Transcript The FPP Test: What you need to know

The FPP Test
What you need to know
Commercial Transport/Tourist Flight Operators Presentation
AIA Aviation Week Conference July 2011
Commercial Transport/Tourist Flight Operators. AIA 2011 conference
Overview
• 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
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FPP in the aviation context
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
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Commercial Transport/Tourist Flight Operators. AIA 2011 conference
FPP test
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.
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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
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Commercial Transport/Tourist Flight Operators. AIA 2011 conference
Continuing FPP obligations
• 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
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Commercial Transport/Tourist Flight Operators. AIA 2011 conference
FPP Disclosure obligations
• 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
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Commercial Transport/Tourist Flight Operators. AIA 2011 conference
FPP criteria and exit powers
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 noncompliance 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
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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
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Commercial Transport/Tourist Flight Operators. AIA 2011 conference
Proposed adverse decisions
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
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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”
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Re-entry into the system
• 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
www.amclegal.co.nz
Commercial Transport/Tourist Flight Operators. AIA 2011 conference
Questions?
Other sources of information:
• www.amclegal.co.nz – articles on FPP issues
as published in NZ Aviation News
• www.caa.govt.nz – search under “F” for fit
and proper persons
• CAA Personnel Licensing Unit
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