Glen Buckley and Australian small business -V- CASA

[AerialPerspective]

Originally Posted by Paragraph377

The Loyola bull**** artist J.A. Glen, what you created within your business was a good example of outcome based regulation, a way to safely operate and manage a business without abiding by prescriptive methodology. However the loopy lawyer didn’t subscribe to your methodology did he? Anyway, he is a wordsmith and full of ****, and this softly softly nice guy video is not a true picture of what the bearded weasel is really like. He has thrown a number of CASA DAS’s under the bus, and the way he did it so publicly to Spence in the Senate is a prime example of how this two-faced maggot operates.

Haha, I just watched the intro to the video - what an utter pile of festering crap. Basically, abrogation of any responsibility - you can do what you want as long as this happens. I have to ask if American Airlines' 'inventive' way of achieving the 'outcome' of an engine change on DC-10s using a fork-lift instead of the recommended procedure was something that CASA wants - no one at the FAA balked at their process because it appeared to achieve 'the same outcome' but then engines started falling off aeroplanes.

[glenb]

Allegation of Misfeasance in Public Office- Introduction

To ensure that after 4 years, I have given CASA every opportunity to initiate an investigation into the conduct of Mr Aleck, I will shortly submit a formal allegation of misfeasance in public office. If my allegations were proven correct, it would have the potential to impact on the safety of aviation, so I am publishing it hear in its draft form to solicit any feedback, as i feel this matter is in the public interest. My email is [email protected] or post any feedback on here as you feel appropriate.

I will make 19 posts as each component is completed. The next post will be Post One. In that post you will see the index to each of the components.

Hope that makes sense, cheers. Glen

[glenb]

Misfeasance Part One

Complaint of professional misconduct by a CASA Employee. Specifically, an allegation of “Misfeasance in Public Office against Mr Jonathan Aleck, Executive Manager Legal, International and Regulatory Affairs.”



My name is Glen Buckley.

I am submitting an allegation of Misfeasance in Public Office against an employee of CASA. This document is divided into the following components, in support of that allegation of misfeasance.



1. Introduction/The allegation

2. Misfeasance in Public Office

3. First Element-Holder of Public Office

4. Second Element-Exercising a Public Power that was an incident of that Office

5. Must the Public Officer owe the plaintiff a duty with respect to the exercise of power.

6. Third Element- The Exercise of Authority must be invalid or otherwise lacking lawful authority.

7. Fourth Element- The “Bad Faith” mental Element

8. Can the Commonwealth be vicariously liable for the misfeasance of its employees?

9. Commonwealth liability for ministerial misfeasance?

10. Importance of an early and vigorous assessment of an allegation of misfeasance.

11. Damages

12. Assisting Commonwealth Officers, other than Ministers

13. Assisting Commonwealth Ministers

14. Reducing the risk of misfeasance claims

15. The need to report misfeasance issues as significant claims

16. Preference for CASA to investigate this allegation.

17. Considerations of Mr Aleck remaining in the role.

18. Why would Mr Aleck target Glen Buckley

19. Summary/conclusion





















1. Introduction and the allegation

In submitting this allegation, I am submitting it as the person most affected by the conduct, actions, and decisions of CASA employee, Mr Jonathan Aleck, although I am not the only individual or entity affected by Mr Alecks deliberate and considered conduct, actions, and decisions.

This is not an allegation of oversight, innocent error, or negligence. This is an allegation of misfeasance in public office made directly against Mr Aleck, Executive Manager of Legal, International and Regulatory Affairs with the Civil Aviation Safety Authority (CASA). The CASA organisational chart can be accessed here. About CASA | Civil Aviation Safety Authority

Mr Aleck has been with CASA since 1993 and served as the Head of the Legal Department of CASA for over two decades. He is the longest serving, and second most senior CASA Executive within CASA.

I respect that an allegation of misfeasance in public office is difficult to prove because of the burden to demonstrate that a person was making decisions not only unlawfully, but also in bad faith.

Not only is an allegation of misfeasance in public office difficult to prove, I respect that statistically it is highly unlikely to occur.

CASA has approximately 1000 employees, almost without exception, every single one of those employees walk into the workplace each day and act professionally and with good intent.

It is feasible and must be considered that just one of those 1000 employees may choose, not to enter the workplace and act professionally and with good intent on every occasion.

It is feasible that the same employee, may act professionally and with good intent on most occasions, but on selective occasions, and towards certain people, he may choose not to.

If that same Employee holds significant power, combined with ill intent, there is the potential to bring significant harm.

Any allegation should be robustly investigated, particularly in cases where so much harm has been caused, and the decision maker is the sole decision maker, and has no supporting safety case to justify his decision making.

That is my allegation. An allegation of Misfeasance in Public Office, targeted malice

I am aware of that high threshold, but I am fully satisfied that may be a highly unlikely scenario to an outsider, although the possibility must be considered, and especially if the decision makers decisions are not open to scrutiny within the organisation, and the individual wields enormous power, including the power to close businesses down as he did with mine.

Any action taken by any single Government employee alone that has such impact must be open to the highest levels of scrutiny.

[glenb]

Misfeasance Part 2

1. Misfeasance in Public Office

The purpose of this correspondence is to formally submit allegations of Misfeasance in Public Office in support of my presentation to the Senate Estimates Committee on November 20th, 2020. A link to that presentation can be accessed here on AOPAs website Senate RRAT General Aviation Inquiry Commences – AOPA Australia

In submitting an allegation of misfeasance in Public Office, I have carefully considered this matter, and I am fully satisfied that my complaint is valid.

My understanding of misfeasance is drawn from significant research on the topic, and legal guidance, but perhaps the most pertinent document at this stage, is information from the Australian Government Central Legal Services (AGS) website Briefing 115 accessed via here. Legal briefing No. 115 | AGS

That Government document identifies the elements to an allegation of misfeasance in Public Office.

That document also draws from determinations made in the High Court, where Justice Deane determined that misfeasance in public office requires an intentional but 'invalid or unauthorised act' to be committed 'by a public officer in the purported discharge' of their public duties which causes loss to a person.

It requires that the person committing the act, did so deliberately.

In making this formal allegation I understand that the following criteria identified by Justice Deane and the AGS Document are essential in making that allegation. I am fully satisfied that the stipulated criteria have been met, and shortly I will address these criteria in detail, they are:

· The defendant must be the holder of a Public Office.

· The defendant must have purportedly exercised a power that was an incident of that office.

· The defendant's exercise of power must have been invalid/unlawful.

· A Duty of care is owed with respect to exercise of the power.

· The exercise of power must have been accompanied by one or other of the following forms of 'bad faith':

•  
  • The defendant must have exercised the power knowing that he or she was acting in excess of power AND with the intention to cause harm to the plaintiff (sometimes referred to as targeted malice)
  • The defendant must have been recklessly indifferent to whether the act was beyond power AND recklessly indifferent to the likelihood of harm being caused to the plaintiff
  • The defendant must have acted with reckless indifference to whether the act was beyond power AND there must have been, objectively, a foreseeable risk of harm to the plaintiff. This third form of bad faith is very controversial.
  • The exercise of power must have been productive of loss.

I will attend to each of the elements identified in that AGS Briefing, in submission of this document.

I will not include every piece of relevant information. This document is intended to provide you, or the relevant person, sufficient information to conduct an initial assessment as to the validity of the complaint and assist in a determination as to whether this complaint warrants further investigation, and a requirement for me to supply further evidence, ideally initially, by way of a face-to-face meeting.

I fully appreciate the substantive nature of these allegations. I also fully accept that if my allegations were found to be vindictive or vexatious, or without substance, I would be held fully liable, as I should be.

In considering whether to submit this complaint, I have considered the following, and the potential to impact the safety of aviation if the allegations that I and others have made, were investigated and found to be substantiated.

· Employees of CASA, like all Government employees occupy positions of trust. They are entrusted by the Government and the community to undertake important aviation safety work on the community’s behalf. With this trust comes a high level of responsibility which should be matched by the highest standards of ethical behaviour from every employee of CASA. If the standards of ethical behaviour are compromised, there is the potential to negatively impact on the safety of aviation.
.

· These obligations placed on every employee of CASA by way of administrative law, criminal law, legislation, and CASAs own procedures, are intended to provide the public and industry with confidence in the way CASA employees behave, including in the exercise of authority when meeting the responsible Ministers objectives. A strict adherence to these obligations will ensure CASA has a safe, well intentioned, and effective organisational culture, and ensure that its employees act lawfully, which will optimise aviation safety. If a CASA employee deliberately chooses to bypass these obligations, there is the potential to negatively impact on the safety of aviation.

The obligations placed on every CASA employee are found across several documents but not limited to the following. In a situation where an employee chooses to ignore these obligations, there is the potential for the safety of aviation to be impacted.

1. CASAs own Regulatory Philosophy. Our regulatory philosophy | Civil Aviation Safety Authority (casa.gov.au)

2. The Public Governance, Performance and Accountability Act 2013. This in particular is one area where a direct link exists between specific legislative obligations and the Code. The PGPA Act provides, through the duties of officials, a set of expected behaviours necessary for high standards of governance, performance and accountability. Public Governance, Performance and Accountability Act 2013 (legislation.gov.au)

3. CASAs Enforcement Manual which attends in significant detail to the principle as well as the procedures of CASAs enforcement processes. Enforcement Manual (casa.gov.au)

4. CASAs Enforcement Policy. Enforcement action | Civil Aviation Safety Authority (casa.gov.au)

5. The APS Code of Conduct

In November 2013, the Deputy Prime Minister at the time announced an independent review of aviation safety regulation. One of the recommendations of that Review was that “CASA adopts the Code of Conduct and values that apply to the Australian Public Service”.

CASA agreed to this in principle and advised; “The Governments new Statement of Expectations to the CASA Board will reaffirm the requirement that CASA Staff adhere to a Code of Conduct and set of values consistent with those that apply to the APS.”

In the Implementation Report dated 31st July 2017, CASA advised that this matter was “Completed: The latest update to the SOE issued to the CASA Board in March 2017 continues to require CASA to have a code of conduct and values consistent with those of the Australian Public Service. CASAs Code of Conduct was amended in late 2014 and aligns with the APS Code of Conduct and Values.”

If by some “technicality” CASA claim that they are not obligated to act in accordance with the APS Code of Conduct and Values, the reasonable community expectation is that the nations aviation safety authority would operate to standards that are at least the equivalent of those standards for other Government departments, and perhaps even to a higher expectation.
6. Administrative Law, Natural Justice Procedural Fairness, and the Rule of Law

[glenb]

Misfeasance Three, Four, Five

3 .First Element-Holder of Public Office



· This element will not be in contention. Mr Aleck is CASAs second most senior, and longest serving member of the senior management. He is the CASA Executive Manager of Legal, International, and Regulatory Affairs.

· Mr Aleck was the sole decision maker in my matter.

· These facts most likely would not be disputed by CASA. If they are disputed, could I ask that the CASA CEO Ms Pip Spence clearly identify that to me.



4. Second Element-Exercising a Public Power that was an incident of that Office

· This element requires that Mr Aleck was exercising a public power.

· Mr Aleck was exercising his “public power” repeatedly throughout the eight months as the CASA Executive Manager of Legal International and Regulatory Affairs.

· These facts would not be disputed by the CASA CEO, Ms Pip Spence.





5. Must the Public Officer owe the plaintiff a duty with respect to the exercise of power.

· Mr Aleck in his role has a public law obligation to act in the public interest. He has a duty of care not to abuse his powers.

· Mr Aleck has a Statutory Duty to exercise CASAs statutory powers lawfully, reasonably, and in good faith for the purposes for which those powers were given, and for a proper purpose.

· Mr Aleck has a common law duty to take reasonable care in the exercise of CASAs statutory powers.

· Mr Aleck has a common law duty not to exercise CASAs statutory powers in such a way as unlawfully and intentionally to interfere with trade or business.

· Mr Aleck had a common law duty not to act beyond power, intending to cause harm.

· Mr Aleck cannot improperly use his position to cause detriment to another.

· These obligations placed upon CASA would not be disputed by the CASA CEO, Ms Pip Spence.

[Paragraph377]

Originally Posted by AerialPerspective

Haha, I just watched the intro to the video - what an utter pile of festering crap. Basically, abrogation of any responsibility - you can do what you want as long as this happens. I have to ask if American Airlines' 'inventive' way of achieving the 'outcome' of an engine change on DC-10s using a fork-lift instead of the recommended procedure was something that CASA wants - no one at the FAA balked at their process because it appeared to achieve 'the same outcome' but then engines started falling off aeroplanes.

Aagh, yes, a horrific accident that could have been avoided had the ‘CASA methodology’ been used in the USA - ban DC-10’s, aircraft engines, forklifts, engineers and pilots from operating airside altogether!

[Lead Balloon]

Mr Aleck was the sole decision maker in my matter.

I predict that Dr A will argue that he made no decisions about APTA, other than on the content of the text which was copied and pasted by White into his email to APTA of March 19. I predict that Dr A will argue that it was up to Mr White to make the operational decision whether to accept the implications of what was sent to him.

The fact that White copied and pasted that text and stated that he “agreed with” Dr A suggests to me that White was confused about who was advising whom and deciding what. When someone is given legal advice and a suggested strategy, it’s not up to the recipient to “agree” or “disagree” with the advice. It’s up to the recipient of the advice to decide whether to accept its implications and then decide what action to take as a consequence.

If White points at Dr A and says: “The content of the March 19 email was all your idea”, I predict Dr A’s response will be: “No. It was up to you to decide what, if anything, to do about what was sent to you.” Dr A is rarely silly enough to make operational decisions.

In any event, the gist of the requirements set out in the March 19 email have not been found to be unlawful. There was some bollocks in the verbose language, but the gist was a requirement for APTA to demonstrate the means by which APTA would exercise legal and effective control over all of the wandering cats at the ‘alliance’ ‘bases’.

APTA was led up the garden path by the earlier decisions to approve variations to APTA’s AOC to cover the addition of ‘alliance’ ‘bases’ without APTA having to satisfy the requirement set out in the March 19 email. I’ll bet leftie that Dr A had nothing to do with those earlier decisions.

Another aspect is that the word “decision” means many things to different people. If you’re going to allege Dr A was the “sole decision maker” in “your” matter and the decision/s was/were motivated by malice, you have to state what the decision/s was/were. For example, I’ll bet leftie that Dr A never made any decision to refuse something for which APTA applied. The March 19 email imposed a requirement for more information. It was not a refusal. And one of CASA’s standard tricks is to avoid making a decision, for which the decision-maker would be accountable, by requiring more information in the course of the process. In APTA’s case, as a matter of practicality the requirement drove you to despair and broke but CASA will say the requirement it imposed was lawful and, at the point you were driven to despair and broke, CASA had not made a final decision.

So I’d suggest you state, precisely, the “decisions” you reckon Dr A made that were motivated by malice. And “Dr A decided to shut me down” or “target me” is not a decision which, of itself, would have any effect on APTA’s or your interests.

“Dr A decided to refuse APTA’s application for….

“Dr A decided to give deliberately misleading advice, to the effect that [….] to […].

“Dr A decided to give deliberately misleading information, in the form of […], to […].

“Dr A decided to make a voodoo doll in my image and stick pins in it.”

Or whatever.

And I think you have to confront the implications of an issue I raised earlier: APTA was the entity with the AOC, not you. I suggest you try to make very clear whether you’re alleging a duty was owed to you, personally, or to APTA or to both. Remember: You and APTA are different people, APTA still exists and is still (from what I can tell) a functioning business.

(You might have already dealt with these issues in later parts of your draft material?)

(If you’re on the AGS website again for any reason, search for “negligent misstatement” and “government authority”. Just sayin’….)

[glenb]

Lead balloon

I sink I lub You

[Sandy Reith]

Advice

Glen, hopefully LB’s comprehensive and detailed advice, obviously with depth of legal knowledge, will help in the quest for fairness and recompense.

Your exemplary persistence is inspiring and I think you have full support from virtually all GA people who know what has happened to you.

[glenb]

Misfeasance Six- Lawfulness and Validity (Part A)

6. Third Element- The Exercise of Authority must be invalid or otherwise lacking lawful authority.

Fundamental to this entire matter is that Mr Alecks decision making is not supported by any legislation, CASA precedent, or external and independent legal advice. It is the application of his opinion only. Was his decision making, invalid and lacking in lawful authority? I am fully satisfied as the person most impacted, that it was, and that it was not well intentioned.

Mr Aleck holds significant power within CASA. We work in a complicated and often confusing regulatory environment. In such an environment there is the possibility for those rules and regulations to be manipulated in order to achieve a desired outcome, such as the closure of a controversial business owners business.

He was the sole decision maker as to the legality of my operation.

I am fully satisfied that Mr Alecks actions, decisions and his application of opinion was unfair, unjust, and ill intentioned, but even more than that, it was also invalid and lacking in proper lawful authority.

I emphasise here that this entire matter was a matter of the legality or not, as to the structure that CASA had permitted me to operate with for a decade, and now Mr Aleck determined to be unlawful.

It was not a matter of the organisation being deficient in any way against any identified quality outcomes at all. That in fact what makes the proportionality of this matter so inexplicable.

CASA can close a business because it is either unlawful or unsafe. In my case, there was no safety case, or any concerns ever raised by CASA. CASA closed my business down because Mr Aleck declared it unlawful. That initial notification includes terminology such as “contravention of”, “subject to enforcement action”, “operations not approved ”etc. As the Owner of the Business, I had no idea the notification was coming. No concerns had ever been raised throughout the last 10 years. was shocked and concerned. I immediately had concerns about “intent”.

In the initial notification and in subsequent face-to-face meetings, CASA identified to me that the structure that I had adopted for the last decade since I commenced operations in 2006 was now in October 2018, overnight determined to be unlawful against three regulatory criteria. One from the year 1988, being almost two decades before I even commenced operations, the other from 2006, being the year, I commenced operations and the third was against a regulation that was introduced only two months prior to CASA determining that my operation was unauthorised.

Mr Aleck applied his new interpretation of the legislation to my two businesses. One being APTA, the other being my flying school of 10 years, Melbourne Flight Training. Both were impacted significantly and immediately. I will deal with these matters in detail in the section titled ‘Damages”.

That initial notification was very clear and identified three regulatory breaches that I referred to earlier. CASA used those regulations to place restrictions on my businesses ability to trade.

CASA had clearly advised me that the “structure was not permitted. maybe some time in the future but that time is not now”.

Those alleged regulatory breaches as outlined in that initial notification of October 2018 were.

· CASR 141.050

· The Aviation Ruling and

· CAA s29.

A copy of that initial notification can be accessed here

https://www.dropbox.com/s/k3qn3qdgoa...ation.pdf?dl=0

I will attend to those breaches in that order, and the reasons why I believe that Mr Alecks actions and decisions were not valid, and they were unlawful.

Please understand I am not a lawyer, and I am not presently taking legal advice on this. I am an individual significantly impacted by Mr Alecks actions and decisions, I have limited resources. I am doing my best to convey these matters as clearly and concisely as I can.

With the passage of time, I am confident that Mr Aleck is now aware that his action was unlawful.

The decision that Mr Aleck made was that the structure I, and many others had operated with for over a decade had now become unlawful. I was the first person in Australia to have, what was a previously authorised CASA structure determined unlawful by CASA, and specifically, Mr Jonathan Aleck.

That structure that CASA had always accepted was:

· There was only one CASA Authorisation Holder, operating a Flying School and holding the required CASA Authorisation referred to as an Air Operator Certificate (AOC). Referred to as “Entity A”

· Typically, a regional aero club, “Entity B”, may wish to operate a flying school to deliver flight training. The aero club is run by a volunteer committee, who each have fulltime employment outside of aviation. They have no expertise at all in the complicated regulatory environment of running a flying school.

· Entity B would approach Entity A and ask that Entity A operate a flying school on behalf of Entity B. Entity A being the one and only holder of the CASA Approval to operate a flying school. That being the single AOC.

· This required formal CASA approval by way of an application process. From my experience of 25 years in the industry, this was always formally approved by CASA to every operator on every occasion, as it was with mine throughout its decade of operation. That was, until CASA determined that I was operating unlawfully in October 2018. That is despite CASA fully revalidating my entire structure only 18 months prior.



CASR 141.050 Civil Aviation Safety Regulations 1998 (legislation.gov.au)

This regulation is from the new suite of regulations introduced on September 1st, 2018. CASR 141.050 advises that “a person commits an offence if they conduct flight training and do not have the Certificate or approval to do so”.

My response is very clear on this matter. “No person ever conducted flight training that they did not have the certificate or approval to do. None. Ever.

If CASA believe that is the case, they should be able to nominate the person, date, time, or some other supporting piece of evidence to suggest that ever happened or justify any concerns that it was a possibility to happen.

For CASA to use CASR 141.050 as the basis to place immediate restrictions on my businesses ability to trade, in my opinion, had no basis in law, and was unlawful, and particularly so CASA as have at no stage been able to identify what led them to make that allegation.

In your investigation, could you respond specifically to CASR 141.050 and advise if CASA still claims that I breached this regulation, now that Mr Aleck has had four years to consider this matter.

I maintain that CASA had no valid basis to raise this alleged breach. It was a new regulation being only introduced two months prior, however I was the first person in Australia to have allegedly breached this regulation.

An explanation of CASAs interpretation is a fair and reasonable request. It isa new regulation, it appears to be applied in a very confusing manner, and potentially not as intended. Considering that this was used as a regulation to close by business, the wider industry is also entitled to CASAs interpretation. It has the potential to have significant implications.



The Aviation Ruling

An Aviation Ruling, in its simplest form, is a recommendation from CASA. It does not have a “Head of Power” and is advisory in nature.

The Aviation Rulings were a very discrete document that was not widely known about. In fact, many CASA personnel were not even aware of them. Most of my peers in the flight training industry advised they also were not aware of them. They were very rarely published and were quite industry specific. There had never been an Aviation Ruling that was directed at the flight training industry, therefore the document was not widely known of. In fact Aviation Rulings weren’t addressed in the Air Law syllabus that CASA published, and required to be taught.

Fortunately, the CASA employee that I was dealing with at the time of its release in 2006 bought it to my attention and suggested very early on that I consider the document as I was operating in a multi entity structure under my AOC at the time of its introduction, and some considerations may be relevant to the flight training sector.

They were, and they were attended to by my CASA approved procedures in 2006, and again in April 2017 when my entire structure was redesigned and approved by CASA to meet the new upcoming regulatory requirements of September 1st, 2017 (later postponed 12 months by CASA)

A fuller CASA explanation of what an Aviation Ruling is can be found via the following link. This link also contains a copy of the specific Aviation Ruling that CASA used as the basis to close my business down, and some correspondence from me to CASA questioning its applicability to the Flight Training Industry.

Before proceeding, it is important to understand that there are two very separate and distinct categories of the General Aviation Industry. One being Charter (carriage of passengers and freight), and the other being Flight Training.

They are obviously and understandably, very different categories of the aviation industry.

The Flight Training sector obviously delivers flight training. In our case we were a Registered Training Organisation #22508, delivering a Diploma in Aviation. We are effectively “the school” and like all schools utilise teachers to deliver a syllabus of training, leading up to a flight test, as a prerequisite for entry into the workplace.

The Charter industry is “the workplace”. This is after the flying school once the student has graduated and left. It will most likely be the pilots first job after graduating. They will be earning an income and working as a commercial pilot flying passengers and freight.

These industries are as different as chalk and cheese, albeit that they both utilise aircraft. One environment delivers training to students, and the other is the workplace.

Of course, there is some regulatory overlap, however CASA very clearly identifies and regulates these two industries to significantly different criteria, as would be expected.

The point of this being that the nature of the different industries brings up completely different challenges, and each operates to a completely different regulatory structure. The “school” is fundamentally different to the “workplace”, just as in all industries, and CASA responds to those industries differently, as they should.

It is not reasonable that CASA would use an Aviation Ruling designed for one sector of the industry i.e., Charter to be applied to the other i.e., Flight Training.

The Aviation Ruling was introduced to attend to the Charter industry and not the Flight Training industry. That is the advice that CASA provided to the Flight Training industry, and me personally in 2006 when CASA released the Aviation Ruling.

The fact that Mr Aleck had chosen to use the Aviation Ruling intended for the Charter Industry as the initial basis of the action against me in the Flight Training industry was both surprising and concerning for me. I had immediate concerns about “intent”. It was not a valid document to be using.

After approximately 7 weeks of trading restrictions in place, CASA did concur that it was the inappropriate document to be using and it was “taken off the table”, although the trading restrictions remained in place, despite my protestations, presumably because CASA put such significant weight on the other two pieces of legislation that they used, being CASR 141.050 which I have already attended to, and CAA s29 which I will attend to shortly.

Nevertheless, the trading restrictions stayed in place, and were not lifted.

The background to the Aviation ruling was that a Charter Company, not a Flight Training Company, operating out of Essendon Airport many years ago had its CASA Air Operator Certificate (AOC) suspended by CASA due to questionable maintenance practices. Overnight that Company approached another Operator and continued operating under the other Operators AOC, probably I assume in order to continue operations, and avoid the CASA restrictions.

CASA introduced the Aviation Ruling as a response to that practice in the Charter industry. As to the appropriateness of that response, I have no experience in the Charter industry, so would not be qualified to comment.

The introduction of the Aviation Ruling in 2006, did create initial concern from the Flight Training industry as we sought clarification on the applicability of it, and that is the recollection of my peers in the industry. As a number of Operators including myself were operating in the multi base, multi entity structure, clarification of this from CASA was essential for continued operations.

Whereas two or more operators the Charter Industry may have operated under the one AOC to circumvent obligations, the flight training industry used the structure with full and formal CASA approval for very different reasons.

Often a rural aero club may have facilities, refuelling, aircraft, maintenance, and even have a local junior flight instructor eager to start their career teaching at the local aero club. Unfortunately, due to the Aero Club committees lack of expertise in flight training, they are unable to deliver flight training, they don’t have an AOC, and have difficulty attracting the required Key personnel, who are in short supply, and most especially in rural areas.

More significantly, the Aero Club Committee are not willing or able to hold a CASA issued AOC to deliver flight training. They have no legal ability to deliver flight training. They have no operational control over anything, other than the aero club bar. That voluntary committee does not want to run a flying school, they want to pull beers and run a social aero club.

The Aero club would approach an established flying school who hold the approval and have the expertise, and enter into an arrangement with the flying school, being the sole AOC Holder to deliver operations at the aero club, on their behalf. This was a formal process requiring CASA consent and formal approval. It was commonplace practice.

When operators in the flight training industry entered such arrangements, CASA would have absolutely no involvement or requirements as to the nature of the commercial arrangement between the entities. This requirement placed on me was an industry first. I have absolutely no objection to it, although it was an unusual level of involvement for CASA to become involved in commercial contracts.

CASA would however be heavily involved, and rightfully so, in aspects of safety, regulatory compliance, operational control etc before formally approving that arrangement to proceed.

In such arrangements where a Flying School such as mine did operate a flying school on behalf of an aero club, the Flying School, being the one and only AOC Holder with the one and only group of Key personnel, would take on all responsibility as is specified in the legislation.

In such situations CASA would have negligible engagement with the aero club committee, as they were not mentioned in the legislation. They are effectively a voluntary committee for the running of the aero club as a whole.

All communication with CASA would be with the sole AOC Holder, who was taking on responsibility, and not the aero club committee who are not “Key Personnel”.

This entailed the one and only flying school holding the only AOC, and that AOC Holders Key Personnel, to operate a flying school utilising the Aero Clubs existing infrastructure and resources i.e. junior instructor, buildings and facilities, maintenance facilities, aircraft etc.

Obviously with the one and only AOC Holder being accountable for all operations at all bases conducted under the AOC.

This existing practice in the Flight Training Industry, was permitted to continue uninterrupted after the introduction of the Aviation Ruling in 2006.

The CASA explanation of this matter, and why the Aviation Ruling, did not apply to the flight training industry was:

At the time, the practice of more than one flying school operating under a single AOC in the flight training industry was accepted and formally approved by CASA. CASA deemed that the significant differences between the Charter Industry and the Flight training industry meant that the Aviation Ruling applied to the Charter Industry only, and not to the Flight Training industry. The industry differences were significant enough that it did not apply.

That is evidenced by the fact that many Flight Training operators continued operating in that way, as I did, from its issue in 2006 right through until October 2018, when my structure of more than a decade was deemed unlawful, in part against that 2006 document.

CASA further advised that to clarify that distinction between Charter and the Flight Training Industry, CASA intended to remove Flight Training from the definition of “commercial purposes” in the legislation, although the Charter Industry would remain as a “commercial” operation in the legislation. That would clarify the confusion about the Aviation Ruling and its applicability to the Flight Training sector.

That proposed regulatory change was impacted by the multiple postponements of that legislation by CASA. it was originally scheduled for completion in 2006, although the legislation finally came through in September 2014. The pre and post, 2014 pieces of legislation can be accessed here. https://www.dropbox.com/s/x5td8psqx4...tions.pdf?dl=0

Although the legislation may not have finally been introduced until 2014, CASAs intent was very clear, and CASA made that clear at the time in 2006, that the Aviation Ruling did not apply to the Flight Training Industry.

Irrespective of its applicability or not, I did not breach anything on the Aviation Ruling anyway.

Note that shortly after CASA used it against my business, interestingly, it was repealed by CASA, so can no longer be accessed on their website.

https://www.dropbox.com/s/lewmcp0nas...uling.pdf?dl=0

In the initial notification of October 23rd 2018, Mr Aleck quotes a specific written phrase from the Aviation Ruling, “The AOC Holder at all times remains responsible for the actions of another person conducting operations under the AOC.”

However, Mr Aleck interprets that very clear and concise statement, that I agree 100% with, completely manipulates it and interprets it and applies it to my business in that initial notification as “The Ruling does not permit an AOC Holder to authorise a third-party body corporate to conduct operations under its AOC.

I really don’t know how to respond to this. other than to say. No, it doesn’t. I’m no lawyer, but how on earth can I as the owner of a business be expected to interpret.

“The AOC Holder at all times remains responsible for the actions of another person conducting operations under the AOC.”

as

“The Ruling does not permit an AOC Holder to authorise a third-party body corporate to conduct operations under its AOC.”

The Aviation Ruling does not state that an AOC Holder is not permitted to authorise a third party to conduct operations under its AOC.

In fact, if it did state that then I suggest that the entire aviation industry would grind to a halt. Consider QANTAS or the RAAF, they would regularly have third parties conducting operations under the CASA approval referred to as an AOC. It is a normal way of doing business in the aviation industry.

Therefore, you understand that I question the lawfulness, validity, and intent of Mr Alecks interpretation.

The Aviation Ruling was not the valid document to be using to take such substantive action and close a business. The Aviation Ruling:



· Does not have a “Head of Power”.

• Was written in 2006 for an entirely different regulatory environment. i.e., was written for the CAR 5 regulatory environment that was discontinued on September 1st, 2014, and replaced by the CASR regulatory structure after that date, being over 4 years before CASA closed my businesses
• Was written for the Charter Industry, or what is referred to as Civil Aviation Regulation 206 (CAR206) operation for commercial purposes. CASA themselves determined that flying training was not a CAR 206 operation in September of 2014 and removed it.
• The terminology refers to personnel positions that are in CAR 206 operations, and do not exist in Flying Training organisations.
• On its release the flying schools were advised that in fact it did not apply to them, and that is the recollection of peers in the industry.

The Commonwealth Ombudsman in the Phase One Report advised “Conceptually, I accept CASA's view that the Ruling may reflect broader policy considerations. Nevertheless, in my concluded view there was an administrative deficiency due to an absence of a direct relationship between the activity being regulated and the policy said to regulate it. This gave rise to ambiguity and uncertainty with the potential to cause detriment to those relying on the accuracy of the regime or, conversely, prevent detriment from occurring.

Significant detriment did obviously occur, and that is why I believe that an investigation should be conducted into Mr Alecks conduct.

Of note. In the Ombudsman’s Report of 25th June 2020, the Ombudsman Office also directs a comment towards CASA and states:

“Thank you for your advice that CASA will amend the Aviation Ruling to confirm the intent of the breadth of its application.”

Over two years after CASA gave that commitment to the Ombudsman’s office in June 2020, as at the time of writing in September 2022, CASA has still not amended the Aviation Ruling as they assured the Ombudsman’s office that they would over two years ago.

What CASA has done instead, is withdraw the Aviation Ruling, and not amended any other legislation to counter that removal.

That action alone suggests to me that CASA recognise that they have erred in using the Aviation Ruling as a document in support of the decision that I was operating unlawfully.

I am fully satisfied in my own mind and always was fully satisfied that the Aviation Ruling was not a valid and appropriate document to be using as the basis for closing down my business. The Ombudsman’s findings support my contention, and the fact that has since been repealed by CASA must surely raise concerns as to the validity of using that document. It was very much used as the cornerstone of CASA approach towards me during the first seven weeks, until it was “off the table”.

[glenb]

6B

The Use of CAA S27(8) of the Civil Aviation Act

Civil Aviation Act 1988 (legislation.gov.au)

The third piece of legislation that CASA used to close down the business was Part III Division Two, S27(8) of the Civil aviation act that states.

“An AOC is not transferrable”

CASAs own interpretation of this legislation had always been that an Air Operator Certificate (AOC), can be issued to a Person or a Company, but the AOC cannot ever be “transferred” to a different Person or Company. That is to say, that the AOC and Company it was issued to, can be sold/transferred together, but an AOC cannot be sold on its own. It is not transferable between Companies.

That has always been CASAs interpretation of that legislation. CASA always applied it in that manner.

Mr Aleck took this legislation and manipulated it in a way that he could use it to close down my Business.

I need to be very clear on this. There was only ever one AOC, and that was the AOC issued to my Company in 2006. There was never any attempt by me to sell or transfer my Company or my AOC.

I did not attempt to transfer my AOC. Ever.

Regarding the allegation that I breached CAA s27 (2B) (8). “An AOC is not transferrable”. I absolutely refute that, and CASA has never satisfactorily explained this alleged breach. I do not believe that CASA will stand by that allegation of a breach of the Civil Aviation Act.



The Ombudsman’s Report

Phase One of the Ombudsman’s report was issued on June 25th, 2020.

This was 18 months after CASA initiated the action, and one year after CASA had forced all customers to leave APTA, including my own flying school, and the Business had been dismantled by CASA. The harm had already been done.

For complete clarity, all Members of APTA that had been previously formally approved by CASA had those approvals retracted, and all members including my own flying school of a decade were forced to leave, despite our preference to remain in APTA, as we should have been permitted to do.

October 23rd, 2018, CASA advised that my businesses of more than a decade were operating unlawfully, and that I was subject to prosecution by CASA. By mid-2019, CASA had completed that process of closing the businesses, that they commenced 8 months prior.

There was, and never has been any CASA identified deficiency in any of our quality outcomes. There were no breaches of any of our procedures. No concerns have been ever raised by CASA.

The CASA case was always, and only that I was operating unlawfully and that is repeated by CASA in the recording that was provided to the Ombudsman Office previously. That recording is 6 months after this matter commenced.

June 25th 2020, one year after CASA closed the businesses, the Ombudsman Phase One report was released and the report found that:

· As of October 2016, no Australian legislation prohibited 'franchising' of an AOC, subject only to the exclusivity of the AOC holder’s operational control, and that remained the case as of 25 March 2020.



· There would be no legal or regulatory impediment to Mr Buckley or APTA selling or licencing intellectual property in the form of its AOC exposition to other FTO. And there would be no legal or regulatory impediment to CASA issuing part 142 Permissions on submission of those expositions by other FTO.

Based on those findings by the Commonwealth Ombudsman Office, I am fully satisfied that that Mr Alecks decision making was unlawful and invalid.

For complete clarity. I am fully satisfied that Mr Aleck had no legal basis on which to close my business down. His actions and decisions were unlawful.

That Phase One Report by the Ombudsman can be accessed here:

https://www.dropbox.com/s/0nyon53qll...eport.pdf?dl=0



CASAs own independent external legal advice

Not only does the Ombudsman’s report state that CASA had no legal basis, CASAs own external, independent legal advice also found that there was no regulatory breach, and therefore it must be assumed, Mr Alecks actions, decisions, and opinions were not lawful ones.

Mr Aleck initially sought no external and independent legal advice. Mr Aleck was the sole decision maker in applying crippling trading restrictions.

Months later, after Mr Aleck had acted and placed trading restrictions on the business, and his conduct was called into question, only then did CASA then seek independent and external legal advice. That advice also confirmed that Mr Alecks application of opinion had no legal basis.

As the CASA Industry Complaints Commissioner, you will have access to that advice that CASA received, and I ask that you review that advice in arriving at your determination as to the lawfulness or not of Mr Alecks decision making.

I do not believe that there was a valid reason, or a lawful one.

Mr Aleck did not act in accordance with precedent set by CASA.

Since the commencement of Australia forming an aviation safety body, and throughout my own 40 years industry experience CASA had always and on every occasion permitted the identical structure that I had adopted.

CASA permitted me to adopt that structure for over a decade, until Mr Aleck suddenly determined that it was my businesses that became unlawful in October 2018.

The truth of the matter is that possibly Mr Aleck the CASA Executive Manager of Legal, International and Regulatory Affairs personally only became aware of the structure just prior to October 2018 when he declared that it was unlawful.

It was, however, his own Department that had been approving it for many years prior and formally approving bases etc

“CASA” and its other personnel were fully and formally aware of the structure that I had adopted for approximately one decade. It is ludicrous for Mr Aleck representing the agency CASA to assert to the Ombudsman that CASA had never permitted this structure, and only found out that I had adopted it in October 2018.

If Mr Aleck confirms that CASA was aware, but in fact, he wasn’t personally aware, that would go some way to explaining why I was permitted to operate in that structure for so many years.

The deficiency in communication is very clearly within CASA. There were no deficiencies in my communication with CASA. All forms were completed, all fees paid, and CASA had formally approved bases for many years prior. There were many thousands of pages of documentation between CASA and I over the many years.



Administrative Law, Procedural Fairness, Natural Justice

Consider that throughout this entire process from commencement in October 2018 through until the CASA induced cessation of operations, I did not ever have any right of appeal or review.

Mr Aleck has been the CASA Executive Manager of the CASA legal department for two decades he is responsible for CASAs procedures. He is fully aware and is a Subject Matter Expert (SME) on all matters of legislation and administrative law, in fact he wrote most of those procedures.

If my rights under procedural fairness, natural justice, and administrative law have been bypassed, it is not feasible that it is an error or mistake. It is more likely that it is a considered decision.

I was completely unable to protect myself against Mr Alecks conduct, because CASA was “thinking” about the wording for the contracts for the entire eight months but refusing to make a decision, despite me calling on them to do so.

I did approach the AAT seeking consideration but as “no decision had been made”, that avenue of appeal was not open to me.

CASA have breached Administrative Law obligations specified in CASAs own Enforcement manual particularly with regards to procedures for cancelling, suspending, or varying an Air Operator Certificate (AOC) that can be found in CASAs Enforcement Manual. It is most likely that CASA will try and justify their actions by claiming that it was not a cancellation, variation, or suspension of an AOC. To all intents and purposes, it clearly was. CASA placed a 7 day certainty of operations on the AOC.

Enforcement manual | Civil Aviation Safety Authority (casa.gov.au)

It is important to understand that CASA had formally approved bases to operate under APTA over many years. CASA placed a restriction on the AOC that gave it only 7 days certainty of operations. This notification applied to all bases, including my own that had been operating for over a decade. It too, was given only 7 days certainty of operations.

CASA placed a restriction of 7 days certainty of operations on all of the operations under the AOC. That included bases that had been preapproved by CASA for over 10 years.


Clarification around the Temporary Locations

The specific procedure that I used to facilitate continuing operations for flying schools under an interim approval while CASA processed the application to join APTA was referred to as the Temporary Locations procedure.



The initial notification refers to the Temporary Locations procedure, and that I was using it not vas intended, and that I may be subject to prosecution.



This is absurd. This is the exact procedure that CASA suggested to me and formally approved to do exactly what I used it for and had been doing so for many years.



Initially, this was not my intended procedure.



This was a procedure that CASA suggested to me, worked with me to design to CASAs full satisfaction. CASA then formally approved it, applied it, and audited it.



Surely it must be unlawful, and certainly invalid, if CASA recommend a procedure to be used, I accept their advice, CASA then approve it, and years later they tell me that it is unlawful. To put it mildly, that would have to be considered “being led up the garden path.”



Flying Schools have always been able to use a "temporary locations" procedure.

This was a standard operating procedure for most flying schools. This facilitated flying schools running operations from a different location than their main base, for short term use. All operations were fully embedded into the Company Exposition (previously referred to as Operations Manual). Some examples would be:

• A school usually operates from a busy airport but has a group of foreign pilots are coming for training. Those students are not native English speakers. That Temporary location could be at a less congested base, in order to optimize learning outcomes.
• A Temporary location could be activated as an additional base during periods when the main base is affected by poor weather i.e., Winter.
• Bushfires or another emergency may require a secondary base to be established.
• A Temporary location could be established to access maintenance facilities, buildings etc. and ensure continuity of training etc. etc.

During the APTA design stage I worked with a CASA team referred to as CMT 2. These personnel were well intentioned and had a good grasp of APTA and CASA material.



The project of redesigning every aspect of APTA to both improve it, and ensure it met the new regulatory requirements was an enormous project.



When it came to the discussion around inducting new members to APTA the conversation went something very similar to this, and I have confirmed this with my Technical Writer and other management who were present at the meetings with CASA.



APTA "Once we put in an application for a new base to join us, how long do you anticipate it would take CASA to process the application so that we can activate the base"

CASA "Approximately 6 to 8 weeks, but in the interim you could activate them through a " Temporary locations procedure, while CASA makes their assessment. That will facilitate continuing operations. Besides many of these schools are existing flying schools wanting to operate under APTA, so if they already meet the standard, there is no reason they would not continue to meet the standard, and ideally improve in the future"

APTA; "Can we do that, would you be satisfied with that?

CASA: of course, you already have that procedure in your manuals. The Temporary Locations Procedure!

Note: Our original APTA plan was to have the new member base inactive until fully approved by CASA. In many cases this would have involved fully operating flying schools shutting down for a protracted period, while CASA assessed the application. This option that CASA alerted us to was the ideal solution. It also potentially improved safety as it gave CASA the opportunity to base their ongoing approval on inspecting a fully operational APTA base. My expectation was that this CASA inspection would occur shortly after commencing operations. In fact it took many months for CASA to get around to the inspections and approvals. My expectation was that process would take approximately 6 to 8 weeks. The third base to be approved by CASA actually took CASA almost 12 months to assess and approve. It was fortunate that i had opted for the advice that CASA gave me, in adopting the Temporary Locations procedure, or that business would have been lying idle for 12 months.

So in the design stage we adopted the recommended CASA procedure initially which is extracted from CASAs own guidance material and please make note of that fact, as it will become more pertinent later in this post. We placed that into our manuals and adopted that procedure. Under CASAs very own procedure, that we adopted in our manuals they approved bases under that procedure, so I reasonably felt that CASAs own procedure was acceptable. In November 2017, we underwent a Level 1 CASA audit, being the highest-level audit, and that audit included the bases and no concerns were raised at all by CASA at that time, after all, I was using the CASA recommended procedure.



Surely it cannot be lawful or valid to threaten regulatory action against a procedure that is used as intended, on advice from CASA, which CASA then approve.

[Piston_Broke]

Commenting late re this thread.

Just curious - who do you intend sending this 19 part document to?

Having once been on the receiving end of outside corro as the first point of internal distribution, something lengthy went to the bottom of the "To Do" folder for looking at later - sometimes much later.

The same result I'm sure with the ultimate recipients. Human nature: short attention span.

[AerialPerspective]

Originally Posted by Paragraph377

Aagh, yes, a horrific accident that could have been avoided had the ‘CASA methodology’ been used in the USA - ban DC-10’s, aircraft engines, forklifts, engineers and pilots from operating airside altogether!

I think you've read me the wrong way. I'm saying, it's that sort of crap (that CASA is peddling) that led to the engine falling off the DC-10, instead of proper oversight.

[glenb]

7. The Bad Faith Mental element (A)

1. Introduction/The allegation

2. Misfeasance in Public Office

3. First Element-Holder of Public Office

4. Second Element-Exercising a Public Power that was an incident of that Office

5. Must the Public Officer owe the plaintiff a duty with respect to the exercise of power.

6. Third Element- The Exercise of Authority must be invalid or otherwise lacking lawful authority.

7. Fourth Element- The “Bad Faith” mental Element

8. Can the Commonwealth be vicariously liable for the misfeasance of its employees?

9. Commonwealth liability for ministerial misfeasance?

10. Importance of an early and vigorous assessment of an allegation of misfeasance.

11. Damages

12. Assisting Commonwealth Officers, other than Ministers

13. Assisting Commonwealth Ministers

14. Reducing the risk of misfeasance claims

15. The need to report misfeasance issues as significant claims

16. Preference for CASA to investigate this allegation.

17. Considerations of Mr Aleck remaining in the role.

18. Summary/conclusion


This component may extend over a few posts. I am posting as I complete it. Cheers. Glen.





6. Fourth Element- The “Bad Faith” mental Element



The Fourth Element to an allegation of misfeasance in public office requires that the exercise of power must have been accompanied by one, or other of the following forms of 'bad faith':

•  
  • The defendant must have exercised the power knowing that he or she was acting in excess of power AND with the intention to cause harm to the plaintiff (sometimes referred to as targeted malice)
  • The defendant must have been recklessly indifferent to whether the act was beyond power AND recklessly indifferent to the likelihood of harm being caused to the plaintiff
  • the defendant must have acted with reckless indifference to whether the act was beyond power AND there must have been, objectively, a foreseeable risk of harm to the plaintiff.

I am alleging that Mr Aleck exercised his power knowing that he or she was acting in excess of power AND with the intention to cause harm to me personally. From my own experience, and as the person most affected, I am fully satisfied that Mr Aleck was demonstrating targeted malice, and for complete clarity that is my allegation. I understand that a knowingly invalid and harmful exercise of power is required for me to demonstrate “targeted malice”.

I respect that to prove targeted malice it may require more than the single issue to be the basis of the allegation. To support my allegation of targeted malice, I am alleging that Mr Aleck demonstrated a pattern of behaviour that caused harm, over an entirely unnecessarily protracted period. Mr Aleck has no supporting safety case to support his decision making, and this harm was not actuated by a desire to advance a public interest i.e., safety.

Throughout the eight months with restrictions on the businesses ability to operate, Mr Aleck was fully aware throughout that time of the reputational harm being caused, the commercial harm being caused, and the trauma that would result from his decision making. To ensure that he was fully aware, CASA was notified in writing on multiple occasions by me, the first occasion, as soon as 24 hours after the trading restrictions were first put in place in October 2018.

In support of my allegation as to the bad faith element. It is important to understand a brief background.

For the decade prior to the introduction of the proposed Part 141/142/61 regultory overhaul, I had taken an industry lead on raising concerns. These concerns were raised at various CASA conferences and meetings, and I did obtain some media coverage. In forums where I made comment I put my name to those comments rather than use an “alias”.

Industry peers had warned me that CASA may try to bring harm to me because of comments that I was making publicly. With hindsight, I naively believed that the principles of administrative law, natural justice, procedural fairness, CASAs Regulatory Philosophy, the Ministers Statement of Expectations and other protections would prevent an act of misfeasance. With hindsight, I was clearly wrong.

Ironically, and not directly related to this correspondence, after CASA closed my two businesses, and I obtained employment in the industry as a CASA approved Head of Operations, CASA soon wrote to my Employer, withdrawing their approval for my continuing employment, and advising my employer that my “continuing employment was no longer tenable based on comments that Mr Buckley is making publicly”. Ironically my industry peers had been correct.

Mr Aleck due to his senior role in the legal department and based in Canberra would usually not have any awareness as to the owner and CEO of a flying school. In my previous 25 years in the industry, I had never met Mr Aleck.

Mr Aleck would only have become aware of me, as a result of me raising concerns both through direct correspondence with CASA, and the media attention that I had obtained in the print media including the newspaper, “The Australian”.

My feedback was always well intentioned, well considered, and in accordance with my own philosophy within my own organisation, “if you come to me with a problem, also come with a proposed solution. It doesn’t mean I will adopt it, but we will have considered it”. The point being that my concerns were well intentioned and intended for the betterment of the industry.

Whilst this entire matter will need far more information than I can provide in this document, the industry concerns that I had raised publicly with CASA had centred around the following dot points.



1. The failure of CASA to achieve “clear and concise aviation safety standards” as one of its core functions identified in the Civil Aviation Act. Ironically, it is exactly that failure to achieve clear and concise aviation standards, combined with bad intent that has led to my entire matter. https://www.dropbox.com/s/m1xbgvioy7...0Act.docx?dl=0



2. CASAs Regulation Impact Statement (RIS) regarding the impact on industry. The passage of time had demonstrated that CASA had grossly miscalculated the impact on industry. The RIS was grossly inaccurate, and the industry in its entirety would concur with that. I was of the opinion that any future RIS should be signed off by a senior CASA Executive to ensure accountability and ensure that this did not happen again.



3. The impact of the proposed regulatory structure on the industry, and particularly on those smaller aero clubs and flying schools in rural areas. The passage of time has validated the concerns that I raised, with most of them now having ceased operations because of the increasing burden of the new regulations.



I had also raised concerns about the foreign ownership of much of Australia’s flight training, with foreign owned companies, predominantly Chinese owned, delivering over 60% of flight training in Australia. A staggering increase, which I attributed to the increasingly burdensome requirements more suited to large foreign owned Companies rather than small to medium Australian owned businesses.

It is possible that some in CASA could have taken umbrage at me taking an industry lead on raising concerns, meeting with the Deputy PM at the time, and the associated media coverage and public attention that I obtained. That is what I believe.

The concerns that I raised were never intended as a criticism of Mr Aleck personally, although with the wisdom of hindsight, I can see that some personality types may have taken that feedback personally, and it is feasible that those prejudices could have impacted on decision making by Mr Aleck, as I believe they did.

The very success of the APTA business model was in fact because of the deficiencies in the regulatory program, and the increasing difficulty for a single school operating alone to meet the costs of operating, and the increasing difficulty in the flight training industry attracting the required Key Personnel.

There is no doubt that soon after the introduction of the new regulations, APTA was to experience a period of significant growth, as we did, and as we had planned for. The very reason for the expansion of the same structure that I had adopted for many years, was the deficiencies in the proposed legislation.

It is feasible that the CASA employee responsible for that proposed legislation may take umbrage to my business model. i.e. entities working collaboratively under one Approval, with one set of Operations manuals and one set of CASA required Key personnel, to address the challenges of increasingly burdensome requirements, and the difficulty of attracting required Key personnel, while being able to increase safety and compliance by pooling expertise and experience.



MR ALECK HAS NOT EVER BEEN ABLE TO PROVIDE ANY EVIDENCE OF ANY EVIDENCE BASED SAFETY CONCERNS

Mr Alecks closed down my business, with absolutely no supporting safety case. At no stage did CASA ever or has ever identified any safety concerns. Nothing would cause Mr Aleck to have any safety concerns about my business. It is entirely unreasonable that a person’s livelihood is destroyed by the actions and decisions of a single individual, and most particularly when that individual has no evidence at all to support his decision making. This is not an “application that CASA rejected”. This is a reversal. My business had been operating in that same structure with full CASA approval for over a decade. If CASA close that business down with no prior warning, the owner of that business should be entitled to some evidence to support that decision making.

You may or may not be awre of the I Cook scandal in Victoria where a business owners livelihood was ddestroyed, like mine. In Mr Cooks case he alledges that a slug was planted in order to justify Councils actions. It’s a tragic story, and Im pleased to see that Mr cook now plans to run on anti corruption platform against Mr Daniel Andrews in Mr Andrews own seat. I Cook boss takes on Premier | Dandenong Star Journal (starcommunity.com.au)

The reason that I mention it is, at least Mr Cook was dealing with some “evidence” irrespective of how tenuous it was.

Basically, Mr Hanton, “I want my slug” CASA should surely be able to provide one piece of “evidence” to support Mr Alecks decision making.





THE MATTER IN ITS ENTIRETY, INCLUDING ALL THE HARM CAUSED, COULD HAVE BEEN COMPLETELY AVOIDED AT ANY TIME BEFORE THE NOTIFICATION WAS SENT, AND AT ANY TIME AFTER WITHIN FOUR HOURS.

Consider all of the harm caused to so many. It is obscene that this matter in its entirety could have so easily been completely avoided. That could have happened at any time, and even before CASA sent that initial notification, and imposed the trading restrictions.

During the first two months of this matter, the entire matter was only to the lawfulness or not, as to my structure that I had adopted since we commenced operations in 2006. CASA had advised me in the presence of witnesses, and a Stat Dec can be provided by witnesses, that we were going to be closed by CASA.

I strongly objected to CASAS actions for the reasons that I have outlined above in the previous section relating to the legality or not. After 7 weeks it was very apparent to me that CASA realised, they had erred, when they advised that they were now “taking the Aviation Ruling off the table.”

The matter then changed very much to the topic of Temporary Locations, which CASA soon realised they had erred on, and it finally settled on the topic of “contracts”.

The trading restrictions would now remain in place until the terminology in the commercial contracts was finalised to Mr Alecks personal satisfaction. It was the inability to resolve the wording in the contracts to Mr Alecks personal satisfaction over a period of 8 months that resulted in all of the harm done. The trading restrictions remained in place throughout the six months, until Mr aleck stood by his initial determination that the entire structure was unlawful.

It is important that I demonstrate how easy this could have been fully resolved at any time within 4 hours, and potentially less.

I was completely compliant and willing to put whatever CASA required in the commercial contracts. There is no reason that this matter could not be immediately resolved.

A well intentioned meeting prior to CASA even sending that notice in October 2018, or in fact at any time after could have gone something like this….

CASA: ‘Hey Glen, while we like what you are doing and have been doing for more than 6 years, as far back as your Darwin operation in 2012 and 2013, we would like to add some additional wording to your agreements that you provided us with two years ago. We are not asking for any other changes to any of your systems or procedures, or how you operate, its as simple as some wording in your commercial contract.

Glen: ‘Sure, let me grab the Head of Operations, Technical Writer, and the Internal Co-ordinator and we will do it right now and to your full satisfaction. I just want to confirm that you not asking for any changes to how we operate, and you have no concerns at all about quality outcomes, our systems, procedures, personnel, reporting lines, safety, regulatory breaches etc. Its simply an issue of wording in our commercial agreements to clarify safety and supervisory responsibility?

CASA: Correct, we are fully satisfied with all your operational procedures, the structure etc, we only require changes to your commercial agreements. We have no concerns about operational control, if we did have concerns about those matters we would be requesting changes in your Operations manual/Exposition.

Glen: Ok, that’s a bit unusual, CASA wanting to be involved in the commercial contracts as the location to specify safety and supervisory responsibility. Shouldn’t your requirements be specified in the Exposition?

CASA: No we now want to put safety and supervisory requirements in the commercial contracts, as well as in your Exposition. This is an industry first. We aren’t prepared to become a signatory to the contracts, but we do have some new requirements for you to put in those contracts.

Glen: That’s highly unconventional but no problems. I will offer no resistance; I am open to anything CASA require to be fully satisfied. I have the approval from all Members to finalise this matter here today.

I’m going to need some help with this. As you will appreciate this is a completely new requirement. My Exposition already attends to all legislative requirements, is CASA approved, and fully attends to matters of Safety and Supervisory responsibility, as does CASAs own legislation, and has been fully approved for many years, I’m going to need some clear and concise guidance on this, but I can see no reason we can’t fully resolve this new CASA requirement right here and now and have you on your way by lunchtime fully satisfied.

You have deemed my existing contracts deficient, what is your concern, what would you like to see? To say that something is wrong, you need to have a concept of right. So, what would you like to add? I’m open to absolutely anything. It’s obviously not something already outlined in our Exposition, which meets all Regulatory, Safety and Supervisory requirements. So, I need you to let me know what you need.

I will need your guidance because all of the legislative requirements are already attended to, and I need to take care that anything I write doesn’t contradict the extensive legislation that already stipulates all of this.

Less than 5 minutes later, I would have had the staff assembled in the Conference Room, ready to go, and finalise the matter.

Glen: “Ok what additional suggestions would you like to see in my commercial contracts”.

The point of the above conversation is to highlight how easily this entire matter could have been avoided, and indeed should have been avoided. CASA did not need to put trading restrictions on the business for 8 months, leading to its closure and all of the associated damage.



Surely one would have to question why Mr Aleck chose an approach that caused trauma, when the option of a well intentioned discussion with an immediate resolution was available.

For clarity, the entire matter could have been resolved in well under half a day and resolved in its entirety. It could have been that simple. He did not have to close down several businesses, and he did not need to drag this matter out over 8 months. It was unnecessary, and it is the restrictions being on the business for such a protracted period that caused so much harm. The truth is that CASA Executive Manager, Mr Jonathan Aleck decided that the matter would drag on for the 8 months, until starved of income the business was destined to close. Had me and my parents had access to more funds, it is likely that even greater harm would have been caused.

Quite simply, the ONLY reason that this matter was not resolved is because Mr Aleck decided that it would not be resolved.





THE COMPARATIVE ASSESSMENT OF MR ALECKS DECSIONS i.e. APTA V SOAR

Mr Alecks decision making was focussed on me, and my organisation, potentially to the detriment of the safety of aviation.

This requires a comparative analysis of two organisations located on the same airport a couple of hundred metres from each other, both delivering multi base operations. One of those businesses is mine, and the other is SOAR aviation.

It clearly supports my assertion that I was being targeted by Mr Aleck.

SOAR was a well-known operation delivering high volumes of training. It was very much a price driven business model designed to maximise profits, with large foreign backing.

It was a company with a questionable safety record, and questionable quality outcomes.

For many years concerns were raised with CASA about this operator. Those concerns were formally raised by other Operators, the Airport, Students, Employees, and customers with CASA.

The Organisation had a disproportionate amount of aircraft accidents, incidents, injuries, and at least one fatality. CASA had access to evidence and statistics that suggested this operator was less safe than other Operators but refused to act.

Ironically, this business continued to operate until it was the Australian Skills and Qualifications Authority (ASQA) driven by student concerns that shut them down not CASA.

The matter received significant media attention, and I believe it is a matter before the Ombudsman’s Office now with extensive legal action being initiated by the students.

At the same time that CASA is permitting SOAR to operate unfettered, Mr Aleck is diverting significant CASA resources to shutting down my business that according to CASA has consistently delivered “industry leading standards of safety and compliance”.

I can attend to this matter in significant detail, but the point being that I feel that I was being personally targetted by Mr Aleck.

[Squawk7700]

I don’t think you can include the Soar example as you don’t know what casa were planning for them. It just may not have eventuated yet.

As it’s written it sounds like sour grapes against Soar, particularly given that the director / owner of Soar was an ex-employee of yours.

[Sandy Reith]

Soar Grapes?

Originally Posted by Squawk7700

I don’t think you can include the Soar example as you don’t know what casa were planning for them. It just may not have eventuated yet.

As it’s written it sounds like sour grapes against Soar, particularly given that the director / owner of Soar was an ex-employee of yours.

With respect I think the Soar example is valid in that the whole split system, RAAUS and VH registered, goes to the heart of the CASA induced disaster that is GA training in Australia. Also the then Minister Michael McCormack made great media play, including a photo op sitting in one of their trainers, of the ‘success’ of Soar.

Keep on Glen you are doing every Australian a favour, let alone all of us aviators.

[aroa]

Glen and Sandy.. Like symbols !

[glenb]

The Soar comparison

Typing on my phone on a brief break at work.

SOAR did also provide Part 141 training in VH aircraft.

The SOAR comparative analysis is intended to highlight that i was “targetted” for reasons other than safety.

Regarding Sour grapes. Not at all. i shared many a ciggie with the SOAR owner after i exited him from our organisation.

We had two very opposing business models. He was very keen to embed those philosophies into our business, i thought it best he embed his own philosophies into his own business.

I have absolutely no animosity towards him at all,

He would be much further up my Christmas card list than Aleck.

[Squawk7700]

Well maybe then find another successful 141 organisation that didn’t go down in a ball of flames that’s still running happily with multiple entities.

Your analogy feels like you’re comparing your CASA grounded airship with the Hindenberg.

[Lead Balloon]

But CASA should have treated both the same, and didn’t. SOAR was, by all accounts I’ve read, an organisation with a poor safety record from the get go to the let go. Not so APTA.

SOAR clearly had the ear of the then Deputy Prime Minister. Anyone who thinks that that had absolutely no consequence for the regulatory treatment of SOAR haven’t been paying attention to how the coalition government actually worked. Hopefully a properly constituted and resourced federal corruption commission will be able to examine and shed some light on these kinds of matters.