Cites from Dyse

Dyson Heydon weaves his magic in two of the latest decisions from on High ... Patel and Zentai ... Plus, Proscrustes delves into his clipping file to fish out more on the cosy relationship between Pel-Air and the government ... History of crashing aeroplanes  

Heydon: crafting his flourishes

I'M not normally in such jovial spirits, but the onrush of spring distracts from my gout, and all is leavened by some splendid offerings from The Dyse, but which in turn plunge me into gloom at the thought of his departure (only 180 more sleeps children).

In Jayant Patel's case late last month, when dealing with the pre-trial prejudice against the appellant, he commenced with the observation:

"Bundaberg is in Queensland. About 70,000 people live there."  

 Later we got:

"In Queensland, the appellant was seen as a hostis humani generis [come on, keep up, it means 'enemy of all mankind']. The appellant's counsel informed this court that if the appeal succeeded the appellant would be seeking a stay on that ground. It may be inferred from the pre-trial publicity that there was great pressure on the prosecution to put the case against the appellant on its widest possible basis."

And then the History Boy quotation: 

"There is an accumulative Cruelty in a number of Men, though none in particular are ill-natured.

The angry Buzz of a Multitude is one of the bloodiest Noises in the World."

From George Savile, Marquis of Halifax, A Character of King Charles the Second, (1750) at 89.

The decision in Zentai, involving a fight over proposed extradition to Hungary of a man approaching 90 to face questioning over an alleged murder-cum-war-crime in 1944, gave Dyse a platform for another splendid dissent, a tour d'horizon of affairs in 1945, and a backhander to the first human rights declaration:

"Analysis should not be diverted by reflections upon the zeal with which the victors at the end of the Second World War punished the defeated for war crimes. The victors were animated by the ideals of the Atlantic Charter and of the United Nations. The Universal Declaration of Human Rights was about to peep over the eastern horizon. But first, they wanted to have a little hanging." 

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Pilot Dominic James: put his case

MEANWHILE, your correspondent was diverted by watching Four Corners on Monday night (Sept 3). 

It was all about a crash of a small Pel-Air jet off Norfolk Island in November 2009.

The two pilots and four passengers survived, but the story unfolded with the usual Australian bloody mindedness: officialdom in the shape of CASA and the Australian Transport Safety Bureau had decided to blame the pilot for insufficient foresight in fuel calculation and planning for alternate landing sites. 

All that after he took off with information that the weather over Norfolk Island was clear.

The rigours of age have destroyed Procrustes' short term memory, but on the deep past he can be elephantine. 

Something stirred in the recesses: hadn't Pel-Air lost a small jet in the water, and with fatalities, in the 1980s?

Thanks to Google I found that was indeed correct, but was horrified to see that there had been another Westwind accident in 1985, with three dead at Alice Springs.

It was time to dive in my extensive, and now very yellowed clipping service (this is a joy the young of today will never experience). 

And lo, there it was, in The National Times of December 6, 1985, an article that revealed just how far the feet of corporate air service were entangled with those of Commonwealth regulators. 

The two pilots of the Pel-Air Westwind that went down off Botany Bay in October 1985 were not around to defend themselves, but what came out of the article was the extent to which the Department of Aviation had dispensed with safety standards at the request of Pel-Air.

The meat in the sandwich in any such departure from safety standards will always be the pilots, as the corporation, driven by profits, will demand performance to the limit of the new dispensation. 

Here's the 1985 story from National Times journalist Colleen Ryan:

"Under Air Navigation Order 48, pilots are permitted to fly on only two consecutive nights. But Pel-Air had a Department of Aviation dispensation which allowed its pilots to fly on five consecutive nights ...

The Department of Aviation has given Pel-Air a dispensation, which is outside the manufacturer's minimum guidelines for safe operation in the flight manual.

A spokesman for the Department of Aviation told the National Times that, 'There is nothing wrong with the dispensation. The department has the right to make this decision. If they thought it was dangerous they wouldn't do it'." 

This caused your correspondent's eyes to water: presumably thinking it's not dangerous trumps the evidence that it was fatally dangerous.

And then the killer explanation of the relationships between Pel-Air and the department's personnel:

"Pel-Air ... had a close association with some members of the department. Barry Lodge, the senior Westwind examiner for the South Australian region, is well known to Pel-Air personnel. It was Lodge's daughter who received trips on Pel-Air planes between Perth and the east coast of Australia."

One can hardly fail to note the likely factor of pilot fatigue as a result of the department's dispensation, which is exactly nowhere to be seen in the Pel-Air website account of the 1985 crash:

"Lost control in a turn at 5000 feet after takeoff from Sydney runway 16 at night; crashed into Botany Bay. The captain probably simulated a failure of all three flight attitude indicators while there was a known malfunction in the rate of turn indicator and no external references.

Relevant events and factors: 

1. There was a known malfunction of the rate of turn indicator.
2. The pilot in command possibly simulated simultaneous failures of all three flight attitude indicators.
3. There were no external references by which the crew could assess the attitude of the aircraft.
4. A loss of control of the aircraft occurred at a height of about 5000 feet.
5. The crew did not recover control of the aircraft prior to impact with the sea." 

See, it was all the pilots' fault.

ASN report. 

Bureau of Air Safety investigation. 

That particular crew died, but Dominic James the skipper on the ill-fated 2009 flight, survived.

He's in a position to put his case, but it will need a body more detached than the regulators, CASA and the ATSB, to hear his evidence.

A posting on Crikey on the morning after the Four Corners story was damning of Pel-Air and CASA: the call was out for a Royal Commission to investigate Australian air safety standards.

Your correspondent travels by train out of distrust of these newfangled aircraft, but can only concur. Bring on that Royal Commission.