‘Don’t Shoot the Messenger’: Greater Just Culture Protections Required for Aviation Professionals Under the Civil Aviation Act 2023

Abstract

The Civil Aviation Act 2023 (the Act) provides insufficient just culture protections for members of the New Zealand aviation industry. Whilst the introduction of the just culture policy approach into New Zealand aviation law is a welcomed legislative development, serious concerns arise over the application of the just culture framework in practice. This paper addresses two central issues with the intended framework. First, the uncertain circumstances in which aviation professionals who report occurrences may be prosecuted under s 341 of the Act is critiqued. The vague term “public interest” concerningly represents the sole fetter on the Director of Civil Aviation’s otherwise unbridled powers of enforcement action. The section must be limited to only allow prosecution in cases that meet the just culture standard: those involving wilful misconduct, gross negligence, or recklessness. Further, despite the ability of the Civil Aviation Authority (CAA) to bring enforcement proceedings, the industry regulator is empowered by the legislation, and without adequate safeguards, to conduct safety investigations into occurrences. This function of the CAA under s 23(e) constitutes a serious conflict of interest and flouts international civil aviation standards that require the independence of safety investigations from state aviation authorities. Safeguards around these investigations must be incorporated into the Act.