[Peetwo]

Blueprint for RRP harmonisation - i.e. Adopting NZed rule set.

In the course of doing some research/dot joining on M&M's department and aviation safety minion involvement in the ICAO APAC region, in particular PASO, I came across a long (over 800 pages - ) but fascinating ADB (Asian development bank) document:

Technical Assistance Consultant’s Report

This consultant’s report does not necessarily reflect the views of ADB or the Government concerned, and ADB and the Government cannot be held liable for its contents. (For project preparatory technical assistance: All the views expressed herein may not be incorporated into the proposed project’s design.

Project Number: 43429

February 2014

Regional: Institutional Strengthening for Aviation Regulation

(Financed by the ADB’s Technical Assistance Special Fund)

Now I am not suggesting that anyone would be remotely interested in reading the full TA consultant's report, however to get the gist of why I think this is an important report it is worth referring to certain chapters from volume 1:

References -

2. HARMONISATION OF AVIATION LAW Pg 12 - 34

New Zealand Law as Model Law

2.78 As noted above the global approach to civil aviation safety is highly dependent upon

all Chicago Convention contracting States giving effect to the provisions of the

Convention and the SARPs in their national law. This should mean that, regardless

of regional arrangements, a high degree of uniformity or harmonisation of law should

be achieved among all the contracting States. However as noted in the LTR the

correct implementation in national law of the key provisions of the Chicago

Convention and the many thousands of SARPs is an extremely challenging task.

The significance of the collaborative regional arrangements agreed in PICASST

therefore is that the parties to that treaty have agreed that New Zealdand aviation law

can be used as model law.

2.79 On analysis it can be seen that the objective of achieving harmonisation of aviation

law among PASO member States involves two levels. At one level the object is to

achieve harmonisation between the SARPs and national law; and at another more

practical level the PASO member States propose to harmonise their national law

among themselves based on New Zealand law. In other words, the practical

harmonisation exercise should achieve compliance with SARPs as well...

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New Zealand Secondary Aviation Legislation

2.103 A feature of the New Zealand regulatory system is that there are very few statutory

regulations and orders (i.e. made by the Head of State) in favour of extensive civil

aviation rules (i.e. made by the Minister of Transport)...

2.107 The most significant body of secondary aviation legislation therefore consists of the

Civil Aviation Rules divided into numerous different parts based upon the same

subject matter part numbers used in the United States Federal Aviation Regulations.

The current list of New Zealand Civil Aviation Rules in force is as follows...

3. PRINCIPLES OF SAFETY REGULATION Pg 35 - 48

The Nature of Responsibility

3.6 The principles of civil aviation regulations have been tried and tested over a number

of years (as outlined above). Both the State and the operator have responsibilities

for the safe conduct of flight operations. The principles essentially rest on the nature

of responsibility:

• the State is responsible for setting national standards for the safety of civil

aviation (air navigation) and seeking compliance with those standards; and

• the operator is responsible for the safe conduct of its operation and to comply

with any regulations the State may promulgate.

3.7 Thus there is a division of responsibility between the State and the operator over

matters of civil aviation safety and operation and the public interest.

3.8 In carrying out its responsibilities under the Convention, New Zealand has enacted

specific legislation to provide for the development and promulgation of a code of rules

and recommended practices (that will be consistent with the Annexes to the Chicago

Convention).

Role of the Safety Regulator

3.9 In developing a code of rules for flight safety and security a State can adopt

provisions that will govern its role in the implementation of the rules. Thus a State

may adopt an active role in the implementation of the various rules or it can adopt a

passive role. The role a State, or civil aviation safety authority, adopts is crucial to

the development of a safe and orderly civil aviation system.

3.10 An active role is one where the State will promulgate, in some detail, the rules and

regulations which prescribe the standards for the safety of flight operations. But

regardless of the detail these rules and regulations can never, on their own, provide

the operator with comprehensive instructions on which to base an operation. But

more importantly, an active role is one where the State may adopt a high level of

functional supervision characterised by close surveillance and domination of the

conduct of operations along with the ongoing provision of support and advice

(perhaps on a day-to-day basis) to ensure operators remain within the rules

(prescribed operating standards).

3.11 A passive role is the other extreme. In a passive role the State would have limited,

even no involvement in the functional supervision of operations. Its role in this case

would be limited to investigatory action and the initiation of legal proceedings when

operators broke the rules. In this situation the interpretation and implementation of

civil aviation rules would rely on the competence of the operator and be left entirely to

the operator. With a passive role the State effectively relies on the threat of

enforcement action for compliance.

3.12 So, on the one hand it can be argued that an active role tends to be counter

productive for several reasons:

• too detailed rule making may stifle the development of civil aviation (since rule

making usually lags technical and operational development);

• too much detailed checking by civil aviation safety regulatory inspectors may tend

to dilute an operator’s responsibility for safety in its operation (and may not

necessarily lead to a high level of safety); and

• detailed and frequent inspections require resources proportional to the amount of

activity in civil aviation (and so vast State resources may be required).

3.13 On the other hand it can be argued that a passive role would lead to abuses in the

conduct of civil aviation and at the same time leave very limited means to detect such

abuses before an accident has occurred. A completely passive authority will have

difficulty in keeping up with technical and operational developments in aviation33.

Moreover, some operators do not have the capability to consistently interpret and

apply rules and standards correctly. So, with the lack of functional supervision, this

would mean that the State would not be able to assess whether rules and standards

are being complied with. The State, therefore, would be unable to properly exercise

the necessary preventive and corrective action and so be unable to fulfil its

responsibility.

3.14 Non compliance is immediately apparent under an active regulatory regime and more

difficult to identify in a passive regulatory environment. As a result the cost of

corrective action and enforcement under a passive regime is likely to be relatively

high because of the amount of investigatory effort needed in the light of limited or no

information that would be otherwise collected and available under an active regime.

3.15 From a different perspective it can be argued that an abundance of civil aviation rules

standards, orders and instructions would enable regulators to escape the need to

justify their decisions in cost-benefit terms. (This could be interpreted as a negative

and blunt view). Similarly, it could be argued that an abundance of rules standards

and other requirements would safeguard the public interest that would not otherwise

be protected. (This could be interpreted as a positive and reasoned view). The truth

of the matter is somewhere between these two arguments.

3.16 In many developed aviation countries there has been a trend in recent years to adopt

a role for State authorities that is active but system-orientated. This is based on the

fact that the operator has ultimate responsibility for the safety of its operation. By

system-orientated it is mean the authority relies more on the overall system safety of

an operation rather than detailed “nuts and bolts”. Thus more emphasis is placed on

the operators’ management capabilities (through quality and safety assurance) rather

than regulatory inspectors (through quality and safety control).

3.17 Whether a state adopts a more passive or more active role in the implementation of

its responsibilities for flight safety depends on a number of factors:

• the actual balance (or allocation) of responsibility between the State and the

operator (ie do operators truly accept and exercise responsibility for the safe

conduct of their operations or do operators expect the State to carry some or

most of this responsibility);

• the perceptions and expectations of operators (and perhaps, too, the public);

• the capability of the State;

• the capability of the operators;

• the State’s philosophical approach to public policy and management;

• the economic justification (cost-benefit) within the State’s resources;

• the degree to which the State wishes to promote, control or restrict civil aviation;

and

• the level of sophistication and maturity of the civil aviation industry itself.

3.18 ICAO guidance material states “that considerable merit exists in a balanced approach

to reflect the division of responsibility between the State and the operator. Here the

overall State regulatory system falls between the active and passive extremes” and in

line with the technological, economic, social and legal environment of the civil

aviation system. New Zealand has adopted a systems orientated approach that

appears to be less active overall than the above factors may otherwise suggest.

(This relatively passive role is probably more a result of limited public resources,

especially financial, than a deliberate public policy.)

3.19 The point is that the New Zealand civil aviation regulatory and safety oversight model

is based on a systems-orientated approach where the New Zealand civil aviation

administration has adopted a role that is between a passive and active one that is

influenced by the safety performance of the operators or participants. However, an

individual State may wish to adopt a more passive role and this is entirely a matter for

the State to decide.

3.20 Prior to the establishment of PASO it would be fair to say that possibly apart from Fiji

most Forum Pacific Countries had adopted by default a passive role in the regulation

of civil aviation safety – this was simply because they lacked the capacity to do

otherwise.

The New Zealand Regulatory Model

3.21 Safety in any civil aviation system is dependent on a system of rules and statutory

requirements that reflect the State’s international obligations, domestic laws, the

state of development of its aviation system and public expectations. The legal

framework is underpinned by a set of principles that can be regarded as together

constituting a safety “philosophy”. In New Zealand’s case, that philosophy has its

origins in the Swedavia-McGregor Report of 198834, tempered by experience since

then.

3.22 A key principle of civil aviation safety regulation in New Zealand is that individuals

and operators are expected to act responsibly without excessive regulatory

intervention. For its part, CAANZ has an obligation to be fair, consistent and timely in

the performance of regulatory functions and to ensure that its interventions are well

informed and effective. Neither the CAANZ nor the industry has all the information

and expertise needed to bring about safety improvements and must collaborate to

achieve safety objectives without compromising the role of the CAANZ in protecting

the public interest.

3.23 The CAANZ has found that the assumption of a responsible industry must be

regularly tested and a regulatory approach maintained that is flexible enough to

address a wide spectrum of performance levels and safety attitudes. As noted

above, at one extreme the regulator can be so involved in detail matters that it can

stifle operations. At the other extreme it can be too “stand back” with little or no

involvement in operational matters, responding only when things go wrong. The

ideal lies between those two extremes.

3.24 In general, operators must establish and follow a safety management system which

sets out how they intend to discharge their responsibilities. The safety management

system becomes the basis for entry into, and operation within, the aviation system.

Operators must also provide training and supervision for their employees and

sufficient resources to ensure compliance with relevant safety standards. Individuals

exercising privileges in terms of an aviation document must be “fit and proper” to

exercise those privileges. These provisions remain the cornerstone of the safety

regulatory approach followed in New Zealand.

3.25 The Director of Civil Aviation has the core responsibility of exercising control over

entry into the aviation system, monitoring performance and enforcing compliance

with the Civil Aviation Act and rules made under that Act. Without hindering the

Director’s responsibility to exercise discretion and judgement in individual cases,

these powers and functions are exercised within a consistent policy framework that is

understood by the aviation community. The Director uses objective decision tools for

determining the action to be taken in response to safety failure...

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3.55 However, the important point for present purposes is to distinguish between the

institution which employs all the required administrative and technical staff and the

individual statutory officers who exercise specific regulatory powers conferred upon

them by the States’ primary and secondary aviation legislation. In particular, the

States’ primary aviation legislation needs to be very clear about the roles and

responsibilities of the various individuals and institutions comprising the States’ total

aviation system.

3.56 For example, the New Zealand Civil Aviation Act begins with a long title that states it

is an Act “to establish rules of operation and divisions of responsibility within the New

Zealand civil aviation system in order to promote aviation safety”. Further analysis of

the Act reveals that it apportions functions, duties, powers and responsibilities as

appropriate to all those involved in the aviation system.

3.57 The Minister is given responsibility for the State’s international obligations and

making civil aviation rules to implement the ICAO SARPs; a Civil Aviation Authority is

established to appoint a Director of Civil Aviation and to exercise governance

responsibilities over funding and staffing resources required to regulate aviation; the

Director of Civil Aviation is the person who exercises specific statutory power as an

independent safety regulator (i.e. independently of the Minister and the Civil Aviation

Authority); and all persons wishing to participate in the civil aviation system are

required to hold the appropriate aviation documents and carry out their activities

safely and in accordance with the safety standards prescribed in the Civil Aviation

Rules.

3.58 In the case of the New Zealand model (and the States which have established similar

arrangements) it is therefore crucial that there should be no role confusion. The

Minister takes political responsibility for the safety oversight of the civil aviation

system, is responsible for the State’s treaty obligations, makes civil aviation rules and

develops the State’s aviation policy. The Civil Aviation Authority is established to

exercise governance responsibilities over the resources required for safety regulation

and oversight of the civil aviation system (including monitoring the Director’s prudent

management of all expenditure), but at the same time respecting the Director’s

independent statutory role as the safety regulator.

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Purpose of a Civil Aviation Authority

3.67 In the New Zealand Model the objective or purpose of the civil aviation authority is to

“undertake its safety, security and other functions in a way that contributes to the aim

of achieving an integrated, safe, responsive, and sustainable transport system”.42

The Civil Aviation Act was amended in 2004 to align the purpose or objective of the

Civil Aviation Authority with the 2002 New Zealand Transport Strategy, which mainly

focused on land transport. At the time this amendment was adopted there was

aviation industry apprehension as to the advisability of such a change while in some

quarters there was alarm that the amendment was politically motivated.43 Prior to

this amendment the ‘principal function’ of the New Zealand civil aviation authority was

to “undertake activities that promote safety in civil aviation at reasonable cost”.44

3.68 It is up to each State to determine the purpose of its civil aviation authority (and civil

aviation administration). It is proposed that the purpose of a civil aviation authority is

simply:

To promote safety in civil aviation at reasonable cost for the benefit of the

people of <the particular State>.

3.69 Thus the purpose of a civil aviation authority is to administer civil aviation safety

legislation and carry out specific functions relating to the regulation of aviation safety

for the benefit of the people of its own country. And to be carried out in an effective

and efficient manner where the value of the cost to the nation is measured against

the value of the resulting benefit to the nation.

3.70 The benefit of improved safety in civil aviation is not necessarily confined to an

individual nation – there are consequential regional benefits too. For example, all

people flying into and out of and within a particular Pacific Island country benefits

from improved civil aviation safety. This has direct benefits to economic, social and

political development..etc.

8. SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS Pg 114 - 123

Harmonisation of Aviation Law

8.22 At the international level the Chicago Convention together with the numerous SARPs

contained in the 19 Annexes to the Convention provide the basis for a high level of

uniformity of law or “harmonisation” at the national level.

8.23 Implementation of this harmonised law at the national level however is very

challenging. The member States have therefore all agreed to use New Zealand

aviation law as model law. This is being done by the member States progressively

enacting statutes based on the New Zealand aviation statutes and also adopting the

New Zealand Civil Aviation Rules.

8.24 Using New Zealand law as model law involves making numerous assumptions. Two

key assumptions are that New Zealand will keep its aviation law up to date and

compliant with the SARPs; and that the member States will also continue to keep

their aviation law up to date.

8.25 It is recommended that the PASO member States, through PASO, develop a close

working relationship with the New Zealand aviation law-making organisations namely

the Ministry of Transport and CAANZ in order to be able to sustain a high level of

harmonisation on a long term basis. PASO will require specialist legal resources to

fulfil this role for the member States.

Principles of Safety Regulation

8.26 Although the SARPs strictly only apply to international civil aviation, in practice all

States apply them to both international and domestic civil aviation. It would be

impractical to have two codes.

8.27 Each State has a choice whether to adopt an active role or a passive role in the

supervision of its aviation industry. An approach that is too active can stifle

innovation and discourage operator responsibility. An approach that is too passive

may not detect systemic failure until an accident occurs.

8.28 In practice, a balanced approach is required which is a feature of the New Zealand

regulatory model. New Zealand has a reasonably active risk-based approach

influenced by the safety performance of the participants in the industry. A balanced

approach reflects an appropriate division of responsibility between the State regulator

and the industry participants.

8.29 A key principle of safety regulation in New Zealand is that individuals and

organisations are expected to act responsibly without excessive regulatory

intervention. This cannot be assumed however. The regulatory approach must

address a wide spectrum of performance levels and safety attitudes. In general, the

larger the aircraft the higher the safety standards that apply.

8.30 The Director of Civil Aviation has the core responsibility for exercising control over

entry into the civil aviation system, monitoring performance and enforcing compliance

with the law. The exercise of discretion and judgement in individual cases is made

within a consistent policy framework.

8.31 The Director can employ active intervention strategies to correct non-compliances

ranging from support and advice, closer monitoring, imposition of conditions,

enforcement action or ultimately revoking aviation documents.

8.32 Entry control, surveillance, enforcement and exit control is supplemented by

information gathering and analysis in order to monitor effectiveness, potential

systemic problems, future risk assessment and determining appropriate strategies

and interventions.

8.33 The CAANZ safety oversight system manages all the required data and decisionmaking

through an intranet that has replaced the need to maintain hard copy

controlled manuals.

8.34 The intranet system enables compilation of accurate risk profiling and compliance

history for each aviation document holder. Audit frequency, scope and sample size

are determined by the assessed risk level and safety performance of operators, both

collectively and individually.

8.35 This risk profiling enables the effective deployment of appropriate surveillance tools

such as routine audits, special purpose audits, investigations and spot checks.

8.36 A systems-based approach is taken to non-compliances detected upon audit so that

corrective action is taken, not just in response to the individual non-compliance but

also to the system’s deficiency or error that contributed to the non-compliance. The

status of audit findings and corrective actions are tracked by the CAANZ intranet data

available to all operational staff.

8.37 It is recommended that the PASO member States move progressively from a work

programme of routine cyclical oversight inspections to a more active systems and

safety risk-based approach based on the New Zealand oversight model.

8.38 To implement the New Zealand oversight model the States’ safety regulator must

have: appropriate policy; the support of their Minister; the support of the industry; and

adequate funding.

8.39 At a practical level the States must also have access to individuals with knowledge,

skill and experience, effective ICT and reliable safety information and data. These

should be available through PASO.

8.40 The effectiveness of the State safety oversight system also involves ensuring the

States’ institutional arrangements are appropriate. The most critical one is the

separation of aviation provider functions from the States’ regulatory functions.

8.41 It is also important to distinguish between the institution which employs all the

required administrative and technical staff and the individual statutory officer (the

Director of Civil Aviation) who exercises specific regulatory powers conferred by the

States’ primary aviation legislation.

8.42 The States’ primary aviation legislation needs to correctly apportion functions, duties,

powers and responsibilities between all those involved in the aviation system. There

should be no confusion. In particular the Director must at all times be able to

exercise independent statutory power in accordance with law, fairly and reasonably...

P2 comment - IMO this comprehensive ADB report provides a perfect blueprint to design a regulatory framework that would fully support transitioning to and regionally harmonising with the NZ system of civil aviation safety administration and laws. The economic mutual benefits in trade and tourism alone, I believe would far outweigh the nearly half a billion dollars the Australian government has invested so far on the 30+ year RRP. Which is still years from completion and has largely created an unusable, unreadable, outdated, cumbersome set of regulations that no-one else in the world is interested in adopting...

MTF...P2