01/11/23
To: CASA Board Chair: Air Chief Marshal Mark Binskin AC (Retd)
CASA CEO: Ms. Pip Spence PSM
Please accept this somewhat delayed final piece of correspondence related to our meeting on October 3rd at Aviation house in Canberra. I apologize for the significant delay in finalizing my response and acknowledge that I am responding after our pre agreed extended date. As you will appreciate, I have been dealing with this for five years, and on occasion I have periods where I am totally unable to attend to it, for reasons of my own health.
With regard to any responses from CASA, I appreciate that my delayed correspondence will in turn, impact on your response times.
Before I proceed I feel that I should draw attention to a comment from your recent correspondence, and something that the Ombudsman Office frequently refers to. I am compelled to address it again to ensure that there is no confusion, and I intend to ask the Ombudsman Office to clarify this matter to ensure there is no misunderstanding. I do appreciate that it may be just a choice of wording, however I feel that it is significant, and these anomalies need to be "checked" and addressed on every occasion that I am confronted with them.
You referred to the Ombudsman's findings regarding the "regulatory change". This is factually not correct, and I feel it is significant. It suggests that my business was impacted by a "regulatory" change, when there was none.
There was absolutely no "regulatory change," and if there was, CASA would be able to clearly identify the "regulation" that "changed", and when it changed.
- The regulations were not changed.
- The way I operated remained unchanged.
- There were never any allegations that I did not maintain full operational control.
- No deficiencies were ever brought to my attention.
- CASA never requested that I make any changes to any of my procedures.
This was ONLY a change of interpretation of existing regulations, and that change of "interpretation" applied to my Organisation only.
Thankyou for the opportunity to clarify that. I must insist that if there is a regulatory breach, then CASA should clearly identify that.
With regards to Action Item One
In my first piece of correspondence on 11/10/23 , ( my reference; pprune #2886) I attended
to "Action Item One" regarding your commitment to investigate and clarify the, "
prevalence of APTA like arrangements throughout the industry".
Throughout the five year Ombudsman investigation, the Ombudsman's office has been unable to ascertain which of these two very different narratives is the truthful one.
- CASA has until maintained a position that CASA did not, and had not, ever permitted APTA like structures.
- I have maintained that CASA has always, and continues to, formally approve APTA like structures regularly, and has always done so.
Two significantly diverse representations of the "truth."
My expectation is that at the end of your investigation, which will include communication with at least one current CASA Flight Operations Inspector (FOI), and potentially one ex CASA FOI that I nominated to you at our meeting, you will be able to clearly identify whether,
A. CASA had never permitted APTA like structures, or
B. CASA had always, and continues to, permit APTA like structures.
There can be only one clear and concise, well intentioned, unambiguous response, and in your respective senior positions within CASA, I would expect that information is promptly and accurately available to you.
I thank you for your commitment to arrive at the clear truth, and I look forward to the outcome of that official and final CASA determination to be clearly and concisely provided to me by CASA. My expectation is that I should be provided with the same "narrative" that CASA has provided to the Ombudsman's office, as to the prevalence or not, of APTA like structures.
These structures were, and continue to be commonplace throughout the industry, and on every occasion, only after a formal CASA approval process.
For CASA to purport to the Ombudsman, to the Minister's Office, or to anyone that CASA did not and does not continue to approve other Companies to adopt APTA like structures is quite simply, false and misleading. It really is a "black" and "white" matter.
For your information, and my assumption is that you would have been advised.
A Freedom Of Information request has been made on this matter, and a request for effectively all correspondence between CASA and the Ombudsman's Office has been made. That request has been approved through the office of the Australian Information Commissioner. A one month extension to the provision of that information has been granted, and I am expecting that information no later than 23rd November 2023. I believe that information totaling 145 documents will give me a clear indication of CASAs representation to the Ombudsman on the prevalence of APTA like structures, and as to whether it is an accurate representation or whether it is false and misleading, as I assert. I believe that this request, once fulfilled, will bring significant clarity to this matter, and clearly and specifically identify any further documents that I require, in what I expect would be my final request, if required.
I simply cannot understand how the Ombudsman Office has been totally unable to resolve this very simple issue, as to whether or not CASA always approved APTA like structures. The lack of clarity of information provided to the Ombudsman by CASA can be the only explanation for such a simple fact to remain totally unresolved after 5 years. CASA is the safety regulator for the flight training industry, and would be reasonably expected to have a fairly comprehensive understanding of how Organisations operate, as that is the very purpose of CASA. The difficulty in clarifying this issue over 5 years is simply trying to create the "fog of war."
The fact that the Ombudsman after 5 years has been unable to determine who is being truthful on this matter, leaves me in no doubt that CASA has misled the Ombudsman's Office. If CASA and I were both being truthful, then the narrative would be the same, and the Ombudsman would not still be confused after 5 years. Somebody has misled the Ombudsman's investigation, and the Ombudsman Office has demonstrated little appetite or ability to arrive at the truth. There is no doubt that the Ombudsman has relied heavily on CASA being truthful and acting with good intent. Deficiencies of the Ombudsman Office highlighted in the Robodebt findings and replicated in my matter. Deficiencies that CASA has clearly, to date, taken advantage of.
I advised you that drawing on my 25 years industry experience I personally observed, as did the entire flight training industry, these identical structures being fully approved by CASA on multiple occasions, and significantly, they continue to be approved by CASA, as CASA would be fully aware. I can nominate two operations at Moorabbin Airport that currently adopt this structure, with full CASA approval, and the Southern Region Office of CASA would be able to provide further details. For CASA to continue trying to confuse this matter is truly absurd, and it is unreasonable that I am putting so much effort into trying to prove something to be true, when CASA already knows it to be true, but continues to attempt to confuse the issue.
Several past CASA employees have established contact with me, and offered to tell the truth on this matter. I continue to be reluctant to involve anyone else in this matter unless absolutely essential, however those resources remain available to me, and the same resources are available to you. In the meeting I put forward a name of an ex CASA employee to the Chair, and that individual would welcome contact from the Board Chair. I hope that the Board and CEO will avail themself of that resource, as that will bring truth and clarity to this matter, yet again. That CASA ex employee is known to the Board Chair. That ex CASA Employee was heavily designed in the development and subsequent revalidation of APTA up until its Part 141/142 revalidation in April of 2017. He could be considered a Subject Matter Expert (SME) on this matter.
If at the end of those discussions with both the current CASA FOI and ex CASA FOI, CASA maintains its position that CASA did not, and has not, ever routinely permitted and formally approved APTA like structures, I will have to accept that as CASAs final position on this significant issue.
If CASAs position is that they had permitted "similar" structures, then it should be reasonable that CASA can identify specifically what it was about my Organisation that was "different" to other operators with "similar" structures. A very reasonable question as you will appreciate, as it is the central theme of the entire matter. It is also the question that I have been seeking answers to since October of 2018, when this matter commenced.It is reasonable that CASA specifically identify what the discernible differences are, that permitted other Operators to operate in that structure, and to continue to operate yet CASA used that as the basis to cause so much harm to me and my business.
The expected outcome of Action Item one being that CASA clearly identifies whether CASA had always and routinely approved organizations to operate with this structure, or whether CASA had never approved organizations to operate with this structure?
If CASA is of the position that in fact they had always permitted such structures, then there should be a valid reason that mine was not permitted, and it is entirely reasonable that CASA provide me with a written notification of that "decision": as should have been provided to me, when CASA ``suspend, cancel or vary an AOC." in accordance with their own stipulated procedures.
I look forward to CASA clearly and concisely confirming CASAs position or not as to the prevalence of CASA approved APTA like structures throughout the industry.
In my second piece of correspondence dated 15/10 23 (my reference; pprune #2888) I addressed
"Action Item Two, being the matter of the "contract." that I had requested under Freedom of Information. This came from your offer to follow up on my FOI request for the "Latrobe Valley Contract".
Why is the "Latrobe Valley (LTV) contract" so significant in this matter?
The LTV contract was the solution that I could not come up with. Had I been able to replicate that contract, then APTA would still be operating and benefitting the industry, of that I have no doubt, and none of the associated harm would have been caused.
You will recall that after operating the business with that identical structure for a decade I was advised by CASA in October 2018 that I was now operating illegally and I was presented with three options.
A. Cease trading in as little as 7 days OR
B. Transfer all personnel operating under the Authorization (AOC) that were not currently employees of the Company that held that AOC to become employees of the same Company that held the AOC. That is to say that personnel operating under the AOC could not be employed by another entity, contractors etc. They must be "employees" of the Company that holds the AOC. If all personnel were to also become my employees, the problem would be immediately resolved and I could return to business as usual immediately.
As the very purpose of the business was to utilise personnel that were not always employees, this required such a large organizational redesign that it was not practical, and not what the business was designed for. I felt that the direction by CASA was unlawful, and I still maintain that position. I am fully satisfied that no legislation at all, nor any industry precedent supports the contention that all personnel operating under an AOC must also be employees of the same Company that holds the CASA issued AOC. The central theme of the matter in its entirety was not even addressed in the Ombudsman report. A quite significant "oversight". I suggest.
C. If I could not transfer all personnel to become direct employees as in Option B, I would have to place additional wording into our commercial contracts with customers to the satisfaction of a single CASA employee. If I could come up with wording in the commercial contract, the crippling trading restrictions that had been applied would be lifted and allow me to return to "business as usual" as CASA put it.
As I had been operating to industry leading levels of safety and compliance throughout the decade, and was perhaps one of Australia's most experienced operators utilizing this structure, and because I had recently invested several hundred thousand dollars working side by side with CASA to have all systems and procedures designed to do what the business was designed to do, but now for the new regulatory structure, and because for the previous decade CASA had previously approved multiple bases under the structure that I adopted and because I was already doing everything that I needed to, and had been for the previous decade, this should have been a relatively straightforward task. There were never any deficiencies or changes. I just had to describe what it was that I was already doing, option C should have been the obvious and easy answer.
I simply needed to have the "deficiency" in the existing legislation, if any, identified. It was a matter of wording only. Our existing systems and procedures were all determined to be operating well, and in accordance with our Exposition. Absolutely no change to how we operated was ever requested by CASA, it was a simple wording issue in our commercial contracts that CASA traditionally had no involvement with, and refused to be a signatory to. Despite the fact that CASA was effectively "interfering" in a commercial agreement, at no stage did I offer any resistance. The business was being negatively impacted by the trading restrictions that were costing me in excess of $10,000 per week, and this was to continue for eight months. It was critical that I have this matter resolved.
But somehow, after 8 months I was absolutely no closer to having this matter resolved and the crippling trading restrictions lifted, I was forced to hand over the business to another Entity. That new owner of the entity, with effectively a non-existent understanding of the Australian flight training regulations, and without an instructor rating, and therefore no instructional experience was able to fully resolve the matter in hours by way of the" Latrobe Valley Contract". Something I had been completely unable to achieve.
If I am alleging that I was the victim of targeted malice by a CASA employee, and that there was no intent to resolve the contract matter as long as it was me, Glen Buckley trying to resolve, then the obvious question is why was someone else able to resolve it so easily. The answer to that is the Latrobe valley contract.
If CASA is to be believed, and they had never previously permitted APTA like structures, then the Latrobe Valley Contract is the first time in Australia that a Flight School owner has been able to satisfy CASA with a contract that stipulates matter of operational control and safety that are not contained within existing documents such as the Exposition.
That final contract that was deemed satisfactory by CASA is the "Latrobe Valley Contract". You will understand why that contract is so significant. It is the document that was the solution. The solution that I could not come up with after 8 months. It was the solution that I was totally unable to achieve.
To be perfectly frank, once I am in receipt of that contract with all items other than matters of operational control and safety redacted, those matters of safety and operational control that I could not resolve, will be clearly highlighted.
If CASA has been acting with good intent, my expectation is that the contract would be quite comprehensive and somewhat complicated, or at least so comprehensive and complicated that I was totally unable to achieve it.
If on the other hand, as I suspect, that document is "wafer thin" and contains very few words, then one must wonder why Glen Buckley could not achieve it.
This will go to the very centre of the issue, and that being intent. Was CASA acting with good intent or was CASA targeting me personally, as is my belief.
Thankyou for following up my request, and I look forward to obtaining a copy of the suitably redacted contract that CASA deemed acceptable. I am expecting a highly redacted copy, as I am not after any sensitive contents of the contract, as I am only seeking matters of operational control and safety contained somewhat unusually within a commercial contract as CASA required in this instance.
I was surprised that despite the "Contract" being such a central theme in this matter that the Ombudsman took CASA at its "word" on this topic. A deficiency of that Office identified in the Robodebt inquiry, and very much replicated in my matter.
The Ombudsman sought no "evidence" from CASA by way of seeking contract's from CASA, despite CASA advising that they had previously required them., and me refuting that statement.The Ombudsman wrote to me stating that "CASA had advised them" that CASA had previously required contracts of other Operators. A staggering low level threshold of evidence that the Ombudsman was merely "advised" by CASA, and no supporting evidence or fact checking was required by the Ombudsman on such a substantive issue. My experience with the Ombudsman Office throughout the investigation was that they "leaned" very heavily on CASA for "advice", as evidenced by the Ombudsman not even requesting CASA substantiate its claim by providing a copy of a contract.
Thankyou for your assistance in helping me to obtain such a critical document. Hopefully the formalities of a FOI request can be bypassed and it can simply be provided to me.
continued.......