A proposed letter to Ms Spence,
slightly rushed. on side of road again with dying laptop battery, so publishing for feedback, cheers. Glen.
[email protected]
13/09/22 Ombudsman Investigation ref 2019-713834-R
Dear Ms Pip Spence, CEO of the Civil Aviation Safety Authority (CASA), and other included recipients.
As you are aware in you role as the CASA CEO, I have alleged that CASA has deliberately provided false and misleading information to the current Commonwealth Ombudsman’s Office investigation into the closure of my business by CASA.
The false and misleading information has been provided by CASA on multiple occasions, over a protracted period, and on several different but each very significant issues.
The person providing that information would be fully aware, that the information that was being provided to the Commonwealth Ombudsman was both false, and misleading. For complete clarity, there were multiple considered and deliberate decision to provide substantively false and misleading information.
The substantively false and misleading information was provided by CASA to pervert the outcome of the inquiry.
The person responsible for providing that false and misleading information to the Commonwealth Ombudsman investigation was, the CASA Executive Manager of Legal, International and Regulatory Affairs, Mr Jonathan Aleck.
It is essential that I ascertain if Mr Aleck is acting alone in his decision making to mislead the Ombudsman’s investigation or is this in fact a broader, “CASA” decision.
Therefore, I am seeking clarity on the position of “CASA” on this single matter,of many, whereby CASA has clearly provided substantially false and misleading information.
Mr Aleck has deceptively led the Ombudsman to be of the view that,
“CASA was not fully aware of the specific nature of APTA’s operations until just prior to issuing the notice in October 2018,”
For Mr Aleck to lead the Ombudsman’s to believe that CASA was not
fully aware of the specific nature of APTAs operations until just prior to October 2018, is clearly false and misleading, and grossly so.
Importantly, it is easily proven to be false, and misleading.
The irrefutable truth is that CASA was fully aware of the specific nature of APTAs operations for over 10 years, with no changes to the “nature” of the operations over those 10 years.
Recall the CASA position that they have represented to the Ombudsman investigation.
“CASA was not
fully aware of the specific nature of APTAs operations until just prior to October 2018,”
There is so much irrefutable evidence to demonstrate the level of deception being perpetrated by CASA on multiple topics, but for pure simplicity, let me just attend to this one single topic of when CASA first became aware of the specific nature of APTAs operations.
Consideration One
This magazine article was released at the end of 2017, being the January/ February edition of the Australian Flying Magazine article. This article is an essential read as it leaves the reader in no doubt as to the exact structure. I was approached by the magazine in mid-2017 requesting to do an article.
It would be fair to say that if the aviation media was aware and approached me in mid-2017, it would be highly likely that CASA were aware. If not at the time the media were approaching me, most certainly CASA would have been aware by early 2018, on release of the article to the general public, being 10 months prior.
https://www.dropbox.com/s/1akmm9gxra...CTION.pdf?dl=0
Consideration Two
Recall that Mr Aleck asserts that CASA first became aware of the nature of the operations just prior to October 2018.
Under FOI I obtained our application for what was our last base to be formally approved by CASA, before CASA reversed their position and declared my business unlawful and unauthorised.
These applications were submitted over twelve months prior to the date that Mr Aleck/CASA claims that CASA first became aware of the specific nature of my operation. If you review those documents, and particularly the attached risk assessment, it is obvious as to the exact nature of the operation, in fact the risk assessment deals exactly with the considerations of incorporating another entity to operate under our AOC.
This Freedom of Information request cost over $300, so I have made a request for the most recent base only. I will invest further money in other applications if this single application alone is not enough to bring honesty and integrity to the process, and I will go as far back as the AV8 base over 6 years prior if that becomes necessary.
There can be no doubt that CASA was fully aware of the specific nature of our operation, at least twelve months earlier than CASA would lead the Ombudsman’s office to believe. I claim that CASA was fully aware for many years.
Accesses via this link is the application for these bases, and risk assessment.
https://www.dropbox.com/s/4frisc0ufd...ACTED.PDF?dl=0
https://www.dropbox.com/s/nqgytj8xjr...ACTED.PDF?dl=0
Consider that multiple applications of bases were made to CASA over many years, and approved by CASA over many years. This was the last base approved by CASA and then reversed by CASA in October 2018.
Consideration Three
CASAs own Industry Complaints Commissioner (ICC) on 12/04/19 found that
“
I don’t consider CASA treated APTA fairly when its approach changed on 23 October. That’s because collectively as an organisation, CASA had an awareness of the APTA business model for a significant period of time prior to its compliance with regulation being called into question. In changing its position so drastically, the circumstances were such that CASA’s actions weren’t fair, given APTA’s likely to have relied on CASA’s failure to highlight any concerns when conducting its operations and planning.
So CASAs own Industry Complaints Commissioner finds that CASA knew for a “significant time prior” to 23rd October 2018, yet later Mr Aleck leads the Ombudsman to be of the view that CASA became aware “just prior”.
Whilst the ICC did not specify what a “significant period of time” is, one would assume it is at least six years.
Consideration Four
CASA formally approved our first remote base at Darwin via the AV8 business in Darwin 6 years before CASA claims that they first became aware “just prior to October 2018”. There were no changes to the “structure” from that first base six years prior, to the last base CASA approved in mid-2018, until they declared that it was now unlawful, once they first became aware in October 2018.
Consideration Five
Emails with CASA in mid 2016, clearly discussing the expansion. This is over two years before CASA “first became aware of the specific nature”.
https://www.dropbox.com/s/e2kcuci2ik...0awre.pdf?dl=0
Consideration Six
After the discussion and encouragement from CASA as a result of those discussions in mid 2016, two and a half years before CASA claim they first became aware, I invested many hundreds of thousands of dollars in systems and procedures, IT, and personnel and I worked side by side with 10 CASA personnel redesigning every single aspect of everything we did to be ready for the new regulatory environment, with a vastly improved product with industry leading levels of operational control. CASA formally revalidated this exact structure designed from the ground up to do exactly what it did.
The checklist that CASA used to revalidate the entire business was obtained under FOI and is attached.
https://www.dropbox.com/s/xy5etr9253...SHEET.pdf?dl=0
CASA revalidated this exact structure in April 2017, being 18 months before CASA claim that they first became aware. It is ludicrous to suggest that CASA were not fully aware, they just revalidated us in that multi base structure, as one of Australias first Part 141/142 organisations.
Ms, Spence, I could go on and on and on, but there is enough information here, and you have enough historical knowledge to know that CASAs position is untenable.
If there is any doubt in your mind, I have previously provided you with the name of a current employee of CASA. I have spoken to him, and I am fully satisfied that he will be truthful on this matter. He was my CASA allocated primary contact and was heavily involved in every aspect of my business throughout the entire decade that I operated until CASA closed me down.
You have easy access to the truth if the above considerations leave you in any doubt.
Phase One of the Commonwealth Ombudsman investigation found that CASA had erred, and in fact I had not broken any regultory requirements, and as a result of that failure by CASA detriment may have been caused.
Understandably CASA was then placed in a difficult situation. There is no doubt after the release of the Ombudsman’s report that Mr Alecks decision now had no basis in either safety or law, and it may have caused detriment.
Once Mr Aleck realised that he had erred, and had no valid basis to take the action that he had, It would be expected that CASA may try to position themselves as “not being fully aware of the specific nature of my operation until just prior to October 2018.”
Consider how much more likely that is to happen if the single CASA employee responsible for providing information to the Ombudsman is the very same person that made the decision that the business was unlawful. There would be an increased tendency to provide disinformation, and that is why your role in this is so important.
There is an overwhelming body of irrefutable evidence to support how preposterous Mr Alecks and/or your position on this matter as to when CASA first became aware of the nature of my operations.
The purpose of this correspondence is to seek a formal response from your office clearly indicating if CASA maintain that they only
first became aware of the specific nature of my operations just prior to October 2018, when they issued the notification and put trading restrictions in place.
The truth of this matter is that CASA was fully aware of the exact and specific nature of my operations throughout more than a decade that I operated, and CASA formally approved multiple bases to operate under my Authorization for many years.
What has really happened here is that Mr Aleck in his role was not aware, and the deficiency is entirely within CASA. It is not fair and reasonable that I can operate a business for a decade, and eventually when Mr Aleck does become aware, he reverses that approval of a decade, closes the business down.
The point being that “CASA” knew for many many years. Mr Aleck only found out just prior to October 2018.
In my position that I operate within it was not required or expected that I would have any dealings at all with Mr Aleck. It was not my job to let Mr Aleck know everything about my flying school. It was my job to ensure that CASA is provided with all of the information, as stipulated by CASA, in order for Mr Aleck to be able to find out the specific nature of my operation. I have a reasonable expectation that if I do something on multiple occasions over many years with formal CASA approval that CASA “knows” about it, as they obviously did.
On each and every one of those applications to add an entity under our Air Operator Certificate, over the decade that I operated, a fee was paid to CASA. It was a fee for service, requiring CASA personnel attendance on site at each of those proposed bases. CASA also conducted a desk top assessment. In addition, consider that in the entire lead up to this process would have been discussed with the CASA team attached to my Organisation referred to at the time as a CMT or Certificate Management Team.
The CASA personnel that I was dealing with, were each highly experienced in the flight training background, and had many years’ experience within CASA. They had been professional, well intentioned, and we had a relationship of trust and confidence. I had the same CASA team allocated to my business for over 10 years. I spoke to them at met with them at least weekly throughout that 10 years.
CASA knew about my structure as soon as CASA considered my first application for a variation to my Air Operator Certificate over 6 years prior. That was the application for a variation to my AOC to authorise operations at our first alliance base, being AV8 in Darwin.
CASA gets to know stuff as a consequence of experience, and that is through that frequent and formal communication with the team of CASA personnel allocated to my organisation, as well as extensive application, review, auditing and approval processes.
CASA gets to ‘know’ stuff as a consequence of what its human officers find out in their capacity as officers of CASA. And it is not necessary for every officer of CASA to know something before CASA, in law, knows that thing. That would be absurd. In law, the artificial person CASA can ‘know’ something after merely one officer of CASA becomes aware of that thing in their capacity as a CASA officer.
So when e.g. a CASA FOI receives an application from e.g. an AOC holder for e.g. a variation to an AOC, in law CASA ‘knows’ the application has been made and CASA has ‘received’ the application. The officers in ‘Head Office’ can claim, reasonably and truly, that they did not know that the application had been submitted, but that makes no difference to CASA’s obligations and my rights in the circumstances.
Furthermore, CASA can in law ‘know’ something even if not a single one of its officers is aware of that thing. One of those ways of ‘knowing’ is called “constructive knowledge”, which is stuff CASA ought to know in the circumstances.
Let’s now consider my application to add our second base. My own base Melbourne Flight Training (MFT) had been operating for many years and which holds a flying training AOC issued by CASA and conducts flying training under the authority of that AOC at Moorabbin Airport. I then applies to CASA for a variation of my AOC so as to authorise MFT to also conduct flying training at Darwin aerodrome on behalf of AV8 a Freight operator in Darwin.
What is the very purpose of the regulatory requirement for this application and variation process? The very purpose?
Its purpose is for CASA to find out whether MFT satisfies the criteria in section 28 of the Civil Aviation Act and other regulatory provisions in relation to the conduct of flying training at both Moorabbin and Darwin. And that task, of its very essence, requires CASA to, among other things, find out whether MFT has effective control over the people and the premises and the aircraft whom and which will be used to deliver flying training at the proposed Darwin location.
The only way in which CASA can find out whether MFT has effective control over the people and the premises and the aircraft is to find out who employs the people, who controls the premises and who is the registered operator of the aircraft. Even if no CASA officer finds those things out – for whatever reason, including that every CASA officer has no clue as to the implications of those things – CASA ought to know them because they are at the essence of CASA’s regulatory task in the circumstances.
In short, on every occasion that I applied for a variation to my AOC so as to cover an additional ‘alliance’ ‘base’, CASA ought to have found out who employed the people, who controlled the premises and who was the registered operator of the aircraft whom and which would be engaged in flying training activities at the base. On every occasion. And CASA ought to have understood any potential implications.
Irrespective of what individual CASA officers understood or assumed and when, CASA was at least on constructive notice of the structure and its implications from a regulatory perspective from additional ‘alliance’ ‘base’ one. It was CASA’s job to find those things out. It was the very purpose of the variation application process.
I look forward to your response confirming whether or not that CASA first became aware of the specific nature of my structure just prior to October 2018, as CASA has led the Ombudsman to believe.
Respectfully
Glen Buckley