What an incredibly busy second half of the year it has been. In addition to our quarterly meetings with the Minister of Transport, the Opposition’s Transport spokesperson, the CAA Director and the Ministry of Transport, we have had many other meetings and discussions dealing with COVID-related issues. These have involved the Ministry of Health, Ministry of Transport, Ministry of Business Innovation and Employment, Customs and industry stakeholders. Since Conference, and as the lockdown progressed, workloads have increased exponentially as the number of projects NZALPA has become involved in has increased. Trying to juggle business as usual with these additional projects, all while working remotely, has been challenging for Principal Officers, representatives and staff alike. However, the resilience and commitment of Team ALPA never fails to amaze.
The Industrial Director, ATC Director and Medical and Welfare Director discuss some of the projects they have been involved with in this Uplink. Our involvement in government initiatives continued with our invited input into the government’s Plan to Reconnect New Zealanders, and more recently our views to the National Security Group (Department of the Prime Minister and Cabinet) on the National Security Long-term Insights Briefing. In addition, we were asked to provide feedback on the termsof reference for the Ministry of Transport’s Air Navigation System (ANS) Review. This will be a broad scope, first principles review looking at regulatory and policy, institutional and funding settings. It will look at what New Zealand wants from its air navigation system and how those outcomes should be delivered. It is expected that the review will commence in early 2022. Like the Civil Aviation Bill, the ANS Review is an opportunity for NZALPA to be involved in making once in a generation change in the aviation sector.
Civil Aviation Bill
Naturally, a large focus for us since September has been the Civil Aviation Bill. Having waited patiently over many years for the Bill to be finalised, it was (of course) Murphy’s law that it should be introduced to Parliament during lockdown! Nevertheless, we have worked hard to put together comprehensive submissions across all portfolios. It was also incredibly helpful to discuss areas of mutual concern with other industry bodies such as the Airports’ Association, Aviation New Zealand, Etū and FAANZ.
Our submission focussed on four areas of concern, covering just culture, International Civil Aviation Organisation (ICAO) compliance, medical standards, and aviation system design.
NZALPA is concerned that Just Culture (positive safety culture) has beentoo narrowly understood within the Bill in terms of its role in regulating enforcement powers and prosecution. As we know, Just Culture has evolved into much more than a brake on enforcement powers. ICAO Doc 9859 (Safety Management Manual) provides thorough and detailed guidance on how to design and implement a positive safety culture. However, the Bill does not refer to the Safety Management Manual (SMM) at any point. Related issues include
the introduction of the concept of “recklessness” to aviation law. However, in doing so, the Bill makes no reference to how that is defined within the SMM. Our concern is that this will lead New Zealand case law on aviation to potentially develop in a different direction to ICAO guidance.
Another related problem is the removal of the word “integrated” from the Bill’s purpose clause. A fundamental tenet of safety management is that decision making is often both individual and collective. The Bill should therefore recognise collective responsibility more by incentivising greater public consultation in matters such as airport planning and international aviation licences and authorisations.
Surprisingly, although making specific reference to the ICAO Annex 16 (which contains the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA)) and incorporating several international conventions, the Bill makes no reference to, or specify as a relevant consideration, key ICAO safety regulations”. Of specific concern:
Non-compliance with ICAO Annex 13 (air accident and incident investigation). The Bill recognises the regulator, CAA,
as being the responsible agency for accident investigation, when New Zealand has informed ICAO that the Transport Accident Investigation Commission (TAIC) has this role. This is inconsistent with ICAO guidance (ICAO Doc 9962 Manual on Accident and Incident Investigation Policies and Procedure at 3.1)
Non-compliance with ICAO Annexes 11 and 6 (fatigue management). As we know,
there is substantial evidence that fatigue is a threat to aviation safety because of the impairment it creates in both performance and alertness – similar to alcohol and drugs, both of which are addressed specifically in the Bill.
New Zealand already places fatigue management requirements on truck operators under s30ZA of the Road Transport Act 1998. New Zealand is required by ICAO Annex 6 Part 1 (at 4.10.1) and Annex 11 (at 2.28.1) to provide similar regulations for pilots and air traffic controllers respectively.
With regard to pilots, CAA has informed ICAO that the Health and Safety at Work Act 2015 provides for fatigue management (we dispute that it does). With regard to air traffic controllers, we can find no record of CAA informing ICAO that we are non-compliant with ICAO standards.
This glaring omission in the Bill is a serious flaw.
We have received both medical and legal advice that the current medical certification scheme is not
fit for purpose. In light of recent court decisions involving the medical certification process, this should come as no surprise to many. The Medical and Welfare Director has also been engaging with the CAA on this issue.
There are ethical, drafting and medical difficulties with the current medical certification scheme that, unfortunately, are largely replicated in the Bill. One issue is the apparently different standards for the granting of medical certificates and their revocation. Another issue is the absence of any recognition of the role of the CAA Medical Unit within the context of the Health and Disability Commissioner Act 1994. Further concern arises with the practice of appointing CAA staff members as apparently independent conveners or medical experts.
In NZALPA’s view these concerns are best resolved through discussion between us/other stakeholders and the CAA, as they will require a solution that all parties can accept. To that end, it is our view that the Medical Certification scheme should be removed entirely from the Bill and be replaced by the provision for regulations relating to medical certification.
Aviation System Design
NZALPA believes that the Aviation System should be designed to enhance collaborative decision-making and avoid the creation, or continuance of, siloed thinking. Key areas of concern for NZALPA on this topic are around the role and function clauses of the various entities covered by the Bill. Although the Bill provides detailed guidance on the role of individual licence holders, there are significant gaps in relation to organisational license holders. For example:
there is no definition, or identification, of any functions or objectives of air navigation service providers (regardless of which entity may provide such services now or in the future).
the Bill fails to provide functions or duties for aviation security providers that are not AvSec, even though this is a critical role for national security.
We now await the opportunity to provide oral submissions on the Bill to the Transport and Infrastructure Committee.
I wish you and your family a safe and peaceful holiday season.
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