[Peetwo]

MH370 10 years on: Beaker the discredited village idiot??

Reference:

Bailey (from 04:00 min): "..to go a little bit further South and instead people, like that idiot Dolan who was running it at that time, with no Aviation experience said.."oh our evidence says it was unlikely a pilot was in control"..."

De Giorgio: "..this search will it ever happen do you think?"

Bailey: "Oh yes I think so..because Ocean Infinity was briefed by a colleague of mine, Captain Simon Hardy Boeing 777 like me and he thought they were very willing to search in this area but were blocked from doing so by the Australian Transport Safety Bureau.." 

Hmm...I guess BB was never much of a fan of Beaker - 

Going along with the theme of Beaker "the village idiot" and the strong connections with the PelAir cover-up investigation vs the MH370 cover-up search, I note the following Senate PelAir inquiry video pretty much totally discredits himself as reliable public servant witness by lying about a ICAO Annex 13 reference which he said he referred to in making a decision to not retrieve VH-NGA's CVR/FDR:

(Hansard PDF: https://parlinfo.aph.gov.au/parlInfo/dow...d9/0000%22)

Senator FAWCETT: At the end of a fairly long and convoluted process, the highest risk you would attribute to the safety outcome for the patient, their family, their nurse and their doctor on an EMS operation like this is fairly low because of the process. I, personally, have some concerns with that approach, but I hear that is the process you are working with.

I take you to annex 13 from ICAO. Are you familiar with their definition of standards versus recommended practices?

Mr Dolan : Yes, I am

Senator FAWCETT: So are you familiar with the use of the world 'shall' or 'should'?

Mr Dolan : Yes, I am familiar with italics as opposed to standard type, and various other things in the standard.

Senator FAWCETT: In paragraph 5.4 it says:

The accident investigation authority shall have independence in the conduct of the investigation and have unrestricted authority over its conduct … The investigation shall include:

a) the gathering, recording and analysis of all available information on that accident or incident;

Mr Dolan : 'Shall normally include', yes.

Senator FAWCETT: No, it says:

The investigation shall include:

a) the gathering, recording and analysis of all available information on that accident or incident;

There is no 'should', no 'normally'—it says 'shall'.

Mr Dolan : The version I have, which is the version promulgated on 18 October 2010, with additions that have been updated, says, 'The investigation shall'—and I agree with 'shall'—'normally include …'

Senator FAWCETT: It appears mine is not the current version, so I will stand corrected on that.

Mr Dolan : 'Shall' is the language.

Senator FAWCETT: So when we come to flight recorders, you can update me if that version is different.

Mr Dolan : If it assists, paragraph 5.4 goes on to say

Where feasible, the scene of the accident shall be visited, the wreckage examined and statements taken from witnesses.

The extent of the investigation and the procedure to be followed in carrying out such an investigation shall be determined by AAID, depending on the lessons it expects to draw from the investigation for the improvement of safety.

Senator FAWCETT: One of the attachments that follows on from flight recorders says:

The aftermath of a major accident is a demanding time for any State’s investigation authority. One of the immediate items requiring a decision is where to have the flight recorders read out and analysed. It is essential that the flight recorders be read out as early as possible after an accident.

It is an assumption throughout the document that where a flight data recorder exists that will be one of the top priorities for an accident investigation body. Are you comfortable that you have complied with the requirements of this annex in choosing not to recover the flight data recorder because of cost?

Mr Dolan : That was why I drew your attention to that paragraph that I just read. With the decision I made in relation to the value as opposed to the cost of recovering the recorders, I was viewing it in the framework of 'where feasible.' I consider cost as opposed to benefit to be relevant to the question of feasibility.

Senator FAWCETT: You can tell me, then, what your version says in paragraph 5.7, where it says:

Effective use shall be made of flight recorders in the investigation of an accident or an incident. The State conducting the investigation shall arrange for the read-out of the flight recorders without delay.

Mr Dolan : The words are exactly the same in the version I have. What I read that in the light of, in the structure of this document, is that 5.4 is a general paragraph setting the context with the others, and so we have the question of whether to retrieve them in the first place—had we retrieved them, we would agree: effective use shall be made, and we have to arrange for the read-out, without delay. As I say, the decision I made was in that general context of feasibility.

Unfortunately Sen Fawcett was not quick enough to realise that the version Beaker was referring to wasn't in force at the time of the ditching. However Fawcett follow up with a written QON:

 8 Answers to written questions taken on notice on 28 February 2013, in Canberra; (PDF 189KB)

1. Could the ATSB confirm which edition of the Annex 13 document was current at
the time Mr Dolan made his decision regarding not recovering the FDR.

ATSB response: The version of Annex 13 current at the time was the 9th Edition
as amended by Amendments 11, 12-A and 12-B.

2. Explain the discrepancy between the answer he provided today (explaining their
decision to not recover the FDR which inferred that the "reasonable" clause in
the current document was the basis) given the standard which was in force at
the time of the accident, which, if it did not provide that modification would have
mandated recovery of the FDR.

ATSB response: The ATSB considers that the general provisions of paragraph
5.4 of the Annex as it stood at the time provided the necessary discretion to the
ATSB in its conduct of the investigation.

(The 10th edition was the one Beaker was wrongly referring to: https://www.pilot18.com/wp-content/uploa...gation.pdf)

And from the PelAir report itself:

3.54 The committee understands that the ATSB has certain responsibilities, set out in ICAO Annex 13, when it comes to retrieval of aircraft involved in accidents. It is an assumption throughout Annex 13 that, where a FDR exists, the accident investigation body will prioritise its retrieval:

The aftermath of a major accident is a demanding time for any State’s investigation authority. One of the immediate items requiring a decision is where to have the flight recorders read out and analysed. It is essential that the flight recorders be read out as early as possible after an accident.[37]

3.55 The committee approached the ATSB on this particular point, asking Mr Dolan whether he was comfortable that the agency had complied with the requirements of the annex in choosing not to recover the VH-NGA FDR because of the associated cost. The committee received the following response:

That was why I drew your attention to that paragraph that I just read [paragraph 5.4 of ICAO Annex 13]. With the decision I made in relation to the value as opposed to the cost of recovering the recorders, I was viewing it in the framework of 'where feasible.' I consider cost as opposed to benefit to be relevant to the question of feasibility.[38]

3.56 During the course of the committee's hearing on 28 February 2013, an issue emerged relating to the wording of paragraph 5.4. Mr Dolan, explaining that he was reading from the current version of the paragraph in question, challenged the committee's reading of the annex, according to which an investigative body would be required to gather, record and analyse all available information on an accident or incident. This would include the flight data recorder.

3.57 Mr Dolan asserted that the copy of the annex in his possession, being more current and dated 18 October 2010, contained slightly different wording. This version does not say that investigations 'shall', but rather 'shall normally', gather, record and analyse all available information.[39]

3.58 However, although the version of the document Mr Dolan relied upon before the committee to support his decision not to retrieve the VH-NGA FDR may have been more current, it was not the version in force at the time of the accident or its immediate aftermath, when such decisions were being made.

3.59 Furthermore, the ATSB had no disagreement with the committee's reading of paragraph 5.7 of the annex, which clearly sets out a state investigation body's responsibilities in this regard:

Effective use shall be made of flight recorders in the investigation of an accident or an incident. The State conducting the investigation shall arrange for the read-out of the flight recorders without delay.[40]

3.60 Despite this, the Chief Commissioner maintained that, according to his reading of the paragraph, the ATSB was not required to retrieve VH-NGA's FDR:

What I read that [paragraph 5.7] in the light of, in the structure of this document [Annex 13], is that 5.4 is a general paragraph setting the context with the others, and so we have the question of whether to retrieve them in the first place—had we retrieved them, we would agree: effective use shall be made, and we have to arrange for the read-out, without delay. As I say, the decision I made was in that general context of feasibility.[41]

3.61 The ATSB position remained that the relevant paragraph of Annex 13 provided the agency 'the necessary discretion...in its conduct of the investigation.'[42]

3.62 The committee does not accept this argument. At the time the decision against retrieving the FDR was made the imperative existed for the ATSB to do so. To ignore this imperative by arguing that the benefit did not justify the cost appears disingenuous. To imply that the revised wording in the current version of Annex 13 was the basis for the ATSB's decision in 2009/2010, before this version was in force, is even more disingenuous.

3.63 This is not the only example of a FDR which has been under water for some time being retrieved and useful data being produced. Furthermore, the ATSB appears to be of the view that the data is not worth the cost of retrieval as information could be obtained from the flight crew, both of whom survived the accident.

Committee view
3.64 The committee finds the ATSB's refusal to retrieve the FDR incongruous and questionable. Furthermore, the committee takes a dim view of the ATSB's reliance on a version of ICAO Annex 13 that only came into force in late 2010, nearly a year after the accident, to justify this decision. Mr Dolan's evidence in this regard is questionable and has seriously eroded his standing as a witness before the committee. Flight data recorders are routinely recovered around the world despite the existence of surviving crew. They provide objective records of how events transpired, and allow speech specialists and psychologists to determine stress levels and what was going on in the cockpit at the time.[43] This could offer valuable lessons for the whole aviation industry, not just about why an accident occurred, but, in this case, how such a successful ditching was executed under extremely difficult circumstances.

3.65 The committee is of the view that the ATSB is taking a very loose interpretation of its obligations under ICAO Annex 13. Furthermore, the committee has evidence indicating that by early 2010 two lines had been attached to VH-NGA which were strong enough to raise the wreckage. This evidence calls into question whether the ATSB's argument concerning cost or associated occupational health and safety concerns was valid, and reflects the fact that the ATSB was not overly concerned to robustly examine options and costs.[44]

3.66 Having received in camera evidence on the likelihood of VH-NGA's flight data recorder yielding useful information about the accident despite more than three years passing since the event, the committee supports calls for the recorder to be retrieved.

3.67 The fact is, the primary consumer of ATSB investigation reports is the aviation industry. There is much to be learned about what led to this accident, and how injuries were minimised upon impact.

Recommendation 1

3.68 The committee recommends that the ATSB retrieve VH-NGA flight data recorders without further delay.

Beaker's credibility as a reliable public servant witness was again brought under serious scrutiny in the 2013 Budget Estimates:

Senator XENOPHON: Take it on notice, because I have a few other matters to raise. You are saying that, from a causation point of view, even retrofitting the helicopters with that protective bladder, it still would have been a fatal accident?

Mr Dolan : On the facts that were available to us. We are not aware of any previous to Cessnock. I do not think we are aware of any of the low-energy collisions leading to that sort of thing. There were, as you say, a number of high-energy collisions that would have led to a ruptured fuel tank in any helicopter and therefore a great likelihood of a post-crash fire. Those are the sorts of accidents that generally are not survivable.

Senator XENOPHON: If you would not mind taking that on notice, even if it is just referring us to what you consider relevant, that would be very helpful. To go back to what Senator Fawcett asked you about budget constraints: you have mentioned the Chicago convention and international obligations we have in ICAO annex 13 to appropriately investigate aircraft accidents. Do you think that these budgetary constraints would of necessity constrain either the number of investigations or the depth of those investigations in terms of the work of the ATSB?

Mr Dolan : Over time, the consequence of budget reduction is a reduction in the number of staff, and that means that some of those staff will be investigators. We will have fewer investigators available to us; therefore, we will be able to do less. We can improve productivity and efficiency in the organisation, but there is a limit.

Senator XENOPHON: Given our international obligations to properly and thoroughly investigate aircraft accidents, if the ATSB said, 'Look, we can't do our job properly' because, God forbid, there has been a spate of accidents or an increase in workload in accident investigations, would the government feel obliged to make sure there were the appropriate resources to fulfil our international obligations or would it say that is too bad?

Mr Mrdak : Certainly I think it would be very much as Mr Dolan has indicated. He and I discuss regularly his budget position. We are clear that, if there were pressure on the organisation, there is no doubt that Mr Dolan would go to the minister and outline the issues and that government would consider those matters. There are clearly financial and fiscal pressures on all agencies across the Commonwealth, but I think it would be a case that the government, as they have in the past, would look very carefully at resourcing reductions in key safety agencies.

Senator XENOPHON: All right. This goes to another resource issue and relates to the ditching of the Pel-Air flight in November 2009. Without rehashing the report, the basis of the ATSB refusal to retrieve the cockpit voice recorder is based on an interpretation of ICAO annex 13. Is that a fair assessment?

Mr Dolan : That is one element of it, as I tried to make clear at the time. Another consideration is in my role as chief executive of the ATSB, with responsibilities under a range of legislation, including the Financial Management and Accountability Act, as to the efficient, effective and ethical use of Commonwealth resources.

Senator XENOPHON: So what takes priority: the Financial Management and Accountability Act or ICAO annex 13 in terms of our international obligations with regard to aviation safety and accident investigation?

Mr Dolan : In my role I am required to balance my obligation under the Transport Safety Investigation Act to undertake the functions of the organisation consistent with a range of international instruments, including annex 13, but I am also equally required to have regard to the efficient and effective use of Commonwealth resources. They are the decisions that we have to make on a regular basis in terms of how we undertake our work.

Senator XENOPHON: So, if you are required to equally assess both, what wins out when it is finely balanced? Is it our international obligations to appropriately and thoroughly investigate aviation accidents or is it budgetary constraints?

Mr Dolan : The question we will always need to ask ourselves is how we meet our obligations and what the necessary level of investigation is, and we have to have regard to the availability of resources. For major investigations there will come a point where it is clearly not within our annual budget to deal with the consequences of it. That is certainly the position with any major accident. We already have arrangements in place that, were there a major accident that has an ongoing, above-the-ordinary call on our investigations, we can ask the government for additional funding, but we are always making calls about what we do within our existing resources and what constitutes a major investigation that would require an approach to the government for further funding.

Senator XENOPHON: So you have not reconsidered your interpretation of ICAO annex 13 in relation to the retrieval of the cockpit voice recorder in the Pel-Air ditching?

Mr Dolan : More broadly speaking and specifically to that question, the recommendations that came out of the committee's report as they referred to the ATSB as an independent agency will be reviewed by the commission of the ATSB—me and my fellow commissioners—so it is not just a decision for me but for the three of us acting collectively in accordance with our legal responsibility.

Senator XENOPHON: In the financial year that the Pel-Air ditching occurred, you were within budget, weren't you? You were not over budget at the end of that year.

Mr Dolan : We had a surplus at the end of that year, correct.

Senator XENOPHON: So you cannot say that the decision not to retrieve the cockpit voice recorder was due to budgetary constraints, because by the end of that financial year you still had a surplus.

Mr Dolan : I still had to have regard to the likely and projected costs of recovery, what my available resources were and what I needed to do with them.

Senator XENOPHON: It is another jurisdiction, but I think the ATSB is involved in Indonesia and does provide assistance. In the recent crash of a Lion Air 737 off Bali earlier this year, the cockpit voice recorder was retrieved at a great cost and difficulty even though the crew survived, because annex 13 requires it and the international community expects it. Is there any possibility that you will reconsider the decision not to retrieve the cockpit voice recorder in relation to the Pel-Air incident?

Mr Dolan : There is a possibility—in fact, there is the certainty—that the commissioners will reconsider it. That is part of our review of the recommendations of the committee. Once we have done that, we will report back on the results of our consideration.

Senator XENOPHON: And when do you think that will be reconsidered?

Mr Dolan : At this stage—and I need to have further discussions with my fellow commissioners—we have a scheduled formal commission meeting on 24 July. At this stage, that is when we would expect to consider all the recommendations of the committee.

Senator XENOPHON: I think Senator Edwards raised this during the inquiry. Is there a possibility that ATSB will consider reopening that investigation based on the findings of the Senate committee report?

Mr Dolan : We have a recommendation in front of us from the committee that says that we should do that and we will have due regard to that recommendation.

Senator XENOPHON: The committee has criticised the ATSB in relation to its report on the Pel-Air ditching. You are now in a position to reconsider whether you ought to reopen the investigation. Do you think it is appropriate that an independent person outsourced by the ATSB—an aviation expert—make recommendations as to whether it ought to be reopened given that there is a fundamental conflict? It is sort of like Caesar judging Caesar in the context of what ought to be done with respect to reopening the investigation.

Mr Dolan : I hear what you are saying, Senator. A matter obviously I would have to discuss with my fellow commissioners is what information and advice they may wish to rely on in reconsidering the decision that has been made.

Senator XENOPHON: Do you think it is appropriate that there be some independent assessment as to whether the investigation be reopened given that there would be, on the face of it, an apparent conflict with the board effectively having to make a call as to whether it should be critical of its previous report?

Mr Dolan : No, I do not. I see that our responsibilities as the commissioners of the ATSB in meeting the functions of the organisation are something that we are required to appropriately consider. What information we draw on to make those considerations I think is a matter for us.

Senator EDWARDS: Are you seriously considering judging yourselves on this information again?

Mr Dolan : We are seriously considering weighing all the information that has been available through the Senate committee and other material that might come to light in making our decision as we are required to do under our legislation.

Mr Mrdak : Clearly these are matters which the government will need to consider in the light of the Senate committee's report.

Senator EDWARDS: Sure, I am trying to give you some guidance.

Mr Mrdak : We do appreciate that. Mr Dolan is quite correctly putting the position of the commission regarding its legislation. The matters that have been raised in the report and the issues both Senator Xenophon and Senator Edwards have just raised are matters that we will put to the minister as part of the government's response.

 
Got all that? - Yet less than a year after this and despite a Senate Committee stating...

"..Mr Dolan's evidence in this regard is questionable and has seriously eroded his standing as a witness before the committee..."

...it was decided by the powers to be (IE The Mandarins) that Beaker and the ATSB would head up the underwater search in the Southern Indian Ocean for MH370 with the ultimate goal being to retrieve the CVR/FDR?? Plus, despite the serious findings and recommendations of the Senate Committee the ATSB has continued on a downward spiral of irrelevance and non-compliance with the ICAO Annex 13 -

MTF...P2