The FPP Test What you (or your students) need to know

1. The FPP TestWhat you (or your students) need to know Flight Training Division Presentation AIA Aviation Week Conference July 2011

2. Overview • The FPP test in the civil aviation context • Civil Aviation Act provisions • How it applies to pilots as new entrants • Continuing FPP obligations of licensed pilots www.amclegal.co.nz

3. 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? • By requiring participants who hold or exercise control over an aviation document to satisfy the FPP test (s9 CA Act) • By enforcing appropriate sanctions where participants do not satisfy the FPP test (s17-20 CA Act) • Who decides? • The Director of Civil Aviation, the Courts www.amclegal.co.nz

4. Civil Aviation Act • Section 10: The Mandatory FPP criteria • The Director must: • Have regard to the degree and nature of a person’s proposed involvement in the civil aviation system; and • Consider the person’s: • Compliance history with transport safety regulations • Related experience within transport industry • Knowledge of civil aviation regulatory requirements • Physical, mental health or serious behavioural issues • Convictions for transport safety offences; and • Any evidence that a transport safety offence or breach of the Civil Aviation Rules has been committed www.amclegal.co.nz

5. s10 - Other relevant matters • The Director may: • Take into account any other matter or evidence considered relevant • Seek and receive, and consider, any information obtained from any source • Other relevant information may include: • Other criminal convictions • Testimonials, references from industry • Adverse information from industry • The weight to be given to any relevant matter, and the final FPP decision, are at the discretion of the Director www.amclegal.co.nz

6. Section 11: Proposed adverse decisions • The Director must: • disclose any adverse information taken into account, or notify any proposed adverse FPP decision; and • Allow the person a reasonable opportunity to refute or comment on it; and • After considering any response, notify the final decision and, if it is adverse, explain the consequences • Section 66: Appeal to the Courts • Adverse FPP decisions and decisions affecting the validity or exercise of the privileges of an aviation document may be appealed to the District Court www.amclegal.co.nz

7. FPP test applied to new pilots • A typical profile for a young student pilot applying for a PPL or CPL will be: • Knowledge of civil aviation regulations – at the required standard for the applicable licence • Civil aviation flying experience – at or slightly above minimum required hours • Has drivers licence • Little or no other transport sector (commercial) experience • No serious physical, mental health or behavioural concerns • In such cases the Director will focus on: • Any history of land transport infringement offences or convictions • Any other convictions that may be of relevance www.amclegal.co.nz

8. Land transport infringement offences • One or two - unlikely to be significant concern • On-going history - will be viewed seriously and scrutinised • Land Transport convictions • Will be assessed in light of all of the other FPP criteria • More than one conviction, and/or combination of convictions and infringements – viewed seriously, increases level of scrutiny of applicant • Other convictions • Must be relevant to the licence being sought- eg drugs • Combination with any transport safety offences will increase seriousness and scrutiny www.amclegal.co.nz

9. Other factors that may be relevant to adverse offences history • Length of time since or between offence(s) • Particular circumstances/seriousness of offence(s) • Character references and testimonials – flight instructors • Whether restrictions or conditions could address any safety concerns • Points to Note • No statutory presumption that a conviction = not fit and proper • No minimum ‘conviction free period’ applies • Must be assessed on a case by case basis and with regard to intended role in the system www.amclegal.co.nz

10. Ongoing FPP obligations • Participants must remain fit and proper to exercise the privileges of any aviation document held (s9(3) CA Act) • Criteria in s10 continue to apply • Failure to disclose relevant FPP information • is an offence under the Act – s49(1)(c) • may itself lead 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 if the convictions had been disclosed www.amclegal.co.nz

11. Aviation experience • Experience in aviation industry will be increasingly relevant and carry more weight over time • Compliance with s12 CA Act relevant to FPP status– • Obligation on participants to comply with the Act, Rules and conditions on aviation documents (s12(2)); and • To exercise the privileges of aviation documents safely and in accordance with prescribed safety standards (s12(3)) • Re Taylor and Department of Transport (1978) 1 ALD 312 Administrative Appeals Tribunal of Australia posed the test in relation to assessing whether a commercial pilot remains fit and proper as follows: • “it is not simply a question of competence to fly an aircraft… [it requires] a consideration of the [participant’s] conduct measured against the responsibilities, functions and duties of the holder of a commercial pilot licence as they emerge from the provisions of the Air Navigation Regulations … it is clear that [those duties] include observing the interests of the safety of air navigation – not only in the interests of pilots, passengers and the owners of aircraft, but also the interests of the public at large” www.amclegal.co.nz

12. 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 www.amclegal.co.nz