29/09/23
To the CASA CEO and CASA Board,
I am writing to confirm that my wife and I will be attending the scheduled meeting with the CASA Chair, Mark Binskin, and the CASA CEO, Pip Spence on
Tuesday 3rd October between 1400 and 1600 at Aviation House,16 Furzer Street in Philip, ACT.
My understanding is that the CASA ICC, Mr Hanton will also be attending,
I had previously advised that I was considering bringing along a person with legal training as a "support person" in order to help me to understand CASAs actions and decisions. I have tried. The truth is that I have left myself insufficient time frames to arrange that, so the attendees from my side will be my wife and I only.
I assume that CASA would have access to recording facilities for meetings of this nature, and I would request that CASA make a recording of the meeting with a copy of that recording being made available to me as soon as practicable after our meeting.
I would also welcome any other attendees at the meeting including Mr Aleck, if you deem it appropriate.
You have my assurance that I will be respectful and professional with every Employee, as I always have done, on every occasion that I have engaged with CASA Employees.
I will forewarn you that my 45kg wife, while not physically intimidating, will most likely be more "emotional". Please understand that of everybody affected by this totally unnecessary matter, my wife has been the most affected, and continues to be. She will not be aggressive, but saddened, impacted. and there may possibly be some tears. This meeting will be a significant day for her, as you will appreciate. She intends to participate primarily as an observer to try and comprehend this matter.
From my perspective. Quite simply, I operated a business for over a decade, and then one day, a single CASA Employee from his Canberra Office, with no legislative basis and no industry precedent, and no forewarning decided that my business only, and not others, had become unlawful, and I was to potentially subject to prosecution, CASA placed crippling restrictions on the business for 8 months, and then CASA determined that all personnel operating under an AOC must also be Employees of the same Company that owns the AOC, effectively closing the business.
As you are aware, I am fully satisfied that it was an "unlawful" determination. It should have been accompanied by a "decision letter" in accordance with CASAs own stipulated procedures, but it was not, and this breach of following CASA own procedures is what denied me procedural fairness, as the trading restrictions remained in place for 8 months while CASA ``rethought" about the structure. I had no right of review or appeal.
It was a complete change in regulatory approach that applied to my business only. As you are aware I am fully satisfied that a small but senior group of CASA personnel commenced an engineered process to bring harm to me personally.
CASA advised that I could possibly return to lawfulness and have the trading restrictions lifted,if I could satisfy that same CASA Employee as to some additional wording in our commercial contracts. If he was satisfied, I may be permitted to have the CASA imposed trading restrictions lifted, and potentially return to Business as Usual.
After 8 months despite every best endeavour by me to satisfy the CASA Employee, for reasons that I cannot explain,he could not be satisfied, and CASA met with all customers and directed that they leave the business, and this included my own flying school, Melbourne Flight Training, on the basis that all personnel operating under an AOC must also be employed direct;ly by the same Company that holds the AOC.
To quote Craig Martin's correspondence as late as 20th June 2019, Mr Martin in his very senior role within CASA as the Acting Executive Manager of Regulatory Services and Surveillance, and the person representing Mr Aleck, wrote advising
"for the avoidance of doubt...... flight training can be conducted by APTA employees only- not employees of affiliates.
That unalwful determination was effectively the "death knell" as CASA imposed new terminology referred to as "Direct Operational Control" where the one Company that held the AOC must also employ all personnel directly, maintain all bank accounts, social networking, admin etc.
CASA has never placed that requirement on any Operator in Australia. Ever.
I need to ensure that I make these points clearly, and that you can correct me at the meeting if my understanding is incorrect.
The changes that CASA required of me could have been attended to instantly. I had been operating in that structure for a decade with full CASA approval, as many of Australia's flight training organisations were, and my CASA approved Exposition and oversight tool Flight School Manager (FSM) met and exceeded every regulatory requirement. There were never any identified deficiencies at all.
It was never a quality control issue, and it was never a legislative issue,it was an issue that CASA effectively created. A new and unique requirement that is not remotely aligned with any legislation at all.
A requirement that personnel operating under an AOC must also be employees of that same Company in order to maintain operational control. If those personnel were emplyed by another entity different procedures of operational control were required.
Until this new determination, all personnel operating under an AOC, irrespective of who emplys them are subjexct to the same high levels of operational contriol
The only limitation on preventing me returning to Business as Usual was that I needed to place new wording in contracts that reflected exactly what I was already doing. There was no requirement by CASA to change any system, policy, or procedure. All legislated responsibilities accountabilities were already attended to in the CASA approved Exposition, where they should be. I had been operating this structure for a decade, so it would be reasonable to assume that I am experienced with that business structure, and that if it has satisfied CASA for the previous decade, should have some surety of operations with that structure, provided I do not alter it, which I did not.
The important point being that if any deficiencies were ever identified, CASA would have brought them to my attention. Absolutely no deficiencies of any kind have ever been put forward by CASA.
The stumbling block for 8 months is that I could not satisfy Mr Aleck. At any stage throughout the 8 months, he could have instantly resolved the matter in its entirety by giving me sufficient guidance, as to whose responsibilities and what responsibilities he needed in the contracts.
In the "contract" CASA were requiring me to incorporate responsibilities that are not legislated and CASA was unable to identify, for personnel who CASA were never able to specify to me, and who are not legislated.
I can only reiterate, that every legislative procedure had been attended to, as it had always been through the decade that I operated in this structure, within the Exposition where such matters are attended to.
CASA were required of me, and me only that matters of Operational Control were now to be identified in "commercial contracts", a document that CASA is not a signatory to, and does not hold on file for any operators because these are commercial agreements of a sensitive business nature.
Despite the bizarre nature of this requirement I made my best endeavours to satisfy the CASA employee, but after 8 months of trying i was completely unable to satisfy the employee.
I was highly dependent on CASA for guidance as they had never placed these requirements on any other Operator, including those that had also adopted the structure that I adopted. These were new and unique requirements for people and responsibilities that were not required by legislation.CASA were asking me to effectively take responsibilities away from legislated Key Personnel, and transfer or specify those responsibilities to persons that were not specified in legislation or qualified. i.e. an aero Club committee who may or may not even hold a pilot licence, and have no experience at all in flight training.
The Ombudsman was mislead and failed to comprehend just how "unique" the requirement placed on me that CASA would require matters of operational control and safety that are not specified in any legislation that CASA cannot identify, amd responsibilities that CASA cannot identify into a commercial agreement, and NOT in the CASA Exposition
Such complicated changes to responsibilities and accountabilities required very clear direction from CASA. As soon as CASA provided that guidance, I remained ready to embed those new requirements immediately into the "commercial contracts" and return to business as usual.,within a matter of hours. To have it unresolved for 8 months can only be as a result of bad intent. There can be no other plausible explanation.
If I may refer to previous correspondence between the CASA CEO and myself. I outlined my expectations iofb that meeting which I have cut and pasted be;low. I have also cut and pasted your responses. I have made some brief italicized notes for your consideration prior to our meeting
My Expected Outcome One- Act of Grace Payment
I am of the opinion that CASA unlawfully and with targeted malice took action that closed my business and was entirely unnecessary. There were no legitimate safety concerns nor were there any regulatory breaches, and at all times I operated fully in accordance with all CASA approved procedures in my Exposition/Operations Manual.
My understanding is that CASA would not dispute that position, and that is what makes the entire situation so bizarre.
I believe that I have a valid basis for a claim against CASA. That is not my preferred option.
Throughout the last five years, I have gone further than could be reasonably expected of any person to avoid litigation. Litigation suggests to me that there is a complete breakdown of “good intent”. It is unnecessarily combative, protracted and distracts resources.
My preferred course of action is to put forward a request for an Act of Grace payment. This request would not be successful if it were opposed by CASA.
My hope is that An Act of Grace payment could be considered an Alternative Dispute Resolution, as outlined in
Appendix B of the Legal Services Directions 2017, where it states
“the Commonwealth and Commonwealth agencies are to behave as model litigants in the conduct of litigation.
In civil litigation matters, Model Litigant rules provide that government agencies should, wherever possible:
- act honestly, consistently, and fairly in handling claims and litigation
- deal with claims promptly
- make an early assessment of the government’s prospects of success
- pay legitimate claims promptly
- not take advantage of a party who lacks resources to litigate a legitimate claim
- keep costs to a minimum e.g. not rely on a merely technical defence
- consider alternative dispute resolution (ADR) options.”
At the end of that two-hour meeting, I would like to obtain a decision from you and the Chair of the Board, whether or not CASA will oppose that claim for an Act of Grace payment.
For simplicity of the Act of Grace Payment, it would be for the purpose of compensating/reimbursing staff, customers, students, Suppliers, the other businesses closed down by CASA actions, and others who were dependent on me.
It would not contain any claim for me personally, or for the harm and trauma caused to me. I would waive any claim to those aspects in the interests of a prompt resolution, by way of an Act of Grace Payment By rectifying the harm caused to so many, it would lift an enormous mental burden from me, and at least go some way to resolving this entire matter and allowing me to move forward with my life.
It seems entirely reasonable that if CASA simply “changes its mind” about a business after 10 years, the persons affected by that change of “interpretation” of the law, should not be impacted, just as a homeowner is reimbursed when the house is to be bulldozed for a road. It is an entirely reasonable expectation.
If the CASA Chair and CEO determine that they will oppose an Act of Grace Payment, then I can see little benefit in waiting until October to receive that information.
Could you please advise if you would be in a position to advise me at the conclusion of that meeting if CASA will oppose my request for an Act of Grace Payment?
CASA response to Expected outcome 1:
In the spirit of the apology I conveyed in my 26 May letter to you, where I acknowledged that CASA could have done things better, I can advise that we would not oppose your claim for an Act of Grace payment should the Department of Finance seek the views of CASA.
Such an application from you would result in an independent, third-party assessment which we would welcome, and we would provide any information requested to enable that assessment including the findings of the Commonwealth Ombudsman.
My note. It is the Commonwealth Ombudsman report that has been perverted by false and misleading information that CASA has provided, and I do not have trust or confidence in those findings. At our meeting I will clearly identify the false and misleading information that has been provided by CASA to the Ombudsman investigation. With that information, you will be able to make your own determinations, and determine if any corrective action needs to be initiated by either of your respective offices.
My Expected Outcome Two- Why this matter could not be fully resolved in 4 hours.
As you are aware, I am fully satisfied that this matter could have been fully resolved in four hours, yet it dragged on for over 8 months, and was still not resolved. I am fully satisfied that if CASA was acting in Good Faith this matter and its associated harm could have been completely avoided.
I would like to obtain CASAs explanation on why this matter could not be fully resolved in four hours.
There must have been some reason from CASAs perspective as to why it was not easily resolved in one meeting of less than four hours. If I could explain that to my family, the people impacted, and the wider industry, it would assist me
greatly.in order to go someway to restoring my reputation I would like to be able to explain to those that were dependent on me, as to why I could not resolve this apparently simple matter to CASAs full satisfaction. It seems an entirely reasonable expectation, and I am sure you will concur.
CASA response to Expected outcome 2:
As I explained in my most recent email to you on 21 June, I don’t intend to revisit issues that you have previously raised, noting that CASA stands by the Ombudsman’s findings, as set out at expected outcome 5 below.
My note. I have sought an explanation to this for almost five years and CASA refuses to respond. The Ombudsman Office also conveniently avoided addressing this key issue, despite my frequent requests. Surely anybody can appreciate that I am entitled to a response, in fact the CASA Regulatory Philosophy compels you to respond to my reasonable request. A response to this single request would bring finality to this entire matter. There must be a reason that this matter could not be fully resolved in its entirety in a matter of hours by way of a well intentioned discussion. For it to be no closer to resolution after 8 months is inexplicable, and most especially considering the commercial and reputational harm being caused throughout that eight months.
Expected Outcome Three- The single issue was all personnel were not directly employed by me.
The most distressing part of the last five years has been that I have no idea what I did wrong. I do not know what piece of legislation was breached. I don’t know what specific mistake that I made, I have no idea which of my procedures was deficient, I have no idea of any safety concerns.
My understanding is that because I utilised personnel under my AOC that were not always also my employees, I was in breach of the regulations.That was effectively the single issue.
Had every one of those personnel operating under my AOC been directly employed by me, then CASA would never have raised any concerns at all, and my business would not ever have been contacted by CASA or had any action taken against it, as Craig Martin from CASA advised me in writing,
‘For the avoidance of doubt, flight training can be conducted by APTA Employees only, not Employees of Affiliates’
I would like to exit that meeting with a clear understanding of this requirement by CASA. It is not a requirement, and has never been a legislative requirement. This seems to be a restriction placed only on my own flying school and not on the other 300 flight training organisations in Australia.
So, my question would be. If all personnel operating under my AOC were also directly employed by me, would CASA ever have imposed the trading restrictions, and if so, could you identify the justification.
CASA response to my Expected outcome 3:
As in my comments about revisiting matters in response to your second expected outcome, CASA stands by the findings of the Commonwealth Ombudsman dated 21 February 2023:
We accept CASA’s explanation that it became concerned about the APTA operational model in 2018 as it became uncertain whether APTA’s model met legislative requirements to show sufficient control between the authorisation holder and the affiliates conducting training…. It was therefore open to CASA to take steps to be satisfied the legislative requirements were being met. We accept that CASA can and should act when it identifies an operator is working in a way that may not comply with legislative and regulatory requirements… (E)ven if CASA had previously authorised the APTA model in the knowledge that it was providing oversight of its affiliates, rather than conducting flight training in its own right, we cannot be critical that it reassessed its position when concerns arose about whether this model was in line with civil aviation legislation… (W)e remain satisfied that CASA’s concerns about the APTA operational model at the time of the Notice were not without basis and no further investigation is warranted in relation to its decision to issue the Notice.
My note. I appreciate that either of you in your role cannot be expected to be Subject Matter Experts on the legislation specifically related to the Flight training industry, and you may need to seek guidance from the decision maker Mr Aleck on this subject. This is very much related to the provision of false and misleading information. It confirms the high levels of confusion that CASA has created within the Ombudsman's Office. Consider that statement, and how ridiculous it truly is.
CASA has mislead the Ombudsman to arrive at a finding that, CASA had previously approved me to operate my business on the basis that I was just providing oversight of those facilities ( a situation that would clearly be unlawful and unsafe), and then CASA "discovered" that i was operating lawfully because I was delivering training "in its own right"'
This is akin to a police officer thinking that a motorist was speeding over a sustained period, pulling him over, and discovering that in fact he was not speeding, and fining him. As I have repeatedly stated, bizarre.
Expected Outcome Four- Allegation of misfeasance in public office against Mr Jonathan Aleck Executive Manager of Legal, International and Regulatory Affairs.
One month prior to that meeting I will provide.
· The CASA Board,
· The CASA CEO, The CASA Industry Complaints Commissioner
· My Local Labor MP for Chisholm, Ms Carina Garland
with a substantial document outlining my allegations of Misfeasance in Public office against Mr Jonathan Aleck, CASA Executive Manager of Legal, International, and Regulatory Affairs. If that document can be considered prior to that meeting, my intention would be that I formally submit that document to the CASA ICC for an internal investigation. If CASA chooses not to conduct their own internal investigation, then I will pursue alternatives. I believe that Mr Aleck would support that request. I have made significant allegations against his conduct, and I expect that he would be supportive of any investigation to refute my allegations.
CASA response to my Expected outcome 4:
I would have anticipated that any information relevant to your complaint would have been provided to the Commonwealth Ombudsman during the course of its review of your concerns. If it was not, your allegations and any material to support those allocations should be directed to the Commonwealth Ombudsman for consideration.
My note. Despite me raising allegations of misfeasance in public office against Mr Aleck before the Senate, no internal investigation was ever initiated by CASA. It is incomprehensible, and not in line with any sense of expected organisational governance. I approached the Commonwealth Ombudsman but they advised that such matters of misfeasance in public office should be directed to the CASA ICC, and CASA has directed me to the Ombudsman Office.
I do wish to proceed with the formal lodgement of that allegation at our meeting, unless you are able to clarify the correct procedure, prior to our meeting.
Expected Outcome Five
On the initial notification of 23rd October 2018, CASA placed trading restrictions on my business, based on alleged contravention of the following four rules and regulations, and these are the only four allegations that have ever been put forward to me.
· Paragraph 7 of the Aviation Ruling
· Section 27 (8) of the Civil Aviation Act
· Section 29 of the Civil Aviation Act
· CASR 141.050
I would like to get a clear and concise response from CASA, after almost five years. Is the CASA position that I did, or did I not break those regulations?
Consider a person that is charged with an offence by the police, and he has to wait five years to have his guilt or innocence determined in a court of law. If over the next five years, the Police become aware that in fact no offence had occurred then they should be prepared to admit that, rather than attempt to pursue the matter, and possibly in a corrupt manner. The point is that after 5 years of continuing investigation by the police, the reasonable expectation of the Police is that they are as confident, or more confident, of their position after 5 years.If they are confident, they should be able to confidently restate their position, at all times throughout that five-year investigation, and right up until they walk into the Courtroom.
At our meeting, I would be seeking that same commitment from CASA i.e., a yes or no response to each of those four allegations made in October 2018.
It is an entirely reasonable request as I am sure you will agree.
CASA response to my Expected outcome 5:
For the reasons set out above, CASA stands by the findings of the Commonwealth Ombudsman dated 21 February 2023:
We are satisfied that CASA adopted a collaborate approach to resolving the issues raised in (the Notice of 23 October 2018)… Records that CASA provided to us show that its officers met with Mr Buckley and his father on behalf of APTA multiple times and there was frequent email communication between the parties. CASA provided guidance on the reasons it required contracts, obtained legal advice to support its position, and provided model clauses to Mr Buckley for his use in May 2019. We acknowledge Mr Buckley’s concern about the length of time matters extended without a resolution but are satisfied that, despite the delay, CASA provided advice to Mr Buckley that the existing approvals for APTA remained in place, and he could continue operating as he had prior to the Notice. In hindsight, there may have been ways to improve the communication to ensure Mr Buckley was given a consistent message by all parties within CASA, but we note this was difficult because Mr Buckley was contacting multiple people within CASA. We further note that CASA ultimately implemented a strategy to have one contact point for him, to reduce the risk of mixed messages.
My note. The point of my expectation has been completely missed. This has nothing to do with the contract issue. The "contracts" was a way of making a structure that CASA had deemed unlawful, and returning it to a state of lawfulness. After 8 months of trying to achieve that with CASA I was unable to satisfy CASA as to the wording.
Conclusion
With the short time frames ahead of us, I don't necessarily expect a lengthy response other than an acknowledgement that this correspondence has been received and I do not expect you to address any of the issues I have raised here in writing , prior to our meeting.
I reiterate that I welcome any CASA attendees at that meeting that can ensure the meeting is as productive as is possible in the circumstances.
I hope that my approach to this meeting is not being interpreted as naivety but rather an approach that is well intentioned, professional, and task focussed towards resolution.
If all attendees act in a well intentioned manner this matter can be fully resolved.
Looking forward to the opportunity, respectfully, Glen Buckley