Welcome to the General Aviation Advocacy Group of New Zealand

2017 July-August bulletin

 

RPL: The CAA got it wrong, but this case is only half-won

The GAA has challenged the legality of AC 61-20 as it applies to the Recreational Pilot Licence. And the CAA has now accepted that the current AC 61.20 Revision 7 is incorrect where it states that that you would need to specifically hold an RPL because it is a “completely separate licence”.

We advised the CAA that this anomaly is the result of editing in the Rules rewrite during the introduction of the RPL, and the CAA has conceded the error. There is an opportunity for the Authority to correct this anomaly in the rewrite of AC 61-20 Revision 8.

The CAA has announced that intends to refund ATPL and CPL holders who paid for the issue of an RPL. The CAA opinion is that Rule 61.41 applies only to holders of a CPL or ATPL. The Authority says PPL holders are not entitled to a refund.

Rule 61.41- Use of lower pilot licence or rating

(a) The holder of an airline transport pilot licence or a commercial pilot licence issued in accordance with this Part who does not hold a current class 1 medical certificate issued under the Act but who holds a current class 2 medical certificate issued under the Act may exercise the privileges of a private pilot licence if the pilot meets the currency requirements for the private pilot licence type.

(b) The holder of a pilot licence issued in accordance with this Part who does not meet the currency requirements of rule 61.207 or rule 61.257 for the pilot licence type, but who meets the currency requirements for a lower pilot licence, may exercise the privileges of the lower pilot licence.

Rule 61.41 is the binding law and overides the AC, which is only advisory.

The implied intent of 61.41(b) is to allow the holder of a higher licence to exercise the privileges of a lower licence, the RPL being the lowest in Part 61. The legal justification for this is contained within the meaning of the actual words in CAR 61.41(b). The rule is prescriptive.

The GAA contends that, with regard to Rule 61.41(b), the RPL is a lower licence than the PPL.

The holder of a pilot licence issued in accordance with this Part (which a PPL is) who does not meet the currency requirements of rule 61.207 or rule 61.257 for the pilot licence type (which a PPL never will) but who meets the currency requirements for a lower licence (which a PPL can), may exercise the privileges of the lower licence.

This anomaly in the rules is simply that: an anomaly. The PPL holder cannot be denied the use of the lower licence on any safety grounds because the standards set for a PPL are exactly the same as for a RPL. We await a reply from the CAA.

The OIA: It might as well mean Obstructors In Action

Our series of questions relating to CAA personnel background checks and monitoring has followed the usual route. The Authority has responded in its now customary manner, by making the enquiries subject to the Official Information Act.

This means that the CAA can delay a detailed response for up to 20 working days, which amounts to a calendar month. At the GAA, and over the years, we have become used to having correspondence dealt with in this way. Almost every GAA letter or email ends up in the OIA officer’s in-tray, where it tends to languish until almost the last available moment.

While we waited, we wrote to the CAA and said: “The letter is straightforward, containing just nine simple questions in the form of an aviation-related safety concern that requires no specific disclosure of documents. It therefore should be capable of being answered with ease by the Director or the Acting Director in his absence, within the terms of the CAA Service Charter.”

There has been no reply.

We’re not alone in suspecting that the OIA is being routinely misused by public servants to obstruct the supply of information and to stifle open and honest dialogue. Now there is also widespread media concern. It has reached a level where the Ombudsman has decided to release details of complaints about alleged misuse of the Act.

The international advocacy group Reporters Without Borders has issued its latest report, which blames state secrecy for reducing New Zealand to number 13 in the 2017 World Press Freedom index. It was number five in 2016.

Given the CAA’s record of dealing with the GAA, we’re happy to support a highly respected international and United Nations-recognised organisation’s claim that New Zealand legislation intended to increase transparency is being misused to make it more opaque – and we now learn that this behaviour may extend more widely to public servants’ interactions with the media.

Our series of questions (the answers now frozen for the time being, and far from guaranteed) arose from the discovery that a flight operations inspector had made false claims in his ‘personal profile’ about qualifications as part of a sworn court affidavit, and that the CAA had expressed no concern about the quality of the inspector’s work.

We have told the CAA: “If a licensed engineer used fraudulent qualifications to release an aircraft to service, then all aircraft and/or components that this engineer had touched should have been subject to a rigorous investigation.”

We have accused the CAA and Minister of Transport Simon Bridges of brushing off the problem, saying: “It smacks of a ‘trust us – we know what we are doing’ attitude unbecoming of a responsible and communicative authority.” The GAA says that the Authority’s expressed lack of concern about the quality of its employee’s work is further evidence that it is out of touch with (and entirely unsympathetic to) its clients.

All aviation document holders in our aviation system (even microlight aircraft owners) are subject to stringent CAA Fit and Proper Person investigations.

On 2 June 2016,  the CAA Manager Aviation Infrastructure and Personnel, when asked about the CAA’s present policy for assessing the fit and proper status of senior people within the CAA and re-assessing them on an ongoing manner, told the GAA:

“The requirement to be a fit and proper person is prescribed by the Civil Aviation Act 1990. The Act only applies to holders of aviation documents, not the Authority’s staff.  Staff are subject to assessment processes during recruitment and selection activity and are also subject to various employment obligations and ongoing performance review processes”

What happened in this latest case bears striking similarities to one more than 13 years ago, where a CAA employee claimed false credentials. The then Authority Chairman, Rodger Fisher, in releasing the State Services Commission report findings, said the issues relating to the former CAA investigator were serious and as a result of information that came to light through the review, the CAA had already dismissed the person. The inspector was dismissed because he misled the CAA. The Chairman said he regretted the damage done to the reputation of the CAA but that the public could have confidence in the integrity of the system. He further said:

“The fact that the CAA called for the SSC review; has released the report; accepts the findings fully and has taken a number of steps already to address the issues shows that we are willing to be accountable for our actions and to examine systems and procedures and make improvements where necessary.”

In relation to fit and proper person investigations, Mr Fisher said:

“We also intend to thoroughly review the policies, procedures and practices for special purpose inspections and investigations relating to the suspension of aviation documents and the guidelines for fit and proper person investigations. We will make any necessary changes, consistent with the report’s recommendations.”

It is now evident that, 13 years later, the CAA has failed to remedy its shortcomings, and is unlikely to do so voluntarily. This is why we are asking the Minister of Transport, Simon Bridges, to intervene. As the responsible minister, one of his functions under the Civil Aviation Act 1990 is to promote safety in civil aviation. This must naturally include governance of the employment and continuous monitoring of CAA personnel who are delegated or otherwise tasked with the CAA’s primary function: the safety of this country’s aviation system.

Participants operating in the system must, by definition, surely include the Authority’s staff. The CAA regulatory staff “operate in the system”. The Act provides no specific exemption for them to be excused from the scrutiny of a FPP test.

In our view, the Authority’s own staff must now be subjected by way of a FPP test to the same level of scrutiny as CAA aviation document holders such as pilots, engineers and senior persons. The intention of the FPP test is to provide public assurance regarding the safety of participants operating within the system.

We also believe that the continual resort to the OIA by the CAA (and others) will eventually prove unsustainable.

Reporters Without Borders (RWB), or Reporters Sans Frontières (RSF), is an international non-profit, non-governmental organisation that promotes and defends freedom of information and freedom of the press. The organisation, with a head office in Paris, France, has consultant status at the United Nations.

Appeal Court allows multi-million dollar fraud case against the CAA

Grounded ex-military helicopters are the subject of a multi-million dollar claim of fraud against the Civil Aviation Authority.

Mark Wayne Ford of the now-liquidated Heli-Logging Ltd said that, if his suit was successful, he would seek $90 million in compensation from the CAA.

He alleges the Authority wrongfully refused to give him the go-ahead to use his helicopters for logging.

The amount sought would cover the loss of earnings, the cost of ten helicopters and spare parts and legal bills, he said.

Here’s the full story

Those not-so-Small Issues – A big win for common sense

The CAA has told the Aviation Community Advisory Group that the proposal to amend the definition of major modification and major repair (included in the Small Issues NPRM) will not be progressing as part of the final rules package.

The CAA seems to be still finalising its position, which will appear in the response to submissions, but the current draft reads:

As a result of industry feedback on the proposed Part 1 definitions for “major modification” and “major repair”, the CAA has recognised that additional work is required in relation to these and potentially other related definitions not currently addressed in the NPRM.  The CAA accepts that the proposed definitions, by identifying specific aircraft systems, go to a level of detail below that intended by the current definitions’ inclusion of higher-level hazardous situations.   It is not the CAA’s intention to broaden the scope of these definitions, rather to provide additional clarification as to what modifications and repairs could potentially have an appreciable effect on an aircraft’s airworthiness, and therefore be considered as “major”.   The CAA agrees that this intention may be better achieved by way of additional guidance material to support any potential rule changes.  The CAA will revisit these definitions in light of industry’s feedback and provide further draft proposals in the future.

It’s nice to have the occasional win…

Leaving helicopters unattended with rotors turning under power – here’s another daft idea

The amendments proposed to Part 91 and Part 135 which introduce restrictions on the ability of a helicopter pilot to leave the controls with the rotors turning are not a Small Issue, are inconsistent with current practice, will have significant unintended consequences, and should not be proceeded with.

This rule change defies logic and must be scrapped (Photo courtesy of Mountain Helicopters)

Furthermore, the CAA’s unilateral decision – that unless the flight manual specifically permits this activity, it is prohibited – is a 180-degree reversal of the permissive manner in which flight manuals have historically been read.

The CAA has itself identified its own inconsistency in interpreting how the flight manual should be applied and it set about analysing the issue (16/ISS/17); yet this proposed amendment cuts directly across this ongoing work with a unilateral and incorrect interpretation.

Had this proposal been subjected to a meaningful risk analysis involving stakeholders, it would have become apparent that safety risks around helicopters are elevated when the aircraft is on the ground and unaccompanied persons are in the same vicinity.

The primary (and in most cases, the only) available mitigation, especially in off-airport landing areas, is for the pilot to leave the controls and accompany people to/from the aircraft.  Far more people are alive today having been accompanied in the vicinity of the aircraft by the pilot than have been injured by helicopters lifting off without a pilot on board.

Other scenarios where the benefits exceed the risks include situations where temperature/altitude may preclude achieving an engine start, locations where inability to achieve an engine start would place the helicopter occupants at increased risk, and conditions where having the heater/demister functioning during passenger boarding is preferable.

This rule amendment is opposed and should not proceed under any circumstances.

There is no word yet on whether rotors in motion or CAA Notices will be progressing to final rule.

The new CAA levies – read this, and reach for your calculator

Qwilton Biel has written an article about the longer-term implications of the new levy structure. Click here to read it.

Apply the figures in Qwilton’s article to your operation to calculate how much you will pay the CAA under this new regime. One operator has done his sums and found that, because he is classed as a “good operator” and is on a two-yearly audit regime, he is facing a cost increase of 188%.

Where, we ask, is the fairness in that?

PBN approval process for Part 91 operators – calling all guinea pigs!

By 2023, Performance Based Navigation (PBN) will be how all IFR aircraft find their way around the country. Between now and then, we will see PBN procedures become more prevalent and aircraft/operators equipping and transitioning to this new standard.

The GAA has received comments from a couple of early adopters about their experiences when seeking Part 91 PBN approval, and we would like to hear from others who have gone through either the airworthiness or operational approval process. Your contact is Qwilton Biel at qwilton [at] biel [dot] nz

A number of forums and working groups have sprung up around this New Southern Sky project. Our input gives an opportunity for the experiences of “guinea pigs” to smooth the way for those who follow in the approval process.

CAA Notices: Why the authoritarians must be stopped

In dreaming up the CAA Notices concept, the CAA is effectively giving the finger to industry and needs to be firmly put back in its cage.  The Authority has twisted the intent of the law-makers on a grand scale in order to increase its powers and subvert the checks and balances that exist in the rules development process.

This has to be stopped.

If the CAA’s interpretation of Section 28(5) is allowed to stand, aviators will have no recourse to the MoT or Minister regarding the content of CAA Notices.

To read more about the CAA Notices process, where the CAA becomes the risk-definer, the solution-chooser, the rule-maker and the law-enforcer, click here.

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 damage 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

Become a subscriber

By registering on the GAA website, you also benefit from a regular update by email – and you can have your say on the website.