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					                                                                  Community & Public Sector Union
                                                             Nadine Flood • Deputy National Secretary




30th April 2008


The Secretary
Department of Infrastructure, Transport,
Regional Development and Local Government
GPO Box 594
Canberra ACT 2601

Delivered to: 111 Alinga Street, Canberra




Dear Mr Taylor

                                     Miller Review – Submission

Please find attached a submission from the Community and Public Sector Union (PSU Group)
on the report written by Mr Russell Miller AM following his review into the relationship between
the Australian Transport Safety Bureau (ATSB) and the Civil Aviation Safety Authority (CASA).

The contact person for this submission is Alison Rahill, CPSU Parliamentary Liaison Officer
who can be contacted on (02) 6220 9630.

Yours sincerely,




Nadine Flood
Deputy Secretary
Community and Public Sector Union
CPSU Canberra Office
Level 1, 40 Brisbane Ave, Barton
ACT 2600




        Community and Public Sector (PSU Group) submission on the report written by Mr Russell Miller   1
  Community and Public Sector (PSU Group) submission
       on the report written by Mr Russell Miller

CPSU strongly supports the vital role our members play in improving transport safety and as
such CPSU cannot support the implementation of the Miller Review recommendations. This
submission provides further detail on key concerns:

         Degrade public transport safety
         Proposed changes will weaken the conduct of independent safety investigations by
         limiting the free flow of protected information from industry participants.

         Not comply with international best practice safety investigation
         The current Australian industry safety investigation model was developed after
         significant and long consultation with industry before receiving bi-partisan
         Parliamentary support in 2003. That model accords with ICAO standards and
         recommended practices and is integral to the current ITSAP program with Indonesia.
         The TSI Act 2003 has been touted as model transport safety investigation legislation
         by local and international industry members.

         Not maintain independent safety investigation
         Transport safety investigations need to be supported by appropriate legislation to
         ensure that the industry/public perception is maintained that the investigation is for
         safety and not legal purposes.

         Not enhance marine and rail transport safety investigation
         The TSI Act 2003 is multi-modal safety investigation legislation that has significantly
         improved the conduct of investigations in those modes because of the inherent
         protections afforded to industry members. Most Australian shipping is undertaken by



        Community and Public Sector (PSU Group) submission on the report written by Mr Russell Miller   2
            foreign carriers and the protections from self-incrimination in the Act have proven to
            be most beneficial when seeking information and participation from foreign nationals.

Background

The PSU Group of Community & Public Sector Union (CPSU) represents workers in the
Australian Public Service, ACT Government, the Northern Territory Public Service, the
telecommunications sector, call centres, employment services and broadcasting.

CPSU sought the views of members from Australian Transport Safety Bureau in preparing this
brief submission on the report written by Mr Russell Miller AM following his review into the
relationship between the Australian Transport Safety Bureau (ATSB) and the Civil Aviation
Safety Authority (CASA).

CPSU members largely work as ATSB Transport Safety Investigators (TSIs).

Key Concerns

•     The Miller recommendations will reduce the independence of ATSB and undermine
      participation in the transport safety investigation process

In their feedback on the Miller Review ATSB TSIs have stressed the importance that all
investigations remain independent, open and continue to be conducted on a "no blame" basis
to ensure the greatest possible improvement in future safety. They feel strongly that their role
needs to remain distinct and separate to the role of transport regulatory authorities, such as the
Civil Aviation Safety Authority (CASA), the Australian Maritime Safety Authority (AMSA) and
state and territory rail safety regulators.

ATSB TSIs say their work depends on their powers under the Transport Safety Investigation
Act 2003 (TSI Act) which allows them to interview people involved in transport accidents, while
maintaining their confidentiality and legal protection for information gathered.

ATSB TSIs tell CPSU they oppose the Miller Review recommendation that the Department be
permitted by legislation to dictate policy guidance in investigations to the ATSB. They strongly
believe that ATSB must remain operationally independent of such interference.

One ATSB TSI made this comment in respect to the proposal that CASA staff be allotted to
ATSB investigation teams, and be permitted by legislation to have access to all information
obtained by investigators:

           “I suggest that the industry would likely no longer be as free with forthright information
          as they currently are, as they are aware that ATSB will not and cannot use it against
          them in a punitive sense. Air safety in Australia would likely go back 40 years”.

•     The proposed changes to the TSI Act do not consider the impact on other transport modes
      (Marine and Rail) as to the effect of such changes to a multi-modal piece of legislation.

•     The Directly Involved Party process that ATSB uses already allows for the “productive,
      collaborative focus on air safety” the State Coroner of Queensland discussed in his findings
      on the Lockhart River crash released on 7 August 2007.1 The establishment of a panel or
      commission could impose time delays on all ATSB reports at every stage of an
      investigation.


1
    http://www.courts.qld.gov.au/LHR_findings1.pdf p.55

           Community and Public Sector (PSU Group) submission on the report written by Mr Russell Miller   3
•   Current provisions for legal counsel for official TSI duties may be at risk due to Miller
    Recommendation 16 on retaining counsel to appear in coronial inquiries. Section B8.1 of
    the DOTARS Collective Agreement 2006-2009 specifically provides for legal counsel:

       “If an employee is required to attend a court, tribunal, or other similar forum, as part of
       the employee's official duties for the Department, the employee will be provided with
       appropriate legal representation consistent with the Department's Chief Executive's
       Instructions”.

Other bodies such as CASA have legal protections.

One ATSB TSI told CPSU:

       “No ATSB investigator would likely be willing to undertake the position of investigator-in-
       charge and be subject to professional and personal attack in a Coronial Inquest without
       the opportunity for legal assistance”.

Concerns with the conduct and conclusions of the Miller review

ATSB TSIs have made several criticisms of the way the Miller Review was conducted and the
conclusions it reached.

       “I base my view on my experiences conducting over 12 years of investigations and 300
       interviews, as well as discussions with industry personnel since the release of the Miller
       report. ATSB investigators are in the best position to know the impact changes in
       legislation in this area will have, yet the review does not appear to have listened to any
       of the ATSB comments in this area obtained during the review.”

•   It focuses excessively on the performance and processes of the ATSB.

•   It was too limited in its data collection process. The report claims 'a wide range of industry
    experts’ were interviewed. However ATSB TSIs consulted by CPSU feel that this was not
    the case. They say very few of these ‘industry experts’ had any expertise in safety
    investigation. Also, they say experts in safety investigation in ICAO or equivalent
    organisations to ATSB overseas were not interviewed, nor were representatives of
    employees who may become involved in safety investigations.

       “I have personally sought views from some industry personnel on this proposed change,
       and these personnel strongly disagree with the proposal. I have also sought the views
       of some CASA operational personnel; they were not aware of the proposed change and
       also did not agree with it.”

       “No further consideration of this proposed change should be conducted until a
       structured survey of a large sample of industry personnel is undertaken. Simply relying
       on public submissions is not appropriate or adequate – most industry personnel would
       not be aware of the report or believe they have time to respond. The survey has to
       actively rather than passively seek responses on these types of issues.”

•   The final report seems largely based on the personal opinion of the reviewer rather than
    any evidence presented. In those cases where evidence is offered to support a statement,
    finding or recommendation, it is often of dubious quality.




        Community and Public Sector (PSU Group) submission on the report written by Mr Russell Miller   4
Concerns relating to the implementation of Miller Review recommendations

In some cases, the Review’s proposed actions have already been undertaken. However, if
some of the other Review’s recommendations are enacted, ATSB TSIs say they will have a
substantial and negative influence on their capacity to successfully complete their work and
enhance transport safety.

ATSB TSIs have told CPSU of the great pride they take in their work, and how they seek to
ensure their reports are based on a structured and thorough investigation process. They
believe it would be premature to implement changes in the ATSB operations prior to the
Government review of the Aviation Industry announced2 last month that will consider changes
in the context of broader Aviation issues.

Comments of CPSU members addressing the specific Miller recommendations

Recommendation 3 – Policy statements & Recommendation 4 – Policy development

Recommendations 3 and 4 have the potential to undermine the independence of the ATSB and
run counter to Annex 13 to the Convention on International Civil Aviation. Recommended
practice 5.4 in the Annex states that:

         “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 this Annex.”

Recommendation 5 – ATSB governance

Peer review panel

ATSB TSIs are trained safety professionals with years of experience in the aviation industry
and professional training and development in Transport Safety Investigation, including the
completion of the Diploma of Transport Safety Investigation.

They already work closely on a daily basis with their overseas counterparts in the UK AAIB, US
NTSB, Canadian TSB, NZ TAIC and military equivalents to maximise safety knowledge and
experience. ATSB TSIs also do not have a commercial or industry agenda and are truly
independent.

ATSB TSIs consulted by CPSU say it is likely that the creation of such a panel would also
create additional delays to the completion of ATSB reports. They say this in turn would provide
a source of further stress and frustration to already heavily-tasked investigation staff.

         “Assessment of our reports by a 'committee' will further delay report finalisation and will
         create an unnecessary extra layer of bureaucracy. Our reports are already 'peer
         reviewed' and depending on the complexity of the report that can involve several
         'experts' in the relevant fields.”

Another investigator notes that there is the possibility of compounded error from review teams
or councils not directly involved in the process from start to finish. The TSI notes that the true
context of reports including safety issues and recommendations resulting from a disciplined
investigation can easily change once that report leaves the charge of those responsible in this
case the ATSB.

2
    A WHITE PAPER FOR AUSTRALIA'S AVIATION FUTURE

         Community and Public Sector (PSU Group) submission on the report written by Mr Russell Miller   5
Use of external experts

       “The report discusses some aspects of the use of external experts in section 31. The
       discussion is limited and misguided in many areas. For example, it asserts that
       equivalent agencies have a greater utilisation of external experts, but as no detail is
       provided it is hard to evaluate the comment. In my experience, much smaller agencies
       may have to resort to such situations because they do not have the expertise that ATSB
       has (in areas such as human factors, materials failure analysis or air traffic services),
       but organisations of a similar size or larger (such as the Canadian TSB or US NTSB)
       would rarely use external expertise.”

       “Recommendation 5(a) already reflects processes that occur currently. External experts
       are already used where appropriate in ATSB investigations, including in the review of
       parts of ATSB draft reports. In principle, the notion of sending draft reports to more
       independent experts at the same time as directly involved parties may have some merit.
       However, the primary basis for supporting this recommendation appears to be
       expressed in paragraph 22.12 of the report, with the view that this process would
       provide more credibility and seem more objective, and therefore may appear more be
       treated with more respect by CASA and the industry.”

The TSI in this case goes on to say that the Miller report provides no relevant examples to
substantiate this opinion. The one example provided is in paragraph 31.3, where it is stated that
industry experts suggested that there have been ‘circumstances in which limits in ATSB
investigators' experience and training have affected the quality of reports and
recommendations’.

The TSI then points to the example provided (in footnote 110) which the ATSB TSI says clearly
refers to the well-known views of Dick Smith regarding the role that NAS would have played in
preventing some recent high profile accidents. The TSI says this is a view that would not be
supported by most other industry experts and, if endorsed by the ATSB, would result in a
substantial loss of respect for ATSB reports.

       “To use this example as supporting evidence for its position is a clear example of how
       the Review’s findings and recommendations are not based on sound evidence.

       “There may have been cases in the past where ATSB could have written some aspects
       of its reports more clearly or may have made recommendations which were not very
       practicable, but these would be very rare and likely to occur with any similar type of
       agency.

       The ATSB has done a lot of work to improve its processes in these areas in recent
       years, none of which appears to have been acknowledged by the Review.”

The position of Executive Director

The ATSB Executive Director position should remain as an experienced safety professional. A
minimum practical period of service would be of the order of 5 years (renewable). The
examples of other international equivalents (Ken Smart, recently retired of the UK AAIB) should
be considered.

Recommendation 6 – Alternative ATSB governance

Commission’s Oversight of Investigation Reports/Powers to Delegate



        Community and Public Sector (PSU Group) submission on the report written by Mr Russell Miller   6
       “If Recommendation 6 (c) and (d) are to be accepted, consideration should be given as
       to the subsequent “ownership” of the investigation report and who will defend it against
       legal and other attacks within Coronial Inquests and petitions by interested parties,
       including the Next-of-Kin of any deceased.

       It is current practice for the ATSB Investigator-in-charge (IIC) to be subpoenaed to
       appear at Coronial Inquests and give expert evidence on ATSB’s investigation into
       fatal accidents. If the investigation report is then substantially changed by the decisions
       or requirements of the part-time commissioners, who then approves the report, and will
       they then represent the report at any Inquest?

       I can guarantee that no ATSB Investigator-in-charge will subject themselves to
       interrogation / or cross examination on a report that has been substantially changed to
       meet the part-time commissioners requirements. Equally, petitions and issues raised by
       interested parties, including the Next-of-Kin are currently resolved by the IIC and Team
       Leaders. If the part-time commissioners substantially alter an investigation report
       (based on their experience) then will they take the role of dealing with aggrieved parties
       and Next-of-Kin.”

       “The report argues that, even if Recommendation 5(a) is enacted, there would still be a
       need for further change to ATSB’s processes. However, rationale for the proposed
       recommendations, which are substantial changes, is almost non-existent. Paragraphs
       22.15 and 22.16 are opinions and not evidence-based findings.

       The proposal to create a commission with three part-time commissioners appears to be
       a very specific preference of the review. The report provides minimal discussion
       regarding alternative options. The report briefly refers to systems used in some other
       countries, but there is no structured analysis of the relevant advantages and
       disadvantages of the different systems, as should be expected of a Review of this type.

       The end result of the proposed change would mean that there would be an additional
       level of review for ATSB reports, which are already subjected to three levels of internal
       review before being subject to an external review by directly involved parties.
       Investigation reports will always be a matter of debate and subject to various persons
       expressing preferences, no matter how many times a report has been reviewed.

And…

       “This Recommendation almost makes a mockery of this highly respected world
       standard. How can a body be independent if all reports, including draft reports, need to
       be approved by a commission appointed by the Department?”

Recommendation 7 – Information sharing in the interests of safety

Comment 1:

       “Any reduction in the protections provided to persons interviewed and the information
       provided by them under the Transport Safety Investigation Act 2003, will weaken the
       ability of the ATSB to effectively carry out its mission. People will stop talking to us for
       fear that the information will go straight to the Regulator and be used against them. This
       will be further enforced if we are seen to be sharing personnel and will have a negative
       effect on aviation safety.”

Comment 2:


       Community and Public Sector (PSU Group) submission on the report written by Mr Russell Miller   7
“Of all of the recommendations made by the review, Recommendations 7b (and
Recommendation 9) will have the most significant and adverse impact on the working
conditions of ATSB investigators and the ability of ATSB to effectively conduct its
investigation activities.

Investigators are the ones who have to interact with industry personnel during
investigations and obtain relevant information. This process requires the use of a
pragmatic approach and careful negotiation skills in order to convince industry
personnel to provide detailed, complete and factual information. It is one of the most
difficult and at times stressful aspects of investigation work attempting to get individuals
who have been associated with an accident to talk openly, honestly and completely.

This process of obtaining information has been dramatically improved since 2003 with
the Transport Safety Investigation Act and its provisions for restricting external access
by courts to information. One result of these changes is that investigators were able to
convince industry personnel that it was reasonable to electronically record interviews.
Electronic recording reduces the time and difficulty of interviews, and reduces the time
after interviews required to write up investigator notes, which is particularly important
during the initial phase of an investigation where there can be significant time
pressures. Recording also allows investigators to obtain a more accurate record of
interviews, rather than relying on notes. This improves the accuracy of information and
the ability to do analysis and make findings.

If the proposed change is made, industry personnel will be much more reticent to speak
openly, honestly and completely with ATSB personnel. Regardless of how often CASA
obtain restricted information from the ATSB, the fact that it can obtain this information
(and that this information will be used for the purposes of determining an individual or
organisation’s suitability to hold licences or certificates) will create a significant adverse
influence on the willingness of industry personnel to participate. Investigators will not be
able to electronically record interviews.

In addition to interview information, the current Act enables the ATSB to more easily
obtain a range of other data and documentation from individuals and organisations that
were more difficult to obtain before the 2003 changes. The Miller proposal to allow
CASA access to this documentation at its discretion would mean that ATSB would have
more difficulty in obtaining the information in the first place, regardless of what power it
has. Conducting investigations and maximising the cooperation of parties involves relies
more on using a common sense and negotiated approach rather than simply relying on
the available powers.

The end result of this proposed change will be that ATSB will not be able to collect the
same quantity or quality of information, be able to collect less useful information, and be
less able to effectively conduct its role of determining how and why occurrences
happened. The changes will also increase workload and stress of investigators. It would
also potentially mean fewer investigations could be conducted due to the increased
workload involved in doing activities such as interviews.

The report appears to make no attempt to do a structured examination of the
advantages and disadvantages of the proposed changes. The Miller report does not
acknowledge the substantial difficulties its proposed change will have on investigators
and on ATSB’s effectiveness as a whole. There has been no attempt to obtain opinions
from industry personnel on their willingness to cooperate presently with the ATSB, and
their willingness to cooperate if the proposed changes were made. This is a


Community and Public Sector (PSU Group) submission on the report written by Mr Russell Miller   8
       fundamental flaw in the conduct of the review.”

 Comment 3:

         “Recommendation 7 (b) violates many of the above tenets due to the word 'requiring'.
         The key component with the existing Act is that the Executive Director of the ATSB
         needs to balance the potential safety effects of information release: the damage
         caused to the ATSB's aforementioned flow of information compared with the benefit of
         releasing the information. Requiring the ED to release this information places a much
         greater burden, and inclination, to release the information, and so this balance may
         not always be fully considered. The Act provides for the release of information for
         safety purposes as it stands, and has been used. Under the existing Act, restricted
         information may be released to anyone if the ED deems it necessary.

Recommendation 9 – Court access to information

Comment 1:

         “This recommendation is not supported as there is already a provision for the
         Executive Director of the ATSB to share “Restricted Information” with CASA under
         Section 61 of the TSI Act. If this recommendation were to be adopted it would have a
         significant effect on ATSB investigators tasked with interviewing industry personnel in
         regard to any particular accident or incident. In effect it would stem the free flow of
         information from those personnel and would create an antagonistic environment at
         interviews.”

         “It is very likely that interviewees would just elect not speak with ATSB investigators if
         there was any thought that the information would be directly shared with CASA, the
         regulator.”

         “Any requirement to disclose restricted information (as defined under the Transport
         Safety Investigation Act 2003) to CASA and courts would be contrary to international
         best practice and would probably result in the aviation industry refusing to cooperate
         fully with the ATSB during future investigations.”

Comment 2:

          “This recommendation will effectively mean going back from the Transport Safety
         Investigation Act to the previous legislation, which allowed courts to make the
         determination as to whether the ATSB released information.”

       “The rationale for this recommendation seems to be missing. The matter is barely
       discussed in the report at all – as far as I can see it is briefly mentioned in paragraph
       28.5, with the assertion that courts are adequately placed to decide such matters.

       “One publicised experience of ATSB being forced to hand over material, which is then
       used against an individual or organisation, will have substantial and long lasting impacts
       on the willingness of industry personnel to cooperate with the ATSB.”

Another TSI suggested that the existing TSI Act was passed by the Australian parliament with
bi-partisan support after extensive review and discussion with many parties, and that it was a
rigorous process in comparison to the Miller Review.

Recommendation 11 – Building inter-agency understanding


        Community and Public Sector (PSU Group) submission on the report written by Mr Russell Miller   9
Comment 1:

       “The ATSB was set up as a totally independent investigation body with the independent
       authority to investigate accidents and incidents in Australia and overseas where
       required. The ATSB also has at times to critically investigate the Regulator (CASA), and
       all dealings in that regard need to be seen as totally independent of the Regulator.”

Recommendation 13 – ATSB Investigations and Reports

Inclusion of CASA in ATSB investigation

       “CASA personnel can have a vested interest in the results of an investigation because
       they were involved in various decision making processes being investigated (e.g. the
       design of a type of instrument approach). This has a significant impact on the extent
       that CASA personnel could or should participate in investigations, other than as a
       person to be interviewed.”

Requirement to incorporate a ‘balanced explanation’ in response to a draft report

       “The proposal outlined in Recommendation 13c could have substantial impacts on
       investigator workload depending on how it is implemented. At present all responses are
       carefully evaluated and changes made to reports where warranted. These processes
       are fully documented in internal notes. If there was a further requirement to then list
       these responses in final reports and provide detail in the reports of how they were
       evaluated and what changes were made, this would create additional workload for
       investigators in formatting this material and further delay in the release of reports.

       The listing of comments provided in ATSB reports can also be problematic in terms of
       report formatting (leading to longer reports rather than shorter reports that are easier to
       digest). Also, given the poor quality of some comments received in the past from some
       parties (including CASA), to specifically list comments and the ATSB response to those
       comments in a public document has the potential to increase tensions between
       agencies rather than reduce tensions.”

       “Recommendation 13 (b) - ATSB always attempt to discuss safety issues with any
       involved party, with the view that the parties conduct their own safety actions without the
       need for a recommendation. This is the ATSB's preferred path and is published policy.
       Recommendations to CASA are no different to any other.”

       “Recommendation 13 (c) is potentially highly volatile. Responses may be personal in
       nature, or otherwise embarrassing or incriminating, and those providing such responses
       may not wish them to be published publicly. Only one response for each investigation is
       from CASA - there may be dozens of other responses. Additionally, such publication of
       response discussion would only serve to muddy the report. The intention of a draft
       report is to give each involved party a chance to respond and correct the factual
       account.”

Recommendation 16 - Coronial inquests

       “The ATSB should be represented at coronial inquests to ensure that transport safety
       findings and safety actions arising from ATSB investigations are not unreasonably
       challenged or watered down during coronial inquests. During the Lockhart River
       coronial inquest CASA sought to undermine the ATSB’s investigation report and confine
       the Coroner’s findings to the flight crew, not even conceding the involvement of the


        Community and Public Sector (PSU Group) submission on the report written by Mr Russell Miller   10
    aircraft operator in the circumstances surrounding the accident.”

    Regardless of how well prepared an investigator is, and how much training they have
    had in presenting expert evidence, such inquests can have the potential to create
    extremely stressful situations due to the nature of the coronial process and the
    motivations of various parties to minimise exposure to subsequent legal proceedings or
    obtain information to use in such proceedings.

    ATSB investigators have been exposed to a series of adversarial coronial inquiries in
    the last 12 years, with legal representatives (including some Coroners) aggressively
    questioning ATSB personnel, often with limited understanding of the relevant legislation
    or processes involved in conducting an ATSB safety investigation.”

    The report notes that other types of investigators generally have no legal representation
    at coronial proceedings (paragraph 36.2). Further evidence should be provided
    regarding the roles of these investigators, as I believe that in most cases they will
    actually be working on the behalf of the coroner anyway.”

Comment:

    “Annex 13 to the Convention on International Civil Aviation sets out the standards and
    recommended practices for the recommendation of accidents and serious incidents.
    Under the provisions of the Annex, it is not the purpose to apportion blame or liability.
    Australia is a signatory to this convention.

    For a transport safety investigation to work, all parties involved, need to be confident
    that the above holds true. Hence the robust legislation that the ATSB works under,
    which is tied into the annex, allows for blame-free investigations.

    However, the regulator cannot and never will be able to successfully discharge its role
    as a regulator and safety investigator. By its very role the regulator’s role is to apportion
    blame. If parties to the investigation believe, quite legitimately, that they could be held
    partially or wholly accountable based on what they tell the investigator and hence the
    regulator, then any useful information flow will cease.

    This will be the case if the misguided Miller recommendations, regarding information
    flow to the regulator are implemented. Australia will then step back 30 years and will no
    longer be a world leader in this field.”

Recommendation 19 – Inter-agency meetings

      “The effective conduct of investigations is extremely difficult, if not impossible without
      a free flow of information from those involved in an occurrence (including, but not
      limited to, design, manufacture, maintenance, and operational personnel and
      organisations, as well as the regulator) to the safety investigator. The importance of
      such information flow cannot be over-emphasised. The reason why the ATSB has no
      powers to prosecute, recommend prosecution, or impose fines and other punishments
      (except for violations of the TSI Act itself) is precisely for the same reason why its
      investigations need to be independent: to ensure that the ATSB has the appropriate
      information at hand in order to identify safety factors and make recommendations to
      improve safety. The 'air gap' between the ATSB's recommendations and other
      organisations' actions is a key component of an effective investigative authority and,
      by extension, effective transport safety.”



     Community and Public Sector (PSU Group) submission on the report written by Mr Russell Miller   11
         Many of the recommendations seem to ignore the fact that any organisation - CASA
         or otherwise - is legally entitled and able to perform its own investigation. Indeed, the
         ATSB works closely with operators and other organisations who conduct their own
         investigations. The difference between CASA and these other organisations is that
         CASA is able to prosecute. There is little motive for an individual or organisation to
         share incriminating information with a regulator who can prosecute, but if you remove
         the power for CASA to prosecute based on the information they gather, then CASA
         will no longer be an effective safety regulator. The solution is to keep the
         investigations separate.”

         “The investigative body (ATSB) needs to be completely independent from any other
         organisation in order to conduct its activities most effectively. Refer ICAO Annex 13,
         sections 5.4 and 5.4.1. This view is supported by nearly every paper or book on the
         subject and nearly all safety experts. If the ATSB and CASA were to conduct any sort
         of joint investigation, Australia would then deviate further from a well-developed set of
         global best practice standards. This particularly applies where CASA itself requires
         improvement to its safety standards - that is another reason why an independent body
         needs to monitor CASA's activities.”

Please note the following excerpt from Robert B. Lee’s article “Blame Free Air Safety
Investigation In Accordance With ICAO and Annex 13 - How Can This Coexist With The Role
Of The Regulatory Authority?”

"In addition, a clear operational Memorandum of Understanding (MoU) between the two
agencies must be developed. If there is any real or perceived ambiguity or misunderstanding of
the roles of the two agencies - particularly on the part of the aviation community - the
effectiveness of any air safety investigation will be compromised. If, for instance, a pilot who
might be a key witness in an occurrence believes that information he gave to the investigation
team in confidence has been passed on to the regulator and used against him say, to suspend
his licence, the trust and credibility of the investigation authority will be seriously compromised
and it will not be able to perform its safety role properly. The integrity of the air safety
investigation and the protection of that evidence it gathers, which is covered by paragraph 5.12
of Annex 13, must not be compromised.

For its part, the regulatory authority must agree to carry out its own investigation for its own
purpose, quite separately from the investigation agency. It must accept that this may incur
some degree of duplication and additional overheads in terms of resources. It should not
expect to gain access to information gathered by the air safety investigation as a means of
short cutting its own processes.

This must be a consideration of any MoU. The regulator must agree that no information
gathered in the course of a safety investigation will be used to initiate regulatory action against
a person such as a pilot, air traffic controller or maintenance engineer. If such regulatory action
is to be taken, it must be on the basis of a completely separate regulatory investigation
undertaken by the authority. This must not only be the case, but also be seen to be the case by
the aviation community."

"The significant changes to Annex 13 arising from recommendations of the 1992 ICAO
Accident Investigation Group divisional meeting, which came into effect in 1994, relate to the
inclusion of organisational and management information in air safety investigation reports. This
information could relate to the performance of the regulator, as it has in Australia in some
recent investigations. Consequently, the regulator needs to be prepared to accept openly that
the independent investigation agency may on occasion need to look very closely at the
performance of the regulator, possibly at the highest executive levels of that organisation.


        Community and Public Sector (PSU Group) submission on the report written by Mr Russell Miller   12
This systems safety need to consider organisational and management factors which may have
ultimately influenced the safety of operations, makes it even more difficult for regulatory
agencies to also carry out air safety investigations. The regulatory agencies themselves may be
part of the problem, but their managements may find it difficult, or impossible, to admit this
possibility, let alone to investigate it. Hence there is a real need for an independent
investigation process."

Conclusion:

Implementation of Miller review recommendations would be a retrograde step that has not been
shown to improve transport safety, in particular it will:

         Degrade public transport safety
         Proposed changes will weaken the conduct of independent safety investigations by
         limiting the free flow of protected information from industry participants.

         Not comply with international best practice safety investigation
         The current Australian industry safety investigation model was developed after
         significant and long consultation with industry before receiving bi-partisan
         Parliamentary support in 2003. That model accords with ICAO standards and
         recommended practices and is integral to the current ITSAP program with Indonesia.
         The TSI Act 2003 has been touted as model transport safety investigation legislation
         by local and international industry members.

         Not maintain independent safety investigation
         Transport safety investigations need to be supported by appropriate legislation to
         ensure that the industry/public perception is maintained that the investigation is for
         safety and not legal purposes.

         Not enhance marina and rail transport safety investigation
         The TSI Act 2003 is multi-modal safety investigation legislation that has significantly
         improved the conduct of investigations in those modes because of the inherent
         protections afforded to industry members. Most Australian shipping is undertaken by
         foreign carriers and the protections from self-incrimination in the Act have proven to
         be most beneficial when seeking information and participation by foreign nations.




APPENDIX


The findings of the State Coroner of Queensland’s inquest into the Lockhart River air crash of 7
May 2005 can be found at http://www.courts.qld.gov.au/LHR_findings1.pdf

The Ministerial press release on the announcement of the Miller Review is at:
http://www.minister.infrastructure.gov.au/mv/releases/2007/october/158mv_2007.htm


The announcement of the plans for an Aviation White Paper is here:
http://www.minister.infrastructure.gov.au/aa/releases/2008/April/AA030_2008.htm


        Community and Public Sector (PSU Group) submission on the report written by Mr Russell Miller   13

				
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