Welcome to the General Aviation Advocacy Group of New Zealand

2017 October bulletin

 

The $11.10 triumph: It was like drawing blood from a stone

Scrooge would have admired the NZ CAA

As a result of the GAA’s challenge to the wording of AC61-20 Rev 7, we secured refunds for CPL and ATPL holders who wished to exercise the privileges stated in CAR 61.41 and had previously been required to apply (and pay) for a Recreational Pilot Licence.

But we also sought a refund of the $11.10 NZTA fee, which was part of the Fit and Proper Person declaration. At first, the CAA wanted proof of payment, but we objected to that because the charging error was the authority’s and the onus was on the CAA to rectify the matter using its own records. A CAA official sniffily told us we would have to visit the authority’s website to discover what it had decided about this.

Then the CAA seemed to recognise its rudeness and wrote again, saying:

CAA is prepared to reimburse that sum to affected RPL holders without proof of payment being required. To identify eligibility, CAA will be reviewing each individual’s file. Please note that the LTSA fee of $11.10 has only been in place since 01 June 2011 so anyone obtaining a report prior to this date would not have incurred any cost.

Reimbursements will be processed as soon as possible in the upcoming weeks to all those who have responded to their letters.

Admittedly a small monetary win, but it’s the principle that matters.

Oh, and restoring some degree of courtesy…

The current situation regarding PPL holders

The GAA has also been pursuing the issue of an “anomaly” in CAR 61.41 which prevents PPL holders from exercising the privileges of a lower licence – the RPL. The CAA had told us:

We have discussed the content of your letter at some length and while agreeing that the current wording of Part 61.41 creates an anomaly we cannot change that in the AC as the Rule overrides the AC. We will be making it clear in the AC that in its current state the Rule only applies to ATPL and CPL. However, we are in the process of submitting an issue assessment recommendation to address this anomaly. Part 61.41 is prescriptive and will require a Rule change to allow PPL to be treated in the same manner as ATPL and CPL hence the need for this issues assessment. We encourage you to submit a request for a Rules issue assessment of Part 61.41 to add weight to the process.

Please note that we cannot confirm the implied intent of Part 61.41(b) as the Rules are made by the Minister under section 14A(d) of the Civil Aviation Act therefore the intent is the Minister’s not the Authority’s.

After that, we submitted a request for a Rules issue assessment. This process will take some considerable time (probably years), due to other assessments that are ahead of ours.

As a stopgap measure, we petitioned the Director to exercise his exemption power under s37 of the Civil Aviation Act. At first, he refused, until we showed him evidence of his having signed an exemption in similar circumstances. We’re looking forward to Graeme Harris’s decision.

AC61-18 and D Cats and third-level instruments

There is a continuing CAA tendency to use third-level instruments to wrongly manipulate regulations, rules and other legislation. This bad behaviour was recognised long ago, in the Swedavia-McGregor Report.

In AC 61-18, the authority purports to decree that rule 61.307 (h) does not apply to Category D flight instructor ratings.

It also claims that the holder of a Category A or B flight instructor rating who is not current may not exercise the privileges associated with a Category D flight instructor rating as a matter of right.

CAR 61.307 (h) is plain and simple. There is no rule that prohibits the holder of a Category A or B flight instructor rating from exercising Rule 61.307 (h) as of right. There is no legal requirement for a Category A or B flight instructor to apply for a Category D flight instructor rating whether or not they are current in the higher rating, provided they meet the currency requirements of the lower rating and otherwise comply with the rules.

Neither an AC nor the Director hold any power to negate the rules. They can only be issued and revoked by the Minister or the Governor-General.

The authority’s claim that CAR 61.307 (h) does not include the Category D flight instructor rating and that this is a separate rating, not a lower category, is not merely creative.

It is unlawful.

Clearly, a Category D flight instructor rating is a lower rating than Category A and B flight instructor ratings.

We brought this error to the CAA’s attention at the beginning of September, and waited so long for a reply from its legal section that we had to file yet another complaint for a breach of the CAA’s Service Charter.

The discussion continues…

AC 61-20 Revision 8

Having revealed to the CAA its unlawful content of AC61-20 Version 7, we then discovered that it had failed to correct all the rule errors in Version 8. In particular, its note on page 6:

Notes: Under rule 61.303, an RPL does not qualify the holder for the issue of a flight instructor rating. Therefore, a flight instructor rating cannot be endorsed on an RPL. A person holding a flight instructor rating endorsed on a CPL or ATPL may not exercise the privileges of that instructor rating with a Land Transport (DL9) medical certificate.

So we told the authority that Rule 61.303 sets out the eligibility requirements for the issue of instructor ratings and explained:

Clearly, this eligibility requirement is set to ensure that the applicant for the issue of an instructor rating has met a given level of aviation knowledge and piloting skill. However, there is no rule that restricts the exercise of an instructor rating on a lower licence provided the operation meets all the requirements of that lower licence and the instructor rating. We have already demonstrated that a CPL or ATPL holders may exercise the privileges of a lower licence.

For example, a B Cat Instructor may exercise the instructor rating on the privileges of a PPL provided he/she meets all the requirements of currency for both the rating and the licence. This would include, in part, meeting the requirements of 61.307 (d).

In another example, a holder of a D Cat Instructor rating or an A or B Cat Instructor exercising the privileges of a D Cat under CAR 61.307 (h) may issue type ratings in accordance with the excessive restrictions of CAR 61.37. There is nothing in CAR 61.37, which prohibits the exerciser of those privileges from giving instruction. (ref CAR 61.37).

Whilst an instructor rating cannot be issued on a RPL, the holder of a CPL or ATPL lifetime licence holding an instructor rating and exercising the privileges of the PPL or RPL already has the rating endorsed on the appropriate licence. In this case, there is no physical PPL or RPL to endorse with an instructor rating.

The appropriate instructor rating will be endorsed on the licence-holder’s ATPL or CPL.

We’re told that this is also being considered by the authority’s legal section.

Meanwhile, it makes you wonder, doesn’t it?  To us, these CARs are – by definition – prescriptive.

Audio and video use as evidence

We’ve been made aware of a pending prosecution against a pilot that we believe has serious implications for general aviators as well as professional pilots.

It involves a pilot who is being prosecuted for events that occurred on a cross-country flight during which the aircraft encountered unforecast bad weather.

The evidence that the CAA is principally relying on stems from audio and video material recorded by a young student pilot, during a training flight. The student used a GoPro camera fitted inside the cockpit, and a separate audio recording device.

The lawyer acting for the pilot believes that cockpit audio and video recordings are inadmissible in any criminal proceedings in New Zealand, against any pilot. There is Court of Appeal support for this, following the 1990s Dash 8 crash on approach to Palmerston North, with no other court decision to the contrary.

The CAA view

The CAA takes the view that this exclusion of audio and video recordings applies only if TAIC is investigating and that it is free to use such audio and visual evidence in prosecuting a pilot, where the CAA or the police have investigated and not TAIC. The pilot’s lawyer is of the view this opinion was not supported by the Court of Appeal decision. Also, when the TAIC Amendment Bill was passed through Parliament to prohibit CVRs being used in criminal proceedings against pilots, the Hansard records of the third reading of the Bill when enacted did not support the CAA’s opinion either. We understand the CAA has used this type of evidence in other prosecutions and, if not challenged, will continue to do so.

The entire issue needs to be considered and ruled upon.

The implications for GA pilots and operators

You never know who’s watching…

If the CAA is successful in securing the admissibility of cockpit audio and video recordings in cases other than a TAIC investigation, the implications for GA pilots are obvious.

Since the 1990s, when the TAIC Amendment Bill was introduced in respect to dedicated aircraft CVRs, rapid and probably unforeseen advances in technology have resulted in a proliferation of pseudo-CVRs in the form of GoPro-style cameras, iPads, smartphones and the like.

A recording taken by a co-pilot or student pilot, or even a passenger within close proximity to the cockpit on a smart device or camera can now be taken out of context, and used to bring prosecution action against a pilot. These devices, with their monocular depth perception and limited field of vision, will often portray an inaccurate view of what a pilot is actually encountering and weather conditions in particular may look worse than what was actually experienced.

The CAA could use such recordings in a prosecution against a GA pilot, unless a ruling is made that they are totally inadmissible against all pilots, regardless of who investigates.

The CAA has applied to the District Court to have the video and audio evidence admitted against the pilot. The pilot is therefore in the position of either having to accept that the CAA can use that evidence, or defend it. If the CAA loses in the District Court, it is likely to appeal, as any ruling prohibiting the authority from using such information obviously has ongoing implications in future CAA investigations. That has serious cost implications for the accused pilot, who cannot afford to fight this alone. A ballpark forecast of costs to argue the matter in the District Court alone is about $15,000.

The matter is due to be heard in the District Court on 14 November. At this time, the pilot does not have sufficient funds to meet the estimated costs of fighting this legal challenge, and if unable to do so, it may be left to the Judge to decide and rule on the admissibility point with the CAA lawyers appearing and making submissions, and potentially no one appearing to argue against them.

We need to recognise, as a community of aviators, that what the accused is confronting has wider implications for the rest of us. This is why we are looking for support from fellow pilots and operators prepared to assist in the funding to obtain a definitive judicial ruling on the admissibility of these recordings as evidence in criminal proceedings against all pilots..

To enable contributions, a bank account has been set up:

ASB, Victoria Road, Devonport

The account name is GA Advocacy Fund

The account number is 12-3065-0148085-02

All funds collected will be applied to fighting this legal admissibility issue alone. Should the pilot subsequently have to go to court to answer to the substantive charge, the pilot will have to ultimately decide on what course to take, and will bear any costs of that.

If for any reason there is a surplus of funds after this admissibility issue is resolved, we would ask you to contribute on the basis that a record of all contributors will be kept and all contributors will be surveyed as to how the General Aviation Advocacy Group should apply any surplus funds.

We urge you to consider making even a small donation to assist in this important legal challenge.

 

About the GAA

The GAA is a voluntary social network for people involved in New Zealand General Aviation. It has more than 2000 registered supporters.

It has no constitution, no formal membership and no fees. It has no income and it seeks no profit. It exists to independently promote and defend GA in New Zealand by analysing and publicising aviation issues, challenging authority, and often personally advocating on behalf of “the little people” in our aviation system – many of whom find it hard to confront seemingly powerful bureaucrats.

GAA supporters are concerned about the Civil Aviation Authority – its poorly controlled overheads, its inadequate service levels, its red tape and its escalating fees. Many are worried about CAA policies that threaten general aviation-related businesses and may harm the future of the next generation of amateur and professional aviators.

The GAA aims to encourage constructive dialogue among everyone involved in our nation’s aviation – including bureaucrats, politicians and established aviation organisations.

GAA supporters include:

  • Airline pilots of all ranks, based in New Zealand, Australia, and around the world
  • Helicopter pilots based in New Zealand, Australia, Canada, Papua New Guinea and Indonesia
  • PPL and RPL holders, and microlight pilots
  • Homebuilt aircraft pilots
  • Instructors and student pilots
  • Balloon pilots and operators
  • Glider pilots
  • Skydivers and skydive operators
  • Licensed Aircraft Maintenance Engineers
  • Flight training schools
  • Fixed base helicopter operators
  • Maintenance organisations, and
  • Small commercial aircraft operators

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