2018 January-February Bulletin

01 March 2018 / by the GAA team / Consultation, Costs, Governance, Legal, Medical, Opinion, Safety

Urgent warning: Meet this amnesty deadline, or face a hefty fine

If you are a commercial or private GA aircraft operator, you need to know right now about the New Zealand CAA’s bizarre behaviour regarding overdue operating reports.

The Authority recently began issuing infringement notices and fines to commercial operators who did not send in their quarterly aircraft operating statistics on time. The fine is $1500 per aircraft.

A number of commercial operators failed to meet the CAA’s deadline. This was, we understand, mainly because (for the first time, and knowingly, and without any widespread warning) the authority did not send out the usual reminder and CAA605 form.

The next target would have been the private operator (for whom the fine is $250 per aircraft). But then it seemed to go badly pear-shaped for the CAA.

That punitive first move generated outrage from commercial operators, the GAA and aviation organisations. They protested about the way the notices and fines had been introduced. What’s this? A $1500 penalty for a paperwork misdemeanor not yet proven by the CAA to be as important to public safety as a parking offence?

Graeme Harris, the CAA Director, told one complainant that the $1500 fine was fixed by the government. What he didn’t say was that his authority wrote the legislation that assessed and suggested the fine – and that he, as CAA Director, was the responsible person who sought and won government approval of it.

The GAA’s position is plain and simple: The Authority’s behaviour was grotesquely unreasonable. Any and all CAA action must be proportional to the regulatory risk.

Now, as a result of many letters and representations, Harris has declared an amnesty until 1 March. Operators have only until then to provide their third and fourth quarter returns. Those who have paid fines will be refunded. But the Director has warned that he will act against anyone who fails to comply with his new and very tight deadline.

The obligation to file aircraft operating statistics is set out in Table 1 of Rule 12.151.

Doesn’t matter if it didn’t fly. You still need to return the form(s)

As well as commercial operators, the operators of New Zealand-registered aircraft issued with a standard category airworthiness certificate or a restricted category airworthiness certificate and used in private operations are required to file a return of their aircraft operating statistics.

We asked Harris if he intended to issue infringement notices and fines to the owners of private aircraft issued with standard or restricted category aircraft who failed to file their annual operating statistics by 1 February.

He did not reply. Instead, he forwarded the letter to his Official Information Act officer; this person has in turn stated that we can expect a reply before or by 15 March, which is somewhat later than Harris’s absurdly short (and apparently unpublicised) new deadline.

[Questions from the GAA to Graeme Harris are now routinely diverted to his OIA officer – even when they clearly warrant and invite the Director’s personal involvement with GA and his substantive response. This indicates an abuse of the intent and function of the OIA. It is a tactic now observed as the common procedure by senior CAA management, to avoid direct and timely answers.]

Private owners required to file an annual return of aircraft operating statistics should do so before March 1. You should also formally request a receipt, and continue to pursue the CAA until you get one. The burden of proof rests on you.

Previous reminder notices also contained the CAA605 reporting form. You can download a copy here.

You must file a separate form for each aircraft, regardless of whether or not it has flown during the previous 12 months.

The Director has written to an operator, stating that “sending out reminders and introducing the ability for operators to provide returns through an online portal are sensible and both are under action.”

We asked Harris why the development of an online portal allowing customers to directly enter their returns into a website, rather than email them at present, is still only “in the early stages of development”. That question (and others about the CAA’s failure to meet his Authority’s other historical promises about the automation of manual tasks) was, yet again, referred to the CAA’s OIA officer.

Here’s a dead microlight. Recreational aircraft aren’t included in NZ CAA operating statistics. Why not?

In its infringement notice, the CAA says: “It is important that the CAA receives this operating and statistical data and information by the due date, as it helps provide CAA with an accurate picture of aviation activity. This in turn provides vital input to determine sector safety performance, which drives efforts to make aviation in New Zealand as safe as possible for everyone”

The GAA says that if the Authority believes such statistical data to be vital to sector safety performance, it is negligent in not also collecting the information from non-certified aircraft owners, such as those of recreational aircraft which now form a significant part of the New Zealand fleet.

Without accurate data from all aircraft operating within the NZ aviation system, the Authority’s analysis of safety related statistical data is severely flawed. To use an old computer adage: “Garbage in equals garbage out.” By not accurately capturing and recording meaningful data, the Authority’s statistics have, for years, been presenting an inaccurate picture of aviation activity and a distorted view of sector safety performance.

Survey update No 4: The CAA is failing to act on voluntary safety reports, say respondents

Disturbing evidence has emerged in Part 4 of the GAA’s independent survey of CAA customers, which focuses on safety. There are a number of claims that the CAA is failing to follow up on voluntary safety reports – as well as indications of a marked reluctance to make such reports.

On voluntary safety reporting, the survey asks:

How likely would you be to make a voluntary safety report (e.g. alert the CAA in the case of non-compliance with regulatory obligations) in situations of material non-compliance with safety regulations?

The score stands at a neutral 5 with respondents recording reservations about the wisdom of submitting a voluntary safety report, in comments such as:

“Until such time as CAA move away from their ‘prosecute first, ask questions later’ approach, who would?”

“Won’t go there because it risks blowing up into a full-on witch hunt.”

“Some years ago, I would have felt obligated to make a report. Today, highly unlikely, and only under extreme circumstances.”

“Absolutely no way would I file a safety report. Who would trust what the CAA might do with it?”

A problem hidden in plain sight: we have too many claims of unanswered safety reports for the CAA to ignore

For those who have filed safety reports, the survey asks how satisfied were you with the response?

The score stands at 3 out of 10. Many comments indicate that some safety reports are not being acknowledged or replied to. Here are a few examples:

“No response to 3 reports. CAA’s own SMS material suggests that it’s vital for an effective reporting system to provide feedback to those who input into it yet they fail to follow what they expect operators to do.”

“Very dissatisfied – my 005 which involved a near collision was ‘lost’ in the system.”

“My CAA005 had no reply and no outcome. My ARC also has had no outcome.”

“Never had any feedback on multiple CAA005 reports.”

The question Would respondents support a TAIC-administered, voluntary incident reporting system that is non-punitive and affords protection to the sources? has generated huge support, with a score of 9.

The survey asks if respondents actively seek opportunities to operate as safely as possible.

A strong safety ethic emerges in comments such as:

“We have four-point harness for all alpine scenic flights to reduce turbulence hazards but Rules only require lap strap.”

“I have a firm and strong commitment to operating safely.”

“Many years of aviation knowledge and experience put me ahead of minimum requirements.”

The survey asks if the CAA seeks to identify and promote best safety practice within the aviation community?

This has drawn a neutral response score of 5 with comments such as:

“CAA doesn’t listen to industry, instead it promotes its own internally developed ideas which usually coincide with the interests of CAA itself.”

“CAA appears to want to alienate rather than work with people in the aviation community. It appears that ‘dobbing-in’ is very much promoted by CAA which has led to back stabbing and an unhealthy environment, therefore not helping with real safety.”

“It definitely used to but with the advent of HSW and CAA’s dual roles I don’t believe this is the case any longer.”

“Think their heart is in the right place but not the brain!”

Are respondents confident that the CAA quickly recognises and promotes new initiatives that do not compromise safety, developed by other countries (for example, medical certification)?

This gets an average score of just 2 out of 10. Comments include:

“They need to recognise that some authorities (FAA and EASA) are better resourced to make good decisions and be prepared to accept them. New Zealand CAA should concentrate on what is unique to us… not much.”

“I have yet to see any initiative that the CAA has begun on their own accord without first there being extensive lobbying over an extended period of time by organisations.”

CVD: One example of snail-paced CAA progress

“No Way! They are SO SLOW and it usually takes about 10 years to get ANY movement. Colour Vision Deficiency is a good example of how evidence-based regulation is hard to get across the line.”

The survey includes a series of questions about the consistency of decision-making by the Authority and individual staff members. None of these questions has attained a score above 3 out of 10. Some sample comments:

“Some admin staff are great, some inspectors, investigators and operation staff can’t agree between themselves.”

“It’s hard to get anyone to make a decision and all too often when asking different staff members for an answer their opinions differ.”

“Many of the CAA decisions are not in accordance with best practice.”

“Seems to me after almost 40 years direct involvement, that the ‘why’ is all about never being held accountable for any decision regardless of what position within CAA a staff member holds.”

Finally, 43% of respondents say that they have been audited in the last two years. The survey asks: How satisfied are you with the way the CAA performs its audit and compliance activities?

Respondents have so far returned a score of 3, along with many comments such as:

“There are so many things wrong with the way auditors do their job. Their manner, lack of knowledge, overcharging for time actually spent on the job, personal interpretations, pettiness, lack of any practicality.”

“Too much inconsistency in what does or does not comply.”

“They put fear into the minds of operators that if they were to question the auditors they would be found to have an attitude problem and not pass their FPP.”

“Audits are undertaken in a manner that is highly questionable, have never (endured over 20 such audits) contributed one iota to safety and the ‘exposition’ just went back on the shelf to collect dust until the next audit.”

“Biggest problem with CAA is lack of staff with practical knowledge. Too many desk jockeys.”

“Authorised, but almost singularly unqualified, and therefore in a position to bully any operator/licence holder to comply with an ‘opinion’ despite the rules being in disagreement with that opinion. That would be a closer assessment of CAA staff.”

Survey update No 3: It’s time to curb the CAA’s medical unit

The current medical system is adversarial and cannot help to get an unbiased result

Reining in the CAA’s medical unit is long overdue, say responders to Part 3 of the GAA’s independent survey of CAA customers.

Seventy percent of responders say they are unaware that the Swedavia and Scott Gorman reports recommended the establishment of an Aviation Medical Panel made up of specialists. The survey goes on to ask: Do you think that an Aviation Medical Panel would be of benefit to participants in the NZ aviation system?

The results are showing an overwhelming response of 92% in favour. Among the comments: “This has been a vital step for years” and “The current system is adversarial and cannot help to get an unbiased result, plus expense is too great to meet ridiculous CAA requirements.”  There are also provisos such as “If genuinely independent and driven by evidence-based principles and practices”.

Part 3 also deals with aviation safety regulations and asks:

How confident are you in your ability to comply with aviation safety regulations relevant to your role?

Responses are giving an average score of 7 out of 10. There are, however, provisos attached with comments such as “this depends on individual CAA interpretations and the increasingly overarching and complex knowledge and responsibilities being applied”.

Across all the questions on aviation regulations, there is a clear and consistent theme in the comments: the problem of individual CAA staff interpretations of regulations.

The survey asks whether responders consider that CAA personnel have a common understanding of regulations and apply rules consistently.

The CAA is scoring 3, with comments such as: “No way – on occasion you can ask two staff members the same question and get two different interpretations” and “It’s a shame that I am not able to score this question with far less than a ‘0’.”

Regulations play a key role in ensuring that I operate safely earns a neutral score of 5, but comments provide an insight into the pragmatic and professional culture among pilots, such as

It is far more important for an individual to take responsibility for operating safely than merely blindly following regulations” and “Not really – common sense – personal and company culture is more important in my view” and “Regulations are a frame in which I operate, but my own self preservation and due care of passengers plays more of a key role in safe operations”.

Asked if the CAA always consults with the most appropriate people in industry when developing or reforming aviation safety regulations, responders deliver less than 3 points. This is further reinforced when people consider if the CAA values their opinion about proposed regulations or regulatory reform. This question is returning a score of just over 2.

What factors would encourage responders to take part in a CAA consultation? A solid 80% say that they would if their contributions were used to bring about genuine change.

Survey update No. 2: The CAA’s service delivery score is a real shocker

Dismal performance levels feature strongly in Part 2 of the GAA’s independent CAA customer survey. This section focuses on service delivery.

The demographics are showing that:

  • 60% of respondents have had direct contact up to 10 times with CAA staff over the last 12 months
  • 10% have had direct contact 10 to 20 times over the last 12 months
  • 10% have had direct contact more than 20 times over the last 12 months and
  • 20% have had no direct contact with the CAA over the last 12 months

And if you don’t express yours, you can’t expect change

The survey asks: On a scale of 0 to 10 where 0 is “very dissatisfied”, 5 is “no opinion” and 10 is “very satisfied”, how satisfied are you with the CAA’s service delivery?

At this stage, the CAA’s service delivery is achieving an average score of 3.

Typical comments:

“The CAA’s service delivery from senior managers is very poor with most taking 10 working days to reply to correspondence and some only replying after complaints have been laid. On the other hand, clerical staff are often very good with their service delivery.”

“Too short-staffed and it takes way too long for aircraft to be added to ops specs.”

There are a number of adverse comments regarding delays in the order of three to four months for relatively simple amendments to expositions.

The airworthiness section is also attracting strong criticism, with comments such as:

“From an airworthiness perspective, the current situation frustrates the industry. Relationship between the industry and the regulator is the poorest I have seen in my 50+ years in the industry.”

The withdrawal of CAA staff contact details from the website is drawing a significant number of adverse comments from industry responders.

To the question: “Was your transaction completed at a reasonable cost?” our responders are ranking the CAA at 3.

The survey asks if responders “thinks that the CAA takes care to understand and relate to its customers”. The current response of 3 indicates a widening disconnect between the CAA and GA. This is also evident when participants are asked “if the CAA values my input.” Our responders struggle to give the CAA a score of 3.

Another question:

On a scale of 0 to 10 where 0 is “strongly disagree” and 10 is “strongly agree”, please indicate how much you agree that: “The CAA is vital to ensuring aviation safety in New Zealand

Responders so far give this question a 6, but with several provisos attached to qualify their answers.

On Friday 5 January 2018, the Director issued the exemption, which you can view or download here.

This is the latest success in an ongoing and often arduous GAA campaign to rectify CAA shortcomings and wrong-doing.

Survey update No. 1: It’s looking grim for the CAA

The responses received so far to the GAA-initiated survey of CAA clients have already provided some compelling data and comments. Here, we summarise just a few major trends detected in Part 1 of the survey.

If you don’t express it, nothing changes

We strongly urge everyone to take part in this independent and anonymous survey, which will remain open at least until the end of January.

If you haven’t already done so, please get involved and have your say. It doesn’t take long – initial results indicate that each part is taking an average of around eight minutes.

In Part 1, the survey asks:

On a scale of 0 to 10, where 0 is “very poor”, 5 is “no opinion” and 10 is “very good”, please rate the CAA’s services in terms of value for money. Perhaps unsurprisingly, the responses have so far returned an average score of 2.

The survey asks whether CAA clients considered that the Authority strove to minimise administration costs and charges. Respondents have returned an even lower score: just 1.

The survey asks whether participants considered that the CAA was openly accountable for its actions. This question has so far returned an average score of 2.

The survey asks if the CAA builds a relationship of trust. The Authority is scoring 3 out of 10.

The survey asks if New Zealand’s aviation system would benefit from having an independent aviation complaints authority. The answer sits at a resounding 96% vote in favour.

The demographics of survey responders have also been interesting. For example, those who completed Part 1 have come from:

  • Aerial work – 15%
  • Charter – 8%
  • Business – 8%
  • Air Transport – 24%
  • Private – 39%
  • Other – 6%

Question: “How long have you been operating or involved in the aviation sector?” The results so far:

  • More than 40 years – 39%
  • 31 to 40 years – 16%
  • 21 to 30 years – 24%
  • 11 to 20 years – 15%
  • 4 to 10 years – 6%

The success of this GAA survey can be measured by 97% of responders indicating that they are willing to take part in future surveys.

The GAA’s ultimate goal is to achieve change within the CAA, and this critically depends on CAA customers overcoming the notion that “You can’t fight city hall”. There is plenty of evidence that change driven from the grass-roots is not only possible, but probable.

The survey is not difficult to complete and your time spent is a very valuable contribution to overcome an obstinate public service – yes, the people at the CAA are public servants!

In recent years, previous transport ministers have been in denial about the problems that exist within general aviation and have shown little apparent interest in the civil aviation part of their portfolio. This may soon change, because the survey has already produced significant statistics and the final results will be made available to the CAA Board, the Minister of Transport and the Transport Select Committee.

PPLs and the RPL: Yet another wrong has been righted

Back in May 2017, we drew the CAA Director’s attention to the unlawful content within AC61.20, namely that Rule 61.41 did not apply to the Recreational Pilot Licence.

Rule 61.41(b) states that a pilot who meets the currency requirements for a lower pilot licence may exercise the privileges of the lower licence.

The CAA subsequently reconsidered its initial view that the Recreational Pilot Licence is an entirely separate type of aviation document from the ICAO-recognised licences (ATPL, CPL and PPL). As a result, in applying CAR 61.41, holders of ATPL and CPL licences who had paid for the issue of a RPL became entitled to a refund.

In July, the CAA wrote to ATPL and CPL holders advising them that they would be refunded the cost of their RPLs.

Due to Rule 61.41 having been written before the RPL was created, the Rule only referred to the then existing licence types, with the PPL being the lowest licence category. Because of this, Rule 61.41 only applied to holders of a CPL or an ATPL and PPL holders were not entitled to a refund.

In September 2017, the GAA filed a petition for exercise of the Director’s exemption power under s27 of the Civil Aviation Act 1990 to address the anomaly whereby ATPL and CPL holders were able to exercise the privileges of a lower licence but PPL holders could not.

The RPL and the instructor: Did the bureaucrats stuff it up again?

AC 61.20 contains the following note:

“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.”

The first part of this note is correct, in that for the issue of a flight instructor rating, a CPL or higher licence must first be held. This is appropriate and demonstrates that a minimum level of experience has been achieved.

But the GAA challenged the bolded statement above and the CAA has conceded that an instructor may exercise the privileges of his/her instructor rating on a PPL or RPL.

Older and wiser heads are being lost because of the CAA’s attitude to common sense, which it values highly and uses sparingly

A flight instructor exercising the privileges of a RPL must be aware of the limitations in Rule 61.357 regarding the size of the aircraft, the type of operation that may be conducted and that the aircraft may not be operated at night or under IFR.

It is equally important to point out that whilst a flight instructor exercising the privileges of a RPL or a PPL cannot receive remuneration when acting as PIC, they may be legitimately remunerated for the ground time they spend with their student or a pilot on whom they are carrying out a proficiency test.

This would normally include the time spent on a pre-flight briefing before an exercise, pre-flight inspection of the aircraft and post-flight analysis of the training exercise or a flight check such as a BFR. The time spent on the ground will often exceed that spent in the air and it is appropriate that a flight instructor be remunerated for his/her time if he/she so wishes. Not all instructors may wish to make a charge for their time. Some may prefer to carry out training or checking on a pro bono basis as a way of giving something back to the GA sector, in the same way that some lawyers volunteer their time and expertise on a similar pro bono basis.

In contrast to Rule 61.357, the UK CAA and the European Aviation Safety Agency (EASA) permit the remuneration of a flight instructor who is using the privileges of a PPL.

The UK CAA and EASA recognise the value of allowing flight instructors who are unable to meet the Class 1 medical certification to continue to pass down their knowledge and skills.

The present situation in New Zealand has resulted in flight instructors who have been unable to meet Class 1 medical certification dropping out of our system because it has not generally been recognised that they could continue on Class 2 medical certification, using the privileges of a lower licence, albeit without remuneration when acting as PIC.

The considerable flight experience of instructors, often accumulated over a great many years, is a resource that the New Zealand GA sector can ill-afford to lose. This comes at a time when many of our young instructors are just “passing through” the flight training establishments and are primarily using flight instruction as a way to build hours before moving on to an airline.

On Friday 5 January 2018, the Director issued the exemption, which you can view or download here.

This is the latest success in an ongoing and often arduous GAA campaign to rectify CAA shortcomings and wrong-doing.

Medical certificate reform: Is our regulator deaf, dumb and blind?

On 30 November 2017, CASA announced major reforms to the aviation medical certification system. 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.

These reforms to the Australian aviation medical system maintain appropriate safety standards while offering flexibility and reducing red tape.

This is something which NZ CAA Chairman Nigel Gould has stated the Authority is committed to. We have seen no evidence of it happening, but we are watching.