The following article from
Australian Flying by Paul Phelan is indicative of the
modus operandi of certain CASA FNQ staff and their Canberra compatriots:
Case to Answer?
By Paul Phelan
“CASA will do all it can to ensure that a person whose licence, certificate or authority is suspended or cancelled has ready access to full external merits review in the AAT. Once before the AA T, CASA will conduct itself as a model litigant" CASA, in a document entitled: "A new approach to enforcement". March, 1989.
"Anyone other than Dick Smith who joins CASA, becomes “infallible." DICK SMITH, August 1998.
"That's the way the system works. They think: "We are powerful and we are totally unaccountable." DICK SMITH, August 1998.
When he made those comments, Dick Smith had already found the battle against authoritarian, intransigent and what he has sometimes called `incompetent' bureaucracy, tougher going than he had expected. Recent events in the Torres Strait show how much further there is to go. This incident is not the first in which CASA has used its administrative procedures to create a situation in which an operator has faced impossible financial burdens, while totally sidestepping the accountability Smith has fought for.
The fatal crash of another Britten-Norman Islander in April 1996 resulted in the immediate suspension of another AOC and forced that operator out of business. The final BASI finding was not one which supported that outcome. Anyone contemplating investment or a career in aviation, should read this and study its implications. There's still hope for the industry, but a lot of things have to be fixed first, and the industry is wondering whether the right people and motivations are in place to fix them.
Many of these documents would never have surfaced, had an operator not dug its heels in and fought for their release. Uzu's friends, as well as many of its commercial rivals, are united in the belief that these events represent an ongoing threat to the orderly conduct of aviation, and ultimately a negative impact on air safety. They also believe that CASA has developed a tactic to subvert the Administrative Appeals Tribunal process, by cynically sheltering behind Section 9 of the Civil Aviation Act.
A CASA public relations officer recently told Australian Flying, when we queried the fairness of the procedure which an administrative decision of one individual can put a company out of business:
"Well, that's the decision we have made. If (the victim) doesn't like it, he can appeal to the AAT, can't he?”
When this went to press, another victim of this affair, the L.A.M.E licence of the chief engineer of Uzu's engineering company, had been cancelled. That engineer, one of the best-respected in the industry, simply cannot afford the process, especially if the AAT is likely to accept a bald CASA statement it is acting within its `safety responsibility.’
Jul 96 to Dec 98:
Uzu Air's general manager wrote 13 letters to CASA and its predecessors, seeking clarification of the anomalies surrounding the carriage of individual paying passengers at fixed fares on subsidised remote area mail service flights. None were answered, and a CASA officer later told Uzu: "Officially they don't exist."
14 Aug 96:
A CASA safety systems assessment profile report on the company then employing Uzu's general manager noted: "The company management has spent a considerable time trying to clarify the status of its Australia Post mail services, which appear to have been in non-compliance since the repeal of CAR 203. ... CASA must address the operation of vital rural mail services to remote communities and draft appropriate legislation to allow their continued operation. ... [the company] endeavour to conduct their operation in accordance with regulatory requirements. However they feel frustrated by the lack of appropriate legislation and CASA's reluctance or inability to allow regular passenger/mail services into non-surveyed landing strips or operation of single-engine IFR aircraft on such services."
4-6 Nov 97:
A periodic inspection is conducted by an FOI from Cairns District. The officer's report, subsequently obtained only at the direction of the Administrative Appeals Tribunal, says: "20 NCNs in total!" (exclamation mark as in the report.) The report added that: "This is no longer a compliant operator."
17-20 Nov 97:
Uzu is visited by an unannounced team headed by the Manager, Safety Audits, Southeast Region.
The four-man team conduct a four-day audit over 52 man-hours, which results in the issue of four NCNs. Three of these detailed minor errors in maintenance documentation, and one questioned dangerous goods acceptance procedures. The report concluded:
"Uzu Air are considered not to be an unsafe operator."
1-4 Dec 97:
At the direction of CASA's Canberra office, two investigators and one Cairns FOI conduct an investigation with the following terms of reference:
"Determine the extent of operations in the Torres Strait region which are being conducted for fare paying passengers that fall into the definition of RPT and which are currently being conducted as charter." The TOR directed that:
"The differentiation between RPT and charter that is to be used for this investigation shall be drawn from the "draft" paper prepared by (a CASA lawyer) as attached."
The draft opinion, later obtained by Uzu, attempted to define the five elements which must exist to constitute RPT. However it provided no definitions of two of the critical elements:
"Specific route" and
"fixed terminal".
The investigators had thus been instructed to investigate whether operators were in breach not of a regulation or rule, but of a draft opinion, which failed to provide critical definitions.
7 Jan 99:
CASA issues a notification of proposed action to suspend or cancel the AOCs of four operators including Uzu. The notification summarised the reasons CASA believed the companies were undertaking unauthorised RPT flights, contrary to the Civil Aviation Act.
Uzu's notification also resurrected a number of NCNs issued over the previous two years, all of which had previously been acquitted.
16 Jan 99:
Uzu Air's Britten Norman Islander is involved in a fatal accident at Coconut Island. (refer
http://www.atsb.gov.au/aviation/occu...ail.cfm?ID=171 )
17 Jan 99:
An "Immediate Safety Report", outlines the few known circumstances of the accident, and states under recommended action: "DFOM (District Flying Operations Manager) to now recommend 28 day suspension of AOC." The report, faxed to Canberra at 10.55 am, on that day (a Sunday), does not state any reason for the recommendation.
(CASA now claims: "This recommendation was made on the advice of BASI who clearly indicated that the left hand engine was not developing significant power at the time of impact, a view they still hold." BASI says this is untrue.)
19 Jan 99:
BASI, insurer and operator representatives fly to accident site. In a faxed message, CASA suspends Uzu Air's AOC for 28 days, with effect from 2359 that night.
20 Jan 99:
Uzu files a notice of application for review of the CASA decision to suspend its AOC, claiming that the Authority had acted
ultra vires (outside its legislated authority); breached rules of procedural fairness and natural justice; failed to provide adequate reasons for the decision; misapplied administrative principles, and "failed to correctly interpret and apply the law".
22 Jan 99:
Uzu lodges a detailed 127-page response to CASA's notice of the show cause.
The response was never acknowledged. At the same time, the operator attends the first hearing on the matter in the Administrative Appeals Tribunal, (AAT) seeking a stay of its AOC suspension. CASA is successful in having the stay denied. CASA's use in such stay proceedings of Section 9A of the Civil Aviation Act, appears to question the ability of any operator to gain a stay. (Look it up!). The operator believes the AAT's effectiveness in reviewing administrative processes may be neutered by this tactic. Uzu would have to wait for the 28 day suspension to expire, before being able to proceed to a substantive hearing. Uzu seeks an order from the AAT to require CASA to produce specified documents such as CASA Audit Reports, related to its decision. The AAT refuses to issue a stay order, instructs that the hearing is to be expedited, and orders CASA to provide the documents within one week or as soon thereafter as is possible. A telephone conference is then to be held to arrange the hearing. (The documents were made available about 10 days later. The 13 letters seeking clarification of RPT/charter status were not included in the documents.)
22 Jan 99:
BASI investigators recover engines from the Islander and return to Cairns. BASI holds meeting at CASA Cairns with CASA AWI. BASI advises CASA the left engine did not appear to be developing power at impact and the fuel mixture control rod was found to be broken at the accident site, but advises the component will require metallurgical examination to determine cause and time of breakage.
26 Jan 99:
Uzu Air lodges a 40-page response to CASA's AOC suspension.
27 Jan 99:
BASI advises Uzu and CASA that laboratory analysis verifies the fuel mixture control rod failed
"... due to overload as a result on impact forces".
2 Feb 99:
BASI strips down left engine at Archerfield. Following day, BASI advises all interested parties of the outcome of the engine strip down.
4 Feb 99:
CASA serves a Notice to Show Cause on Uzu Air's associated company, Tamco Engineering, and asserts that BASI investigations
"resulted in a finding of a disconnected mixture control rod on the left engine, which was not delivering power prior to time of aircraft impact, and was considered by these BASI Investigators to be a contributing factor to the loss of control of the aircraft prior to that impact. The subject mixture control was found to have suffered failure which exhibited severe corrosion of the mixture control ball end connection."
BASI Investigator verbally denies the assertions were ever made and advises BASI was lodging a protest with CASA regarding the allegations.
8 Feb 99:
Uzu Air holds an informal conference in Cairns with the CASA regional manager, the acting DFOM, and the assigned FOI. Uzu made a proposal that it implement check and training and Class A aircraft maintenance, immediately upon reinstatement of the AOC. The company believed this met with CASA approval. (CASA now says: "CASA\'s requirement is that UZU has a class A maintenance system and appropriate training and checking in place prior to the reissue of the AOC." That is not the recollection of, the Uzu representatives. (Torres note: It is not possible to have a CASA approved Training & Checking system and approved System of Maintenance in a suspended AOC, which CASA was aware of!)
12 Feb 99:
Deputy Director, BASI, faxes BASI Preliminary Report to Uzu Air. Also faxes Preliminary Report to General Manager, Aviation Safety Branch, CASA, Canberra. Also telephoned CASA Canberra to confirm CASA\'s receipt of the Report. The report stated inter alia:
"Examination of the left engine, while still in the wreckage at the accident site, revealed the linkage between the mixture control cable on the carburettor had failed. Subsequent metallurgical examination of these components confirmed that failure was due to overload as a result of impact forces, and that it had not contributed to the accident."
15 Feb 99:
CASA suspends Uzu Air\'s AOC for a further 28 days and asserts inter alia:
"The Bureau of Air Safety Investigation (BASI) has been investigating the crash but has not published a preliminary or final report on its causes."
17 Feb 99:
The Cairns Post newspaper publishes an article headed "Crash report rocks CASA," (by this writer) detailing the conflict between CASA\'s allegations and those of the preliminary BASI report. A fax letter is received on the same morning from Assistant Director, CASA, Canberra, saying:
"I have now been made aware of the content of a preliminary report of the accident by BASI. Please note that neither the crash itself, nor the possible causes of the crash, were the, or a decisive consideration in my decision to suspend your AOC. I would have suspended your AOC even if I had been aware of the content of the BASI preliminary report." The Assistant Director did not reveal his reasons for this assertion at that time.
18 Feb 99:
An AAT-directed teleconference is scheduled for 1700, between Uzu counsel, the AAT registrar, and CASA\'s office of legal counsel, to determine the process of an AAT hearing on the second suspension, and to enable Uzu\'s counsel to advise CASA of the witnesses Uzu required to examine. Uzu counsel and the AAT were connected. CASA\'s phone rings out without answering.
19 Feb 99:
CASA office of legal counsel telephones Uzu to advise they had confused the day, thinking the teleconference was set for the following day. Uzu\'s lawyers indicate that there was no utility in having a telephone conference for a hearing in relation to the first suspension (which is what the telephone conference on 18 February was intended to do) because a second suspension had been issued. Uzu\'s lawyers indicated that Uzu would now be applying to the AAT for a stay of the second suspension for hearing in the following week.
On the same day Uzu Air provides CASA with a detailed 50-page response to the further 28 day suspension of its AOC, detailing the foregoing events and again raising the question of RPT versus charter.
24 Feb 99:
Uzu\'s lawyers request the AAT issue three subpoenas to involved CASA staff members to attend the hearing the following day. AAT declines due to inadequate time.
25 Feb 99:
At a cost of about $10,000, Uzu attend AAT Sydney at 0915. At 0930, AAT Vice President\'s associates advise that CASA will not be attending, due to commitments in Brisbane, but CASA will not object to a telephone hearing. (CASA claims it had earlier advised Uzu and the AAT it would be unable to attend but would not object to a telephone hearing.)
However CASA\'s counsel objects to any evidence being tendered or any witnesses being called,
"on the basis that it is inappropriate for oral evidence to be given at a stay hearing.” Deputy President Chappell rules that oral evidence was not appropriate for that reason.
Uzu, which has now not earned any revenue for 36 days, is therefore again denied an opportunity to confront its accusers, some of whom are on "stress leave", a luxury unavailable to Uzu\'s general manager or his staff, some of whom have been stood down. CASA however successfully objects to the lifting of the suspension on the grounds of "Air Safety," relying on Section 9 of the Civil Aviation Act.
2 Mar 99:
Meeting in Canberra attended by Uzu\'s chief pilot, an Uzu consultant, CASA\'s General Manager, Aviation Operations and CASA\'s public affairs manager. Uzu was told that CASA wouldn\'t extend the suspension, but would either lift it, or let it run its course until 16 Mar. The company was also told that CASA would not renew the suspension or cancel the AOC. No explanation was offered as to why, having made that decision, CASA would not lift the suspension immediately.
It was agreed that draft checking and training and maintenance procedures were required and had been submitted, and that checking and training and progressive maintenance would be progressively incorporated.
5 Mar 99:
AAT teleconference between CASA office of legal counsel, Uzu is advised that the relevant DFOM was reviewing the material on Uzu and had indicated that he would not recommend a cancellation. He indicated that he would consider a recommendation to lift the suspension, but only after reviewing the remainder of the material and speaking with airworthiness officers with respect to manuals. He advised that he would attempt to do so by 10 March at the earliest and 12 March at the latest. He also advised even if such a recommendation was made, it was just that. It would be ultimately a matter for the decision maker in Canberra to accept any recommendation.
8 Mar 99:
CASA acting DFOM Cairns advises he is satisfied with the draft manuals and will be making "unspecified recommendations" to CASA Canberra. Uzu\'s optimism is heightened.
9 Mar 99:
CASA publishes an amended CAO 82.3 and three blanket exemptions, authorising air charter operators in the Torres Straits to operate RPT without meeting the aerodrome, maintenance, or training and checking requirements for RPT until June 9.
CASA\'s comment:
"While the check and training system might have been satisfactory in draft form, the district AW manager was not satisfied with the AW control mechanisms."
Uzu is thus denied access to the March 9 amendments to CAO 82.3, and to the exemptions granted to Torres Strait operators.
10 Mar 99:
AM - CASA shifts the goalposts again. While its competitors, who have been operating for the two months Uzu has been grounded, are still in the air and have 90 days to comply with RPT rules, Uzu is told it must comply BEFORE its AOC is restored.
PM - Uzu\'s solicitor contacts CASA office of legal counsel and is told the manuals the company has submitted are only DRAFT and that Uzu has not nominated a maintenance controller or check and training captain.
Australian Flying faxes a draft of this chronology to CASA with an invitation to review it for accuracy.
11 Mar 99:
CASA phones and indicates that a response, detailing some "errors and omissions" will be faxed "tomorrow." Australian Flying admits that because of space limitations it has omitted considerable material, much of it damaging to CASA. (Information provided in CASA\'s response is incorporated in this narrative.)
12 Mar 99:
The CASA response does not arrive. Or maybe, obliquely, it does. A faxed message from CASA to Uzu suspends the AOC for a third period,
"pending an investigation by CASA into your company\'s operations, and the risk to the safety of air navigation in allowing the AOC to continue in force... The reasons for this decision and the facts and circumstances on which I rely are set out below." The letter details thirty-eight points as "facts and circumstances.”
15 Mar 99:
A fax to the Hon. Warren Entsch, Member for Leichhardt, in response to a phone call to CASA from Mr. Entsch, says that for UZU to have its AOC reinstated, it must comply with three requirements - training and checking, Class A maintenance, and an approved maintenance controller, which UZU has already addressed.
24 Mar 99:
In a pre-hearing teleconference between Uzu, CASA and the AAT, the Tribunal indicates that it expects CASA to restore the AOC by close of business on Mar 26, provided the three CASA conditions are met (which UZU insists they already are).
In anticipation of a full AAT hearing the following week, UZU has already applied for summonses requiring CASA personnel to be present at the hearing. This means they will almost certainly be called upon to give evidence and to face cross-examination.
26 Mar 99:
The AAT official indicates that she will be in her office for a further half hour after close of business, and that if the AOC is not restored by that time she will arrange a "substantive" hearing on Monday 29.
Late on Friday afternoon, CASA blinks. In a faxed message UZU is advised its charter AOC is restored "subject to the company implementing Class A maintenance” and check and training - a unique requirement, but at least the company is back in business.
General aviation is not one big happy family; but other operators watched the process with keen interest, and even UZU\'s commercial rivals were horrified at its implications for the rest of the industry. CASA sources now acknowledge: "the matter could have been better handled".
(Torres note: Within days of the lifting of the AOC suspension, Uzu Air submitted all documentation for the issue of a Remote Area RPT AOC. The issue of the AOC was stalled some weeks by CASA, Canberra (whilst they reviewed an application for a similar AOC by one of Uzu Air’s competitors), however Uzu Air still received the second such AOC in Australia.)