Creampuff
Before I answer your question let me ask you whether when you provide legal advice to your clients who have allegedly done something wrong, you have an elephant-sized conflict of interest because you provide them with advice and they are your clients. Or do you act on the basis that you have high legal ethical standards and act with professional integrity?
Do you think you are the only one who maintains such standards?
In his adjournment speech on 20 June 2001, Senator O’Brien made numerous statements about the Toller incidents. Many of these statements are inaccurate. I have taken some time to reply to your post because it was necessary to speak to a number of the persons involved and to carefully read the Sherman report and Hansard transcripts rather than just assume because Senator O'Brien made some comments then they must be correct (as you have obviously done).
1.“… Mr Skehill’s involvement in the meeting meant that he was assisting Mr Toller to manage one of the breaches and at the same time was advising the authority about another of Mr Toller’s breaches. I do not believe that Mr Skehill can credibly justify his conflict of interest in this case”.
Senator O’Brien’s assumptions are incorrect. At the time of the meeting on 6 November 2001 Mr Skehill had no involvement in Brindabella. Mr Skehill was not asked to provide any legal advice in relation to the Brindabella incident until 16 January 2001. By that time he had long ceased to have any involvement in the Uzu matter. There was no conflict of interest of the nature suggested by Senator O’Brien.
Also, Mr Skehill was not assisting Mr Toller to “manage” any breach. He provided advice to enable the Board to decide what should be done in response to the hotline call. That advice was that the matter should be disclosed to the Board and that the matter should be investigated in accordance with normal CASA procedures i.e. Mr Toller should be treated in the same way as any other pilot. Hardly the stuff of a cover up.
2.“So the initial response by Mr Toller, Mr Ilyk and Mr Skehill to the public disclosure of Mr Toller’s breach of aviation regulations was inappropriate to say the least…”.
The initial response was completely appropriate and involved no conflict of interest.
3.“…Mr Farquharson’s concerns were such that he has committed them to writing. Now, if Mr Farquharson did express concerns about the relationship between Mr Toller, Mr Ilyk and Mr Skehill … either orally or in writing, the integrity of the internal inquiry into the matter must be called into question…”.
Mr Farquaharson did express his concerns. However, this was done without any evidence to substantiate his concerns, simply based on unfounded allegations from Mr Boys. A month or so after expressing those concerns, Mr Farquharson retracted those concerns unequivocally. Senator O’Brien fails to mention the retraction.
4.“Mr Boys told the committee that he did not investigate the Uzu breach, and someone else was tasked with the inquiry. Mr Boys confirmed that such an investigation would normally have been referred to him but the investigation of Mr Toller was not…”.
This is not correct.
Whether matters were referred to the Manger, Enforcement and Investigations at that time depended upon various factors. Hotline calls were never automatically referred to a Part IIIA investigation as suggested in Mr Boys’ answer. It was for the relevant Manager to determine whether or not a request for a formal Part IIIA investigation should be referred to the Manager, Enforcement and Investigations. Paragraph 3.3.2 of the Enforcement Manual stated:
“If a Manager believes that a formal investigation by a Part IIIA investigator is required then the matter should be referred to the Manager, Enforcement and Investigations in accordance with the Enforcement Processes Flowchart at paragraph 3.7 and using the Request for Investigation Form (form 309). (See chapter 16. CASA Internal Documents for a sample of the form).
“The request for investigation will be considered by the Manager, Enforcement and Investigations, who will take into account relevant priorities and resources”.
Mr Farquharson correctly notes this same point in his evidence to the Senate on 4 May 2001 where there is the following exchange:
“Senator O’BRIEN – Breaches of the regulations normally go through Mr Boys?”
“Mr Farquharson – Not necessarily, no”.
“Senator O’BRIEN – That is Mr Boy’s evidence”.
“Mr Farquharson – If the matter is going to be considered for prosecution or there is a requirement to employ the assistance of Mr Boy’s investigators for the gathering of information, then his group will become involved. If the matter is an administrative matter and is considered to be solely an administrative matter, then Mr Boys may know nothing of it. Those matters may all involve breaches or technical breaches but fall within the ambit of administrative than prosecution”.
This distinction appears to be continually missed by Senator O’Brien. The distinction also appears to have been overlooked by Mr Boys in his evidence to the Committee.
5.“He [Mr Boys] said that the changed reporting arrangements should not normally affect the manner in which he progressed his investigations, but in relation to the Uzu matter they did. The treatment of Mr Boys in this matter and the Brindabella investigation was highly irregular, to say the least…”.
The Uzu matter was not a “Peter Boys” investigation as suggested by Senator O’Brien. The investigation was conducted in the normal way. The fact that it was not referred to Mr Boys for investigation is not irregular, it in fact reflects what normally happened in CASA at the time. The changed reporting arrangement did nothing to alter the way investigations are normally handled.
6.“…Mr Leaversuch ignored Mr Boy’s advice, effectively taking him off the case, and he sought no other advice. He then shut the Brindabella investigation down”.
This is simply incorrect. The investigation was never shutdown. It was completed by the investigator originally assigned to the case (Neil Enders). Mr Boys was not taken off the case. He was in charge of the investigation to its completion and referred the final report to the Acting Assistant Director, Aviation Safety Compliance.
7.“I understand that all this information was provided to Mr Farquharson. If this is correct, it is difficult to understand how he could not have formed the view that there was significant doubt about the integrity of the process followed and, therefore, of the conclusions reached in relation to the investigation”.
The Brindabella investigation was conducted by a Part IIIA investigator under Mr Boys. The investigation was conducted without any involvement by Mr Toller. The irregularities were commented upon by CASA's General Counsel as indicating the inadequacy of the evidence in reaching a conclusion that there was a prima facie breach of CAR 50.
8.“So, when Mr Farquharson told the Committee that he was faced with a difference between the views held by Mr Ilyk, Phillips Fox and Mr Boys, that was not accurate. A possible breach of Civil Aviation Regulation 228 was not considered at all by Ilyk or Phillips Fox”.
In relation to both the Brindabella matter and parts of the Uzu matter there was a difference of view between General Counsel and Mr Boys. The fact that CAR 228 was not considered by General Counsel or Phillips Fox is completely irrelevant. It was because there was a difference of view on some significant legal issues that Mr Farquharson felt it necessary to have all the issues reviewed by Mr Sherman.
It should be noted that Mr Boys was not employed as a lawyer in CASA and was not qualified to provide legal advice in any event. That was the role of legal counsel in OLC.
9.“Mr Sherman, in his advice, is clearly of the view that the matter of Civil Aviation Regulation 228, in addition to 282 and section 20AB(1) of the Civil Aviation Act, had been referred to two independent law firms”.
This is not correct. Mr Sherman knew what had and had not been referred to the independent law firms. He had been given all the files and they clearly show what matters had been referred for external legal advice. He also had all the legal advices that had been provided, so he knew exactly what had been considered by the external law firms and what had not. It is clear from the files that he was given that CAR 228 had not been so referred and Mr Sherman was well aware of this.
10.“Mr Sherman, in his opinion incorrectly assumes that a possible Civil Aviation Regulation 228 breach had been considered and rejected by two independent legal assessors and gave some weight to the alleged advice”.
There is no basis for such a conclusion by Senator O’Brien. Any normal reading of Mr Sherman’s advice shows that he was under no impression that the CAR 228 matter had been assessed by two independent legal firms.
Additionally, as stated above, Mr Sherman had all the files and legal advices and could have been under no impression that CAR 228 had been considered by anyone other than Mr Boys (who was not employed or qulaified to provide legal advice). In his advice Mr Sherman makes no suggestion that the CAR 228 matter had been considered by any external or internal lawyer (as he does, for example, in relation to CAR 282). In fact he suggests the contrary. After referring to CAR 282 and the legal advices in relation to that matter he says:
“There remains however the question of the application of Regulation 228…”.
11.“In relation to the Brindabella investigation we know that Mr Boys did commence an investigation but was taken off the inquiry and the files were removed from his possession… he was basically sidelined on the matter…”.
This in not correct. The investigation of the Brindabella incident which was commenced by Mr Boys and conducted by investigator Enders was fully completed and a final investigation report was produced by Mr Enders and sent to Mr Boys who then sent it to Mr Farquharson.
Mr Boys was not sidelined in relation to the investigation. The investigation was conducted in the normal manner (except for the irregular way in which it was commissioned by Mr Foley) and the reporting arrangements did not change how the investigation was conducted. In relation to Uzu, Mr Boys was not marginalised as suggested by Senator O’Brien. The fact that the matter was not formally referred to him is not unusual as such a matter would generally not have been referred to him where the pilot was someone other than Mr Toller.
12.“We also have missing evidence, changing stories, an apparent backdating of a maintenance release coming to the aid of Mr Toller and irregularities in advice from Mr Sherman…”.
The missing note is not new and was never hidden. But it had nothing to do with Mr Toller. The other suggestions in this comment from Senator O’Brien are incorrect. In particular his suggestion that there were “irregularities” in Mr Sherman’s advice. There were no irregularities in Mr Sherman’s advice and Senator O’Brien has not shown any irregularities. Mr Sherman is a highly respected lawyer, a former Chairman of the National Crime Authority and a former Deputy Secretary of the Attorney-General’s Department and a former Australian Government Solicitor. To suggest that Mr Sherman did not know what he was doing or was somehow misled (even though he had all the files, all the legal advices, Boys' views and all the facts) is simply taking the conspiracy theory to an absurd extreme and unjustifiably impugns a lawyer of the highest integrity.