Merged: Senate Inquiry

[Sarcs]

Part two – Addendum

Kharon:

If the AFP investigation and the Canadian audit turned up the same conclusions; possibly two things would happen (1) the minuscule would 'sit' on the CTSB report (2) the AFP information prompted Heffernan, Stearle and Xenophon to bring on the MoP.

Before we can move on to Part three (i.e. through the eyes of the AFP) couple of loose ends need addressing…


Previously: For better or for worse the ATsB, in keeping with the newly minted 2010 MoU, have given FF a heads up on a CSI, that would in a normal course of events (& anywhere else in the world) have progressed to the promulgation and publication of an SR. However as history will show this never happened. It would be a further 917 days ('heads up' correspondence 26/02/10 to Final Report 30/08/12) before anyone outside of the bureau, FF and PelAir were any the wiser on any identified safety issues from the Norfolk ditching investigation :

Fuel planning and en route decision-making

Oversight of the flight and its planning

This would definitely have caused the TSBC some consternation, as it is not their SOP for dealing with identified safety issues (they’re very much in the SR camp). Nor does it reflect the spirit & intent of ICAO Annex 13. So definitely no tick there…

Following the chain of the 26/02/10 ATsB CSI ‘heads up’, the TSBC would have also been bemused( & probably quite disturbed) to have read the response correspondence dated 26 March 2010, especially when FF referred to the bureau correspondence as a DRAFT transport Safety Report for AO-2009-072…

Reference pg 38 - Answers to questions taken on notice on 21 November 2012, in Canberra;(PDF 4052KB)
Dear Mr Sangston

I refer to your letter dated 26 February 2010 regarding draft Transport Safety Report AO-2009-072.

CASA's comments on the safety issues raised in this report are attached.

Please contact John Grima,

Yours sincerely

Richard White

Manager Accident Liaison and Investigation Unit

Nowhere is it stated in the bureau correspondence that the notified CSI was intended to be a DRAFT version of the TSR AO-2009-072, so what were FF playing at?? Actually, I believe, it to be a very clever (but devious) legal move by FF…

In the TSI Act under s25 (Reports) it states…

..(2) The ATSB may, at any time before an investigation has been
completed, publish, by electronic or other means, a report in
relation to the investigation if it considers that the publication of
the report is necessary or desirable for the purposes of transport
safety.
(3) A published report may include submissions that were made by
persons to the ATSB in response to a draft report, safety action
statements or safety recommendations.
(4) A published report must not include the name of an individual
unless the individual has consented to that inclusion...”

And in s26 (Draft reports) it states…

(1) The ATSB may provide a draft report, on a confidential basis, to
any person whom the ATSB considers appropriate, for the purpose
of:
(a) allowing the person to make submissions to the ATSB about
the draft report; or
(b) giving the person advance notice of the likely form of the
published report.

{Comment: I will leave this to the legal eagles (as it is probably a grey area legally & FF LSD are more than likely taking the piss with the definitions) but for this knuckledragger the fact the bureau have not contested the FF assumption, that this was a DRAFT TSR, effectively ceded control of the identified CSI to FF. Again the bureau was outplayed & out manoeuvred...}

You can read the rest of the FF reply at your leisure but from the TSBC perspective the debate that ensues thereafter should never have been conducted the way it was. MoU or not, the investigation team should not have been subject to defending their findings, & identified safety issues, prior to the publication of a safety recommendation (as per ICAO SOP). This is tantamount to interfering with an investigation under the jurisdiction of the State recognised (& supposedly independent) AAI and is a serious breach of international conventions i.e. Annex 13 & now Annex 19.

These breaches are best summarised by Mr Bryan Aherne in one of his supplementary submissions (PDF 856KB) (which again the TSBC would be privy to):

3. Evidence:

a) Outcome Bias.

Email from Martin Dolan to ATSB Investigator and General Manager Investigations written 10 February 2010:

Thanks very much for this. My discussion yesterday with John McCormick gave me some confidence that CASA was looking for systemic answers and amenable to our approach. Since then CASA has changed its rhetoric and seems to be hardening its view that there has been a regulatory breach that needs to be addressed.
I think it would be helpful if you and other addresses could meet with me so that we agree the best way to manage our relationship with CASA in the course of this investigation.

Analysis:
It is very clear that the ATSB had decided on a systemic investigation approach but that simply because CASA changed its rhetoric the ATSB did too. This is evidence of a weak State safety investigator that allowed itself to be influenced by the regulator whose shortcomings may have been exposed in any systemic investigation.

b) Prejudice and Outcome Bias

Email: Wednesday 18 August 2010 From CASA Officer to Director of Aviation Safety and Deputy Director of Aviation Safety
Re: ALIU Accident report Norfolk Island ditching VH-NGA

The above referenced report is now complete………….I have discussed the report with the ATSB and there are no differences in the key areas which will eventually be published by them in their report. I have aligned the report with the submission made by …our Westwind FOI Subject matter expert in yesterday’s AAT meeting.

Analysis: For CASA to have confidence that there would be no differences from the key findings (made by CASA) in an ATSB report which was still two years away from being complete is strongly suggestive that a meeting of the minds had occurred and an outcome agreed. This is evidence of prejudice and outcome bias.

c) Lack of independence of the ATSB and its investigators

Email: 6 August 2012. ATSB officer to General Manager Investigations

…Many of my arguments that have been rejected have been ones where I have applied safety management methods and tolls and those arguments have been rejected by a reviewer who looks from a regulatory viewpoint instead….To make useful comments on these matters relies on a belief in and use of contemporary safety management theories and methods. To me this was particularly evident when CASA’s Norfolk Island audit report came into our hands and some of the arguments I had tried unsuccessfully to include in the report were subsequently included on the basis of CASA’s findings not mine! When I have to rely on CASA’s opinion to persuade the ATSB how can I claim that the ATSB is independent when it investigates CASA?

Analysis: This shows that the ATSB undermined the independence of its investigator. It also shows that the ATSB is unduly influenced by CASA or it shows a crisis of confidence at the ATSB. Either way the ATSB is clearly not independent of CASA.

d) Breach of International Conventions

Australia is a signatory to article 37 of the Chicago Convention, ICAO, Part IV International Standards and Recommended Practices.

As such, three International Standards (International Standards are defined as 'shall', International conventions intend to foster standardisation, consistency and efficiency and when it comes to safety- shared learning) under Annex 13 have not been complied with, namely Annex 13, 5.4 which states:

"The accident investigation authority SHALL have independence in the conduct of the investigation and have unrestricted authority over its conduct, consistent with the provisions of Annex 13"

It is also worth noting (again) that now under Annex 19 it is the responsibility of the State to…

“..In the operation of the SSP, the State maintains the independence of the accident and incident investigation organization from other State aviation organizations…”

Hmm…Part three to follow!