The FPP Test
How and why it applies to pilots
“Winging It” – Student Pilot Conference
NMIT July 2011
NMIT student pilot conference 2011
Overview
• The FPP test as a general concept
• The FPP test in the civil aviation
context
• How it applies to pilots as new
entrants
• Continuing FPP obligations of
licensed pilots
www.amclegal.co.nz
NMIT student pilot conference 2011
FPP test – general concept
What is it?
• Mechanism to assess a person’s fitness or suitability
to carry out a certain activity or occupation
How is it applied?
• By reference to a set of personal characteristics or
standards of expected behaviour and conduct
• Tailored to the nature of the activity or occupation
Purpose?
• To protect and promote the public interest
• Applies to wide range of professions and activities
www.amclegal.co.nz
NMIT student pilot conference 2011
FPP in the aviation context
Why does it apply to aviation participants?
To protect and promote
• the public interest in aviation safety
• the interests of participants in the aviation system
How is this achieved ?
• By requiring participants who hold or exercise control over
an aviation document to satisfy the FPP test (s9 CA Act)
• By enforcing appropriate sanctions where participants do
not satisfy the FPP test (s17-20 CA Act)
Who decides?
• The Director of Civil Aviation, the Courts
www.amclegal.co.nz
NMIT student pilot conference 2011
Civil Aviation Act
Section 10: The Mandatory FPP criteria
The Director must:
• Have regard to the degree and nature of a person’s
proposed involvement in the civil aviation system; and
• Consider the person’s:
o Compliance history with transport safety regulations
o Related transport industry experience
o Knowledge of civil aviation regulatory requirements
o Physical, mental health or serious behavioural issues
o Convictions for transport safety offences; and
o Any evidence that a transport safety offence or breach of
the Civil Aviation Rules has been committed
www.amclegal.co.nz
NMIT student pilot conference 2011
s10 - Other relevant matters
S10(2) and (3) The Director may:
• Take into account any other matter or evidence
considered relevant
• Seek and receive, and consider, any information
obtained from any source
Other relevant information may include:
o Other criminal convictions
o Testimonials, references from industry
o Adverse information from industry
The weight to be given to any relevant matter, and the final
FPP decision, are at the discretion of the Director
www.amclegal.co.nz
NMIT student pilot conference 2011
Section 11: Proposed adverse decisions
The Director must:
• disclose any adverse information taken into account, and
allow the person a reasonable opportunity to refute or
comment on it; and
• Notify any adverse decision in accordance with s11; and
• After considering any response, notify the final decision
and, if it is adverse, explain the consequences
Section 66: Appeal to the Courts
Adverse FPP decisions and decisions affecting the validity or
exercise of the privileges of an aviation document may be
appealed to the District Court
www.amclegal.co.nz
NMIT student pilot conference 2011
FPP test applied to new pilots
• Every case must be assessed on its own merits and will
depend on individual applicants circumstances
• However a typical profile for a young student pilot
applying for a PPL or CPL will be:
•
Knowledge of civil aviation regulations – demonstrated to
the required standard for the applicable licence
•
Civil aviation flying experience – at or slightly above
minimum required hours
•
Has drivers licence
•
Little or no other transport sector (commercial) experience
•
No serious physical, mental health or behavioural concerns
www.amclegal.co.nz
NMIT student pilot conference 2011
In such cases the FPP issues the Director
will focus on under s10 are:
• Any convictions for transport safety offences
• Any history of land transport infringement offences
• Any other convictions that may be of relevance
Why?
• No (or very limited) aviation or other commercial transport
“track record” that the Director can draw on
• Land transport safety record – Director can draw
inferences as to likely attitude to aviation safety, and
future compliance with civil aviation safety regulations
www.amclegal.co.nz
NMIT student pilot conference 2011
Land transport infringement offences
• One or two - unlikely to be significant concern
• On-going history - will be viewed seriously and scrutinised
Land Transport convictions
• Will be assessed in light of all of the other FPP criteria
• More than one conviction, and/or combination of
convictions and infringements – viewed seriously,
increases level of scrutiny of applicant
Other convictions
• Must be relevant to the licence being sought- eg drugs
• Combination with any transport safety offences will
increase seriousness and scrutiny
www.amclegal.co.nz
NMIT student pilot conference 2011
Other factors that may be relevant to
adverse history
• Length of time since or between offence(s)
• Particular circumstances/seriousness of offence(s)
• Character references and testimonials – esp industry
• Whether restrictions or conditions could address any
safety concerns
Points to Note
• No statutory presumption that a conviction = not fit and
proper
• No minimum ‘conviction free period’ applies
• Must be assessed on a case by case basis and with
regard to intended role in the system
www.amclegal.co.nz
NMIT student pilot conference 2011
Ongoing FPP obligations
• Participants must remain fit and proper to exercise the
privileges of any aviation document held (s9(3) CA Act)
• Criteria in s10 continue to apply
• Failure to disclose relevant FPP information is an offence
under the Act – s49(1)(c). Relevant information includes:
• Adverse information about any of the matters in
s10(1), including land transport convictions
• Failure to disclose relevant information may itself lead to
an adverse FPP determination:
New Zealand Law Society v Mitchell [2011] NZAR 81
• Lawyer struck off for failing to disclose 39 convictions
• Court of Appeal noted he may have met the FPP standard
if the convictions had been disclosed
www.amclegal.co.nz
NMIT student pilot conference 2011
Aviation experience
• Experience and track record in aviation industry will be
increasingly relevant and carry more weight over time
• Compliance with s12 CA Act relevant to FPP status–
•
Obligation on participants to comply with the Act, Rules
and conditions on aviation documents (s12(2)); and
•
To exercise the privileges of aviation documents safely and
in accordance with prescribed safety standards (s12(3))
Re Taylor and Department of Transport (1978) 1 ALD 312
Administrative Appeals Tribunal of Australia posed the test in relation to assessing
whether a commercial pilot remains fit and proper as follows:
“it is not simply a question of competence to fly an aircraft… [it requires] a
consideration of the [participant’s] conduct measured against the
responsibilities, functions and duties of the holder of a commercial pilot
licence as they emerge from the provisions of the Air Navigation Regulations
… it is clear that [those duties] include observing the interests of the safety of air
navigation – not only in the interests of pilots, passengers and the owners of aircraft,
but also the interests of the public at large”
www.amclegal.co.nz
NMIT student pilot conference 2011
Daddow and Civil Aviation Safety Authority [2010] AATA 795
(Administrative Appeals Tribunal of Australia)
• Cancellation of PPL, Student Pilot Licence and Flight
Radiotelephone Licence by CASA in June 2009 affirmed
• Not fit and proper to have responsibilities and perform
functions and duties of those flight crew licences
• History
•
PPL since December 1986; since flown 950 hours as PIC,
owner of Cessna P210N single engine 6 seater aircraft
•
3 incidents between January and December 2007
•
February 2008 – attempted aborted landing down wind,
struck tree and sustained damage to aircraft on go-around
•
March 2008 – CASA suspended PPL over competency and
knowledge concerns, required him to sit examination.
Allowed to undertake flying training with flight instructor
www.amclegal.co.nz
NMIT student pilot conference 2011
•
Failed the theory component in December 2008. The flight component
of the examination did not proceed.
•
Notified that CASA considering cancellation of licences and asked to
‘show cause’
•
After a meeting with CASA in February 2009, permitted to continue to fly
as a student pilot to undertake remedial training with flight instructor
•
19 flights between December 2008 and 27 April 2009, of which:
•
17 were solo flights conducted without required authorisation
•
On 25 April 2009 he was accompanied by a female friend and her
granddaughter (not permitted under Student Pilot Licence)
•
On that flight he attempted a downwind landing, less than 285
metres from a lake at the end of the runway, at excessive speed.
The aircraft stopped less than 1 metre from the airport boundary.
•
Notified again to ‘show cause’
•
Prosecuted for breaches of Civil Aviation Regulations in relation to 25
April 2009 flight. Discharged without conviction.
•
Flight Crew Licences cancelled on 30 June 2009.
www.amclegal.co.nz
NMIT student pilot conference 2011
Administrative Appeals Tribunal was “well satisfied” he was
not fit and proper to have the responsibilities and exercise
the functions and duties of his Flight Crew Licences, on the
following grounds:
• Despite intervention, he continued to show poor grasp
of the theoretical aspects of flying, and a lack of
necessary skills to fly even as a student pilot
• Carriage of passengers on the flight on 25 April 2009
was clearly in breach of the rules, and the landing
endangered himself and his passengers
• This incident demonstrated he had not learned from
his previous failings, or the similar landing incident in
February 2008
• His explanation that he thought he could fly solo as a
student pilot lacked merit; and
• Even if correct, it showed a reckless disregard for the
need to be familiar with the regulations.
www.amclegal.co.nz
NMIT student pilot conference 2011
Questions?
Other sources of information:
• www.amclegal.co.nz – articles on FPP issues
as published in NZ Aviation News
• www.caa.govt.nz – search under “F” for fit
and proper persons
• Your employer
• CAA Personnel Licensing Unit
www.amclegal.co.nz