Powers, rights and obligations: Dealing with the CAA

1. Powers, rights and obligations:Dealing with the CAA Air Transport Division Presentation AIA Aviation Week Conference August 2012

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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 TheLegal 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