So far, there has been little sign of anyone in New Zealand General Aviation losing sleep over the Civil Aviation Bill. But it will change the Civil Aviation Act, which governs everyone involved in flight here, and submissions close one minute before midnight on December 2. So, for anyone genuinely interested in changing the status quo, it may be time to burn the midnight oil.
There is no need to read the generally boring details of the draft Bill. It’s a sure-fire cure for insomniacs. What aviators should understand, though, is that the Bill makes no mention of something that has worried many for more than a decade: the unjust treatment of complaints against a CAA decision.
Right now, there is practically no way to challenge a CAA decision unless your funds and time are almost unlimited.
The GAA believes that, when Parliament originally gave the CAA Director virtually unlimited powers, it took no account of human frailty. And that’s been demonstrated over the years through egregious errors by whoever happened to be at the top and sometimes by their untimely departures – usually following a publicly exposed outrage or, for the slightly smarter director, before they could be properly called to account.
So what’s the problem?
First of all, aviation medicals.
In the 2018 GAA survey of CAA Client Satisfaction, participants were asked if an Aviation Medical Panel would benefit participants in the NZ aviation system. An overwhelming 92% said: Yes.
The Swedavia report of 1988 and the Scott Gorman report (2002) into NZ aviation recommended the establishment of an independent Aviation Medical Panel made up of specialists. But instead, we have a one-man tribunal presided over by the medical convenor or his deputy which denies the right of an appellant to appear personally or call witnesses.
A small part of the response in favour of a panel would have been based on personal experience. The majority of it is because aviators know the current system is manifestly unfair.
Of about 200 cases taken to the Convenor, only a handful have been successful in overturning the decision of the CAA’s Principal Medical Officer. This now raises the question of ‘confirmation bias’ between the CAA medical unit and the Medical Convenor, because such bias was starkly evident and proved in the 2021 Lindsay v CAA case we reported on previously.
But the trouble runs deeper than medicals.
There are fundamental problems with the New Zealand CAA Director’s suspension powers of aviation documents:
- There are no clear statutory criteria, or maximum time limits, applicable to the continuing suspension of an aviation document beyond the initial 10 working days
- There are no timeframes or maximum time periods within which a regulatory investigation must be completed while a document remains suspended
- There exists a rearward-looking approach required of the Courts to assess whether suspension action taken “was justified” at the time of the decision, rather than a forward-looking approach to determine whether suspension action continues to be necessary. Both viewpoints must be addressed, to ensure a just decision.
An aviation document holder can be subject to lengthy investigations over a considerable time, before any (if applicable) proposed adverse decision is made and the process is invoked, with the subject remaining suspended during that time. These investigations have been known to take 12 months or more, while the participant’s aviation document remained suspended.
For a commercial GA operator, the delay would in many cases be fatal to business survival. It might also pre-determine the outcome, and a successful appeal against any decision of the CAA could prove to be a pyrrhic victory.
Experience shows that a bureaucracy occupying a gate-keeping position will have no qualms about using that power to attach conditions to certificates, or extract unusually high fees and charges from captive clients. For example, if a pilot, air traffic controller or licensed engineer needs to apply for a replacement licence due to it being lost or damaged, the CAA charges $99. In contrast, the NZTA charges $18.70 and that includes a photo ID on the licence which the CAA licence doesn’t have. This illustrates the tendency to impose higher-than-reasonable fees based on occupying a monopoly position in a small market.
Virtually held to ransom
In the case of certification work, a disputed CAA invoice can invoke a ‘stop supply’ notice on the operator’s file; the certification work on, say, an imported $2,000,000 aircraft or helicopter is effectively halted. There is no other certifier that an operator can turn to – it is a case of pay up and shut up.
These ransom-like situations do occur and it has become abundantly clear that checks and balances are required in the interests of natural justice, via an independent tribunal.
To dispute an adverse medical finding by the CAA, you have only three choices: the Convenor approach, which is now under suspicion and which doesn’t allow you to appear; an appeal to the District Court which can take years and costs a small fortune; or a request for judicial appeal which only covers the legality of the process, can also take years, and costs another small fortune.
The GAA believes that the current system is so discredited and distrusted that it must be scrapped and replaced with something along the lines of the Canadian Transportation Appeal Tribunal. The Canadian system is comprehensive, but its core principles could be first adopted for civil aviation in New Zealand, developed, and ultimately expanded to cover land transport and maritime authorities here.
The main aspects of such an appeal system are:
- An Aviation Appeal Tribunal would introduce a change from the present regulatory framework of the Medical Convenor system or District Court appeal, to a fairer and more transparent, independent tribunal system.
- An Aviation Appeal Tribunal must be a quasi-judicial body to provide for an independent process of review of administrative and enforcement actions — including the suspension, cancellation, refusal to renew, or the refusal to issue or amend documents of entitlement.
- The Tribunal would provide a system within which hearings can be scheduled and conducted promptly, fairly and informally.
- The Tribunal must have jurisdiction in respect of reviews and appeals as expressly provided for under the Civil Aviation Act. This is why changes to the Bill are required.
The Tribunal would report to Parliament, and a crucial feature would be its independence from any government department.
Key questions are: Will the Ministry of Transport object to this concept, claiming it undermines the CAA Director’s almost-universal power? Or would it entertain the possibility that CAA Directors are fallible, and consider whether some sections of the Civil Aviation Act as currently constituted may conflict with the Human Rights Act of 1993?
And do the Ministry bureaucrats and their CAA apparatchiks truly believe that their professed ultra-risk-averse approach is perfectly refined, given the history – including the damage done by the CAA to airline pilot Graham Lindsay (falsely accused of being mentally unstable)? Or Dave Armstrong, the Kaikoura helicopter pilot who risked his life in an emergency operation to save two trampers, only to be prosecuted by the CAA and convicted in 2015, simply because his medical paperwork was not in order?