1. The FPP Test What you need to know Commercial Transport/Tourist Flight Operators Presentation AIA Aviation Week Conference July 2011

2. Commercial Transport/Tourist Flight Operators. AIA 2011 conference Overview www.amclegal.co.nz Overview of the FPP test; application to senior person roles The continuing obligation to remain fit and proper Inter-relationship between FPP criteria and the Director’s exit powers Re-entry into the system

3. Commercial Transport/Tourist Flight Operators. AIA 2011 conference FPP in the aviation context www.amclegal.co.nz 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 ? Entry control – participants must satisfy the FPP test (s9 CA Act) Exit control – enforce sanctions where participants do not satisfy the FPP test (s17-20 CA Act) Who decides ? The Director of Civil Aviation, the Courts

4. Commercial Transport/Tourist Flight Operators. AIA 2011 conference FPP test www.amclegal.co.nz Civil Aviation Act 1990 Section 10(1) mandatory FPP criteria – must have regard to the person’s role or intended role in system; and: Compliance history with transport safety regulations including any convictions, infringements or other evidence of offences Related experience within the transport industry Knowledge of, and compliance with, civil aviation regulatory requirements Physical, mental health or serious behavioural issues Section 10(2) and (3) – Director may also consider any other matter and evidence as is considered relevant, from any source.

5. Commercial Transport/Tourist Flight Operators. AIA 2011 conference www.amclegal.co.nz Senior Person FPP assessment: CEO Focus – whether the senior person will safely and responsibly exercise control over the privileges of the organisation’s aviation document; and engender good aviation safety culture Taking into account: Knowledge of aviation system regulatory requirements or intended management structure Related experience (if any) in the transport industry Past civil aviation regulatory compliance record – individual and/or organisation Evidence of transport offences or other relevant convictions – eg fraud, dishonesty offences Management experience, references, testimonials Adverse reports or information

6. Commercial Transport/Tourist Flight Operators. AIA 2011 conference Continuing FPP obligations www.amclegal.co.nz Section 9(3) – any person who holds or has control over the exercise of any privileges of an aviation document must continue to satisfy the fit and proper person test – condition of every aviation document S12 CA Act obligations on participants to – Comply with the Act, Rules and conditions attached to aviation documents (s12(2)); and Carry out the functions and activities relating to aviation documents safely and in accordance with prescribed safety standards (s12(3)) S12 compliance key part of s15A investigations; and Significant to consideration of whether a senior person remains fit and proper to continue in role

7. Commercial Transport/Tourist Flight Operators. AIA 2011 conference FPP Disclosure obligations www.amclegal.co.nz Continuing obligation to disclose any information relevant to mandatory s10(1) criteria – eg subsequent conviction for a driving offence Failure to disclose relevant information about FPP status Is an offence under s49(1)(c) Could itself lead or contribute 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 to practice law if the convictions had been disclosed

8. Commercial Transport/Tourist Flight Operators. AIA 2011 conference FPP criteria and exit powers www.amclegal.co.nz Power to suspend, impose conditions or revoke aviation document on fit and proper person grounds: s17(1) – grounds for initial suspension include contravening or failing to comply with s49 by holder of aviation document s17(4) and s18 powers to suspend, impose conditions (for a specified period or permanently) or revoke aviation documents s19(2) – Criteria for use of those powers include any conviction, or evidence of transport safety offences committed, or non- compliance with transport safety regulations; and s 19(3) –Any other relevant matter or evidence about the person = Clear inter-relationship between FPP criteria and exit powers against individuals who hold aviation documents

9. Commercial Transport/Tourist Flight Operators. AIA 2011 conference www.amclegal.co.nz Use of exit powers where a senior person is no longer considered fit and proper: Director may withdraw senior person approval on FPP grounds But Absent any other widespread evidence of organisational non-compliance history, this may not justify use of s17-18 powers against the organisation; and Provided affected senior person can be replaced, organisation should be permitted to continue to operate Withdrawal of all senior persons approvals = may justify use of exit powers against organisation

10. Commercial Transport/Tourist Flight Operators. AIA 2011 conference Proposed adverse decisions www.amclegal.co.nz s10, s11 FPP 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

11. Commercial Transport/Tourist Flight Operators. AIA 2011 conference www.amclegal.co.nz Points to Note: Financial or economic impact of adverse decision - may be considered but ‘plays second fiddle’ to aviation safety Past convictions or adverse record that did not previously lead to an adverse decision – can be taken into account Fact that person has been charged with offence – may be relevant dependent on circumstances Hearsay evidence and adverse reports to CAA: McCool v Rushcliffe Borough Council [1998] UK – The decision maker must not rely on “prejudice or assertions shown to be ill-founded or gossip or rumour… [but may rely on] anything which a reasonable and fair minded decision maker, acting in good faith and with proper regard to the interests of both the public and the applicant, could properly think it right to rely on”

12. Commercial Transport/Tourist Flight Operators. AIA 2011 conference Re-entry into the system www.amclegal.co.nz No statutory bar on any person denied entry or ‘exited’ from the system in re-applying Director must consider any new application Factors that will influence decision Length of time since previous adverse decision Demonstrated efforts to address behaviour that lead to adverse decision, eg -Retraining -Rehabilitation -Acceptance of past wrongs -Change in attitude Any other matters relevant to future involvement in industry

13. Commercial Transport/Tourist Flight Operators. AIA 2011 conference Questions ? www.amclegal.co.nz Other sources of information: www.amclegal.co.nz – articles on FPP issues as published in NZ Aviation News www.amclegal.co.nz www.caa.govt.nz – search under “F” for fit and proper persons www.caa.govt.nz CAA Personnel Licensing Unit