It is almost six years since a review of the Civil Aviation Act was announced by then Minister of Transport Gerry Brownlee.
Back then, he said that the Act was “fundamentally sound” but more than 20 years old and did not reflect changes that have occurred in that time in the aviation industry.
The Minister’s media release at that time said the Ministry of Transport was leading the review, had held preliminary meetings with key stakeholders, begun the policy review work, and “will complete recommendations by November. In early 2014, a formal consultation process with stakeholders will be held. Cabinet decisions are expected to be made during the first half of 2014.”
There has been radio silence since then.
In October last year Transport Minister Phil Twyford told attendees at the New Zealand Airports Conference that it is important for aviation legislation to be kept up to date and responsive to a changing environment if our aviation system is to remain safe, secure and effective.
“In 2014 the Ministry of Transport conducted a review of the Civil Aviation Act and the Airport Authorities Act, and asked for your industry’s feedback on proposed changes designed to ensure that the primary legislation is fit for purpose,” he said.
“Since that review, both the CAA and the Ministry of Transport have been working on a draft Civil Aviation Amendment Bill, which gives effect to changes aimed to modernise and improve legislation. The Bill will go through a full Parliamentary process and I hope to be in a position to release an exposure draft – so a draft of the Bill that will go out to the industry and the wider community – in the first quarter of next year (2019), I hope, and we will be seeking your engagement and dialogue with you to ensure that Bill hits the spot.”
Minister’s Twyford’s expectation of a first-quarter release of information is slowly ebbing away – like previous government assurances.
If the need for a review existed more than six years ago, it has assumed considerable urgency in the meantime. The aviation industry is fast changing and technology driven, and it is inexcusable for the regulations to become so outdated.
In this information vacuum, NZALPA will lobby for the things we believe most urgently need to be addressed in the review. These include recognition of Positive Safety Culture, protection of safety-related recorded data, and separation of accident investigation from regulatory oversight.
NZALPA’s Technical Director Hugh Faris looks at some of the issues that need to be addressed in the review of the Civil Aviation Act.
From Just Culture to Positive Safety Culture
The concept of Just Culture - sometimes referred to as “no blame no shame” - arose around 40 years ago, when industry attention shifted from determining who made an error to identifying how the error was made.
Understanding “how” might make it possible to introduce changes so it is less likely a similar error occurs again. Also, understanding how might make it possible to develop strategies to minimise the negative effect of the error.
Confidential Occurrence Safety Reports were introduced to support the new approach.
Occurrence Safety Reporting Programmes are the cornerstone in determining how an error was made.
Sadly, the judicial world lags well behind the aviation world in apportioning blame to an individual. In many legal systems worldwide, aviation professionals (e.g. pilots, air traffic controllers, and maintenance personnel) can and do face criminal prosecution if they become involved in an incident or accident, even though they acted in accordance with their professional training and experience.
Yet we know that by sharing knowledge and experiences through comprehensive and systematic reporting, accidents and incidents can be significantly reduced or prevented.
To achieve this two very important initiatives are required: a confidential reporting system, and a non-punitive environment.
Voluntary reporting systems are essential. Unless there is guaranteed immunity for those providing the information they will be reluctant to participate in such programmes.
Voluntary reporting systems are the basis of the Just Culture concept.
The sole objective of any investigation is to prevent accidents and incidents; so the investigation process must not apportion blame or liability.
Blame focuses on the defects of individuals. It does not necessarily take into account all system components.
Blame leads to the adoption of defensive attitudes, and encourages an ineffective reporting system.
Most accidents result from both active and latent failures. In some cases, latent failures include contributory factors that may lie dormant for days, weeks, or months until they contribute to the accident.
Recently the International Civil Aviation Organisation (ICAO) has broadened its approach to accident and incident prevention with the adoption of Safety Management Systems (SMS).
ICAO Annex 19 transfers the overarching safety management provision from various other ICAO annexes into one safety management annex.
A key component of this annex is the “Positive Safety Culture” - which replaced the concept of “Just Culture”.
The ICAO Safety Management Manual outlines what is required to achieve a Positive Safety Culture.
A Positive Safety Culture includes the following features:
- Managers and employees, individually and collectively, make decisions and take actions that promote safety;
- Individuals and groups continually critique their behaviours and processes and welcome the critique of others searching for opportunities to change and improve as their environment changes;
- Management and staff share a common awareness of the hazards and risks faced by the organisation and its activities, and the need to manage risks;
- Individuals act and make decisions according to a common belief that safety is part of the way they do business;
- Individuals value being informed, and informing others, about safety;
- Individuals trust their colleagues and managers with information about their experiences, and the reporting of errors and mistakes is encouraged to improve how things are done in the future.
Information is critical to achieving a Positive Safety Culture.
An open and just safety reporting environment is imperative. Employees and operational personnel will only report events in which they have been involved if they are confident that their information will not and cannot be used punitively against them. To achieve this ALL safety-related data must be protected in legislation.
Protection of safety-related recorded data
Just as the use of occurrence reports assists understanding of how errors are made, increasing use of recorded data (such as flight data monitoring and flight operational quality assurance (FOQA) programmes), has improved flight operation safety and significantly reduced the number of incidents and accidents worldwide.
Modern technologies have led to a massive increase in the volume of data now collected from aircraft during flight operations.
ICAO Annex 19 describes such recording systems as safety data collection and processing systems (SDCPS).
These are processing and reporting systems, databases, schemes for the exchange of information, and recorded information. They include records of accident and incident investigations, mandatory incident reporting systems, voluntary incident reporting systems and self-disclosure reporting systems, including both automatic and manual data capture systems.
The Annex also contains standards and recommended practices (SARPS) and guidance governing the legal protection of such information.
Chapter 5.3 requires by way of a recommendation that “States should not make available or use safety data referenced in 5.1 or 5.2 for other than safety-related purposes, unless exceptionally, an appropriate authority determines in accordance with their national legislation, the value of its disclosure or use in any particular instance, outweighs the adverse impact such action may have on aviation safety.”
The New Zealand Civil Aviation Authority (CAA) has filed a difference to ICAO, which NZALPA believes is to a lesser standard in that the New Zealand regulations only afford immunity from prosecution by way of submitters requesting confidentiality.
The sole purpose of protecting safety information from inappropriate use is to ensure its continued availability so that proper and timely preventive actions can be taken and aviation safety improved. However, the protection of safety information is not intended to interfere with the proper administration of justice.
National laws and regulations protecting safety information should ensure a balance between the need for the protection of safety information to improve aviation safety, and the need for the proper administration of justice.
NZALPA will continue to lobby government to enact laws and regulations to appropriately protect and prevent inappropriate use of all data and safety-related information. By inappropriate use, we mean the use of safety information for purposes other than the purposes for which it was collected. Inappropriate use includes use of the information for disciplinary, civil, administrative and criminal proceedings against operational personnel, and/or disclosure of the information to the public.
The Civil Aviation Act 1990 provides no protection of safety-related information. Its review provides an opportunity to refresh and improve its usability, and to ensure that its provisions are current and effective, particularly in relation to the protection of safety-related information.
Aircraft accident and incident investigations
The international standards and recommended practices for aircraft accident and incident investigation are set out in ICAO’s Annex 13 – Aircraft Accident and Incident Investigation.
All of the leading countries in aviation (such as the United Kingdom, the United States, Europe and Australia) comply with Annex 13. New Zealand is not ICAO compliant because our safety regulator – the CAA - also investigates air accidents.
New Zealand has two government agencies investigating air accidents – the Transport Accident Investigation Commission (TAIC) and the CAA.
It is not clear to us in the industry which organisation will investigate an accident or incident. The TAIC Act 1990 says that TAIC will conduct an investigation if it “believes that the circumstances of the accident or incident have, or are likely to have, significant implications for transport safety, or may allow TAIC to establish findings or make recommendations which may increase transport safety.” It can also investigate where it is directed to do so by the Minister. If TAIC decides not to investigate, it must notify CAA of this decision.
Meantime the Civil Aviation Act requires CAA to tell TAIC when it is notified of an aircraft accident, and the CAA website says it “investigates aviation accidents and incidents to find the causes and to prevent them from happening again.”
It is unacceptable to have such an arbitrary arrangement concerning which organisation will investigate; and totally unacceptable to have investigations conducted by the regulator (CAA). This lack of independence is contrary to ICAO’s Annex 13 and contrary to all accepted international practice. This was highlighted in the 2006 ICAO safety oversight audit of the civil aviation system of New Zealand.
Meeting our obligations
New Zealand has significant international obligations as a signatory to the 1944 Convention on International Civil Aviation. As a member State, New Zealand is obliged to secure compliance with ICAO Standards and Recommended Practices to the highest degree possible. The creditability of New Zealand’s aviation system depends on the degree to which it conforms.
The review of the Civil Aviation Act is an opportunity to align New Zealand legislation and policies on Positive Safety Culture, protection of safety-related recorded data and Annex 13.
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