AVIATION INDUSTRY ASSOCIATION OF NEW ZEALAND |
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Legal Information Bulletin 4 - Industry ConsultationUpdate on ConsultationAIA has been consulting its members and the industry as to what action if any should be taken in respect of the LIB 4. It would be fair comment that the Industry and Regulator normally work through and reach agreements which protect and enhance safety for all participants in our industry therefore it is extremely unusual that the Association would even consider launching legal action and it would only be after all preferred options have been exhausted. It was for this reason that we decided to canvass our members and the aviation community for their views. At the time of writing the letters to the Chairman and Director of Civil Aviation (view letters) we had received 55 responses. Of these 51 supported action and 4 opposed action. The 55 responses were from industry and did not include Councillors, the Executive of NZHA or the Executive of NZAAA who had all considered this matter on previous occasions and wished to gauge the community’s views on this issue. The Association is absolutely clear that it will support CAA in every effort that it takes to address the issue of non certificated operators conducting operations which are for the carriage of passengers or goods for hire or reward. In our view this whole area has been left largely untouched by the Regulator over the years. However, we do not support the Regulator taking action against parties who are conducting their normal and legitimate commercial business where the operation is for some purpose other than the carriage of passengers and freight for hire or reward. Since writing the letters we have received further support from the community for the view expressed above. However in respect for our relationship with the CAA, its Chairman and Director we consider it right and proper that we attempt to resolve this issue before going to Court. We hope that CAA will seize the opportunity presented and focus, with the assistance of the Association and its members, on those persons who are abusing the regulatory system and not those who are pursing legitimate commercial operations. AIA ConsultationAIA is consulting with the aviation community as to consider whether legal action should be initiated against the CAA in respect of their interpretation of the term “crew member” as detailed in Legal Information Bulletin Four (“LIB 4”). We are consulting to gauge the level of support as it is an unusual step given our preference to working through and resolving matters constructively with CAA. There are matters or reputational damage and risk in the industry/communities relationship with CAA to consider. We yesterday advised the CAA that we will be consulting with you and the wider aviation community to gauge support. They are aware of this communication. If you know of any company or individual who is affected by “LIB 4” please feel free to pass this communication onto them. Background Over a period of some 18 months now the Association has made repeated submissions to CAA, its Board and management to address issues raised in “LIB 4” via rule making or other processes. These requests have largely fallen on deaf ears and as an industry we now have two options: · To let the matter rest and accept CAA interpretation; or · Seek declaratory orders reaffirming the decision of Lee J CAA V Helicam To assist you in providing advice we detail a brief commentary of the arguments for and against, case law and the implications for the industry of “LIB 4”. Commentary CAA’s position - a person carried on an aircraft who is performing a task or duty that is aligned to the purpose of the operations is properly categorised as a passenger who is performing a task or duty on the operation within the definition of commercial transport operation. The intended scope and application of the LIB relates to operations conducted primarily in the GA sector by helicopter and smaller fixed wing aircraft, which the CAA considers are properly interpreted as “Commercial Transport Operations” (“CTO”). The effect of the LIB 4 is to clarify that those operations which are interpreted as CTO must be carried out by Part 119 certificated operators. In effect this means that persons performing the following tasks: - camera operator, director of photography, shooter, spotter, observer/surveyor, inspector/observer, police/fire crews and search and rescue crew, medical staff are passengers and if the flight is for hire or reward could only be undertaken by a certificated operator. The CAA has noted or is prepared to make the following exceptions:
The contrary view - CAA’s interpretation is reliant on insisting that 119 certification arises “where the operation involves the carriage of passenger or goods AND is conducted for hire and reward” Rule Part 119 certification is mandatory if the operation is an Air Transport Operation. An Air Transport Operation is defined as “an operation for the carriage of passengers or goods by air for hire or reward”. In other words there must be a direct link between the purpose of the flight (hire and reward) and the qualifying pre condition (carriage of a passenger) . Where there is no direct link the flight is either a private flight or a commercial transport operation. Case Law CAA in reaching its conclusion considered two District Court decisions: · CAA V Helicam Aviation Limited in which the operator was prosecuted for allegedly conducting aerial filming flights for hire or reward without holding a current Part 119 certificate. The camera operator carried on the flight was employed by the operator, and the camera equipment fitted to the airframe. The Judge found the operator was conducting a lawful operation and dismissed all charges. The CAA does not consider the decision legally binding; considers the Judges decision incorrect but has not appealed instead preferring to rely in “LIB 4”. · CAA V Brett Emeny and Others in which the defendants were prosecuted and convicted of conducting pipeline inspection work for hire or reward without a current Part 119/135 operation. The inspector undertaking the work was an employee of the company who engaged Emeny and although assisting with such matters as stipulation of route flown, height, where to land etc the Judge considered that those matters either alone or in combination did not add up to a duty associated with the operation of the aircraft during flight time. The CAA agrees with this decision. CAA in reaching its conclusions appears not to have considered case law from superior courts which have ruled “that the carriage must be for reward. A reward given for carriage is not the same thing” and for this reason the Association considers LIB 4 both inappropriate and a breech of good regulatory practice. Implications for the Industry Some in industry believe all commercial operations should be certificated and that is the effect of CAA’s interpretation. However it is neither for the industry nor CAA to determine but rather Parliament. Parliament determined in 1990 that certification of aerial work would be abolished and a separate risk regime would apply to the carriage of passengers or goods for hire or reward. As much as some in industry may support wholesale certification this is not provided for in our present legislation. On the other hand there is substantial support for CAA prosecuting those who conduct commercial operations where the purpose of the flight is quite clearly carriage of passengers or goods for hire or reward and the operation is not certificated under Rule Part 119. Such activities should be brought before the Court and prosecuted. Should “LIB 4” remain: · some in industry will no longer be able to carry on their legitimate business as the categorisation and or configuration of aircraft and or particular operations preclude the carriage of passengers. Potentially a number of these operators could register their aircraft in · others will be subjected to prosecution as the CAA tests its interpretation of the law. If CAA has an adverse outcome in the District Court they simply decline to recognise that decision. · a number of operators will be required to incur significant costs associated with Rule Part 135 certification. · other operators will be required to cease operation or purchase new aircraft as the aircraft do not comply with rule Part 135 requirements. · the District Court is the primary appeal mechanism the Industry has against decisions of the Director who has powers more sweeping than the police. If we are no longer able to have confidence that decisions made will be adhered to by the CAA it undermines the fundamental confidence in our regulatory system. Even though you may be found not guilty by a judge effectively CAA can turn around and preclude you from pursuing your lawful business. Response required Could you please indicate by email whether you prefer to: 1. Let the matter rest 2. Seek declaratory order I would appreciate your response as soon as possible to enable a final recommendation can be put to the AIA Council. Click here to email your response Chief Executive |