12 November 2007

Mr Greg Russell

Chief Executive Officer

Air Services Australia                                                                                                                                                                                                     

Dear Sir

Dick Smith and Flightwatch Transmitter closure

We act for Dick Smith, former Chairman of the Civil Aviation Safety Authority.

On 21 February 2007 our client wrote to the Hon. Mark Vaile MP, Federal Minister for Transport and Regional Services, to check the veracity of a rumour that Airservices Australia intended to close down Flightwatch VHF transmitters and transfer that responsibility to Air Traffic Control (ATC).

After a delay of seven months (attributed to administrative errors in the Department) the Minister on 12 September 2007 wrote to our client confirming that Airservices Australia had in fact decided to close VHF transmitters and consolidate Flightwatch frequencies into the ATC environment. Surprisingly, the Minister further confirmed that he had been advised by Airservices Australia that the aviation industry had not been consulted on the changes. While the Minister emphasised the financial benefit of the decision to Airservices Australia (and a cost saving of $500,000 per annum) it is apparent from the Minister’s letter (which reflected the advice provided by Airservices Australia) that Airservices Australia did not consider the adverse safety effect of its decision.

On 19 September 2007 our client wrote again to the Minister pointing out that the amalgamation proposal:

·                      constituted a substantial danger to air safety because of the obvious risk that air traffic control frequencies, when called up by pilots for Flightwatch type information, would be blocked to pilots requiring instructions for landing and separation;

·                      was contrary to the National Airspace System (NAS) which is Government policy and which expressly requires a separate Flightwatch system so that Air Traffic Control can provide an upgraded Class E separation service in airspace which is presently uncontrolled; and

·                      should not be introduced without proper industry consultation and a complete cost and safety benefit study.

The Minister has not responded to that letter. In the meantime our client was overseas for three weeks until 5 November last and upon his return learnt that Airservices Australia had sent out a NOTAM in October concerning the decision to close down 27 Flightwatch transmitting stations throughout Australia.

On our instructions, there has been no consultation with air traffic controllers who we understand oppose the closure of the existing transmitting stations because of serious safety concerns.

The proposed closure of the VHF Flightwatch transmitters and the amalgamation with the existing ATC frequencies would constitute a contravention by Airservices Australia of its statutory obligations and duties under:

·                      Section 30DB of the Civil Aviation Act 1988 – which prohibits the holder of a civil aviation authorisation from engaging in conduct that constitutes or contributes to a serious and imminent risk to air safety;

·                      subsection 9(1) of the Airservices Act 1995 – which requires Airservices Australia to regard safety as the most important consideration in the exercise of its powers and decision making function; and

·                      Section 10 of the Air Services Act 1995 – which requires Airservices Australia to consult with government, commercial, industrial, consumer and other relevant bodies and organisations representing the aviation industry, in the performance of its functions and the exercise of its powers; and

·                      Section 28 of the Commonwealth Authorities and Companies Act 1997 – which requires Commonwealth Authorities under the Commonwealth Authorities and Companies Act 1997 to ensure that the general policies of the Commonwealth Government are carried out in relation to the Authority.

In summary, the proposed Flightwatch amalgamation with ATC is unlawful, an intolerable risk to public safety and a clear contravention of Government policy.

We require your written undertaking prior to 10am Thursday 15 November 2007 that:

(a)                Airservices Australia will consult with government, commercial, industrial, consumer and other relevant bodies and other organisation representing the aviation industry concerning the proposed closure of Flightwatch transmitters and the amalgamation of Flightwatch with ATC frequencies;

(b)                Airservices Australia will not take any steps to close existing transmitters or amalgamate Flightwatch with ATC frequencies unless such consultations have been completed in compliance with section 10 Air Services Act 1995 and until the completion of a thorough safety benefit study which ensures compliance with Airservices Australia’s obligations under section 30DB Civil Aviation Act 1988;

(c)                existing Flightwatch services (including the Australia wide VHF transmitting system) will remain in place pending compliance with (a) and (b) above.

(d)                Airservices Australia will immediately send a NOTAM to all recipients of the NOTAM sent in October 2007, advising that all Flightwatch Services will remain in place until further notice.

If such undertakings are not provided we have instructions to make immediate application to the Federal Court of Australia for urgent injunctive relief in terms of the undertakings sought.

If necessary, we shall rely upon this letter to seek indemnity costs.

Yours faithfully

Mark O’Brien

Partner

cc            Hon. Mark Vaile MP, Minister for Transport and Regional Services

                All Board members, Airservices Australia.