Angela Beazer Solicitor

1. TCs AND STCs: ASSESSING WHAT MAY BE “CONTRARY TO THE INTERESTS OF AVIATION SAFETY” Angela Beazer Solicitor

2. Legal Requirements for Aviation Documents • Aviation documents must be issued in accordance with the criteria in section 9 of the Civil Aviation Act. • Section 9(1)(c) Civil Aviation Act: The Director shall … grant the application for issue of an aviation document if he is satisfied that – “It is not contrary to the interests of aviation safety for the document to be granted or renewed” • Type Certificates and Supplemental Type Certificates are aviation documents. The Director must be satisfied that approval of a TC or STC is not contrary to the interests of aviation safety

3. Part 21 Approval of TC or STC • Part 21 replicates and requires a two stage application of the criteria in section 9(1)(c) in assessing whether to issue a TC or STC: • Approval of TC/STC technical data must not be contrary to the interests of aviation safety. CAR 21. , CAR 21.505(d)(2) • Issue of the TC/STC must not be contrary to the interests of aviation safety: CAR 21.19(2), CAR 21.119(2) • If the Director cannot be satisfied of either requirement: TC or STC will not be issued.

4. Exercise of Director’s Powers • The Director has the sole discretion to determine whether he is satisfied that it is not contrary to the interests of aviation safety to issue a TC/STC. • Director must exercise his discretionary powers in accordance with the principles of natural justice • Natural justice requires a decision maker, in making a decision, to: • Take into account relevant considerations • Disregard irrelevant considerations • Be able to demonstrate that the process followed was reasonable in the circumstances

5. Scope of Discretion • “interests of aviation safety” • Broad term – some similarity to “public interest” considerations • But focus on ensuring no factors that are contrary to the interests of aviation safety • Cannot be exhaustively or prescriptively defined – reflected in Act and Rules • May include technical, operational and policy considerations • Principles of natural justice applied to the exercise of the discretionary power depending on the circumstances and facts of each application

6. Approval of Technical Data • Director may determine that it is contrary to the interests of aviation safety to approve technical data for an individual aircraft, product or design change • Part 21 provides Director with discretion to adopt a policy that technical data for particular types of design changes must meet the latest design standards. This would be based on an assessment that it is contrary to the interests of aviation safety to approve to earlier standards. • Policy should not unnecessarily fetter discretionary powers. Reserve ability to depart from policy in certain cases.

7. Approval of Technical Data • Factors that may be considered contrary to the interests of aviation safety in approving technical data are limited to technical design/airworthiness concerns • Relevant considerations may include: • Technical data submitted for approval to original design standard. Later design standard has clear safety benefits not catered for by original standard; • Technical airworthiness requirements met but pre-existing safety feature of aircraft or product design compromised by modification • Human factors concerns not adequately addressed by applicable airworthiness requirements , or compromised by design features

8. Approval of TC or STC • Whether approval of TC or STC is contrary to the interests of aviation safety is broader in focus. • Encompasses operational and other concerns. Broader considerations that may be relevant may include: • Airworthiness concerns not sufficient to decline to approve technical data but still of concern to aviation safety • Human factors – known or reasonably anticipated behaviour of crew and passengers including: • Reasonableness of any expectation as to crew compliance with existing legal restrictions and limitations – eg MCTOW; • Reasonableness of additional operational limitations necessarily imposed if design change is approved – eg luggage compartments • Typical operational environment and use of aircraft or product • Related policy concerns which may affect or impact on the assessment of the degree of risk to aviation safety

9. Irrelevant or improper matters? • Examples of considerations that are likely to be irrelevant or improper matters for the Director to take into account: • The commercial interests of competitors or competing products • The commercial interests/impact on the applicant if the TC or STC is approved or declined • An overly broad policy consideration, without any direct safety concern or evidence of real increased risk relating to the TC or STC • Can the Director be satisfied that any concerns about safety risks are real (must be more than merely hypothetical)

10. Is the decision “reasonable” • The primary determinant of any decision of the Director to approve or decline to accept technical data, and/or to issue a TC or STC is whether the decision is “reasonable” in all the circumstances. • Whether a decision to decline an application for issue of a TC or STC is reasonable will depend on: • Whether any safety factor is so compelling that it alone provides grounds to decline the application; or • Whether any combination of factors is such that a decision to decline the TC or STC is likely to be upheld as reasonable; and/or • Whether the process followed in making the decision was reasonable, having regard to the principles of natural justice

11. Judicial Challenge • A decision of the Director to decline to issue a TC or STC may be challenged by: • Appeal of the decision to the District Court s66 CA Act • Judicial Review in the High Court • No case law, but would expect that decision would have to be plainly wrong or absurd for Court to reverse decision • Most likely remedy if challenge successful, would be to require that the Director reconsider the decision.

12. Summary: how decision is made • No magic “list” or set of criteria to determine whether issue of a TC or STC is “not contrary to the interests of aviation safety” • TC or STC must be assessed on a case by case basis. Decision must be reasonable having regard to all relevant factors and circumstances • Director may establish policy that certain types of design changes must meet latest technical airworthiness design requirements on the basis that it is contrary to the interests of aviation safety to apply a lower standard • Policy must be reasonable, and not unduly fetter the Director’s decision to depart from it in individual cases.

13. Summary: challenge to decision • Adversely affected parties may challenge a decision not to issue a TC or STC. • Director may be required to reconsider decision if challenge upheld, but decision would likely have to be seriously erroneous to be reversed by a Court. • If successfully challenge an allegedly unreasonable policy, or a decision of the Director refusing to depart from a policy, Director may be required to reconsider policy or refusal to depart from policy in individual case • Conclusion: Emphasises the importance for industry of a “no surprises” approach with the Regulator