ILLEGAL APPOINTMENT OF AN EXPATRIATE AS CEO OF THE ACCIDENT INVESTIGATION COMMISSION

by NEMO YALO
In my last article relating to the appointment, suspension and revocation of appointment of Chief Executive Officer (hereafter “the CEO) of a statutory authority I concluded by stating that under the relevant laws the ultimate decision to appoint or suspend or dismiss a CEO rests with the Head of State (hereafter “the HoS”) and none other. I further stated that I will write about a particular statutory authority that has made two acting CEO appointments and terminated the incumbent CEO in breach of the relevant laws.
Here I write about the Accident Investigation Commission (hereafter “the AIC”) board illegally appointing an expatriate as acting CEO.
The AIC is the statutory authority entrusted to investigate aviation accidents and incidences (occurrences) in order to determine the cause(s) so as to prevent similarly or the same incident or accident occurring in future. The AIC board comprises the Chief Commissioner who must be a National Court Judge or lawyer with 10 years experience and two other Commissioners, one with significant aviation industry experience and the third person with qualifications and experience relevant to the functions of the AIC.
The process relating to the appointment, suspension and revocation of appointment of the CEO is provided for under Section 208B of the Constitution, Section 238(2) of the Civil Aviation Act 2000 (hereafter “the CAA”), the Regulatory Authorities (Appointment of Certain Offices) Act 2013 (hereafter “the RSA Act”) and the Regulatory Authorities (Appointment of Certain Offices) Regulation 2014 (hereafter “the Regulation”). I discussed the processes in my last article.

Illegal Appointment of an Expatriate as CEO
Section 208B(2) of the Constitution states that all appointments (whether temporary or substantive) of CEOs shall be made by the Head of State (hereafter “the HoS”), acting with, and in accordance with, the advice of the NEC given after considering recommendations from the relevant Minister, acting on the advice of the relevant Board, following procedures prescribed by an Act of Parliament. The CAA at Section 238(2) is in similar terms as the Constitution. The RSA Act under Sections 1, 2 and 3 set out a detailed procedure for appointment of CEO.

When the incumbent CEO Mr David Inau voluntarily stepped aside from office sometime in June 2017 following allegations made against him, the AIC board in a special meeting appointed an expatriate, Mr Alan Stray as the acting CEO of the AIC. Mr Stray is employed as the Manager – Aircraft Operations Investigations under a contract of employment. His contract does not allow him to be employed as the CEO. I am not entirely sure if his visa conditions and work permit conditions issued under the Employment of Non-Citizens Act 2007 (hereafter “the ENCA”) allows him to jump from position to position. The AIC board has no lawful powers under the Constitution, the CAA, the RSA Act and the Regulation to appoint Mr Stray as acting CEO but that does not justify Mr Stray’s breach of his visa conditions or conditions of his work permit. He may have breached Section 31 of the ENCA and his work permit should be revoked immediately. The Labour Department should as a matter of urgency investigate this and other related issues by interviewing the staff of the AIC. It may discover further breaches of work permit. 

The relevant law is that in the event vacancy occurs in the office of the CEO for any reason following which delay in substantive appointment occurs or may occur Division 4 of the Regulation states that the board shall recommend to the portfolio Minister a suitable person from within the organization who meets the minimum requirements prescribed by the Regulation for appointment as acting CEO for a period not exceeding three months, subject to further review. The portfolio Minister then advises the Minister for Public Service to advise the HoS to make the acting appointment. In this case, the vacancy occurred in the middle of 2017 general election. There certainly would have been a delay in making the substantive appointment. So the board ought to have recommended an officer from within AIC to the Minister for Civil Aviation to advise the Minister for Public Service. Based on the board’s recommendation the Minister for Public Service would have advised the HoS to make an acting appointment. 

The Constitution at Section 208B, Section 238(2) of the CAA, the RSA Act and the Regulation all say that the HoS is the ultimate authority that appoints, suspends and dismisses CEOs of statutory authorities. The AIC board usurped the power of the HoS.
Mr Alan Stray performed duties in his capacity as the acting CEO for two weeks. On 8 July 2017, the AIC board in a special board meeting resolved to appoint one of its members, the Deputy Chief Commissioner, Mr David Tawae, as acting CEO replacing Mr Stray. Again this appointment did not involve the portfolio Minister, the Minister for Public Service and the HoS as required by law. Mr Tawae acted as the CEO up until November 2017. This is another illegal appointment made by the AIC board in breach of the Constitution Section 208B, Section 238 of the CAA, the RSA Act and the Regulation. 

In the meantime, on 27 July 2017, Mr John Kali Secretary for Department of Personnel Management wrote to David Inau advising that his voluntary stepping down as CEO was improper and directed him to return to work. Mr Kali also referred to the two acting CEO appointments of Mr Stray and Mr Tawae as being illegal. On 27 July Mr Inau returned to his office. His office lock had been changed. When Mr Inau called the Chief Commissioner he was advised that he will receive a letter from the board prohibiting him from ever entering the office premise. On the same day, Mr Inau handed to Mr Stray his termination letter terminating Mr Stray’s employment. Mr Stray gave a hard look at the CEO and pointed his finger at Mr Inau’s face and said he is responsible to the Chief Commissioner and not the CEO. Mr Stray’s contract of employment states a condition under clause 2.1(h) that he is “directly responsible to the Chief Executive Officer”. Not the Chief Commissioner. Total arrogance and disrespect. Mr Stray is a law unto himself in Papua New Guinea, it seems.
This is a person who is on a package of about K1.3m contract when the AIC’s 2017 appropriation was a mere K4.3m. The funding for his salary was to be shared between TSSP and AIC but the latter has refused to pay its share because it did not sign-off on the final draft of Mr Stray’s contract of employment. The package is much higher than any Australian Government approved advisory emolument package. With the substantial cut in the 2018 appropriation, savings have to be made elsewhere to maintain Mr Stray's lucrative package. Last week the board has given a termination notice to the only senior Manager – Airworthiness. Who knows how many other senior investigators will be terminated?
Termination of CEO
When David Inau voluntarily stepped aside from office in June 2017 that was not proper in law and under his contract of employment. Mr Inau was not suspended by the HoS in accordance with the procedure prescribed by law. John Kali was correct to advise him to return to work. However, when Mr Inau returned to his office, the lock had been changed. He could not return to work. The next day, 28 July 2017 the Chief Commissioner wrote to Mr Inau, directing him not to come to the office. So Mr Inau has been prevented from resuming duties. The AIC has ceased paying Mr Inau’s salary as of 1 December 2017. Mr Inau’s term of office ends on 18 February 2018.
So what is the result of all these? In employment law, locking the CEO out of his office and prohibiting him from entering his office to work is a constructive termination. Ceasing payment of pay is termination. It is highly improper and breach of the Constitution, CAA, RSA Act and the Regulation which all state that only the HoS has the ultimate power to appoint, suspend and terminate the appointment of the CEO. As if the Constitution alone is not enough, and as if the Constitution plus the CAA are not sufficient the power of the HoS is reiterated in the RSA Act. So what sort of board does it take to act arrogantly and deliberately breach three laws which say the same thing? Either the board is acting on incompetent legal advice or the arrogance displayed in the AIC has someone’s fingerprint all over.

Disclaimer. I do not represent anyone and I have not written to promote anyone’s interest. I have been a part of the AIC in the immediate past. The AIC in the last three years was fast gaining prominence and recognition in the Southeast Asian region and in the Pacific excluding Australia and New Zealand in the aviation accident investigation world. The AIC had a cordial professional relationship with the Australian Transport Safety Bureau and the Transport Support Sector Program (TSSP) through the bilateral agreements between GoPNG and Australia through DFAT. Now that is no longer, thanks to arrogance in the AIC. I am aware that the heads of other aviation enterprises such as CASA, PNGASL and NAC and the Secretary for Transport and finally those in TSSP are rolling their eyes thinking what the heck went wrong with the AIC. 

These issues must be dealt with by the GoPNG immediately so that AIC is ready when the APEC is hosted. Immediately prior to, during and immediately after APEC the Port Moresby airspace will be unusually busy. That means the potential for risk of aviation occurrence will be high. AIC is a key player. Perhaps there is that possibility that our airspace may be completely locked down. Nevertheless, whilst other aviation enterprises such as CASA, PNGASL and NAC may be ready, the GoPNG cannot afford to have its AIC in limbo all because of arrogant and reckless regard for the law. The arrogance in the AIC must be rooted out as a matter of urgency.

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