For my sins (trying to puzzle out a Sarcs question on the TSI Act) I strayed into section 25A of that Act; David Fawcett and his 'closing the loop' questions and remarks must have triggered some kind of subconscious thinking pattern which has been demanding answers for a while now. Anyway - 25A Responses to reports of, or containing, safety recommendations.
First glance at 25 A you may be forgiven for thinking well, here's horsepower, for when a safety recommendation is issued there are rules which must be followed. The natural question which jumps out is with the requirement to respond cast in stone, why then are there so many open loops? and there are a lot. There is a PAIN report (thanks P7) which examined in some detail Coronial recommendations from fatal accidents over a ten year period, contained within and examined by that report were those issued by the ATSB related to the case.
Now CASA may with impunity politely ignore the coroner and they do; the record of actually 'closing the loop' on coronial recommendations is 'slim' – possibly anorexic. But the ATSB have, through the Act, actually got some real clout. Why is this not used? I wondered.
Being a legal dunderhead it took me a while grasp the Oh so subtle escape paths; but even those may be effectively blocked by a determined "Commissioner"; one not so determined could cooperate, for within the work of the Word Weasels, for there is a mile of wriggle room. For example:-
25A Responses to reports of, or containing, safety recommendations
(1) This section applies if:
(a) the ATSB publishes a report under section 25 in relation to an investigation; and
(b) the report is, or contains, a recommendation that a person, unincorporated association, or an agency of the Commonwealth or of a State or Territory, take safety action.
(2) The person, association or agency to whom the recommendation is made [must give a written response to the ATSB, within 90 days of the report being published], that sets out:
(a) whether the person, association or agency accepts the recommendation (in whole or in part); and
(b) if the person, association or agency accepts the recommendation (in whole or in part)—details of any action that the person, association or agency proposes to take to give effect to the recommendation; and
(c) if the person, association or agency does not accept the recommendation (in whole or in part)—the reasons why the person, association or agency does not accept the recommendation (in whole or in part).
(3) A person commits an offence if:
(a) the person is someone to whom a recommendation is made in a report published under section 25; and
(b) the person fails to give a written response to the ATSB within 90 days setting out the things required by paragraphs (2)(a), (b) and (c) (as applicable).
Penalty: 30 penalty units.
Intriguing, the part highlighted [in brackets] despite all the sound and fury and penalty unit threats simply requires that 'a response' be given.
E.g. ATSB recommendation - "Pilots will wear one green and one red sock".
To which CASA respond "this is silly, we reject your recommendation". (Shades of Python).
Which leaves the ATSB up a pole; CASA have 'responded' which is all that the 'law' requires. Now it may be that the result of an expensive, properly conducted, expert investigation has identified a string of valid reasons for making the recommendation, explained the detailed reasoning, examined the evidence, exposed the holes in the cheese and clearly demonstrated, beyond a reasonable doubt, that socks cause accidents. To whom and where do ATSB go next to appeal their case and get a reasonable ruling. The short answer is nowhere; they're stuck with it. Which of itself is passing strange.
Part of the answer (IMO) may lay within the very Acts which govern such matters and gave rise to the risible MoU. BUT the 'law' is there and it becomes very much a matter of the 'will' of the Commissioner how much 'law' will apply. It is interesting to (a) study the amount of SR which have not been issued during the Dolan regime of beyond all reason; and, (b) the amount of recommendations which are not 'fully' addressed (in limbo); (c) the changes to MoU; (d) the changes in Commissioners independent 'powers' and; last but not least (e) the volumes of un-addressed recommendations which, if we were not playing at silly buggers may, conceivably, have prevented repeat accidents similar in nature.
My own favourites are the ones from 10 or so years ago which were to be 'addressed' through the "new" legislation, coming soon. Bollocks, plain, pure, unmitigated, undiluted Bollocks.
Fawcett nearly got there you know; so close but, alas, no cigar...
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It's deep, but there you go Brother Sarcs; it is, I believe my turn to set the puzzle and ask the questions (of which there are many)....
Toot...
...toot....
SIUYA "If recent NSW ICAC 'results' are anything to go by TB, hopefully an invitation to a giant arse-kicking party, a very public DCM, and perhaps some time in the 'big house'."
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