Someone brought my attention to this in the ATSB Report. (I had to read this twice to make sure I wasn’t hallucinating):
The ATSB sought information from CASA regarding the circumstances under which the incorrect procedure was approved for use by the operator. Despite this request, no information was provided by CASA. Consequently, the ATSB was unable to determine whether the approval of incorrect information was an isolated human error or symptomatic of a systemic deficiency with the approval process.
So is that because the ATSB is gutless, weak, incompetent or just plain old corrupt?
Section 32 of the TSI Act says:
32 ATSB may require persons to attend and answer questions etc.
(1) Where the ATSB considers it necessary to do so for the purposes of an investigation, the ATSB may:
(a) require a person to attend before the ATSB and answer questions put by any person relating to matters relevant to the investigation; or
(b) require a person to produce specified evidential material to the ATSB.
(2) Subsection (1) does not apply in relation to a person in his or her capacity as a coroner.
(3) The requirement under subsection (1) must be by a notice in writing. The notice must be signed by the Chief Commissioner and must specify the time and place at which the person is required to attend before the ATSB or produce the evidential material specified in the notice. That time must be reasonable having regard to the circumstances.
(4) When a person attends before the ATSB under paragraph (1)(a), the ATSB may require the questions to be answered on oath or affirmation. For that purpose, the ATSB may:
(a) require the person to take an oath or make an affirmation that the answers the person will give to the questions will be true; and
(b) administer an oath or affirmation to the person.
(5) A person to whom a requirement is given in accordance with this section must not:
(a) fail to attend before the ATSB in accordance with the requirement; or
(b) refuse to take an oath or make an affirmation when required by the ATSB to do so; or
(c) refuse or fail to answer a question lawfully put to the person; or
(d) fail to produce to the ATSB the specified evidential material in accordance with the requirement.
Penalty: 30 penalty units.
Note: Self‑incrimination is not an excuse for failing to answer a question. See section 47.
(6) Strict liability applies to the element of the offence against subsection (5) that the requirement is given in accordance with this section.
(7) A person who attends before the ATSB in accordance with a requirement under paragraph (1)(a) or (b) is entitled to be paid, in relation to that attendance, fees and allowances for expenses fixed by, or calculated in accordance with, the regulations.
What is that power for, if not to compel the provision of information and the answering of questions for the purposes of an investigation? You don’t “request”, you “require”. And you then prosecute those who fail to comply with the requirement to produce material and answer questions.
The ATSB was “unable” to make a determination about the
circumstances under which the incorrect procedure was approved for use by the operator, because the ATSB failed to exercise powers that it has to obtain information about those circumstances.
There will some sophistry around words like “approval” and “acceptance” - a matter touched on in the report - but the bottom line is that the incorrect procedure got there ‘somehow’ and there should be records in CASA and knowledge in CASA about that ‘how’.
Astonishing.