Glen Buckley and Australian small business -V- CASA

[glenb]

PART TWO

CONSIDERATION FOUR- EMBARRASINGLY FOR CASA THEY REALISED THAT THEY ALREADY HELD THE CONTRACTS, DESPITE CASAs INITIAL DENIAL AND THE FACT THAT THEY HAD ALREADY IMPOSED RESTRICTIONS ON APTAs ABILITY TO TRADE

On the matter of the contracts. At the time of CASA sending that initial notification on October 23rd, 2018, calling on me to supply contracts, embarrassingly for CASA, they already held the contracts, and they had been supplied to CASA by me, on multiple occasions. This was well before the date of October 23rd, 2018. CASA had “overlooked” that very important fact.

Had CASA considered the contracts that they held,it is likely that CASA would not have asked me to produce contracts that they already held. It could also be assumed that the CASA personnel involved should have made different decisions.

At that stage, I reasonably expected that CASA would have repealed the trading restrictions and proceeded with the process in a well-intentioned manner.

CASA demonstrated a determination now to pursue their alternating narrative, rather than admit error i.e. moved back to the Aviation Ruling, but after a couple of months, after they realised that was tenuous, it then moved back to contracts and then the “new” audit results appeared.

The existing contracts were entirely my own initiative and had been supplied to CASA on numerous occasions. CASA had shown little or no interest on the multiple occasions that I previously provided copies of the contract. My reasonable assumption was that CASA had no interest in the contracts because we had just been through a 2-year process with CASA to design APTA, and that process was all about ensuring that APTA provided industry-leading levels of operational control, by the way of the 600 procedures that we submitted to CASA to have assessed and peer-reviewed prior to CASA awarding us the Part 142 Approval 18 months earlier, and 6 months after that conducting a CASA Level 1 audit.

These 600 procedures were embedded into our operating manuals or Exposition which measures over 1 meter in width when printed out. These operating procedures required significant IT systems and infrastructure behind them, which we invested in. In that manner, we could be fully satisfied that when our pilots operated in accordance with our Exposition, they fully met the thousands of pages of CASA legislative requirements. By having a dedicated Head Office with a highly qualified Executive Management team, supported by admin staff, and providing CASA 24/7 internet access to every aspect of our operation, we could ensure industry-leading levels of operational control could be maintained.

CASA has made no allegation that any of our procedures to have not been fully complied with i.e. none of CASAs actions are supported by any allegation of any regulatory breach, or breach of our manuals, or in fact ever raised any safety concerns,

To put it quite simply, I had exhausted “things” to put into manuals and procedures. I did not know what CASA was trying to achieve, I simply could not comprehend it. I was highly dependent on CASA to provide guidance to me

CASA was not prepared to become a signatory to the contract yet were stipulating requirements. I clearly and concisely needed to know those requirements.

Initially, CASA denied that I had provided contracts. I directed them to the multiple emails that supported my contention. CASA then concurred that they did in fact hold the contracts. In post #1448 there is evidence that a copy of our contract was provided to Mr. Graeme Crawford, the second most senior person within CASA, over 1 year earlier. At the time of writing, Mr. Crawford is the Acting CASA CEO. The contracts were also supplied to multiple other CASA personnel on multiple occasions within CASA and I can supply evidence of that at Post #1447 at Glen Buckley and Australian small business -V- CASA - Page 73 - PPRuNe Forums

The issue of the contracts can now be addressed. I refer here to the initial notification demanding the production of contracts in 7 days that came from CASA on October 23rd, 2018.that came from CASA and can be accessed via the Pprune thread at Post #44 Glen Buckley and Australian small business -V- CASA - Page 3 - PPRuNe Forums

I would direct you to a number of posts on Prune that deal more with this matter and specifically to the following two posts on Pprune, Post #58 and post #107. Glen Buckley and Australian small business -V- CASA - Page 3 - PPRuNe Forums

Consider this. CASA has many thousands of pages of legislative requirements placed on a flying school. I met every single one of those legislative requirements. I also had a contract with my members. There was no requirement for me to have one, it was something that I initiated, and not a legislative requirement placed on any other Operator

If CASA were not satisfied with the contents of my existing contract, it was incumbent on CASA to direct to me to what they need in those contracts. CASA was seeking something that I could not solve, without their input. I met all legislative requirements, and I had a contract that had been subject to multiple legal reviews and all members were fully satisfied with. Quite simply, it was impossible for me to determine what CASA wanted. When I asked for guidance, I was advised by CASA that it’s not their job to provide guidance. I have that in writing and can provide the correspondence if required. I disagree, it was very much CASAs responsibility to clearly and concisely direct me to their requirements.

Initially, CASAs' position was that they would not provide guidance. I was in an impossible situation. Consider this. I have met every legislative CASA requirement. I have demonstrated an exceptional safety record, and there are no safety allegations raised. I have a contract that can be found at Post 58, Glen Buckley and Australian small business -V- CASA - Page 3 - PPRuNe Forums, and CASA advise that they are not satisfied with the contract. CASAs concern is so significant, that they have placed restrictions on the business's ability to trade, yet there is absolutely no supporting safety case or a risk assessment conducted by CASA. It just is not a reasonable course of action for CASA to be pursuing.

Without CASA guidance it is impossible to solve as I don’t know what is missing, that is not covered in existing legislation. My contract fully satisfied APTA and all Members as they each had a legal review done. The only party not satisfied was CASA, and they refused to become a signatory to the contract, despite my requests that they should become a signatory.

If there was a CASA identified deficiency in their own existing legislation, it was incumbent on CASA to highlight that perceived deficiency and provide direction to me on what they require in the contracts. I cannot possibly know what CASA wants in contracts if it is something not covered by the many thousands of pages of existing legislation that my Organisation meets. If CASA were after “something else” I needed to know what that “something else” was if I was to resolve the matter.

Importantly this entire matter could have been resolved within 24 hours, anytime after I received the notification in October 2018, if CASA knew what they wanted.

· A meeting could have been scheduled with my Head of Operations, my PA, and our Technical Writer.

· CASA could have dictated what they required. I would have willingly embedded it word for word.

· CASA could have approved it, and the contract distributed for signing. The members were willing and anxious.

· This entire matter could have been fully resolved within 24 hours.

· Any delay between those timeframes is entirely CASAs responsibility.

The question to CASA is:

When you placed the restrictions on APTA by way of the initial notification calling on APTA to supply contracts is it true that CASA already held the contracts and that they had been provided to CASA on multiple occasions, although for some reason CASA “overlooked” this fact.



CONSIDERATION FIVE_ CASA LEGAL CLAIMS THEY WERE NOT AWARE OF APTA

In the preliminary assessment, the Ombudsman’s office stated; “However, it does not appear on the evidence available to us that the legal area of CASA had been made aware of the way APTA and its members were operating, and therefore we cannot conclude CASA had properly considered if the operations posed any regulatory issues, until October 2018.”

I find it impossible that the legal area of CASA had not been made fully aware of the way APTA and its Members were operating. If CASA maintains that position, I allege that CASA is misleading the Commonwealth Ombudsman s Office. Whilst I appreciate that would be a very “convenient” position for CASA to adopt it is clearly deceitful.

Many flying schools had operated in exactly that manner throughout my 25 years in the industry, and long before.

Over the previous 13 years of my business’s operations, it had been doing exactly that, as had many other flight training organizations i.e. more than one flying school under an AOC. It was effectively impossible that CASA legal did not know. It was exactly the same business that had been operating since 2006, undergoing a change of name to “APTA” only. The name change was undertaken to better represent the capability i.e. from Melbourne Flight Training to Australian Pilot Training Alliance. There were no other changes.

The fact that CASA issued the Aviation Ruling in 2006 for the Charter industry (passenger and freight carrying), and specifically permitted flying schools to continue operating under the one AOC indicates the timelines that we are considering. The matter of multiple entities under an AOC, had obviously been considered by CASA legal department in 2006, and CASA at the time had specifically briefed the flight training industry that the Aviation Ruling did not apply to them. After placing the restriction on the Charter sector of the industry they permitted the practice in the Flight Training sector to continue, exactly as they advised flying schools that they would. CASA would have had ample opportunity to become “aware” of the way the business, as many others had operated over the previous decades. Surely there is some duty of care on CASAs behalf when a business depends entirely on CASA for its very existence. Considering that CASA hold on file every single APTA procedure, that is contained within APTAs Operations Manuals referred to as the “exposition”. At what stage is CASA legal reasonably expected to become aware.

I had worked side by side with ten CASA personnel on a new and substantially improved system for over two years. CASA assessed every one of their more than 600 requirements and granted me a Part 141 and 142 Approval in April of 2017. The Company had effectively been completely revalidated over a two-year period as I worked side by side with that team of 10 CASA personnel. CASA committed many hundreds of hours to the process, and they will have that on file.

At the time of CASA revalidating the business in April 2017, APTA was operating with the multi-base structure. The CASA procedure was extremely robust and thorough, with many hundreds of thousands of dollars invested into the two-year project to ensure I met or exceeded all CASA requirements. On completion of the approval process, the entire approval was passed on within CASA for a peer review and approval. It would be almost impossible that CASAs Legal Department would not have been fully aware, and especially so considering that was the actual Department that issued the Part 141 and 142 Approval in April 2017, eighteen months before CASA changed their mind, and reversed the businesses approval. Mr. Aleck had been the Executive Manager of Legal, International, and Regulatory Affairs over an extended period, and would have been fully aware.

Furthermore, CASA indicated to me that they spent more hours working with my organization than any other organization. CASA would track the hours that they allocate to each operator, and a request for that information by the Ombudsman will indicate that CASA directed significantly more resources to APTA than to other operators. CASA has previously advised me of that fact. There is no doubt that CASA was very involved with APTA. In fact every single one of the many thousands of CASA procedures was written to meet the requirements of CASA legal.

We were also one of the first of Australias 350 flying schools to meet the new regulatory requirements ahead of the deadline. As one of the first operators with the 141/142 approval, it is likely that CASA legal would have been heavily involved, and certainly aware.

You will recall that CASA had also previously fully approved APTA MFT Base, APTA TVSA Base, APTA LTF and APTA AVIA to operate. Surely by now, one would expect CASA legal to be aware.

Throughout the design and reapproval stage, APTA already had TVSA and MFT operating under the AOC, i.e. the entire design with CASA was built around the existing multi-base structure, and all APTAs procedures and systems were designed from the ground up, with CASA, to accommodate that arrangement.

Furthermore, a study of the emails between CASA and APTA/MFT over the two years leading up to APTAs revalidation in April 2017, will demonstrate literally hundreds of pieces of correspondence, many requiring input from the CASA legal department, as we submitted, and CASA assessed over 600 procedures during the design of APTAs manual suite.

Recall, I had worked side by side with ten CASA personnel over more than two years, as I attended to over 600 CASA stipulated requirements that needed to be embedded into our manuals. CASA assessed every one of those 600 criteria, as being acceptable. I requested the checklist that CASA used to revalidate my business under Freedom of Information (FOI)and that can be found at Post# 441. Via this link Glen Buckley and Australian small business -V- CASA - Page 23 - PPRuNe Forums Note that you will need to be a member to access that document. Membership is quick, easy, and anonymous.

There will be literally hundreds of emails between APTA and CASA throughout the two year design period of APTA leading to its revalidation in April 2017 as every one of those procedures had to be sent to CASA for review and approval. The final manual suite was approved and extends to many thousands of pages when printed out.

Furthermore, in November 2017, several CASA personnel visited APTA and spent one week conducting a Level 1 audit (the highest category). This audit involved visiting the bases and auditing those procedures. No concerns were raised, and CASA legal would have been aware of that audit and the associated results.

Furthermore, one of our first bases was Learn to Fly. Its approval was quoted by CASA as a 5-hour task, and we paid the associated fee for a 5-hour regulatory task. That took a staggering 10 months for CASA to process, so I suggest that CASA put significantly more hours than quoted into the regulatory task, or alternatively worked very slowly. Over that 10 months, it is likely that CASA legal would have reviewed that application. It was finally approved by CASA almost one year after the initial application was submitted.

I can also provide you with a copy of emails that support my contention that CASA legal would have been fully aware, for example, the email to. Mr. Crawford the CASA Executive Manager of the Aviation Group dated 7th October 2017 accessed via Post #1448 Glen Buckley and Australian small business -V- CASA - Page 73 - PPRuNe Forums. This correspondence demonstrates that 12 months before CASA took action, they were aware of the concept at the most senior level and had been provided contracts..

I appreciate that it would suit CASAs story to claim that the legal department was not aware, but on the balance of probabilities, it is quite likely that this assertion by CASA is misleading, to say the least. It is highly likely that CASA had numerous opportunities over the 13 years to properly consider the operation. It is not feasible that CASAs legal department was not aware. I depended almost entirely on advice from CASAs legal department throughout the 2-year project with the 10 CASA personnel, and they revalidated my Organisation with multiple bases operating under it.

The important point here is that even if CASA had not become aware of my operational structure over the last decade of training, and if during the two years that CASA worked side by side with me on APTA, and approved APTA, and audited APTA, and approved bases under APTA, if we assume that Mr Alecks legal department was not aware, it really doesn’t matter.

Also consider that in fact APTA wasn’t initiated by me. When the new Part141/142 legislation came in, I was required to comply if I was to continue operating after 3 years when the cutoff arrived. All I did, was comply with every legislative requirement using CASAs own guidance material and have over 600 CASA requirements assessed.

The Ombudsman found that there is no legislation in Australia that prohibits the structure, so how can it possibly be illegal?

It’s only a question of whether Mr. Aleck's interpretation is correct or the Ombudsman’s Office

Another pertinent post that could now be reviewed is Post#182 accessed via the following link Glen Buckley and Australian small business -V- CASA - Page 10 - PPRuNe Forums

The question to put to CASA on this matter would be.

Does Dr Aleck, the CASA Executive Manager of Legal, International and Regulatory Affairs seriously contend that his department was not aware of the APTA structure, and could he advise when he first became aware of the structure.?


CONSIDERATION SIX- THE RIGHTS OF ME AND MY BUSINESS TO PROCEDURAL FAIRNESS AND NATURAL JUSTICE, OR CASAs OBLIGATIONS TO OPERATE IN ACCORDANCE WITH THE INTENT AND PROCEDURES OF CASAs ENFORCEMENT MANUAL.

I note in your correspondence you acknowledge that “following up the issuing of the notice with a phone call may have also assisted”.

There appears to be a misunderstanding that I was seeking a follow-up telephone call, and that is not the case.

A follow-up phone call would not have changed anything. My point was simply was that when I immediately called the signatory to the letter of October 23rd the CASA Regional Manager, he apologized and said that he, “wasn’t all over it” and would have to speak to his CASA team. I simply felt that the signatory of such significant correspondence from CASA should have been fully aware and conversant with what he was signing prior to sending me that correspondence, although as stated, that was not the crux of my complaint.

At that time we did schedule a meeting, but CASA was later to postpone that meeting to have an internal CASA meeting with the team involved. I suspected at this stage, that CASA was using the delay to “get their ducks in a row”, and make sure that the Melbourne office was “singing the same tune”. I was becoming increasingly anxious and concerned, as I had many people depending on me.

I ask that you consider what appear to be the breaches of administrative law, procedural fairness, and natural justice, and CASAs own Enforcement Policy in Chapter 2 and the Legal Basis of Regulatory Enforcement located in the same publication at Appendix 2. Enforcement manual | Civil Aviation Safety Authority (casa.gov.au)

When CASA choose to cancel, vary or suspend an AOC, there are strict procedures that apply to ensure procedural fairness, and these were completely bypassed, and these can be found in CASAs own Enforcement manual. My complaint was based on CASAs failure to follow their own procedures when they decide to cancel, vary or suspend an AOC, as outlined in their manuals. It does not seem reasonable in the circumstances to bypass these procedures, and most particularly when the action is not supported by any safety case, and there are no identified regulatory breaches. It is a change of opinion by both Mr Aleck and Mr Crawford.

I anticipate CASA may well try and put forward some weak argument on semantics to try and justify their position. Considering the actions that CASA took against my business, and the commercial impact of the path that they chose, the impact of their actions was certainly a cancellation or suspension of an AOC. There can be no doubt that it is at least a variation of that AOC. Those CASA procedures should not have been bypassed, and most certainly if it was not a safety matter, nor were there any identified regulatory breaches.


For clarity the correspondence delivered on October 23rd, 2018 immediately had a catastrophic effect on revenue for the business, immediately halting the business's access to revenue. CASA also wrote to all of my customers advising them of such, prior to giving me an opportunity to satisfy CASA and resolve CASAs confusion. The Members of APTA were each advised that APTA was not permitted and that they would have to leave APTA. That is what CASA then did. This effectively destroyed the business, and resulted in so much personal and financial loss to my family, as my customers were forced to leave, and I was left with the fixed operating expenses. CASA did all of this while “considering” whether APTA would be permitted to continue and was operating under an interim approval. The unnecessary delays that CASA applied at every stage throughout the 8 months that I was able to financially prop up the businesses, caused detriment.

You will recall that absolutely no concerns had been raised in any way about the operating model of APTA, and when I walked into work early on October 23rd, 2018 I had no idea of what was to unfold later in that same day. Absolutely no concerns had been raised by any CASA employee, at any time. Surely, if CASA intends to issue a notice that effectively closes down a business, and brings enormous reputational harm, that I am entitled to some notice that is coming, or an opportunity to clarify any misunderstandings.

The CASA restrictions applied were substantial, and CASA immediately began dismantling the business before I was given an opportunity to defend myself, or the businesses and staff that depended on me for their livelihood.

Had CASA followed their own procedures it is highly likely that this entire matter and the associated loss of businesses, loss of jobs, and millions of dollars would not have been lost.

Consider that to the best of my knowledge, CASA has never taken such significant and prompt action against a business, even when CASA has identified a safety concern or a regulatory breach. The CASA action was not reasonable in the circumstances.

As well as obligations on CASA to adhere to their own Enforcement Manual they are required to comply with their own Regulatory Philosophy, and at this stage, a relevant post and link to CASAs Regulatory Philosophy could be found at Post# 769 and #943,945 accessed via here Glen Buckley and Australian small business -V- CASA - Page 39 - PPRuNe Forums

Regarding the Regulatory Philosophy, whilst I appreciate that CASA is not legally bound to adhere to the Regulatory Philosophy, it does provide criteria, which “intent” can be assessed against.

There can be no doubt, and that is clearly supported by CASAs correspondence in the first two months. CASA maintained its position that the operation was illegal when in my opinion it clearly was not.

CASA's actions were taken on the basis that CASA had reversed their previously held position and made a determination that APTA was in fact illegal. CASAs position was later to have been found incorrect by the Ombudsman and is referred to in a later Consideration.


Considering that many millions of dollars investment have been lost, businesses closed, people losing their jobs, and the opportunities lost to the Australian owned sector of the industry, etc, it is possible that perhaps CASA has handled this matter in what could be politely described as sub-optimal. It is possible that for so much damage to have been caused, it may be that something went wrong. An open and thorough investigation may prevent this from happening to another business.

The question to put to CASA would be:

Are you fully satisfied that you have afforded Mr. Buckley procedural fairness, natural justice, and adhered with all requirements in your Enforcement manual when you elect to “cancel vary or suspend an AOC” and has the conduct of the personnel involved been in accordance with CASAs own Regulatory Philosophy and the requirements placed on them by Administrative Law?