2017 December Bulletin

31 December 2017 / by the GAA team / Costs, Governance, Legal, Medical, Opinion, Safety

The ‘Empty-skies-are-safe-skies’ policy is killing Aussie aviation

(and New Zealand has the same symptoms)

By DICK SMITH in The Australian, 28 December 2017

I don’t think you should ever regard aviation safety as what is affordable. — Australian Federal transport minister John Anderson, October 5, 2000

Dick Smith – I have been warning for years that introducing regulations that ignore cost have been crippling the industry…

I welcome the appointment of Barnaby Joyce as Australia’s new Transport Minister. He certainly has a challenge in front of him when it comes to Australia’s general aviation industry, which is in a state of near collapse after years of failed government policy.

It will take someone as senior as the Deputy Prime Minister to sort out this mess. As The Australian has reported, general aviation — so vital in a big country like ours — is in serious trouble. Crippled by skyrocketing regulatory costs and pointless red tape, businesses are closing and much of the flying training industry is being sold off to Chinese buyers at bargain rates. A federal government report last week showed the drastic decline brought on by the excessive costs: general aviation flying hours, which include the vital flying training industry, have declined by 40 per cent in just five years.

But none of this is new. I have been warning for years that introducing regulations that ignore cost have been crippling the industry. It was 17 years ago that I ­became involved in a very public disagreement with Joyce’s predecessor, John Anderson, who introduced the ­policies that have resulted in today’s mess.

At the time, I was chairman of the Civil Aviation Safety Authority and I warned Anderson that the substantial additional costs that had been placed on the industry by the sell-off of the airports and the “user pays” air traffic ­control system would have to be balanced by a reduction in other costs.

Driven by bureaucrats with little understanding of business, he pursued a policy of regulations ­regardless of cost, with the inevitable result that ridiculous levels of regulation have made it im­possible to maintain a viable industry. It seems that for the bureaucrats, the safest skies are empty skies, similar to the Yes Minister episode about the hospital with no patients.

Anderson refused to meet me to discuss the issue, releasing a public statement that showed how little he understood. “I don’t think that you should ever regard aviation safety as what is affordable,” he claimed. “Safety is something which has the highest priority — it is not a question of cost.”

In effect he was saying that with air safety there was no cost that was too high to pay, ignoring the fact this would make the cost of air tickets unaffordable to anyone other than the ultra-wealthy.

Anderson’s public statement was quickly embraced by the ­bureaucrats within CASA and the denial that cost should be considered became an almost cult-like ­belief that still exists in that organisation to this day.

Former NZ Transport Minister Simon Bridges: he also had an entrenched public service and he also was in denial. Will his successor be any better?

Aviation is like anything else in life. The amount of money that you can spend on safety is always limited by what the marketplace can afford. If regulations are written that increase the cost of flying too much, people can’t afford to fly and businesses go broke.

The inevitable result of this stubborn insistence that there are no limits to the costs that could be imposed on the aviation industry is a situation where operators simply can’t afford to meet the red tape and expenses.

It has done nothing to improve safety and will very likely lead to a situation where most pilots in Australia will come from Asia. The losers are many of Joyce’s constituents in rural and regional Australia who rely greatly on general aviation as a vital link in Australia’s transport systems.

It means we will lose hundreds of millions of dollars in export earnings from flight training and other operations that are no longer Australian-owned.

Before Anderson became minister, the CASA service charter ­directed that Australia should ­follow “proven safe procedures and standards from leading aviation countries which best allocate finite safety resources, to protect fare-paying passengers and ­encourage high participation levels in aviation”.

But this directive was removed from the charter in the Anderson years. I fought these changes while chairman of CASA but failed to overcome an entrenched public service and a transport minister in denial. I resigned rather than be held responsible for the slow death of an industry that I have been a part of for more than 40 years.

I hope now that under a new minister we can get back to a sensible policy that balances costs and regulation in a rational way.

Joyce will need to move quickly to reverse the disastrous “ignore cost” policies of the past. I will give him every support and I do hope he listens to the industry before it is too late.

  • There are further signs of crisis in Australia, where visa restrictions on foreign pilots are set to be relaxed because of a looming crew shortage, and Chinese airlines are said to be poaching pilots with offers of salaries up to $750,000. Read about it here.
  • Dick Smith is the former chairman of Australia’s Civil Aviation Safety Authority.

The independent CAA Customer Satisfaction Survey is under way

The General Aviation Advocacy Group has launched an independent survey of CAA customer satisfaction. This is the first comprehensive opinion poll of NZ CAA clients since 2003.

If you don’t express yours, you can’t influence theirs

When the CAA learned the results of its 2003 survey, the bureaucrats were not happy. Customers were so critical of the authority that the exercise was never repeated. The CAA has always refused to consider it, rejecting requests from the GAA and others.

In 2010, the CAA was dealt another blow by the Martin Jenkins Value for Money Report, which identified persistent failings. Since then, no one – high or low – has managed to extract any detailed information from the CAA about what has been done to improve its performance.

The authority is apparently planning a series of surveys, none of which measure overall customer satisfaction. The first, about CAA communications, was virtually unpublicised. The GAA discovered it by accident. It asked, amongst other things, if users would like the CAA to use Facebook or Twitter.

No fit and proper person in aviation would rely on Facebook or Twitter for serious or in-depth messages from (or to) the CAA. And the authority would find it impossible to communicate all but the briefest of messages through Twitter, because of its severely limited character count.

In an annual report, the CAA states that it spent $40,000 on one small Colmar Brunton survey.

GAA volunteers are running a far more sophisticated and comprehensive survey, for about $400.

The Independent Client Satisfaction Survey of the NZ Civil Aviation Authority is modelled on the CAA’s 2003 survey, updated to reflect changes in aviation (as well as other surveys including those by CASA, our neighbouring Australian authority).

It is in four parts and covers:

  • How customers feel about their relationship with the CAA, its charges, and how complaints might be better handled
  • Service delivery and the CAA’s dialogue with aviation system participants
  • The development and reform of aviation regulations, compliance with regulations, and medical issues
  • Best practice, consistency of decision-making, safety reporting and audits

Each part contains about 30 questions.

Here are the links:

Part 1
Part 2
Part 3
Part 4

The survey is anonymous. No one taking part will be tracked or recorded. Many participants in the New Zealand aviation system are very afraid of the Civil Aviation Authority. We have taken great care to protect them and encourage freedom of expression.

The results will be presented to the CAA board and management, the Minister of Transport, Parliament’s Transport and Infrastructure Select Committee, other decision-makers and the media.

One question missing from the survey is: Should the CAA run regular customer satisfaction surveys?

If enough people involved in New Zealand General Aviation take part in this sector-generated survey, the CAA will get the answer – and the broader message.

Please help to send that message.

Thank you for supporting the GAA team in 2017. We send our best wishes to you and yours for Christmas and 2018. It promises to be an unusually interesting year for everyone in NZ’s GA.

Major improvements to the aviation medical system – but not ours…

Kiwis are at the end of the Earth, in more ways than one…

Thousands of pilots in Australia are set to benefit from major reforms to the aviation medical certificate system.

They go much further than our CAA’s proposals in a recent medical survey.

The reforms by the Civil Aviation Safety Authority (CASA) include creating a new category of private pilot medical certificate, allowing non-passenger-carrying commercial operations under a full Class 2 medical certificate and increasing the delegation of decision-making to medical professionals.

The new medical certificate category, to be known as a basic Class 2, will be available to private pilots flying piston engine-powered aircraft carrying up to five non-fare-paying passengers. Operations will be limited to daytime visual flight rules and will be permitted in all classes of airspace.

This basic Class 2 medical certificate will require an assessment by a doctor using the Austroads commercial vehicle driver standards. General practitioners will be able to carry out assessments.

The commercial vehicle medical standards currently apply to drivers of heavy vehicles, public passenger vehicles and vehicles carrying bulk dangerous goods. They cover medical issues such as cardiovascular conditions, diabetes, psychiatric conditions, blackouts, substance abuse and vision and hearing disorders.

The new basic Class 2 medical will be valid for a maximum of five years up to the age of 40 and a maximum of two years above the age of 40.

The current unrestricted Class 2 medical certificate will remain in place for private pilots operating aircraft up to 8618 kg with a maximum of nine non-fare-paying passengers. This unrestricted Class 2 medical will be used under all flight rules and allow for operations in all classes of airspace.

Importantly, pilots flying commercial operations with no passengers – such as flying training and aerial agriculture – will now be able to do so on the basis of an unrestricted Class 2 medical certificate. Previously, these operations required the pilot to hold a Class 1 medical certificate.

CASA’s CEO and Director of Aviation Safety, Shane Carmody, said the reforms to the aviation medical system maintain appropriate safety standards while offering flexibility and less red tape.

“CASA has been engaged with the aviation community and made a series of fundamental reforms to aviation medical certification,” Mr Carmody said. “We have initially focused on changes that benefit general aviation because this sector has been telling us the current medical certification system was causing real difficulties.

“In the interests of public safety, it is important that pilots meet relevant medical standards but the system must not make unnecessary demands and should meet the needs of the aviation community.

“I am pleased we are making changes that will see more appropriate medical standards applied to flying training and aerial agriculture – two vital sectors of Australian aviation.

“CASA will now continue to review the aviation medical system to identify possible improvements in areas such as using medical data more effectively, further streamlining processes, further reducing CASA involvement in medicals and harmonising with global best practices.

“It is CASA’s role to maintain appropriate aviation safety standards, but the requirements must not unnecessarily burden Australian aviation and hinder development and growth.”

The reforms to aviation medical certification will be progressively introduced during 2018.

e-Licensing becomes a reality for commercial pilots, but not ours…

Once registered with an account, pilots will be able to track the progress of their application, view the privileges they hold and have the ability to update personal details such as a change of address. The new e-Licensing will also benefit flight training schools, allowing them submit course completion details online and apply on behalf of their students.

Commercial pilots will need to create an online account to access CAA licensing services. However, individuals are advised to wait until they need to make a transaction before setting up an account. More information can be found on the dedicated e-licensing webpage at caa.co.uk/elicensing.

Sorry, folks. This no-brainer improvement, based on old technology, is apparently unavailable in New Zealand.

Drones: Tests for UK operators – and programming the beast to behave itself

Picture by Jakob Owens – Unsplash

Drone users in the UK may have to take safety awareness tests under legislation planned by the government.

The move has been welcomed by the British Airline Pilots Association, which has warned of near misses involving drones and aircraft. Balpa said there had been 81 incidents in the UK this year – up from 71 in 2016 and 29 in 2015.

A proposed Bill would force owners of drones weighing more than 250g to register and sit a test.

Drone pilot and trainer Elliott Corke said most recreational and commercial-purpose drones weigh more than 250g.

Christian Struwe of drone-maker DJI warned that some of the proposals may be difficult to police – for example the 400ft height restriction. But he told the BBC Breakfast programme: “The good thing is that as an industry we are already working on it. We can limit how high they can fly.”

We also understand that manufacturers can program ‘geo-fencing’ into their drones to make it impossible for them to fly within airspaces identified by the on-board GPS, such as airfields, other areas used by low-flying aircraft, and prisons.

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.