Part 3: Ministry's response to the Coroner's recommendations

Responses to the Coroner's recommendations on the June 2003 Air Adventures crash.

3.1
The Ministry was responsible for responding to six recommendations from the Coroner.

3.2
In this Part, we discuss our assessment of whether the Ministry had properly considered the Coroner’s recommendations, took timely action based on that consideration, and reported accurately on its progress. In making our assessment, we examined how the Ministry:

  • decided on its response to the recommendations; and
  • ensured that those actions were taken.

3.3
The Ministry is responsible for monitoring the CAA’s performance, so we also examined how the Ministry had monitored the sufficiency, appropriateness, and timeliness of the CAA’s response to the Coroner’s recommendations.

Our expectations

3.4
In assessing whether the Coroner’s recommendations had been properly considered, we expected as a matter of good practice the Ministry to have:

  • assigned responsibility to an individual or team qualified to consider what action needed to be taken;
  • monitored and reviewed the action taken in response to the recommendations, to ensure that the action taken was sufficient, appropriate, and timely;
  • ensured that the appropriate authority signed off its acceptance of the decisions made and action taken; and
  • ensured that decisions made in response to the recommendations were documented and supported by appropriate evidence.

3.5
In monitoring the CAA’s responses to the recommendations, we expected the Ministry as a matter of good practice to have met regularly with the CAA to discuss the sufficiency, appropriateness, and timeliness of the CAA’s responses. We also expected the Ministry to have considered having the sufficiency and appropriateness of the CAA’s responses independently reviewed by an expert in the aviation sector.

Summary of our findings

3.6
In our view, the process used to examine each recommendation, and the range of information used by the Ministry in forming its conclusions, shows that the Ministry properly considered each of the Coroner’s recommendations.

3.7
However, the Ministry’s process should have been more comprehensive and timely in its monitoring of the sufficiency, appropriateness, and timeliness of the action taken by the CAA in addressing the recommendations.

3.8
We also consider that the Ministry could have been more proactive in monitoring its own action on recommendations that it was responsible for, to ensure that the recommendations were addressed in a timely manner and that actions were completed. A planned review of progress after three months by the internal audit team was not commissioned.

3.9
We were also not satisfied that the Ministry adequately considered the need for an independent review.

Assigning responsibility to qualified personnel

3.10
The Ministry assigned responsibility for investigating and reporting on the recommendations to qualified staff. The Ministry’s Principal Legal Adviser reviewed the recommendations to establish which ones should be addressed by legal staff, and which should be addressed by policy staff.

3.11
Two recommendations were assigned to the legal staff:

  • Recommendation 565, which required the Minister to consider amending section 17 of the Civil Aviation Act to empower the Director of Civil Aviation to immediately suspend a General Aviation Operator Certificate, was addressed by the Principal Legal Advisor.
  • Recommendation 588, which required the Civil Aviation (Offences) Regulations 1997 to be reviewed and, where possible, be amended with every rule change, was addressed by a solicitor within the legal team.

3.12
The other four recommendations were considered to be policy issues and were assigned to policy advisory staff within the Ministry.

Monitoring the timeliness of responses to the Coroner’s recommendations

3.13
The Minister stated publicly that the Ministry would monitor progress against the recommendations in the Coroner’s report and in our 2005 report. Progress reports would be updated each month on the Ministry’s and the CAA’s websites. The Ministry was assigned responsibility for ensuring that this happened. In July 2006, the Ministry briefed the Minister on the process that it would put in place to ensure that it monitored and reported on progress.

3.14
The process included:

  • monthly reporting of progress against the Coroner’s recommendations and against our 2005 report (through the Action Tracking Sheet discussed in paragraph 2.12);
  • having the progress reports signed off by the Secretary for Transport and the Chairperson of the CAA, and posted on the Ministry’s and the CAA’s websites;
  • the Ministry discussing with us the role that we might have in verifying that recommendations had been dealt with, and the Ministry reporting back to the Minister on the outcome to those discussions; and
  • the Secretary for Transport having the Ministry’s internal auditors carry out a review of progress after three months.

3.15
We assessed how well this process had worked. We found that:

  • Action Tracking Sheets were issued monthly for June, July, and August 2006, then every second month for September/October and November/December 2006, January/February and March/April 2007, and May 2007.
  • Over time, the Ministry and the CAA had increasing problems with the timeliness of the reports. The June report was posted on the website on 12 July 2006, the July report was posted on 16 August 2006, the August report was posted on 27 September 2006, and the September report was not posted until 14 November 2006.
  • The Auditor-General agreed to a request from the Minister of Transport in July 2006 to check whether action had been taken to address the Coroner’s recommendations. The Ministry met with us in August 2006 to discuss the scope of the audit.
  • The Ministry did not commission its internal auditors to audit the Ministry’s progress in responding to the Coroner’s recommendations. However, in February 2008 the Ministry asked its internal auditors to assist it in implementing a system to track and manage recommendations to the Ministry and transport agencies from future external reviews.

3.16
Ministry staff told us that the Ministry considered having an independent expert review the CAA’s response to the Coroner’s recommendations. However, senior managers decided not to use an independent reviewer, because, in their view, it seemed unnecessary. The Ministry did not document its decision and rationale for not having an independent review of the CAA’s response to the Coroner’s recommendations.

Documentation and supporting evidence

3.17
Figures 4, 5, and 6 present a summary of the process the Ministry used, its response to each recommendation, and the action it took.

3.18
We have audited the information supporting the progress that was reported. We can confirm that the evaluation process used, the information considered, the conclusions reached, and the action taken by the Ministry were correctly reported.

Completing responses on all recommendations and briefing the Minister

3.19
We note that actions on all the recommendations were not fully completed until February 2008, when the Ministry presented a paper to the Minister of Transport with advice on the Coroner’s recommendation at paragraph 458 of the Coroner’s report. The paper also provided a final report on all the responses to the Coroner’s recommendations.

Monitoring the Civil Aviation Authority

3.20
The Ministry’s monitoring of the CAA’s implementation of the recommendations was limited to agreeing the format, wording, and timing of the monthly reports. The Ministry did not meet regularly with the CAA to discuss in detail the sufficiency, appropriateness, and timeliness of the CAA’s actions in response to the Coroner’s recommendations.

3.21
Figures 4, 5, and 6 describe how the Ministry has responded to each of the Coroner’s recommendations it was responsible for.

Figure 4
The Ministry’s response to the two Coroner’s recommendations that it accepted

Coroner’s recommendation That the Offences regulations under the Civil Aviation Act be reviewed, and wherever possible, be amended with every Rule change.

Paragraph in the Coroner’s report: 588
The Ministry’s response The Ministry has put in place, with the CAA, a process to ensure that the Civil Aviation (Offences) Regulations will be updated as future rule changes are brought into force.

Civil Aviation (Offences) Regulations 1997 were replaced and updated on 1 August 2006 by the Civil Aviation (Offences) Regulations 2006.
Action taken by the Ministry The Ministry and the CAA have agreed a process that will capture requirements for consequential regulations (offences and charges) as part of rules projects.

A final report that detailed the action taken for this recommendation and sought the Minister’s agreement to closing the recommendation was approved by the Minister of Transport in February 2008.

Coroner’s recommendation That the Minister of Transport and the Commissioner of Police consider the circumstances of the search for ZK NCA and the response of emergency services as set out in Inspector Cairns’ report (exhibit 123) and Section 10 of these Findings (including a map of the search area with timings of significant events included as an annexure to the Findings) as the basis of a case study for Airport Authorities other than Christchurch, and SAR.

Paragraph in the Coroner’s report: 626
The Ministry’s response The Police, the Ministry, and the NZ Research Secretariat worked together to prepare a search and rescue case study based on the incident.
Action taken by the Ministry The case study was sent to the 26 certified aerodromes in New Zealand (the aerodromes that are required to have aerodrome emergency plans) in August 2006.

The letter enclosed with the case study asked the aerodrome’s authorities to distribute the case study to all relevant search and rescue personnel within the authorities’ sphere of influence.

The case study was also circulated to Police regional search and rescue co-ordinators for their information.

A final report that detailed the action taken for this recommendation and sought the Minister’s agreement to closing the recommendation was approved by the Minister of Transport in February 2008.

Figure 5
The Ministry’s response to the one Coroner’s recommendation that it considered was already covered

Coroner’s recommendation The Minister of Transport give consideration to amending section 17 of the Civil Aviation Act to empower the Director of Civil Aviation to immediately suspend a General Aviation Air Operator Certificate in the case of seriously adverse findings against the operator affecting safety of air operations, whether such findings are determined at audit or otherwise.

Paragraph in the Coroner’s report: 565
The Ministry’s response The Ministry’s Principal Legal Adviser looked at the recommendation and noted that there was no detailed discussion within the report to show what gave rise to the recommendation. The Principal Legal Adviser then considered the current provisions of the Act. The Ministry concluded:
Section 17 provides the Director with the ability to suspend immediately an operator against whom the Director had made seriously adverse findings affecting safety. This is because the section allows immediate suspension and any case of “seriously adverse findings affecting safety” is highly likely to fall under section 17(1)(d). That being the case an amendment is not required as the Director already has the legal ability to take the action sought by the Coroner.
Action taken by the Ministry A briefing to the Minister of Transport on this issue was incorporated in the final report to the Minister in February 2008. The report sought the Minister’s agreement to closing the recommendation.

Figure 6
The Ministry’s response to the three Coroner’s recommendations that it did not accept

Coroner’s recommendation That the Minister of Transport consider some form of independent assessment of the Civil Aviation Act in relation to the General Aviation sector and its reliance on industry responsibility and self-regulation.

Paragraph in the Coroner’s report: 544
The Ministry’s response The Ministry considered the different models that exist to regulate aviation - government regulation, co-regulation, and self-regulation. It reviewed previous studies, in particular the 1998 report of the Ministerial Inquiry into Various Aspects of the Civil Aviation Authority’s Performance by John Upton QC (the Upton report). That report concluded that the overall aviation safety regulatory framework in New Zealand was sound, world leading, and a model for other states to follow.

The Ministry conducted a performance review of the CAA in 2001, which assessed the structure of civil aviation safety regulation and found the structure to be consistent with international good practice.

The Ministry concluded that the general aviation sector was not self-regulating, as suggested in the Coroner’s recommendation, but regulated through a combination of prescriptive rules and performance-based standards.

The Ministry did not believe there were any factors in the past few years that would invalidate the conclusions of the Upton report and the performance review.

The Ministry concluded that the Act provided a comprehensive legal framework to regulate the general aviation sector, and that an independent assessment of the Act was not necessary.
Action taken by the Ministry The Minister of Transport was briefed in October 2006 and advised that the Act provides a comprehensive legal framework to regulate the general aviation sector. An independent assessment of the Act was not considered necessary.

The paper was posted on the Ministry’s website to give the public four months to comment.

A final report that detailed the action taken for this recommendation and sought the Minister’s agreement to closing the recommendation was approved by the Minister of Transport in February 2008.
Coroner’s recommendation The Minister of Transport review whether the law Enforcement role currently carried out by the Civil Aviation Authority should be separated from the safety enforcement management role.

Paragraph in the Coroner’s report: 548
The Ministry’s response The Ministry determined that the Coroner’s intent with this recommendation was to enable the Law Enforcement Unit to take timely and appropriate action against operators who persistently and deliberately broke Civil Aviation Rules.

The Ministry noted that the CAA had restructured to create a Safety Information Group that comprised Communication and Safety Education, Law Enforcement, Safety Analysis, and Safety Investigation. The Group was headed by a new General Manager and became effective on 16 July 2007.

The Ministry considered that the changes made by the CAA enabled more effective and transparent relationships between its investigation and safety information functions and that the CAA was in a better position to effectively manage its business in the way the Coroner intended.

The safety information collected by the CAA was able to be assessed and channelled to the appropriate Group and acted on to enable the CAA to respond to safety issues in individual cases (for example, air operators) as well as trends in the safety of the civil aviation system.

This change in approach ensured that the CAA analysed and acted on safety-related information in a more effective way than would be achieved by completely separating the safety reporting management and law enforcement groups, as advocated by the Coroner. The new structure enabled a more informed assessment of the importance of the information for aviation safety and the appropriate action taken.
Action taken by the Ministry A paper was given to the Secretary for Transport and was posted on the Ministry’s website for public comment.

A final report that detailed the action taken for this recommendation and sought the Minister’s agreement to closing the recommendation was approved by the Minister of Transport in February 2008.

Coroner’s recommendation That consideration be given to the feasibility and desirability of establishing an independent confidential air safety incident reporting system in New Zealand taking account of previous difficulties with the system know as Icarus, and/ or an Office of Aviation Ombudsman.

Paragraph in the Coroner’s report: 575
The Ministry’s response The Ministry reviewed international requirements and the intended purpose of Confidential Incident Reporting Schemes (CIRS). It noted that Australia, the United States of America, and the United Kingdom operate successful CIRS schemes.

The Ministry reviewed previous work on CIRSs in New Zealand, identifying:
  • the reasons for the failure to continue two previous CIRSs - the Independent Safety Assessment Scheme introduced in 1987 and the Information Confidentially Accepted then Reported Universally for Safety (Icarus) introduced in 1996;
  • the outcome of two reviews in 2001 that recommended the Transport Accident Investigation Commission establish a voluntary CIRS; and
  • that the issue was included in the 2003 Government Transport Sector Review but was not addressed in the review team’s recommendations.
In considering the second part of the recommendation, the Ministry looked at the purpose of other Parliamentary Ombudsmen and noted that they provided opportunities for individuals to resolve disputes without going to court.

The Ministry concluded that there was a gap in past analysis in that a cost-benefit analysis had not been done. Such an analysis has since been completed, and has established that the cost-benefit of a stand-alone CIRS is marginal.

The Ministry concluded that the philosophy behind the Ombudsman schemes, which is based on disputes resolution, does not offer a good fit with the goal of gaining information about incidents to provide safety information to the aviation sector.
Action taken by the Ministry The Ministry prepared a briefing paper to the Minister of Transport outlining the analysis done and recommending a cost-benefit analysis. This paper was posted on the Ministry’s website, and public comment was invited.

A further briefing paper was prepared in August 2007 detailing the method and findings of the cost-benefit analysis. The briefing paper sought the Minister’s agreement that, pending the outcome of the CAA information management project, no move be made to establish a new CIRS in the medium term.

A final report that detailed the action taken for this recommendation and sought the Minister’s agreement to closing the recommendation was approved by the Minister of Transport in February 2008.
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