There are criminal law and ethical issues arising from the part heard Senate inquiry into matters related to the final report in the Pel-Air crash released by the ATSB on 30 August that don’t go away after several readings of the Hansard transcript of the open hearings last Monday, 22 October.

These issues are not about the pending findings of the committee, but about admissions volunteered by key witnesses during those hearings.

They include admissions of failure by the chief commissioner of the ATSB, Martin Dolan, and the general manager air safety investigation at the ATSB, Ian Sangston, that make it clear the performance of the ‘independent’ safety investigator has become intolerably unprofessional and constitutes a threat to public safety by seeking in apparent concert with CASA to protect the interests of an unsafe air operater over the public benefit of exposing those failings, and in the Pel-Air case, maladministration by CASA.

The findings  of the Senate inquiry will not be known until it reports by 29 November, but the transcripts of the open hearings and the public submissions can be found here.

The Director of Air Safety at CASA, John McCormick,  may be at risk of criminal prosecution under the Transport Safety Information Act 2003, in relation to the alleged withholding of safety critical information  which is contrary to its provisions.

In his testimony Dolan admits that he is not proud of the final report in the ditching of a Westwind corporate jet operated by Pel-Air into the sea near Norfolk Island on 18 November 2009 immediately prior to fuel exhaustion while performing a Careflight air ambulance charter from Apia to Melbourne with two pilots, two medical support staff and a patient and her partner .

The jet had intended to refuel at Norfolk Island.  It made four missed approaches to the airstrip in poor weather conditions in the middle of the night before being ditched in the sea while there remained just enough fuel to retain powered control of the final moments of the flight

The committee has heard that the jet was unsuited to perform the route flown because it did not meet the standards required to remain in RVSM or reduced vertical separation minima airspace, and could be required to vacate the fuel efficient altitudes of between 29,000 feet and 39,000 feet at any time, which is what happened to it as it flew the Apia-Norfolk Island sector.

It has also learned, through the secret CASA special audit of Pel-Air which occurred shortly after the crash that while the Director of Aviation Safety at CASA, John McCormick alleged that the pilot was responsible for flight and fuel planning,  CASA had in fact approved an operation that had no written fuel guidelines for flight planning for Careflight Westwind charters, yet in the audit had found it to be deficient as an operation for that reason even though it had approved that operation  until the time of the crash.

CASA had also subsequent to the crash, employed as a flight operations inspector, the Pel-Air chief pilot who was at the time of the crash personally responsible for the failure of Pel-Air to conduct safe and compliant Westwind operations.

The questioning of McCormick and Dolan by the committee would to an observer of the proceedings appear to have been strongly influenced by material in a dossier of confidential emails between persons in CASA and the ATSB  that were exchanged in the aftermath of the crash, and to be blunt, which are incompatible with some of the testimony given in public.

Testimony by Dolan and Sangston begs the question as to why both men have not resigned from the ATSB, given the gravity and responsibility of their positions, and calls into serious doubt through their own words their competency or integrity in relation to other matters that have been investigated by the body, or in some cases, not investigated, including the 2007 decision by the body not to inquire into a single engine flight in a REX turbo-prop passenger flight from Wagga Wagga to Sydney which continued for almost an hour after the other engine was shut down shortly after take off.  REX owns Pel-Air.

In his testimony, Dolan admits to the final report into the Pel-Air ditching being unbalanced, and called it a learning exercise. (One that took 1015 days to complete and was listed as almost complete by the ATSB six months before when, according to a variety of sources, the direction of the ‘independent’ safety investigation into this matter underwent a process of collaborative change in emphasis that is in part the subject of confidential submissions to the Senate inquiry.)

The ATSB general manager for air safety investigations, Sangston, told the committee he didn’t know what questions concerning the functionality of air safety equipment on board the flight had been asked of the six persons on board when it crashed into the sea and subsequently sank.

However as the committee has learned from other sources,  none of the life vests worked as required and in some respects posed an ongoing risk to the lives of those wearing them in the period before being rescued by a boat from Norfolk Island, while the life raft which CASA approved being located untethered beside the cabin door, was lost in  the water filled interior of the jet immediately after impact and never recovered for use.

In that respect the ATSB report is probably the only one ever made concerning a jet aircraft accident in which not a single question was asked or answered, and no recommendations were made, concerning the functionality of on board safety equipment.

While a wide range of issues arising from the accident report and correspondence between ATSB and CASA executives remain subject to the findings and recommendations of the Senate committee, the admissions of inadequate management and professionalism by Dolan and Sangston are on the public record, yet they remain in positions of pivotal importance to the safety of flight in Australia and the country’s aviation administration reputation.

The issue of possible criminal actions under the Transport Safety Information Act of 2003 concern among other things those changes that occurred between the circulation of a draft final report to interested parties and the release of the fundamentally altered final report,  which as reported here, the ATSB refused to correct for errors in the days before publication.

This is what aviation safety consultant Bryan Aherne, said on this matter.

Aherne: I believe the committee should determine whether there has in fact been an attempt to breach the TSI Act 2003 CASA, by not responding as a directly involved party that significant deficiencies with the operator and its manual existed at the time of the accident and that the CASA special audit identified many deficiencies, and by knowingly allowing the ATSB to make the statements that the operators, procedures and manuals complied with the regulations, has acted intentionally and deliberately and has omitted major oversight deficiencies which have had an adverse effect on the safety of the travelling public and their confidence in our aviation safety administration. I believe the evidence is striking and the question of who has orchestrated these critical omissions on the Australian public now needs to be answered.

A detailed report on these allegations made by the pilot of the jet, Dominic James, and Aherne and Mick Quinn, a former CEO of CASA, can be found here, and here.

What the committee finds out about how the ATSB and CASA contrived to issue a report in which none of the material failings of the operator of the jet were explored will be of immense importance to the future integrity of air safety review procedures in both bodies.

Meanwhile, a devastatingly unprofessional air safety report, which could be read as being willfully evasive, incomplete, vindictive and contemptuous of any public safety obligation, remains in force.

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