Old 5th Mar 2013, 02:55
  #1217 (permalink)  
Join Date: Apr 2007
Location: Go west young man
Posts: 1,732
Reopening the investigation is key!

Kharon said:
Before any of this – 'Renta Judge' should be contacted and an independent hired; given a couple of industry analysts, a couple of good lawyers, three or four Goffas and a brief to examine the legality of CASA actions, encouraged to prosecute the blatant outrages inflicted on industry. Give the political support required to weed out the rubbish gathered behind shrubberies and such. Even when it gets shipped off to WA to hide behind the remote pot plant thickets, safe from letters of outrage, protest and personal legal challenges.
Yep “K” totally agree a ‘Judicial Inquiry’ is the minimum that is needed to uncover all the lies, corruption and malfeasance that has been the accepted culture within the halls of FF for more than a decade!

However does the Senate have enough parliamentary/legal clout to circumvent Albo’s circus troupe to instigate a ‘Judicial Inquiry’?

Or does it just fall into the report as a committee recommendation calling for a “JI”? If that is the case then may I suggest that like the last inquiry it will become part of Albo’s growing shelfware on all things aviation related and all Albo will do, with a pending election, is instigate yet another deckchair shuffle to appease the masses..a total WOFTAM!

On the Senate Committee trying to force Beaker to reopen the investigation, it would appear that the TSI Act itself has no provisions for that but the Annex 13 does although it is somewhat obscure in the wording :
Re-opening of investigation

5.13 If, after the investigation has been closed, new and
significant evidence becomes available, the State which conducted
the investigation shall re-open it. However, when the State which conducted the investigation did not institute it, that State shall first obtain the consent of the State which instituted the investigation.

However there has been precedent set in the past where the bureau has reopened investigations on ‘new evidence’, usually because of findings in the conduct of coronial inquests.

One high profile investigation that comes to mind is the Spencer Gulf Whyalla fatal accident. There was also the Toowoomba C90 investigation which was reopened after the TSI Act was enacted. Here’s the legal justification for reopening that investigation:
In September 2005, a coronial inquiry into the accident was commenced. During that inquiry, new information was brought to the attention of the ATSB. As a result of this new information, the ATSB formally reopened the investigation on 11 November 2005 in accordance with Paragraph 5.13 of Annex 13 to the Chicago Convention through Section 17 of the Transport Safety Investigation Act 2003, to assess the matters raised and their significance to the original ATSB investigation findings.

Section 17 used to read:
17 International obligations
(1) The Executive Director must ensure that the Executive Director’s powers under this Act are exercised in a manner that is consistent with Australia’s obligations under international agreements (as in force from time to time) that are identified by the regulations for the purposes of this section.
(2) In exercising powers under this Act, the Executive Director must also have regard to any rules, recommendations, guidelines, codes or other instruments (as in force from time to time) that are promulgated by an international organisation and that are identified by the regulations for the purposes of this section.

Note: Interestingly enough section 17 since that time has been binned i.e. gone, eradicated, omitted. Which I assume means that the bureau technically has no longer any legal obligations to ICAO Annex 13. Which could be how Beaker and co intend to wriggle out of reopening the Norfolk Pel-Air investigation.

However more recently (within Beaker’s tenure and after the promulgation of the TSI Act) there was the Benalla Piper Cheyenne CFIT investigation, from the amended report:
In July 2008, during the subsequent coronial inquest, additional information about the possibility of dead reckoning navigation by the GPS receiver was provided. The ATSB investigation was reopened to examine that possibility and an amended report issued.

That investigation found that dead reckoning navigation could not be positively established as there were inconsistencies between dead reckoning principles and the recorded radar data. Neither could it reconcile how a pilot would continue navigation by GPS with the alerts and warnings provided by the GPS receiver and the instrument indications. As a result of the reopened investigation, the ATSB issued a safety advisory notice alerting users of GPS navigation receivers to take appropriate action to ensure familiarity with dead-reckoning operation and any associated receiver-generated warning messages.

So there is precedent set in recent years for reopening investigations, which in the case of Benalla was based on a theory presented by an expert witness in the course of the coronial inquiry.

However all this does is bring the Pel-Air matter full circle and back in the hands of Beaker to reopen the investigation. Is he ever going to do that? Not on your life the guy obviously has no morals and stands to lose a lot more than he could gain by doing so. Not to mention that FF (just like in the LHR investigation and inquest) would be straight out there bleating ‘conflict of interest’..blahblahblah!

So what are the Senators options (hopefully they’ve got plan B..C..D)?

One option could be…

Section 63 of the TSI Act reads;

“63 Powers of Parliament and Royal Commissions not affected

Nothing in this Part affects the information-gathering powers of:
(a) the Parliament or a House of the Parliament; or
(b) a Royal Commission.”

so maybe they could conduct their own (re)investigation without the ‘scoping’ and with the assistance from an ICAO signatory state (NTSB or AAIB would be my choice). This could include lifting the OBR and FDR, so creating/gaining new evidence which fits the purpose of ‘Annex 13 para 5.13’.

The mind boggles but I’m pretty sure the good Senators are definitely working on plan B and even ‘scoping’ out plan C!

Once you get the investigation reopened, coupled with the information gathered from the inquiry, the potential ramifications internationally alone would be enough justification for the government to call for, at least, a ‘Judicial Inquiry’ into the maladministration of aviation regulation and safety in Oz!

Sarcs is offline