FOI request clarification
20/06/23 (My reference – Pprune #2690)
Dear Keeley,
Thank you for getting back to me, and providing the opportunity for me to clarify the documents that I am seeking.
On 14/06/23 I submitted an FOI request. (My reference Pprune #2675)
On 14/06/23, you responded seeking further clarification. (My reference Pprune #2676)
I apologise for my delayed response and acknowledge that may impact on your proposed response times.
Let me again apologise to you in advance. Whilst I appreciate that you are the recipient of this email, I have added some additional detail to.
a.) assist you, and
b.) ensure that my Local MP Carina Garland remains fully briefed on this matter and is therefore included in this correspondence, as are some other Parties.
I have highlighted and italicised some points from your correspondence that I would like top put some additional clarity around.
As with previous correspondence, the “tone” of the letter is not intended to be directed at you or your Office in any way.
“I am requesting CASA provide me with copies of commercial contracts that CASA retains of any operator in the flight training industry. If more than 5 are located, the most recent five that CASA retain or have been involved in.”
To clarify this point.
In October 2018, CASA determined that my business of over ten years had suddenly overnight become unlawful, and unauthorised, despite it operating in the same structure for over a decade, and there being no change to the regulations.
Apparently, CASA had only just become aware of its structure after more than a decade, and that awareness by CASA occurred in October 2018, or at least that is what CASA led the Ombudsman to believe, and surprisingly and concerningly, the Ombudsman accepted.
CASA has recently confirmed that the truth is that it was likely to have been aware of the structure for many years, and that its previous position that it asserted to the Ombudsman’s investigation was therefore false and misleading.
Nevertheless, in October 2018, CASA placed trading restrictions on my business that made it impossible to operate, the most significant being the multiple subsequent short-term approvals to continue operating.
As a Registered Training Operator delivering courses of 18 months duration, it was impossible to enrol students in 18-month courses when the business was operating on multiple short-term approvals.
These CASA issued “interim approvals” to continue operaetrying in the short term were as short as minute by minute, sometimes 7 days, never more than weeks
The impact of these restrictions was crippling on the business, the Members that CASA had previously approved, and the Members left in limbo for 8 months while CASA considered it.
All I needed to do, to have the “interim approval to continue operations” lifted by was to come up with wording in my commercial contracts regarding operational control that would satisfy Mr Aleck.
With 25 years industry experience, I was completely unable to come up with the wording that would satisfy him, and therefore have my trading restrictions lifted.
I must clarify that on this matter, I have no doubt that CASA has provided false and misleading information to the Ombudsman.
CASA has led the Ombudsman to believe that they previously required Operators to outline matters of operational control within commercial contracts between two parties that CASA is not a signatory to, something that I was not able to achieve.
I know that to be false.
Matters of operational control are contained within the CASA approved Exposition, and not within Commercial contracts.
If for some bizarre reason, matters of operational control were suddenly required by CASA to be contained within a commercial contract that CASA refused to be a signatory to, then those procedures might replicate procedures in the Exposition. But! It is preposterous and unsafe to have matters of Operational Control outlined only in commercial agreements and not addressed in the Exposition.
However, the Ombudsman has accepted CASAs false and misleading information, and the purpose of this FOI request is to expose that false and misleading information provided by CASA to the Ombudsman.
So to add clarity to the query.
The Ombudsman has accepted CASAs “word” that CASA had previously required contracts to outline matters of Operational Control.
If CASA is able to produce 5 copies of contracts that they have required of other flight training operators to demonstrate matters of operational control, it would go someway to refuting my allegation that CASA never required contracts of other Operators, and that I was the victim of targeted malice by a CASA.
For clarity, I do not believe that CASA will hold 5 contracts over that 80 year date range that
The Agreements that CASA would hold and have required for both Ballarat Aero Club, and Latrobe Valley Aero Club who had an existing arrangement with previous Flight Training Operators, until the day before they transferred to APTA
To clarify this request.
CASA claimed that the structure that I adopted had never been adopted before, that it was unlawful, unauthorised, subjected me to possible prosecution etc.
What makes this entire matter so concerning is that the exact structure that I adopted had been standard industry practice since, and fully CASA approved since I first entered the industry in 1982, and I presume for many decades prior.
For CASA to assert that what I was doing is unique is truly beyond comprehension, and the industry in its entirety would be fully aware of that.
However, the Ombudsman was unable to determine at the end of the four-year investigation if it was never permitted by CASA or if it was always permitted by CASA.
The undeniable truth, and something that the Ombudsman Office failed to address is that both Ballarat Aero Club and Latrobe Valley Aero Club had the same arrangement with two different flight training Organisations until the very day before they joined APTA.
This makes a mockery of CASAs assertion, and the subsequent acceptance by the Ombudsman investigation that the structure was unique, and never previously permitted by CASA.
It was the application to join APTA by these two aero clubs that CASA used to determine what I was doing was unlawful, but could possibly be deemed lawful if I could come up with the required wording in my contracts.
It would be logical that if two Aero clubs had been permitted to continue under an arrangement with other Flight Training Operators the day before they went to join APTA, then they must have held contracts that satisfied CASA.
After all, I had been determined to be unlawfully operating, subject to prosecution, given 7 days continuity of operations, because my contract wording wasn’t acceptable. Obviously the contracts required by CASA of the other two flight training operators the day prior to them joining APTA had been acceptable.
The reason that I am seeking these two contracts as part of the five contracts, is because these two contracts, if they exist, would clearly demonstrate what was acceptable to CASA and highlight “whose” and “what” responsibilities it was that I failed to attend to. Something that I still have no idea about, despite multiple requests for CASA to be more specific about what “matters of operational control” needed to be attended to in commercial contracts, and something that the Ombudsman investigation was unable to identify.
If CASA was unable to produce the contracts that they required of those two aero clubs in their previous agreements, yet the next day declared my business unlawful then that would support my assertion that I was personally targeted by CASA.
I do not believe that CASA ever required commercial contracts of any other operator in the flight training industry. I do not believe that these contracts exist, and I believe the 4-year Ombudsman investigation consistently took the Agencies (CASA) ‘word.”
A copy of the contract between APTA and Latrobe Valley Aero Club, that was finalised in or around June 2019.
Immediately after I handed control over to the new Owners they were able to resolve the issue, and a contract was promptly finalised with CASA.
These two new owners were not flight instructors and had no experience in the flight training industry. One owned a “security” business, and the other admittedly had some flying experience overseas. Their knowledge of Australian legislation was negligible, yet they worked with CASA to produce an acceptable document.
That contract that CASA finally approved, is I believe the first ever such agreement that CASA has required of any flight training operator in the industry.
That document that CASA accepted is being requested by me.
It is a major industry document, because it will clearly highlight what was acceptable to CASA regarding matters of operational control, and it will highlight what it was that I could not achieve in 8 months despite my best intent and effort.
“I am not interested in any of the financial information, signatories to the agreement, and matters of operational control that are already replicated in the CASA approved Exposition, any names, titles, positions, or any information of a sensitive nature”
To clarify this matter.
I am specifically requesting that these documents be highly redacted. I would ask that the redactions remain in place to assist me in assessing the size of the document.
The ONLY component that I need is matters of operational control. Everything else can be redacted.
To maintain consistency the same person highlighting CASAs acceptable matters of operational control, would most likely have to be the same person within CASA that deemed my contracts unacceptable.
Date range: 1 November 1938 – 31 October 2018
The date range was admittedly long, the purpose of that was to clearly demonstrate that since Australia had a an aviation safety Body, they never required matters of operational control to be contained exclusively within commercial contracts.
My suggestion was that if in fact CASA had truthfully required contracts of other operators doing exactly what I was doing, and that has occurred on hundreds of occasions, then 5 contracts would be in existence from the 12 months prior to CASA determining my structure unlawful in October 2018.
In order to reduce the workload, I will reduce the date range from 2006 until October 2018, being the duration that I operated my business in that structure without CASAs knowledge apparently.
“I will liaise with the relevant CASA Officers to locate the documents in scope and will be in touch in due course.”
On this matter I must insist that Mr Aleck CASA Executive manager of Legal, International and regulatory affairs is involved.
I met personally with Mr Aleck. I met every legislative requirement. It was Mr Alecks opinion that I needed to appease and could not do so for 8 months.
If CASA had previously required contracts, which I doubt, then those contracts must have been acceptable to Mr Aleck and his Department previously. In order to determine what is acceptable to Mr Aleck, then it seems reasonable that he be involved.
If CASAs narrative has changed, and there was a different decision maker other than Mr Aleck then that employee should be involved in this process. Perhaps clarify with Mr Aleck as to whether or not he was the decision maker.
Respectfully, Glen Buckley