Episode 13: Criminalisation of Aviation Incidents Aviation lawyer Tony Power joins us to unpack Just Culture and the worrying global trend of criminalising honest mistakes in aviation, including a confronting Australian case that ended in a jail sentence.
In this episode, hosts Grenville Hudson and Kathryn Harvey sit down with aviation lawyer Tony Power of Just Culture Consulting to explore one of the most pressing issues in modern aviation safety: the growing trend of criminalising honest mistakes.
Tony explains what Just Culture actually means and how it differs from a "no accountability" approach. He argues that blaming the person at the sharp end, such as the pilot, the controller, or the engineer, usually misses the real story. The episode shows how Australia's regulators, the Civil Aviation Safety Authority (CASA) and the Australian Transport Safety Bureau (ATSB), try to protect people who speak up, and where gaps in that protection still exist.
The back half of the episode digs into real cases, including a recent Queensland prosecution that ended in a jail sentence. It asks a hard question: if pilots fear prosecution for an honest mistake, will they ever feel safe enough to admit one?
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Tony Power is a lawyer and the founder of Just Culture Consulting. He helps aviation organisations and regulators build fair, transparent, and effective approaches to safety reporting and accountability.
Times are approximate, based on the conversation flow.
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Hello and welcome to the Aviation Safety Communities podcast. And I'm here with co-host Kathryn Harvey, and my name is Grenville Hudson. And we're going to talk today with a gentleman called Tony Power who is a lawyer and is involved in Just Culture and has a company called Just Culture Consulting.
And well, Kathryn, you know, Just Culture is something that has probably never had a lot of attention put to it, but it's something that's becoming more and more important with the development of safety management systems. What are your thoughts? I'm really excited to be speaking to Tony, and I think, you know, the concept of culture has been sort of ever-present, but Just Culture has had its sort of popularity and ebbs and flows over the years. But I really do think that it's sort of the glue that will hold together safety management and the outcomes attributed to safety.
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So, yeah, really excited about this. Yes, and today we're actually going to have Tony talk about criminalisation of aviation incidents and accidents. Well, hello, Tony, how are you going? Good, Agram.
Very good. Thanks for having me on. Yeah, we're looking forward to hearing what you have to say about criminalisation of incidents and accidents and the growing, and if there's a trend there that is evident to us.
What I was going to ask you is maybe you could just give us a little bit on Just Culture and how you see it fitting into an organisation. Just Culture is the main bread and butter of the work that I do in organisations. And so, really, Just Culture, it's primarily something that happens within an organisation, and it's about embedding principles of procedural fairness, openness, transparency, and mutual accountability into the life of the organisation.
So, where primarily you're encouraging safety reporting through a non-punitive response to human error. So, you're creating an environment where people will feel that they are able to speak up, they can raise issues, they can make mistakes, sorry, admit mistakes, and they can report those and not worry that they're going to be punished for them. While at the same time, you retain standards of accountability for individual accountability for deliberate harm or grossly reckless conduct, but you also support organisational accountability for the systems of work that the organisation designs and operates.
And really, the principle behind it is that people generally go to work intending to do a good job, but we're human beings, we're fallible, we make mistakes from time to time, even when we're trying our best. And so, it's not just or fair to punish people for honest mistakes when they are trying their best. And in fact, it's counterproductive because it means that people hide mistakes, they hide errors, they hide issues.
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And if that's happening, then the organisation can't manage them and deal with them, and it makes the operation less safe. So, in order to make things safer, if you create an environment where people can speak up, then you can deal with the safety issues and you can make your systems safer and overall have a safer operation and a much more positive working environment. So, that's the essence of a just culture.
And so, primarily, it's something that an organisation, say an aviation operator, like an airline or an airport might have, but increasingly, it's also something that regulators, aviation regulators have as well, of how they are going to deal with the people that they regulate, both the individuals and the organisations. One thing I'll pick up on there is that intent and the positive intent people go to work to do a good job, and they do what makes sense to them at that time. And I think often just culture is picked up through incident investigation, even though you can pick it up in other parts of the safety system.
So, you can apply just culture to meetings, to audits, to all sorts of areas of your business. But yeah, I just wanted to pick up that, you know, the investigation side of things, and what's the context that we'll be talking about in today? Yeah. So, in many organisations, unfortunately, and certainly historically, there's been a blame approach where someone, something's gone wrong, and there's an investigation, and the idea is, whose fault was it? And you've identified an individual, they made the mistake, and we punish them.
And the idea, well, because they're bad people, and if we can punish them, we get rid of the bad people, and our systems will be safer. But what we found is that one, that just drives error underground, people don't report things, they try and hide it. But also that most accidents and incidents are actually, have their origins in organisational factors, where the systems are not good, where management have set conflicting priorities, and people are trying to do, as you say, what makes sense at the time, and sometimes even break procedures in order to achieve some outcome that management has said that they need to meet.
So, what you're trying to do in a just culture environment with an investigation is rather than looking at who's to blame, it's looking at, well, what went wrong? And what can we learn from it? And what changes can we make to our systems? So, it's really changing the focus from blame to learning. Now, there might be some circumstances where you still need accountability, where there has been, say, a malicious intent or gross reckless conduct that there's no justification for it. But that's not your starting point.
Your starting point is assuming that people were trying to do their best. And what can we learn from what happened to make it less likely that's gonna happen in the future? And so, how do investigators make sure that they come at it in that way? Because that's quite a skill to try and understand why did that person do it? Why did that make sense to them at the time? So, what sort of skills would investigators need to apply that? Yeah, I think certainly having a strong background in human factors, the understanding of how humans work in systems, the limitations and strengths of human performance. I think having a background there is really important.
Having frameworks to support them within the organisation. So, that could be just culture frameworks to help guide them as to what kinds of events should lead to disciplinary proceedings and what kinds of events, which are much more likely, should lead to to organisational learning. Also, having investigative tools, root cause analysis tools or other investigative frameworks to help guide how they go about the investigative process that prompt them to not just look at, say, what the frontline person did, but understand what was the supervision like? What were the organisational factors going on? What was the equipment like? Broadening out the scope.
That's just a few things that I think are helpful in that space. Yeah, I was going to pick up on, you talked about negligence and gross negligence and things like that. These are things that might actually have repercussions outside of the organisation.
How does that sort of fit in with the just culture model? There's always been, I think, a real tension between just culture within an organisation and how sometimes incidents and accidents, mistakes, errors are handled by society in general, and particularly amongst regulators and prosecutors. Because a lot of nation states, Australia included, we have an adversarial and punitive criminal justice system. It's retributive.
So the idea is that, well, if someone is negligent, and if it's particularly bad negligence, then it can become criminal. And the idea is that, that person should be prosecuted and punished for that conduct. And certainly, historically, the law has not really had room for just culture approaches in that, unfortunately.
And there has been some progress. Certainly, for example, in Europe, Euro control, the European control in Europe have done a lot of engagement with prosecutors and judges around educating them in just culture processes and how that works to try and improve that situation. And certainly in Australia, we've, for a long time, we've had, when it comes to accident investigations, we've got the ATSB, which is undertaking no blame investigations.
It's not about trying to assign fault or liability. It's about trying to understand what happened in order to provide safety recommendations to try and reprint reoccurrence. But nevertheless, we do have enforcement mechanisms, we have the criminal justice system.
And there does seem to be, unfortunately, worldwide, a bit of a trend back towards criminalisation of aircraft accidents and incidents. And there's been a few examples of that sort of in the last couple of years, both in Australia and overseas. You've had the US Secretary of State for Transport, Sean Duffy, he was blaming pilots for disavowing air traffic control, as he called it at busy airports in the United States, it was calling them for them to be to lose their licences and to pay the price for it.
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Even though the official investigations into those incidents had not been completed, and we still don't know what all the facts and circumstances are. So there's sort of a change in rhetoric. What about the media in things like that? I feel like, you know, sometimes pick up the paper and you say an accident, and they're using this language that is, you know, blame and punishing and fault of, you know, driver, pilot, whatever it might be.
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I get a bit upset that they're tarnishing, you know, some outcomes and without that systemic understanding. It's an unfortunate thing. It's very common, you know, the incentives, if you like, of media to sell papers, to get eyeballs, to get clicks, doesn't necessarily always lend itself to a calm, dispassionate exposition of what happened.
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And it's also, it's a very, there's a very sort of gut feeling, instinctual thing of this bad thing has happened. You know, this aircraft has crashed, and someone needs to be held responsible for it. It's sort of mirroring that, you know, what do you call it, the retributive justice.
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So, the media is sort of mirroring the legal framework. Yeah, and that's right. And I think, and the problem with that so often is that it all gets focused on the person at the sharp end.
So, say the pilot, for example, and like, well, they made the mistake, and they're the one at fault. Well, and we don't often consider, well, why were they put in that situation in the first place, where perhaps they didn't have many good choices to begin with. So, what was the training like? What equipment are they working with? I mean, you can go back to the Kegworth accident in the UK, where the crew had engine trouble, and they shut down the wrong engine.
So, they shut down the engine that was good, and they flew on the engine that was having problems, and then basically crashed short of the runway. And everyone went, well, those idiots, how could they shut down the wrong engine? But when you looked at the copper indications, the training that they had received, which was incredibly limited, and how that accident unfolded, it's a much, there's a whole lot of organisational and system factors and regulatory factors that went into that. But to just throw all the blame on the pilots now, well, they were the last person to touch the controls, therefore, they're at fault, is to strip out all of the nuance.
And I think just culture then is not about, well, we're just going to get rid of accountability and say, well, you can make mistakes and it's all fine. It's really about broadening and deepening accountability. Just go, let's look at the entire picture and all the factors that were in play.
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Really good point. Yeah. This is your captain speaking.
Is there a safety manager, an accountable manager, or a part 121, 135, or 138 operator on board? Because our one-day online course runs July 10th and 24th, and it'll get you SMS ready. The seatbelt signs off. So feel free to book in at aviation safety community.com.au. You touched on about ATSB and CASA, et cetera.
And I'm just wondering, what are the policies of the regulators and how do the regulators actually have an effect on this just culture side of things? And maybe you could talk a bit about that. Yeah, certainly. So when it comes to, obviously you say the ATSB, that is, it's a whole lot of protections that are built into that.
It is about, and it's about trying to understand what happened. It's not about assigning blame or liability. The main regulator, obviously we have in aviation in Australia is CASA.
And they do have as part of their operating principles, they have that they will employ a rational just culture approach in how they regulate and undertake enforcement actions. And so as part of those principles, they'll consider some of those factors about what was the impact on air safety? What's the attitude and the antecedents of the persons who are involved? So is this a person who is trying to do the right thing and had a bad day and made a poor decision and is wanting to do better? Or it is a person who has an attitude of like, ah, the rules don't apply to me. I don't care.
I'll do what I want. And they'll also consider then CASA's, the confidence that the industry needs to have in CASA in terms of its administration of the rules of safety as it being seen to apply the rules justly and fairly. And so to support that, CASA has developed a just culture directive that limits when CASA is going to undertake certain enforcement actions.
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And I think it's something that for both people, individuals within aviation and also operators, I think it's something that's worth them having a look at and understanding, you know, what that directive says and where they will and won't be protected by it. And the basis of the directive essentially is that it separates into two categories. One is administrative actions.
This is where CASA is not going to take administrative action to, that might be to vary or suspend a civil authorization, a civil aviation authorization, such as, you know, suspend someone's license or their AOC or issue a directive telling them you will do this or you won't do that. And what the directive says is that as long as you can satisfy CASA that you will or have taken corrective or remediative actions to identify the safety issue, and that will then eliminate or mitigate the risk of reoccurrence, and that CASA can be satisfied that you're actually doing that on an ongoing basis, the actions have actually been effectively taken, then they won't initiate that administrative action. So basically it's saying to pilots industry, look, if you're proactive, if you take actions to resolve the issue and mitigate the risk, and we can look at that and go, yes, and see that that's what you're doing, then we're not going to take that administrative action.
The other is covers enforcement, criminal prosecution. So, and so there what CASA is saying is that we're not going to prosecute you as long as the conduct wasn't grossly negligent or reckless or willful disregard of contravention of aviation safety regulations. And as long as basically in the last three years, you haven't either been prosecuted or counseled for doing the same thing or something similar, or you haven't been involved in some major issue with CASA in the last three years, basically.
And so it's basically, again, to try and encourage reporting and environment where to encourage people to say, yes, look, I've made a mistake, I've stuffed up, but it's worth knowing what those protections apply to and where they don't. So when it comes to administrative action, some of the questions you might ask yourself is, well, was there an actual or imminent risk to air safety? Was it grossly negligent or reckless or deliberate breach of the rules? Have I breached those rules in a similar or same way previously? And can I satisfy CASA that I'm fixing the issue and that they can check that? And if your answer to those questions, so the first three is no and the answer to the fourth question, can I fix it? The answer is yes. Then you're going to fall under the protections of this directive.
When it comes to criminal prosecution, was I grossly negligent or reckless or deliberately was I breaching the rules? If the answer to that is no, and I haven't been involved with CASA or anything in the last three years, then again, there'll be that protection. Tony, just to crystallise, so you're talking about the benefits and the systems that are in place, at least in Australia. What about the flip side? If we didn't have just culture, what does this criminalisation look like? What's the risk? What's the future? What's the dire outlook here? There's a couple of examples from overseas and one from Australia, perhaps, that I'll talk about.
The two overseas were very briefly, in March, I think it was last year, South Korea charged two air force pilots with criminal negligence. They accidentally bombed a South Korean village during a training exercise and the prosecuting authorities basically said they made errors when they were adding coordinates to the aircraft system. So they're not deliberately trying to bomb a village, it was a data entry error.
Despite the fact that the investigation is still ongoing, they've already said they're going to charge these pilots. Now, it might well be that it turns out that actually what the actual pilots did was actually grossly negligent, but we haven't finished the investigation. So they're pre-empting an investigation by saying, well, they're negligent, we're going to charge them.
There was also then an incident in the UK where a captain of a commercial flight was charged in the United Kingdom with not maintaining continuous radio contact with air traffic control. He's flying from, I think it was Norway, to the UK and he missed a frequency change, in fact, both crew members did, and so they weren't in contact with ATC for a period of time. Now, that led to RAF fighter aircraft intercepting the aircraft and so there was considerable expense with that, but it was a mistake from a normally high-performing pilot.
It was not a deliberate act. Nevertheless, he was charged. He ultimately pleaded guilty because he was advised that he had no chance of actually defending that, successfully defending that charge, and he was fined about four and a half thousand pounds.
And that caused quite a bit of disquiet in the UK. And so if we go down the criminalisation route, which we seem to be unfortunately doing more and more, that's the kind of situation that you're going to get to. So is this pilot in the future going to admit to ever making a mistake if that's the environment in which he or she is operating? And if I can turn then to the incident in Australia.
So this was one of a pilot, his name was Woodall, happened in Queensland. The incident happened in 2017 and basically he was flying a 172. He had three passengers on board.
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He was doing a precautionary inspection of the beach because he was going to land on the beach, part of their normal operation. So he was down at quite low level and instead of 300 feet or so, and he had an engine failure. And basically what happened was he made a turn towards the beach to try and land on the beach, but the aircraft stalled and crashed and two of his passengers were killed and the other two suffered pretty serious injuries.
And he was ultimately charged by Queensland police. So not by CASA, but by the Queensland authorities and with basically dangerous driving, which includes dangerous flying. And basically, so if you fly in a reckless way or drive in a reckless way and you cause a death or grievous bodily harm of somebody, that's a criminal offence in Queensland.
He was prosecuted. He went on trial in December of 2024. And basically what the prosecution said was that it was not the engine failure that caused the crash.
The failure was caused by the defendant turning towards the beach to try and land the aircraft. And the prosecution said that he should have landed straight ahead and ditched into the water basically. And Mr. Woodall's defence was that, well, he didn't want to land in the water because it was deep.
There were risks of drowning. There was bull sharks in the area. And he thought the safest option was to try and reach the beach.
So he's making a judgment call in the heat of the moment after an engine failure at low level, where you have very limited time to make a decision. He was found guilty by a jury of dangerous flying and he was subsequently sentenced to a two-year suspended jail sentence. So a couple of takeaways from that case, I would say, is that there was very limited discussion of human factors, of just culture in the trial.
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And it was a very limited inquiry about his decision-making after the engine failure. And the whole surrounding context of why he was in that situation in the first place, the safety of the operator, the safety of the aircraft, the procedures, all that sort of stuff, his training, none of that really was dealt with, which I think is concerning. The other takeaway from that is that this was a prosecution by Queensland police and the Queensland DPP, not by CASA.
So it means that there is a gap in the protections where even if you might fall under the CASA just culture protections, it does not necessarily that you might still be exposed to other enforcement agencies, such as a state police force. Obviously, these sort of incidents happen and the individual's been prosecuted, but what about the actual companies that these people operate for? How do they feature in this and what can they do to help their employees? Certainly within your organisation, obviously you want to have a stronger just culture policy for the sake of your own internal safety systems and to have that trust between management and the workforce. I think at the same time, you've got to be open and honest and realistic with your workforce about the fact that even though you might have a just culture internally, you can't control what other outside agencies such as regulators will do.
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And so I think being open and honest about that is really important. I think another thing that's really important is that even though you can't say control what CASA or state police force does after an incident, you can still choose how you are going to back up and support that staff member. And building that, are you going to keep that trust with that staff and say, okay, we can't control what CASA does, but we're going to have you back, you're back, we're going to support you.
That might be through helping them make sure they've got legal representation. It might be through making representation to the regulatory authorities to say, hey, this is not an appropriate course of action to pin the blame on our worker. So I think having that support system is really, really important.
I think providing good education for your workers around things like the CASA's just culture directive, so that they know where they will and won't be protected. I think it goes a long way. It's that open communication and building that trust, I think is also really important.
So those are sort of three takeaways. And I guess the fourth would just be, I think we always need to be advocating for decriminalizing aircraft accidents, for taking a just culture approach, for understanding that human beings are fallible and make mistakes. And so I think some of the things that say Eurocontrol in Europe, we need to be replicating here of educating lawyers and prosecuting authorities and courts around human factors, around just culture and how that improves safety.
So I think that's really important. I guess one other thing I think is really important to mention as well is that as an organization, if you have a strong just culture approach, if you are proactive when it comes to dealing with safety issues, regulators are going to have a lot more confidence that they don't need to prosecute, they don't need to exercise deterrence, because you're already proactively dealing with safety issues, you're improving your systems, you're being open and transparent. That's going to drastically reduce the felt need for among their regulators to engage in enforcement and criminal prosecutions and things like that.
And of course has the added bonus that you're less likely to have an accident or an incident which is going to break that issue in the first place. Tony, that's been really, really interesting. I really appreciate you taking the time to talk to us about this.
And based on what you've been saying, we can see that there is a growing trend in criminalization of aviation incidents and accidents. And it's outside the control of the organization, even though the organization may have a just culture in place. And even though, as you say, the regulator has this just culture, it's still open to prosecution from external sources outside of the regulator or the authority.
And I think what you're suggesting there is really great, that the company makes everyone aware of where they stand in the whole just culture model and reassure their employees that they will stand behind them if things do turn to a prosecution type scenario. So, no, that's been fascinating, really has. Thank you very much for that.
Thanks for everyone. Thanks, Catherine. I love talking about this stuff.
So, thank you very much for having me on. And I should say, if anyone wants to talk further about just culture or about criminalization or any of these topics that we've talked about, I'm more than happy if people want to email me or go to my LinkedIn or whatever, happy to have those conversations. I'm just wondering, what do you see as the one key message to come out of this? I think it would be that to have a robust just culture policy, support your frontline staff as strongly as you possibly can, but don't make promises that you can't keep.
Be realistic about and honest with them about how much protection you can afford them and where you can't. I think that's probably the main takeaway, so that you maintain a relationship of trust. Thank you, Tony.
That's fantastic. This is the final boarding call. The SMS deadline hits September 1st, so book your seat now.
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