The discussion in the commentary document around Just Culture is admirable, but it does not reflect the realities of dealing with CAA. The proposed protections against law enforcement action taken in respect of aviation safety reports will be ineffective as it leaves open the potential for CAA to prosecute under other legislation such as the Health and Safety in Employment Act 2015.
One of the areas of most concern in the exposure draft and commentary document are associated with institutional design. There are two particular areas where this concern is relevant. First, the continuation of current arrangements for accident and incident reporting to be administered by CAA is subject to considerable conflicts of interest. An example is presented of how CAA was unable to manage this conflict and used information from incident reporting to try and influence the Courts during a prosecution. The Bill does nothing to manage this conflict of interest, and there is no indication in the commentary that other alternative institutional arrangements for managing the conflict were considered. As we have previously argued, aviation safety reports should be received and processed by an entity other than the CAA, with TAIC being the logical entity for New Zealand.
Second, in response to concerns over conflicts of interest between CAA and AvSec, the proposal is to further obfuscate the issue by removing the requirement for AvSec to be certificated. It is a good thing if the CAA Board feels uncomfortable about the conflict of interest, as that means some attention will be given to managing that conflict, whereas if there is no separation then the inherent conflict still exists but little or no attention will be paid to managing it. At the same time, the proposal is that AvSec is not certificated to provide aviation security services while other providers would be certificated. There is no discussion of core AvSec functions that should only be provided by a government entity, no discussion of where that entity should be located in government, and no discussion of why one entity providing the non-core function should not be certificated while others should be.
The exposure draft introduces new provisions related to drones, encompassing the definition of an accident, the definition of a pilot-in-command, and the provisions relating to the detention, seizure and destruction of drones. The Ministry’s specific questions are addressed in this submission, with the definitions of accident and pilot-in-command requiring more work. Reference is also made to a separate report for an alternative option for allowing the use of drone detection systems and counter-drone systems.
A number of the proposed additions to the Act are, in effect, the conversion of existing Civil Aviation Rules and associated penalties in the Civil Aviation (Offences) Regulations into new clauses. For example, Subpart 2 of Part 10 – protections in relation to accident and incident notifications – is essentially a codification of selected rules from the Civil Aviation Rules Part 12. Other changes include rules currently in the Civil Aviation Rules Part 19.
Much of the exposure draft seems to largely be change for change sake. We ask the question why s97 of the Civil Aviation Act 1990 is proposed to be split into four sections (ss 39-42 in the exposure draft)? Other changes seem hastily made (such as the change to the definition of pilot-in-command). The intent to combine economic regulation in with safety regulation does not sit well, and the aviation security proposals could be advanced as a separate package independent of the rest of the proposed changes.
Finally, it should be noted that the policy making process around the draft Civil Aviation Bill has been exceptional in its opacity. It was not until some 5 years after submissions were made on the consultation paper that those submissions have been released to the public. Cabinet papers and Regulatory Impact Statements were not released until 3 July 2019, affording very little time to submitters who are very busy running their aviation businesses. The cynical might suggest that the entire process was designed to ensure that it was difficult to effectively challenge changes proposed in the exposure draft.
A copy of ASMS full submission is available here.
