Since our last update, feedback shows that concerns are shared across the aviation sector about this matter. The introduction of CAA Notices would be a significant departure from the way aviation in New Zealand has been regulated for the past 25 years. Whilst the official comment period for NPRM 17-02 has closed, the following is a quick recap of what the CAA is proposing:
- Section 28(5) was inserted into the Civil Aviation Act in 2010 and confers certain powers to impose requirements or conditions.
- About seven years later, the CAA has suddenly come up with an interpretation of how far Parliament intended these powers to extend.
- In the Cabinet Paper recommending amendment of the Civil Aviation Act, the Minister sought to grant the Director power to determine technical matters such as testing equipment, syllabi and examinations.
- Cabinet agreed (via Cabinet Minute) to amend the Civil Aviation Act to provide for rules to delegate to the Director the power to determine technical matters, such as testing equipment, syllabi, and examinations.
- When introducing the amendments to Parliament for debate, the Associate Minister highlighted them as being about the power of the Director to determine technical matters under the Civil Aviation Rules.
- Parliament intended the granting of powers to determine technical matters in a narrow range of areas. It never intended the establishment of a process where the CAA becomes the risk-definer, the solution-chooser, the rule-maker and the law-enforcer.
- NPRM 17-02 (released in February 2017) presents CAA Notices as though they are an existing tool. A reader would be forgiven for concluding that CAA Notices are an existing and routine method of communication.
- The CAA knows that it currently has a Minister who is distracted by other issues within his portfolios and that he basically rubber-stamps anything the CAA puts in front of him.
- The CAA also knows that it will most likely only have this Minister until August this year; so the Authority is pushing to make hay while the sun shines so to speak, and get everything it possibly can into position before then.
- The CAA has done a very good job of maximising confusion in the way it has rolled out this CAA Notices concept.
- Crucially, CAA Notices are a CAA invention.
- The CAA believes that Section 28(5) of the Act enables the Minister to put in place rules which empower the Authority to impose mandatory requirements or conditions without the need to put the proposed requirements or conditions through the normal rule-making process.
- The CAA has decided that, should the Minister put in place such an empowering rule, then the mandatory requirements or conditions imposed under it will be documented in a CAA Notice.
- The first attempt at convincing the Minister to create an empowering rule is contained in NPRM 17-02 in the form of the proposed new Subpart I to Part 61.
- The CAA has everyone fixated on how a CAA Notice will be consulted upon, who might be allowed to issue it, and how much faster it will allow things to be achieved. Only now are people waking up to whether Parliament ever intended Section 28(5) to be used in the way that is proposed, or what the implications are of enabling this sort of regulatory power to be wielded outside the normal rule-making process.
- The CAA has carefully chosen the subject matter of the first CAA Notice. R22/R44 operational safety is a subject upon which some fairly firm views are held across the community and most discussions can be relied upon to revert to this subject matter, rather than sticking to the core issue of what regulatory checks and balances are appropriate.
- The introduction of the CAA Notices concept will never reach an NPRM stage. As outlined above, the CAA has invented it for its own ends.
- What will reach an NPRM stage are the proposed empowering rules which we expect will be introduced by the CAA as and when it decides it wishes to create mandatory requirements or conditions in different areas. The proposed Subpart I to Part 61 is the first example of an empowering rule.
- Should the Minister decide to create an empowering rule under Section 28(5), he must specify the consultation that is to be undertaken prior to mandatory requirements or conditions being promulgated. The cynical side of us wonders how long it will be before the CAA convinces the Minister that specifying zero consultation will lead to a far more expeditious pathway to introduction of various requirements or conditions.
When questioned about CAA Notices, the CAA has made it very clear that consultation on their introduction is not necessary because this is already provided for in Section 28(5) of the Act. Our assessment is that the CAA has made its mind up on what the Act means and will attempt to drive this CAA Notices concept forward – regardless of resistance.
The Swedavia-McGregor Report was in part instigated because the aviation regulatory framework had become an unwieldy ad hoc mess of rules, circulars, orders and other tertiary regulations.
CAA Notices are a reinvention of this failed methodology and we encourage everyone to continue voicing their opposition at every opportunity.