no threat to the safety of the aircraft particularly as both Mr Pennington and Mr Toller were experienced pilots.
"Mr Toller was formally counselled. The Sherman Report makes it clear that Mr Toller received special and unfavourable treatment. He was investigated twice for the same alleged offence. He was pilloried by the Labor Opposition.
In respect to Mr Toller "operatiing of an aircraft without an endorsement" I will agree the allegation is ludicrous. The flight in question was a private flight; Mr Toller occupied the co-pilot seat; the Chief Pilot, a Grade 1 Instructor with type endorsement and CAR217 approvals occupied the left pilot seat; and Mr Toller briefly flew the aircraft in cuise, under supervision. (I was seated behind Mr Toller and witnessed the event.)
Some years ago a DHC6 taxied in Cairns for the purpose of conducting a revenue flight, following completion of scheduled maintenance. The pilot was alerted to a yellow oil leak from one engine nacelle and returned to the terminal to have the defect rectified. He did not enter the defect on the MR as he had not attempted to become airborne but advised details verbally to a LAME; the LAME rectified the defect and entered the defect on the MR.
CASA took the view that to taxi an aircraft for the purposes of flight was considered to be commencement of the flight, the defect should have been entered on the MR and piloried the pilot.
Whilst I can't say I agree with CASA's decision and action in the above incident, if Mr Toller completed a flight with a known defect which should have been entered on the MR, why then was he exempted from similar CASA action?
I mention this incident for no other reason that to highlight the apparent inconsistencies in CASA's administrative decisions and actions over a number of years.
What are the exact details of the case to which you refer (who, when, where)? Exactly what action was taken? What does "piloried the pilot" actually mean?
And that is not the point you were making. The point you were making is that there was a cover up. That suggestion (and your current imputation) was entirely discredited by the Sherman report........
But clapton, are you sure Sherman wasn't misled? Senator O'Brien said this on 20 June 2001:
Quote:
Further, Mr Sherman, in his advice, is clearly of the view that the matter of Civil Aviation Regulation 228, in addition to 282 and section 20AB(1) of the Civil Aviation Act, had been referred to two independent law firms. He refers specifically to Civil Aviation Regulation 228 in response to questions asked on the last page of his advice. It is clear from the evidence—if we can accept it—that no such advice exists in relation to Civil Aviation Regulation 228. Either Mr Sherman formed some view that the matter referring the breach of 228 to the DPP had been considered by external lawyers and was rejected or he had been wrongly advised that such advice had been provided to the authority. So on the matter of referral of the Uzu breach to the DPP based on Civil Aviation Regulation 228, at best there are only two views: that of Mr Sherman and that of Mr Boys. As I said, Mr Sherman, in his opinion, incorrectly assumes that a possible Civil Aviation Regulation 228 breach had been considered and rejected by two independent legal assessors and gave some weight to that alleged advice. So there were not three legal views against Mr Boys at all; at best, there was one and one which would have to be qualified in that context.
Will the view that prevails at the end of this particular debate leave us any the wiser as to what needs to be done now to give the regulator a higher measure of respect and trust than what has been the case in recent years? (At least the debate appears to be led by posters with a good grasp of finer points, the legal complexities. Those of us who are not required to exercise nous beyond ATPL air leg. can but spectate and try to follow the play.)
So on the matter of referral of the Uzu breach to the DPP based on Civil Aviation Regulation 228, at best there are only two views: that of Mr Sherman and that of Mr Boys.
There were 3 legal opinions. Sherman, Skehill and CASA's General Counsel. Mr Boys had a contrary opinion. Obviusly those who prefer conspiracy theories will side with Boys because it is convenient to do so - especially if you happen to dislike Toller et al. So why let the facts get in the way of a good conspiracy. There was no misleading of anyone. Tom Sherman was smart and independent enough to make his own informed judgment based on facts - not innuendo.
This particular debate won't. Lowdown had the right idea. Get CASA back to its core business of regulation rather than running the organisation as a business (completely discredited under Monarch and Seaview) and then get the politicians to stop using aviation as their own political football to curry favour with industry constituents. Either you have an authority that is meant tyo regulate - or you disband it and let the policiticians run the show directly.
They can't have their cake and eat it - which is what they all try to do - beating up CASA because it is too harsh (when some industry recalcitrant complains) and then in the same breath beating up CASA for not being tough enough as soon as there is an accident or incident. The shallowness of their approach is overwhelming and reeks of hypocrisy in the extreme. But what else would you expect from our elected leaders who are there to serve themselves rather than taking a proper and consistent moral stance on the issue.
Are saying that Sherman was told that the 2 external law firms had not advised on the 228 issue, but had advised on the 282 and 20AB issue? Can you quote the bit of Sherman's report that makes that distinction?
Further, you must recognise the elephant-sized conflict of interest in the General Counsel of CASA advising on the whether his boss had broken the rules and, if so, how those breaches should be dealt with. His opinion was fatally tainted by that conflict, as was Boys's. Presumably the opinions of external law firms were sought because of that patent conflict. What is not clear is why those external opinions were not sought from all of the same advisers in respect of all 3 issues, but Sherman was told they had.
It may be that the outcome would have been exactly the same if all 3 issues had been referred in exactly the same way and Sherman had been given completely correct information. But that didn't happen. Instead, people started telling fibs suggesting that it had happened. That's the problem, clapton. When people start telling fibs about messes they've created, rather 'fessing up and tidying up, it naturally invites speculation that there's something serious in the mess, rather than the usual and more prosaic explanation that a mistake was made.
First, for those who were paying attention, the reason for the 2003 cut-off for the inquiry is obvious: that was the year the CASA Board was abolished, and the current government was elected with a policy of re-establishing the CASA Board. So, the current government needs an inquiry to prove that things got worse, not better, when the CASA Board was abolished, so as to retrospectively justify a decision that's already been made.
Secondly, you're about as sharp as a bowling ball.
Before I answer your question let me ask you whether when you provide legal advice to your clients who have allegedly done something wrong, you have an elephant-sized conflict of interest because you provide them with advice and they are your clients. Or do you act on the basis that you have high legal ethical standards and act with professional integrity?
Do you think you are the only one who maintains such standards?
In his adjournment speech on 20 June 2001, Senator O’Brien made numerous statements about the Toller incidents. Many of these statements are inaccurate. I have taken some time to reply to your post because it was necessary to speak to a number of the persons involved and to carefully read the Sherman report and Hansard transcripts rather than just assume because Senator O'Brien made some comments then they must be correct (as you have obviously done).
1.“… Mr Skehill’s involvement in the meeting meant that he was assisting Mr Toller to manage one of the breaches and at the same time was advising the authority about another of Mr Toller’s breaches. I do not believe that Mr Skehill can credibly justify his conflict of interest in this case”.
Senator O’Brien’s assumptions are incorrect. At the time of the meeting on 6 November 2001 Mr Skehill had no involvement in Brindabella. Mr Skehill was not asked to provide any legal advice in relation to the Brindabella incident until 16 January 2001. By that time he had long ceased to have any involvement in the Uzu matter. There was no conflict of interest of the nature suggested by Senator O’Brien.
Also, Mr Skehill was not assisting Mr Toller to “manage” any breach. He provided advice to enable the Board to decide what should be done in response to the hotline call. That advice was that the matter should be disclosed to the Board and that the matter should be investigated in accordance with normal CASA procedures i.e. Mr Toller should be treated in the same way as any other pilot. Hardly the stuff of a cover up.
2.“So the initial response by Mr Toller, Mr Ilyk and Mr Skehill to the public disclosure of Mr Toller’s breach of aviation regulations was inappropriate to say the least…”.
The initial response was completely appropriate and involved no conflict of interest.
3.“…Mr Farquharson’s concerns were such that he has committed them to writing. Now, if Mr Farquharson did express concerns about the relationship between Mr Toller, Mr Ilyk and Mr Skehill … either orally or in writing, the integrity of the internal inquiry into the matter must be called into question…”.
Mr Farquaharson did express his concerns. However, this was done without any evidence to substantiate his concerns, simply based on unfounded allegations from Mr Boys. A month or so after expressing those concerns, Mr Farquharson retracted those concerns unequivocally. Senator O’Brien fails to mention the retraction.
4.“Mr Boys told the committee that he did not investigate the Uzu breach, and someone else was tasked with the inquiry. Mr Boys confirmed that such an investigation would normally have been referred to him but the investigation of Mr Toller was not…”.
This is not correct.
Whether matters were referred to the Manger, Enforcement and Investigations at that time depended upon various factors. Hotline calls were never automatically referred to a Part IIIA investigation as suggested in Mr Boys’ answer. It was for the relevant Manager to determine whether or not a request for a formal Part IIIA investigation should be referred to the Manager, Enforcement and Investigations. Paragraph 3.3.2 of the Enforcement Manual stated:
“If a Manager believes that a formal investigation by a Part IIIA investigator is required then the matter should be referred to the Manager, Enforcement and Investigations in accordance with the Enforcement Processes Flowchart at paragraph 3.7 and using the Request for Investigation Form (form 309). (See chapter 16. CASA Internal Documents for a sample of the form).
“The request for investigation will be considered by the Manager, Enforcement and Investigations, who will take into account relevant priorities and resources”.
Mr Farquharson correctly notes this same point in his evidence to the Senate on 4 May 2001 where there is the following exchange:
“Senator O’BRIEN – Breaches of the regulations normally go through Mr Boys?”
“Mr Farquharson – Not necessarily, no”.
“Senator O’BRIEN – That is Mr Boy’s evidence”.
“Mr Farquharson – If the matter is going to be considered for prosecution or there is a requirement to employ the assistance of Mr Boy’s investigators for the gathering of information, then his group will become involved. If the matter is an administrative matter and is considered to be solely an administrative matter, then Mr Boys may know nothing of it. Those matters may all involve breaches or technical breaches but fall within the ambit of administrative than prosecution”.
This distinction appears to be continually missed by Senator O’Brien. The distinction also appears to have been overlooked by Mr Boys in his evidence to the Committee.
5.“He [Mr Boys] said that the changed reporting arrangements should not normally affect the manner in which he progressed his investigations, but in relation to the Uzu matter they did. The treatment of Mr Boys in this matter and the Brindabella investigation was highly irregular, to say the least…”.
The Uzu matter was not a “Peter Boys” investigation as suggested by Senator O’Brien. The investigation was conducted in the normal way. The fact that it was not referred to Mr Boys for investigation is not irregular, it in fact reflects what normally happened in CASA at the time. The changed reporting arrangement did nothing to alter the way investigations are normally handled.
6.“…Mr Leaversuch ignored Mr Boy’s advice, effectively taking him off the case, and he sought no other advice. He then shut the Brindabella investigation down”.
This is simply incorrect. The investigation was never shutdown. It was completed by the investigator originally assigned to the case (Neil Enders). Mr Boys was not taken off the case. He was in charge of the investigation to its completion and referred the final report to the Acting Assistant Director, Aviation Safety Compliance.
7.“I understand that all this information was provided to Mr Farquharson. If this is correct, it is difficult to understand how he could not have formed the view that there was significant doubt about the integrity of the process followed and, therefore, of the conclusions reached in relation to the investigation”.
The Brindabella investigation was conducted by a Part IIIA investigator under Mr Boys. The investigation was conducted without any involvement by Mr Toller. The irregularities were commented upon by CASA's General Counsel as indicating the inadequacy of the evidence in reaching a conclusion that there was a prima facie breach of CAR 50.
8.“So, when Mr Farquharson told the Committee that he was faced with a difference between the views held by Mr Ilyk, Phillips Fox and Mr Boys, that was not accurate. A possible breach of Civil Aviation Regulation 228 was not considered at all by Ilyk or Phillips Fox”.
In relation to both the Brindabella matter and parts of the Uzu matter there was a difference of view between General Counsel and Mr Boys. The fact that CAR 228 was not considered by General Counsel or Phillips Fox is completely irrelevant. It was because there was a difference of view on some significant legal issues that Mr Farquharson felt it necessary to have all the issues reviewed by Mr Sherman.
It should be noted that Mr Boys was not employed as a lawyer in CASA and was not qualified to provide legal advice in any event. That was the role of legal counsel in OLC.
9.“Mr Sherman, in his advice, is clearly of the view that the matter of Civil Aviation Regulation 228, in addition to 282 and section 20AB(1) of the Civil Aviation Act, had been referred to two independent law firms”.
This is not correct. Mr Sherman knew what had and had not been referred to the independent law firms. He had been given all the files and they clearly show what matters had been referred for external legal advice. He also had all the legal advices that had been provided, so he knew exactly what had been considered by the external law firms and what had not. It is clear from the files that he was given that CAR 228 had not been so referred and Mr Sherman was well aware of this.
10.“Mr Sherman, in his opinion incorrectly assumes that a possible Civil Aviation Regulation 228 breach had been considered and rejected by two independent legal assessors and gave some weight to the alleged advice”.
There is no basis for such a conclusion by Senator O’Brien. Any normal reading of Mr Sherman’s advice shows that he was under no impression that the CAR 228 matter had been assessed by two independent legal firms.
Additionally, as stated above, Mr Sherman had all the files and legal advices and could have been under no impression that CAR 228 had been considered by anyone other than Mr Boys (who was not employed or qulaified to provide legal advice). In his advice Mr Sherman makes no suggestion that the CAR 228 matter had been considered by any external or internal lawyer (as he does, for example, in relation to CAR 282). In fact he suggests the contrary. After referring to CAR 282 and the legal advices in relation to that matter he says:
“There remains however the question of the application of Regulation 228…”.
11.“In relation to the Brindabella investigation we know that Mr Boys did commence an investigation but was taken off the inquiry and the files were removed from his possession… he was basically sidelined on the matter…”.
This in not correct. The investigation of the Brindabella incident which was commenced by Mr Boys and conducted by investigator Enders was fully completed and a final investigation report was produced by Mr Enders and sent to Mr Boys who then sent it to Mr Farquharson.
Mr Boys was not sidelined in relation to the investigation. The investigation was conducted in the normal manner (except for the irregular way in which it was commissioned by Mr Foley) and the reporting arrangements did not change how the investigation was conducted. In relation to Uzu, Mr Boys was not marginalised as suggested by Senator O’Brien. The fact that the matter was not formally referred to him is not unusual as such a matter would generally not have been referred to him where the pilot was someone other than Mr Toller.
12.“We also have missing evidence, changing stories, an apparent backdating of a maintenance release coming to the aid of Mr Toller and irregularities in advice from Mr Sherman…”.
The missing note is not new and was never hidden. But it had nothing to do with Mr Toller. The other suggestions in this comment from Senator O’Brien are incorrect. In particular his suggestion that there were “irregularities” in Mr Sherman’s advice. There were no irregularities in Mr Sherman’s advice and Senator O’Brien has not shown any irregularities. Mr Sherman is a highly respected lawyer, a former Chairman of the National Crime Authority and a former Deputy Secretary of the Attorney-General’s Department and a former Australian Government Solicitor. To suggest that Mr Sherman did not know what he was doing or was somehow misled (even though he had all the files, all the legal advices, Boys' views and all the facts) is simply taking the conspiracy theory to an absurd extreme and unjustifiably impugns a lawyer of the highest integrity.
let me ask you whether when you provide legal advice to your clients who have allegedly done something wrong, you have an elephant-sized conflict of interest because you provide them with advice and they are your clients.
With the greatest respect clapton, the fact you asked that question and apparently do not distinguish between the circumstances of an independent legal adviser advising a client on the one hand, and an employed lawyer advising her employer on whether the employer's breaches should be referred to the DPP on the other, is breathtaking. I will simply leave your statement as is and let it speak for itself.
And the story appears to be changing. In your post of 10 June you quoted Senator O’Brien’s statement:
Quote:
So on the matter of referral of the Uzu breach to the DPP based on Civil Aviation Regulation 228, at best there are only two views: that of Mr Sherman and that of Mr Boys.
You then immediately said:
Quote:
There were 3 legal opinions. Sherman, Skehill and CASA's General Counsel.
In your post immediately above, you said:
Quote:
The fact that CAR 228 was not considered by General Counsel or Phillips Fox is completely irrelevant.
I will review the rest in greater detail when I get a chance, but let me say again, clapton, this is the problem.
No you can review all you like. The problem is that you are not interested in facts.
As for the circumstances - they are not different. You are quite happy to provide advice to your "clients" - ie the persons who are employing you or your firm - hence your "employer". There is no difference - except that you seem to believe that is acceptable for you but no one else. Your conflicts are just as elephant sized because you are being paid (hence employed) to provide the advice to the client. But of course your professional integrity is such that you would clearly never be biased or provide convenient advice - but obviously everyone else is incapable of that. That is the problem Creampuff.
There is no discrepancy in my latest post - I actually checked with people who do know what happened (and read the reports) rather than relying on unsubstantiated allegations by a disgruntled Senator who was only interested in pursing a political agenda rather than getting to the truth.
Finally, do you think that Mr Sherman was so stupid and incapable of working out the real facts from all the files and papers (including all the withess statements) tat we was provided - nothing was hidden. He didn't need any external advices etc to bolster his views - he was more than capable of coming to an independent opinion himself given his status and experiece. The fact that he did seems to be completely discounted by you and others who are bent on seeing some sort of sinister cover up and are happy to impugn the integrity of others along the way without any facts or evidence - based on a political statement made by Senator O'Brien which was made in without any proper investigation of the facts. I hope that is not how you deal with all your cases...........
Perhaps you can call Mr Sherman himself and see if he was involved in a cover up. He is still around.
There is clearly nothing further to say on this from my perspective so I won't be rsponding to any more of your posts on this because you are clearly not interested in facts.
clapton, since you've chosen to press the issue in those terms…
I'm guessing by your misconceptions in respect of conflicts of interest that you have little or no experience in private practice.
If I were an external lawyer giving an agency advice on whether its CEO or equivalent breached the law and, if so, whether those breaches should be referred to the DPP in accordance with applicable policies and procedures, I wouldn't care less whether the agency or the CEO liked or didn't like the advice and was inclined to execute me as the messenger. External lawyers have lots of clients. I'd be better off not having a client with a CEO like that anyway.
In-house lawyers have one client: their employer. If they upset the person who makes the hiring and firing decisions and the person executes the messenger, the lawyer doesn't have a job. Therefore, if the in-house lawyer is asked for advice on whether the person who makes the hiring and firing decisions has breached the law and, if so, whether those breaches should be referred for prosecution in accordance with applicable policies and procedures, that lawyer has a patent conflict of interest in advising on those questions, notwithstanding that the lawyer has 'high ethical standards' and 'professional integrity'. Indeed, and ironically in the context of this discussion, it would be both of those characteristics that should lead that lawyer to refuse to act on instructions to advise on those questions, on the basis of that conflict.
The difference is obvious, at least to me.
There are circumstances in which a lawyer is not permitted to act, even though the lawyer may have unquestionably 'high ethical standards' and 'professional integrity'. If 'high ethical standards' and 'professional integrity' were enough, there would be no law or practice rules about conflicts of interest.
Judges are chosen because they have 'high ethical standards' and 'professional integrity', but they nonetheless stand aside in matters in which they have, or are reasonably perceived as having, bias in the matter. That's not a slur on their ethics, integrity or competence.
But let's assume I'm seeing a difference that doesn't exist. Walk me through the nuts and bolts of this, clapton. If the General Counsel of CASA is asked to advise on whether the CEO breached the law and, if so, whether those breaches should be referred to the DPP in accordance with applicable policy, who is the General Counsel's client? In acting in that matter, to whom does the General Counsel owe his or her fiduciary duties, including the duty of confidentiality? Whose interests is the General Counsel obliged to promote and protect? Does CASA spend money on external lawyers to promote and protect CASA's interests, or to promote and protect the CEO's interests?
If your view is that the CEO's and CASA's interests are, in those circumstances, one and the same, that would explain a lot.
Any objective analysis of my postings on PPRuNe will demonstrate that I am very interested in facts, and I try very hard not to let my prejudices or emotions get in the way of sorting the fact from the fiction. However, I'm only human. So are you. You seem to be emotionally attached to this one. You even quoted a press release as if what it said was necessarily fact.
I haven't suggested that Tom Sherman is stupid or incapable of working out the real facts.
Let's test your objectivity in the circumstances: If Mr Toller committed a technical breach of CAR 282(1) by taking the controls of a Cessna Caravan, even though he was not endorsee for the aircraft type, do you agree that those circumstances would also constitute a technical breach of CAR 228(1)?
For the info of readers, CARs 228(1) and 282(1) said, respectively:
Quote:
228(1) A person must not manipulate the controls of an aircraft in flight if the person is not either:
(a) the pilot assigned for duty in the aircraft; or
(b) a student pilot assigned for instruction in the aircraft.
…
282(1) A person shall not, if the person is not specially permitted by or under these regulations, perform any duty or exercise any function or do any act for which:
(a) a licence;
(b) a certificate; or
(c) a rating or other endorsement on a licence or certificate;
is required under these regulations, without holding:
(d) the appropriate licence or certificate; or
(e) a licence or certificate containing the appropriate rating or other endorsement.
Simple question, clapton: a technical breach of one regulation, or a technical breach of two regulations?
Not a surprising response from you given that you believe that private lawyers have a monopoly on acting with integrity.
As to you comments that in-house lawyers only have one client - you know that that is a gross oversimplification. In house lawyers aren't the personal lawyers of the CEO. They aren't employed by the CEO - don't forget there was a Board in existence at the time which was ultimately responsible for the management of CASA and the hiring and firing of senior staff - not the CEO. Im-house lawyers act with due regard to their legal ethics and duties to the law itself, the Boatrd and organisation itself. They are not the personal playtthings of the CEO. And they are accountable through parliamentary processes for what they do as well.
As to the wonderful ethics of private lawyers, can you name me one in-house lawyer who has been charged or convicted of obstructing the course of justice, destroying evidence, shredding documents, misappropriation of trust funds etc. Trawl through the law reports and you will find wonderful examples of partners of law firms extensively engaing in all these activities. So please don't be so condescending and try to tell me that lawyers in private firms don't act in a completely unprofessional and unethical manner (with huge conflicts of interest) to please their clients (ie their employers) because such firms are in it for the money and often do whatever it takes to keep that money rolling in to pay for their lavish lifestyles.
As to you question:
Quote:
Let's test your objectivity in the circumstances: If Mr Toller committed a technical breach of CAR 282(1) by taking the controls of a Cessna Caravan, even though he was not endorsee for the aircraft type, do you agree that those circumstances would also constitute a technical breach of CAR 228(1)?
For the info of readers, CARs 228(1) and 282(1) said, respectively:
Quote:
228(1) A person must not manipulate the controls of an aircraft in flight if the person is not either:
(a) the pilot assigned for duty in the aircraft; or
(b) a student pilot assigned for instruction in the aircraft.
…
282(1) A person shall not, if the person is not specially permitted by or under these regulations, perform any duty or exercise any function or do any act for which:
(a) a licence;
(b) a certificate; or
(c) a rating or other endorsement on a licence or certificate;
is required under these regulations, without holding:
(d) the appropriate licence or certificate; or
(e) a licence or certificate containing the appropriate rating or other endorsement.
Simple question, clapton: a technical breach of one regulation, or a technical breach of two regulations?
The answer is that there has been a technical breach of one regulation only - CAR 228. There has been no breach of CAR 282.
Creampuff, like Mr Boys, in you eagerness to pillory Mick Toller you fail to read the legislation. While Mr Boys could possibly be forgiven because he was not a real lawyer, I would have expected you to pay more attention to the legislation.
Read CAR 282 carefully (you get paid by the hour as a private lawyer - so take you time, you can charge the client).
CAR 282 only applies to a licence or endorsement that is required under the regulations(note the words, UNDER THE REGULATIONS).
In relation to the Mick Toller incident, the endorsement was not "required under the Regulations". The effect of not having an endoresment is that, except in particular circumstances, a pilot's licence does not authorise the pilot to fly the particular aircraft (which of course has consequences for section 20AB of the Act - but it is not a breach of CAR 282). A fine legal distiction you may say - but that is how the legislation works.
The reason for this is that once upon a time the regulations did make it an offence to fly without a licence, endorsement etc and the regulations did require the person to hold the appropriate licence, endorsement etc. In those days, CAR 282 would have applied and there would have been a breach of CAR 282. However, this was changed in the early 1990s with the enactment of section 20AB of the Act, when those "requirements" were put into the Act.
CAR 282 now only appies to things that are "required under the regulations" - so it still has application - but not in the circumstances raised in your question - or the Toller incident.
So CAR 282 had no application to Mr Toller's actions. That is the legal point that was in dispute between CASA's General Counsel and Mr Boys. Phillips Fox confirmed General Counsel's view on this issue as did Mr Sherman. No doubt you will say that Phillips Fox had an elephant sized conflict of interest because they were part of CASA's external legal panel and so obviously they would agree with their client (who was paying their bills). Same goes for Sherman I guess because CASA also had to pay him as well so obviously he couldn't be trusted to provide honest and objective advice.........
Now where can we find an honset lawyer.............
Ye Gods! Save us simple pilots from Lawyers (LIARS) spouting boring legal drivel posts. If you want to have a pissing competition about which Lawyers dick is biggest, then buggar off to the nearest bar in Macquarie Street (or Melb/Bris Equivalent)
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