Sorry folks, I have jumped around here a bit. In post #2344 i commenced posting my rather large document of an allegation of misfeasance in public office and did digress with another topic. I am back to that original document, and I am continuing it here.
A quick recap. There are a number of sections, and it is structured around the Attorney General's Office guidance. Those sections are copied and pasted below. This post is a continuation of the bolded section being the "Bad faith mental element. I am still working on this substantive document, and will keep posting.1.
Introduction/The allegation
2.
Misfeasance in Public Office
3.
First Element-Holder of Public Office
4.
Second Element-Exercising a Public Power that was an incident of that Office
5.
Must the Public Officer owe the plaintiff a duty with respect to the exercise of power.
6.
Third Element- The Exercise of Authority must be invalid or otherwise lacking lawful authority.
7. Fourth Element- The “Bad Faith” mental Element
8.
Can the Commonwealth be vicariously liable for the misfeasance of its employees?
9.
Commonwealth liability for ministerial misfeasance?
10.
Importance of an early and vigorous assessment of an allegation of misfeasance.
11.
Damages
12.
Assisting Commonwealth Officers, other than Ministers
13.
Assisting Commonwealth Ministers
14.
Reducing the risk of misfeasance claims
15.
The need to report misfeasance issues as significant claims
16.
Preference for CASA to investigate this allegation.
17.
Considerations of Mr Aleck remaining in the role.
18.
Summary/conclusion
Mr Aleck has clearly demonstrated a propensity to provide false and misleading information to the current Commonwealth Ombudsman’s investigation with the intention to pervert the findings of that investigation, and that is supported by substantial, supporting evidence evidence.
There can be no doubt that Mr Aleck has provided clearly and deliberately misleading evidence to the current Commonwealth Ombudsman’s Office investigation.
If in fact my allegations are upheld, and Mr Aleck has provided substantially false and misleading advice then that would be an indicator of acting in bad faith. Mr Aleck has clearly attempted to influence the outcome of the Ombudsman’s investigation to pervert the findings of the investigation.
Mr Aleck has provided false and misleading information to the Ombudsman on several critical facts,
He has led the Ombudsman to believe that CASA never previously formally approved both my own business, and in fact many businesses around Australia to operate in the multi base, multi entity single approval structure.
That is clearly false and misleading and easily proven to be so.
Mr Aleck has led the Ombudsman to believe that CASA first became fully aware that I had adopted the structure just prior to October 2018 when he declared it unlawful and closed the business down,
The truth is that in fact CASA was fully aware of the exact nature for many years prior, because CASA approved it at least six years prior, revalidated it, audited it, and approved bases under the structure for many years.
Mr Aleck is clearly providing false and misleading information as to when CASA first became fully aware of the specific nature of my operation.
The following correspondence provides more detail on these substantial matters. The investigation by the CASA Industry Complaints commissioner (ICC) has not commenced at my request, until I have had the opportunity to meet with my local MP, Ms Carina Garland seeking her assistance and support.
If Mr Aleck is found to have provided false and misleading advice, which he most obviously has, then that alone should be an indicator of the bad faith mental element. it is part of his deliberate decision making. He clearly is aware of the truth but chooses not to provide it to the Ombudsman’s Office.
https://www.dropbox.com/t/oGq7MulaoFIYobAL
Outcome Based Legislation
Mr Aleck personally made a commitment to industry of the move away from prescriptive legislation to outcome-based legislation.
Mr Aleck has chosen not to follow his own commitment that he gave to industry i.e. to adopt the principles of “outcome based legislation” that CASA is committed to by way of its own CASA advisory circular with particular reference to Section 8.
advisory-circular-1-01-understanding-legislative-framework.pdf
I also draw your attention to a presentation by Mr Aleck to industry providing his explanation of “outcome based legislation.
The point of this being. Consider that Mr Aleck as the sole decision maker closed down my business, yet cannot produce a single deficiency against a single outcome.
What Mr Aleck did was, make a considered and deliberate decision not to act in accordance with his commitments given regarding outcome-based legislation.
It is completely inexplicable that there would be absolutely no allegations against any quality outcomes at all. None. Isn’t that the very principle of outcome-based legislation, that Mr Aleck espouses.
For complete clarity. CASA has never stated that they had concerns about operational control. At no stage did CASA ever request that we amend or change any of our procedures or systems. There were no identified safety concerns, and we maintained our industry leading levels of safety and compliance
If CASA had any concerns about operational control, they should be able to clearly identify them. CASA cannot produce a single piece of evidence to support the closure of my business.
We had industry leading level s of operational control, and associated systems, a large team of highly experienced management personnel, the largest safety department of any school in Australia etc.
There is no doubt or argument that CASA must be satisfied that operational control is maintained. CASA were always satisfied, and that is how we operated safely and compliantly for so many years.
What Mr Aleck did here was reversed a previously given approval and CASA should be able to justify the reasons for that reversal.
If CASA became unsatisfied, a reasonable expectation is that CASA can identify what led them to become ‘unsatisfied, ” and most especially if Mr Aleck is acting in accordance with the commitments he personally gave to industry regarding outcome based legislation.
Some examples that CASA should be able to provide to support Mr Alecks decision making would be any regultory breaches, insufficient management structure, safety breaches, audit results, flight and duty breaches, anything at all. It is incumbent that Mr Aleck should be able to clearly identify a single piece of supporting evidence to support his decision making.
You will note that CASA has never said that they were unsatisfied. Their actions and decisions very much suggested that they were very “unsatisfied”, yet CASA only goes so far as to say “we have to be satisfied that I have operational control”.
If CASA were satisfied for many years, and became unsatisfied, they should be able to identify the “trigger” for that change of opinion. CASA refer to this trigger as an “SRF
I have made multiple requests for the “SRF” but CASA refuse to respond.
The point being that if CASA become “unsatisfied” then CASA should be able to identify what led them to be unsatisfied. CASA should be able to address this issue. If CASA could identify any concerns at all against any quality outcomes, CASA should be able to identify them, after all that is what “outcome-based legislation” is all about, if Mr Aleck is to be believed.
The point of this being that Mr Aleck was fully aware of his commitment, and he demonstrated bad faith by straying so far away from those commitments in his dealings with me. personally. In fact, what he did was take legislation and apply it so “prescriptively” that it made no sense at all.
Mr Aleck clearly acted in bad faith by inappropriately manipulating legislation to achieve his own personal desired outcome, and in doing so, showed a flagrant disregard for the principles of outcome-based legislation, and the commitment to outcome-based legislation that he gave to industry.
To make such considered and deliberate decisions, it is yet another indicator that Mr Aleck was acting in bad faith
The comparative analysis between APTA and other Operators.
Mr Aleck is the sole representative of CASA in dealings with the Ombudsman’s office.
The Ombudsman has advised me that by convention they do not contact “employees, of the Agency. They deal only with the Agency representative”.
Therefore the Ombudsman access to information is controlled by Mr Aleck.
That is unfortunate because every CASA employee that operates within the flight training sector would be able to confirm that what I am saying is the truth and that Mr Aleck is being blatantly deceptive.
Mr Aleck has led the Ombudsman’s office to be of the view that CASA did not ever permit the exact structure that I adopted. That is blatantly untrue and any CASA employee except for the CEO Ms Spence, and Mr Aleck will attest to that fact.
The question that should be presented to any CASA Employee with experience in the flight training sector, and would fully resolve this entire matter once and for all would be something along the lines of….
Did CASA always and on every occasion with multiple operators throughout Australia, always permit the following arrangement?
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Entity “A” is the holder of the sole CASA Authorisation referred to as an Air Operator Certificate (AOC). An AOC is issued by CASA to permit a flying school to operate.
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Entity “B” does not have an AOC, and is not permitted to deliver flying training but may want to deliver flying training.
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Entity B has the facilities and equipment to operate a school, i.e. buildings, classrooms, aircraft, instructors, refuelling, maintenance etc. Typically, Entity B would be an aero club with its members privately flying and renting aircraft, but importantly it has no approval to operate a flight training school
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Entity “B” approaches Entity “A”, and asks that they enter into a commercial arrangement, whereby Entity A delivers flight training at Entity Bs location using the facilities and equipment of Entity B.
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Entity A agrees after conducting its due diligence of Entity B.
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Entity A being the sole CASA AOC Authorisation Holder, approaches CASA and advises that it has entered into an agreement with Entity B to deliver flight training at Entity Bs location and using its facilities and equipment.
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CASA then stipulates its requirements to Entity A and Entity A submits the application, with substantial supporting documentation to CASA of how Entity A will maintain operational control of its operations at Entity Bs location.
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CASA conducts a formal assessment including a visit to the site and issues an approval for Entity A to deliver flight training at Entity Bs location, and Entity A commences delivery of flight training, once Entity B is fully inducted into Entity As CASA approved systems and procedures.
An example of this would be both the Ballarat Aero Club and the Latrobe Valley Aero Club.
Both aero clubs that operated a flying school using exactly that arrangement with other AOC Holders over an extended period of time, with full and formal CASA approval until the day they transfer to my operation, and it became unlawful.
It’s ludicrous, and this is exactly why I believe that Mr Aleck was acting in bad faith in his dealings with me, and why I believe that his malice was targeted towards me specifically, and not other persons.
If Mr Aleck was not acting in bad faith, he should be able to clearly and concisely explain why Latrobe Valley Aero Club and Ballarat Aero Club were permitted by CASA to operate under other Operators AOCs previously but not Mr Buckley’s?
If we accept that in fact CASA had always approved operators throughout Australia to adopt the very same structure that I used then that allows a comparative assessment.
This would lead to a number of pertinent questions that should be addressed and will go some way as to ascertain whether Mr Aleck was acting with good intent i.e., in the interests of aviation safety, or was he acting in bad faith.
Importantly, once it is ascertained that in fact CASA did always and on every occasion approve this exact structure it allows a comparative assessment to be made, as in fact it should be. The comparative assessment can then be made as to the quality and level of operational control.
That comparison can be made between my operation that was not permitted, and the operations that CASA permitted the day prior. That being the two other Operators that held the respective AOCs delivering flight training at the Ballarat Aero club and Latrobe Valley aero Club.
That comparison could be made against an infinite number of criteria but could include a comparison of
Management size and structure, Safety Departments, systems of oversighting maintenance, training records, fatigue monitoring, internal auduiting,frequency of meetings, continuous improvement programs, manuals, mentoring and staff development etc etc
In this correspondence I will provide just one example, there are hundreds.
Fatigue monitoring.
The fatigue monitoring of pilots is done through the monitoring of flight and duty times.
The system that CASA accepted from the previous operators at both Latrobe valley and Ballarat was a paper-based system where pilot instructors would enter their flight and duty times retrospectively (it had no predictive capability). Whilst I am not suggesting that this did happen there was the ability for entries to be manipulated, a process referred to as “fudging the flight and duties.” CASA would check the flight and duties occasionally, and in the case of both those operators, those flight and duties had been checked by CASA on one occasion in the last twelve months. Because those flight and duties were completed after the flight there was absolutely no capability to prevent a pilot flying fatigued or committing a breach. If an accident were caused by pilot fatigue, this system could not have prevented it. An investigation would only identify fatigue as a factor after the accident.
The system that we introduced when aero clubs joined APTA. All instructors moved to a fully electronic system, which tracked their flight and duties automatically when they signed out and returned from flights. It had a predictive capability and tracked the flying that had been done up the point of sign out. It then applied a predictive capability using the intended flight time with a safety margin for the intended flight. It would not permit the pilot to depart on that flight if it would lead to a breach of flight and duty times. CASA had full access to this system, so that at any time, not only my management team but also CASA could conduct a full audit of our flight and duty times from the Melbourne Head Office without even leaving their desk.
Such systems were repeated throughout our entire Exposition, and I would welcome any comparative analysis of the levels of operational control between my operation and what CASA previously permitted. from other operators.
I am fully satisfied that I maintained industry leading levels of operational control, and that Mr Alecks decision making was in bad faith and motivated by factors other that safety, compliance or quality outcomes.
Consider that this is the first flying school to my knowledge that CASA has closed down.
A comparative analysis is surely essential to ascertain that Mr Alecks decision making was valid and could be justified, and with