Powers, rights and obligations:
Dealing with the CAA
Air Transport Division Presentation
AIA Aviation Week Conference August 2012
Air Transport Division. AIA 2012 conference
Overview
•
Role of the Minister and CAA
•
Director’s powers
• Inspection and monitoring
• s15A investigations
• S24 General power of access and entry
• Law Enforcement investigations
• Safety Investigations
•
•
•
Offence provisions
Exit powers and adverse decisions
Avenues of redress
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
Role of the Minister
Minister of Transport
• S14 Objective: carry out functions in a way that
contributes to aim of achieving an integrated, safe,
responsive and sustainable transport system
• s14A Functions:
• To promote safety in civil aviation
• Administer NZ’s participation in ICAO and other
international agreements on civil aviation
• Administer any Crown interests in aerodromes
• To make the Civil Aviation Rules
• Bears ultimate responsibility for establishment of search
and rescue centre for maritime and aviation search and
rescue operations
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
Role of the CAA
CAA: Crown Entity, Minister appointed
board (“the Authority”)
• s72AA Objective: to undertake its safety and security
functions in a way that… achieves an integrated, safe,
responsive and sustainable transport system
• s72B Functions:
• Promotion of civil aviation safety and security in NZ and
internationally; including education function
• Maintain records, ensure publication of aeronautical
charts
• To investigate civil aviation accidents and incidents
(subject to TAIC jurisdiction)
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
• Establish and carry out Aviation Security Service functions
• Establish and publish CAA Service Charter
• Provide information and advice to the Minister
• Enter into technical or operational agreements with other
ICAO states
• Appoint the Director of Civil Aviation
• The Authority must, if directed by the Minister (s72B):
• Operate and maintain the search and rescue centre, or
participate in a search and rescue operation
• Implement a government policy if directed to under the
Crown Entities Act
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
Director’s powers
Overview of powers (s 72I)
• Power to exercise control over entry into the system
through granting of aviation documents (ss6 – 9)
• Power to carry out inspections and monitoring of
participants in the system(s15)
• Power to conduct investigations of aviation document
holders to ensure compliance with the Civil Aviation Act
or Rules (s15A)
• Power to take action to enforce the Civil Aviation Act or
Rules, which may be through:
• Law enforcement action for breach of the Act or
Rules; and/or
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
• Administrative action against aviation document holders
(ss17-20) (exit control powers)
• Power to detain or seize aircraft or aeronautical products if it
may endanger persons or property (s21)
• Power to issue airworthiness directives in respect of an unsafe
condition in an aircraft or aeronautical product
Director may delegate his powers to employees except for s18
power to revoke aviation documents; with the Minister’s consent
external contractors may also be delegated most powers
Note – In exercising the Director’s statutory powers the Director
must act independently of the Minister and Authority = Minister
and Authority cannot intervene in specific decisions (eg in a
decision to revoke or suspend an aviation document)
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
Inspection and monitoring
•
S15(1) - Power to require participants to undergo such
inspection and monitoring as considered “necessary in the
interests of aviation safety”
•
S15(3) – Director may request such information as is
considered necessary as part of inspection and monitoring
•
CAA practice •
Routine annual audit of certified organisations
•
Routine annual inspections of other organisations
•
Targeted or random inspections
•
Focus on exposition (certified operators) or compliance
with rules and ops manual (uncertified operators)
•
Question – Risk Surveillance approach – move to targeted
auditing of operators based on risk – is this happening?
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
Investigation power (s15A)
•
Power to require holder of aviation document to undergo
investigation if the Director –
•
Has reasonable grounds to believe holder of aviation
document failing to comply with section 12 or
conditions on aviation document; or
•
Considers the privileges or duties pertaining to the
document are being carried out carelessly or
incompetently
•
Nature of s15A investigation – administrative - linked to
entry and exit control powers
•
Focus on s12 (requirements on participants to comply
with CA Act and Rules) and s10 (FPP requirements)
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
General Power of Entry
• Right of access- s24(1)
Any person authorised by the Director has right of access at
any reasonable time to any •
Aircraft, aerodrome, building or place (not being a
dwellinghouse or marae)
•
Document or record concerning any aircraft,
aeronautical product, or aviation related service
• Right of entry - s24(2)
Any person duly authorised by the Director has right of entry
at any reasonable time to any aircraft, aerodrome, building
or place (excluding dwellinghouse or marae) if there are
reasonable grounds to believe–
•
The Act or Rules are about to be breached;
•
A condition of an aviation document breached;
•
Unsafe situation constituting danger to safety exists
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
What this means
• Right of access- s24(1)
If requested by an authorised person you must provide
access to -
•
any aircraft, aerodrome, building or place (excluding
dwellinghouse) - requires physical entry; and/or
•
any document or record concerning any aircraft,
aeronautical product, or aviation related service - may
require physical inspection or to provide copies
•
At a “reasonable time” = depends on the circumstances
and nature of the access sought – you have a duty to
reasonably assist and not obstruct
Most commonly used in relation to s15 and s15A powers
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
• Right of entry - s24(2)
• If requested by a duly authorised person who informs you
that they are exercising their s24(2) powers, you must
• Allow entry to any aircraft, aerodrome, building or
place (warrant required for dwellinghouse)
• At a reasonable time = in light of the purpose of this
power, is likely to be based on assessment of the
person exercising power; generally will require entry
immediately or as soon as practicable
• S24(3) person exercising rights under s24(1) and (2) may
require any person in possession of documents to produce
or surrender them
• Authority must be shown on entry or on request
• These powers subject to TAIC jurisdiction
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
Law Enforcement
• Power to conduct law enforcement investigations
derived from general power under s72I to enforce the
Act and Rules, including offence provisions
• If believed evidence about an offence exists, a warrant
to search for that evidence at specified location(s) will
usually be obtained from the Court
• Note Director can also rely on s24(1) and (3) to obtain
and access records; and in limited circumstances on
s24(2) to gain entry to premises without a warrant
• No obligation to attend law enforcement interview or to
answer any questions, however
• adverse inferences or conclusions may be drawn
about alleged offending; and
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
• non-cooperation may influence Director’s attitude to
prosecution or otherwise dealing with breaches; and
• Acknowledgement of clear cases of breaches = can be
taken into account as mitigating factors in sentencing
• Decision on whether to attend interview and answer
questions is finely balanced
• Decision may also be influenced/complicated by whether a
concurrent s15A investigation is being undertaken
• Advice should be sought before committing to interview
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
Safety Investigation
Section 26 obligation of pilot and operator to –
• notify accident or incident, or a search and rescue operation,
to the Authority as soon as practicable; and
• to provide such further information to the Authority as is
requested
Part 12 Civil Aviation Rules
• 12.51 - notification requirements in relation to an accident
• 12.53 – 10 days to provide further details about accident
• 12.55 – notification of incidents required by operators
• 12.57 – notification of further details of incident and timeframes
• 12.59 – obligation of operators to investigate incidents and
report to CAA within 90 days (unless advised not to, or TAIC is
investigating)
• Persons submitting information under 12.55 and 12.57 may
request confidentiality
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
• 12.63 Non Prosecution
• Information submitted under Part 12 to the Authority may not
be used for prosecution purposes unless
• The information reveals behaviour constituting
unnecessary endangerment
• False information is submitted
• The Authority is obliged by court order or other statutory
requirement to release the information
• The latter situation could conceivably include a warrant
obtained by the police or other agency (eg the police); or
the Department of Labour (Health and Safety enforcement)
• Note – Information supplied to TAIC cannot be used for other
purposes by any other agency, including prosecution
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
• Preservation of Aircraft and Records under part 12
• 12.101 - Duty not to remove, access, interfere with an aircraft or
its contents after an accident unless authorised by Authority
• This is subject to right to remove persons, livestock or
wreckage or take other steps to secure aircraft if necessary
to ensure safety, provided certain precautions taken
• Authority has right after accident to access, secure, inspect or
remove an aircraft or its contents, subject to TAIC jurisdiction
• 12.103 – Duty to preserve all aircraft records including all
recording media on aircraft for at least 14 days following
accident or serious incident
• 112.105 – duty to retain defective product or component for at
least 14 days after submitting defect report to CAA
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
Offence provisions
• s44A Failure to comply with s15 inspection or monitoring request
– substantial fines including for continuing non-compliance
• s49 – Failure to disclose relevant information or providing false
information – fines and up to 12 months imprisonment
• S50 - Obstruction of duly authorised person carrying out
Director’s functions – fine and up to 3 months imprisonment
• s50A – Failure to comply with s24(3) requirement to produce or
surrender documents
• S52 – Failure to maintain accurate records – fines
• S52A – Failure to notify emergency breach of rules - fine
• s52B – Failure to notify accident or incident under s 26 – fines
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
Director’s exit powers
• ss17 – 20 Power to suspend, impose conditions or revoke
aviation document
• May follow single incident or series of incidents; may follow
s15A investigation but not necessarily
• Exercise of exit powers (other than suspension or temporary
conditions) subject to s11 Proposed Adverse Decision process
• If exited from system, no bar to re-entry or minimum time
frame, however re-entry subject to Director’s assessment of
suitability (time since events leading to exit, subsequent
behaviour, FPP assessment etc)
• Key obligations to bear in mind – s12 obligations and s10 FPP
requirements
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
Proposed adverse decisions
The Director must:
• Disclose any adverse information taken into account and
allow the person to refute or comment on it; and
• Notify any proposed adverse decision, and consider any
submissions, in accordance with s11; and
• Notify the final decision and, if it is adverse, explain the
consequences
S66 – Right of appeal against adverse decisions affecting validity
and exercise of privileges of aviation documents
Note - currently no direct right of appeal by senior person against
adverse FPP determination/decision not to approve senior person
www.amclegal.co.nz
Air Transport Division. AIA 2012 conference
Avenues of Redress
• Official Information Act/Privacy Act requests
• Complain/elevate matters within CAA – senior
management; Director
• Consider approach to Board/Minister
• Service Charter Complaint
• Ombudsmen investigation
• Recourse to the Courts – statutory appeal rights,
judicial review
•
See NZ Aviation News The Legal Lounge articles, December 2011 for more
discussion on the different focus and obligations during administrative, safety
and law enforcement investigations; and October 2011 for more information on
avenues of redress; earlier articles also discuss FPP and prosecution issues
www.amclegal.co.nz