30/06/2021
Appendix A- My response to the initial notification outlining the commercial impacts of the CASA restrictions.
Appendix 2A- CASA worksheet obtained under Freedom of Information.
Appendix C- Email that Mr Martin referred to in meeting from accountancy firm.
Appendix D- My letter to CASA dated April 30th 2019.
Appendix E- Copy of original contract.
Dear Mark of the Commonwealth Ombudsman’s Office.
Firstly, may I apologise if I have not proofread this document adequately. I am in the process of moving home and committed to getting this to you by tonight. I have significant time constraints.
I had been a vocal critic of CASAs implementation of the regulatory suite which was delivered a decade behind schedule, and hundreds of millions of dollars over budget. I was approached by the media on these topics, and I made truthful comment.
It is not unlikely that my criticism of some elements of CASA may possibly have caused some employees to act for reasons other than aviation safety or regulatory compliance. It is increasingly likely if allegations have been made against those individuals previously, and that lead to an ABC investigative story, as you are aware.
I walked into my business on October 23rd, 2018, having no inclination that by the end of the day CASA would advise me that my flying school of more than a decade, MFT had suddenly been declared an unauthorised operation, and my business APTA was declared to be operating in breach of the regulations. Absolutely no concerns at all had been raised by CASA prior to receiving that notification. Initially, and for the first two months the CASA position was that my operation of more than 10 years had been declared unlawful. It was ludicrous, but concerning.
You are also aware that several businesses were forced into closure directly because of the restrictions on my businesses ability to trade. Employees lost their jobs, significant investment was lost, suppliers were left unpaid, students training was impacted, many millions of dollars were lost by a number of well-intentioned Operators, and the impact on me on my family has included the loss of my home and my two businesses. After enduring all of that, CASA then wrote to my Employer advising that my continuing employment was “no longer tenable based on comments that I was making publicly”. Those comments were me defending myself against CASAs actions.
I was now completely forced out of the industry I loved, and had spent 25 years working in. I was left unemployed, depressed, and it has left me destitute at 56 years of age. Like many business owners, my business was my security in retirement. It has gone. My wife and I will most likely never be able to recover from this situation. My wife has had a total of four days free of work since that correspondence in October 2018, as she desperately tries to rebuild our life from the start. In all of this, the impact on my family is the most heart-breaking to watch. Soon, I will make my final submission to your Office and that will clearly outline the impact of the actions and decisions made by the three CASA employees that I have named.
I can assure you that I am someone very affected by the decision making of CASA employee, Mr Aleck, working closely with Mr Martin and Mr Crawford
Those consequences are directly as a result of the “opinion” of a CASA employee. They are not supported by a safety case or regulations. In fact, quite the contrary, there is a demonstrable safety case that CASA actions have actually impacted negatively on safety. As stated, it is the application of an individual’s opinion. It may not be well intentioned and led to my allegations of misfeasance in public office that I made on 20/11/20 before the Senate Inquiry.
Allegations of misconduct were previously made against those same three CASA Employees by Mr Bruce Rhoades. A pilot who died of cancer, desperately trying to bring the alleged misconduct of those same individuals under investigation. under investigation, and repair the enormous harm bought to him and his family. This story was aired on the ABCs 7.30 Report. I mention this because many other affected people have contacted me and offered to make a confidential submission to your office raising the same allegations against those same three individuals. It is reasonable to assume that “where there is smoke, there is fire”. These are not vindictive or vexatious allegations. These are facts. The impact is real and can clearly be demonstrated. The named CASA personnel cannot say the same. They are completely unable to present to your office a supporting safety case, a regulatory breach, or in fact demonstrate any sort of a well-intentioned motivation.
These considerations are significant, and most especially because CASA had no supporting safety case, never identified any regulatory breach, never raised any queries as to the quality outcomes of the Organisation. It was literally just that, a change of opinion. The decision maker took no external legal advice, applied his opinion, and made a decision that he was not compelled to make. In making that decision he would have been fully aware of the implications on the business, and throughout the process I wrote to CASA on multiple occasions highlighting the significant commercial impact, which I will address later in this document.
The decision maker within CASA was not compelled to make the decisions that he made, and there was no precedent. They had no supporting regulation, and CASA has never identified their supporting safety case despite multiple requests made by me. If the intent of the application of decision is not made on the basis of a regulatory breach and has no supporting safety case, that application of opinion should be able to be questioned, and most especially so for the individual who has been impacted.
The impact of the “opinion” is totally unacceptable and would have been completely avoided had CASA chosen to “engage” with me rather than adopt an unnecessarily combative stance and place those restrictions on the business. As I have stated previously I only needed CASA to clearly and concisely advise me of the terminology that they wanted in the contracts, and the entire matter could have been resolved at any time within 48 hours. There was no resistance at all from APTA or the entities depending on APTA. Our interest was to have this matter fully resolved to CASAs satisfaction at any time.
Please note, and related to the matters before you now, that I have made allegations of “misfeasance in public office”, against CASA employees, Mr Crawford, Mr Martin, Mr Aleck and Mr Carmody in Parliament before the current Senate Inquiry on 20/11/20 which can be accessed here and located at the “12:40” position on that recording. RRAT
Rural & Regional Affairs & Transport - 20/11/2020 08:49:59 - Parliament of Australia (aph.gov.au)
I have also made a number of written submissions to the office of the Deputy Prime Minister of Australia at the time, Mr Michael McCormack, as the Minister responsible for CASA. None have been responded to by his Office.
I would like to provide some additional important and pertinent information that I believe needs to be considered as part of your investigation, and most particularly regarding your preliminary opinion where you were of the view.
“On examining the correspondence between yourself and CASA subsequent to the notice of October 2018 it appears to me that there was an impasse of sorts, though CASA appears to have made a number of good faith attempts to assist you in resolving the issue. I accept that you would have liked CASA to provide clearer advice about what material to place in contracts between APTA and members of the alliance. However, it seems to me that CASA provided sufficient assistance in the circumstances.”
Regarding your preliminary opinion, that CASA provided sufficient assistance, and that CASA made a number of good faith attempts, I strongly refute that, based on my own personal experience and would like to submit further supporting information for consideration prior to your final determination.
Regarding there being a number of good faith attempts. There was only the one attempt by CASA, rather than a number of good faith attempts. That attempt came almost 6 months after restrictions were placed on the business on April 2nd, 2019, by which time the business was decimated. CASA had contacted all customers and told them that I was acting unlawfully many months earlier. The timeline of 6 months was commercially fatal, due to the unreasonably long delays, and a major contributor to the significant commercial harm done to so many stakeholders.
Regarding the finding that, I
“would have liked CASA to provide clearer advice”. It is much more than that. I was completely dependent on CASA to provide that advice. They were asking for something additional to the legislation, which we had fully attended to in our Exposition. Because it was something outside of the legislation, I needed guidance on what CASA wants. I complied with every bit of legislation. The existing legislation is very clear on my accountability, and after 25 years in the industry and almost half of it as the owner of a large flying school, I understood those obligations at an expert level, and the legislative environment I was operating in. There was nothing else that my Exposition could attend to. If CASA wanted to design a new rule, that was fine, and I was willing to comply, but I was not in a position to guess what it was that CASA was after. All requirements are held within the CASA approved and designed Exposition. I have attended to this later in the correspondence, where I deal specifically with the contract versus the Exposition.
Please allow me to go through the following timeline, with particular attention to the communications between CASA and I, in April of 2019. Importantly the reversal of commitment given to me by Mr Aleck and Mr Martin, shortly after that meeting
TIMELINE
2006:
The Company commenced operations at Moorabbin Airport.
April 2017
The Company completed a two-year process and a very significant investment with CASA, to redesign all systems and procedures to meet the new regulatory requirements of Part 141/142. In April 2017 APTA was one of the first schools in Australia to obtain the new Part 141/142 Approval. At the time of approval, we were operating in a multi base format. This revalidation entailed a complete overhaul of systems and procedures to ensure the multi base format met the new regulatory requirements. Every aspect of every system was designed in conjunction with CASA and contained within our Exposition. CASA assessed, approved, and audited every one of those systems and procedures.
November 2017
Six months after obtaining the new CASA approval, the Company undergoes a routine CASA Level 1 audit. A level 1 audit is the highest level of audit that CASA conduct. The audit is standard procedure after the issue of a Part 141/142 Certificate. The audit was conducted at the Head Office location and also at the bases. No issues of concern were raised at the audit. No concerns at all were raised regarding the structure of the Organisation that CASA had fully revalidated only six months earlier, and as the Company had been doing for many years prior. The contracts that had been in place and provided to CASA were the contracts that we went to audit with. Absolutely no concerns are raised by CASA.
23rd October 2018.With no warning, after more than a decade of safe and compliant operations, CASA provides notification that my business is operating illegally, is “not authorised”, and most likely subject to regulatory action. I am provided with only 7 days surety of operations. CASA places several restrictions on the business’s ability that halt the business taking on any new customers or students from that date.
There was no allegation by CASA that we were doing anything unsafe, and that we were doing anything wrong. Quite simply, CASA changed their mind, or rather, someone within CASA changed his mind.
The next day, I notify in CASA in writing of the impact of the restrictions with this correspondence attached as Appendix A. My initial estimates are that the restrictions will cost me more than $10,000 per week. As the restrictions continued for many months, that figure grew to approximately $20,000 per week.
Only eighteen months earlier the business and its structure were revalidated by CASA. To say I was completely bewildered would be an understatement. There was no basis in safety or regulatory breaches for CASA to have taken this action. It was totally inexplicable then and remains so today. It came with no prior indication. No one from CASA had raised any concerns, not even by way of a face-to-face chat or a telephone call. Absolutely nothing at all. As a family-owned business this was devastating news.
20th December 2018
In the Melbourne CASA Office on 20th December 2018, the CASA Executive Manager of Regulatory Services advised me and my father that
“under the current CASA regulations the APTA model would not be accepted by CASA and was operating illegally. It may work some day in the future but not now”.
I was in dismay. I recall that I responded, “that will send me bankrupt”, as it now has.
I was advised by the CASA Executive Manager that CASA would work with me to dismantle APTA but could not propose any practical solutions that would not result in a loss of jobs, decrease safety and lead to the closure of businesses, and loss of significant investment.
Both my father and I spent the train journey home working out how to handle the staff redundancies. Many of my staff had many years of loyal service. I also expected potential legal action from my members, and understandably so. I had led them to believe that APTA was fully approved by CASA, as it was. From their perspective there would understandably be some suspicion that I had mislead them on the legitimacy of APTA if CASA were now shutting me down. There were several businesses now dependent on me for their surety of operations, and also my Suppliers who were supporting me during this “temporary” interruption to business with the business’s revenue restricted. They had already been supporting me for two months since the matter commenced.
Later, CASA became aware they had erred and had no basis for that determination that I was operating illegally, leading to a change of approach, and the topic would now alternate over a range of topics. They fell away as CASA realised none of them could “stick” and focussed on the issue of “contracts” which is one of the considerations before the Ombudsman now.
It is important to realise, that at this stage, CASA has stated that my operation is illegal, the terminology in the initial notification makes that very clear. There are no concerns about safety or quality outcomes of the Organisation. It is a determination that my business is illegal, and all indications are that I will be closed down. The ramifications of this correspondence are clearly laid out in Appendix A.