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20 June 2015

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General Direction Impaired Colour Vision - Submission

The General Aviation Advocacy Group of New Zealand opposes the General Direction Impaired Colour Vision. We regard it as a retrograde measure unsupported by evidence.

We note that a similar attempt by CASA in Australia has failed, that CASA has lost four related appeals, and we strongly suspect that the abrupt departure of its then Director and his PMO (a former employee of the NZ CAA) was not unrelated to their failed initiatives regarding CVD.

Rather than imposing further restrictions on New Zealand pilots with CVD (whom the CAA has discriminated against for many years, without any evidence-based justification), a progressive authority would be seeking to harmonise regulations with its Australian counterpart. This would not only end discrimination against New Zealand aviators; it would also remove the anomaly by which Australian pilots with CVD can legally operate airliners within New Zealand airspace; and it would establish another evidence base to improve the general knowledge of CVD in today’s flying environment.

We do not believe that such an important matter, which has potentially serious ramifications for the wider aviating community, should rest solely in the hands of the Director and his PMO. We request a moratorium on the proposed GD, pending the outcome of an independent inquiry, as described below.

Des Lines Co-principal

Brian Mackie Co-principal

Glossary

As this submission is likely to be read by laymen such as journalists, the Office of the Minister of Transport and members of the political parties, we first explain the abbreviations:

CVD Colour Vision Deficiency

GD General Direction

CAA the Civil Aviation Authority of New Zealand

CASA Civil Aviation Safety Authority of Australia

ICAO International Civil Aviation Organisation

SARPS Standard and Recommended Practices of ICAO

AAT Australian Administrative Appeals Tribunal

IFR Flights conducted under instrument flight rules

VFR Flights conducted under visual flight rules

CPL Commercial Pilot Licence

ATPL Airline Transport Pilot Licence

MoT NZ Ministry of Transport

PMO Principal Medical Officer

HRC Human Rights Commission

RRC Regulations Review Committee

The submission form – a major obstacle to genuine consultation

The General Direction Submission Form required a submitter to attach a name and CAA Client Number. This removed any confidentiality to the process. It was counter-productive to gaining evidence from pilots with CVD who have flown without incident for many years.

We cannot imagine those pilots who have slipped through the CVD screening net, and are working in Air Transport operations in NZ, sticking their heads above the parapet. Some of these pilots, with varying degrees of CVD, have flown for 30-plus years and individually accumulated more than 20,000 hours without incident. They are unlikely to volunteer for something that might threaten their jobs, particularly because the NZ CAA has failed to convince clients of its commitment to the Just Culture model.

To put it bluntly: the CAA is not trusted by a significant number of aviators.

By imposing a requirement for identity, the CAA undermined the intent of genuine consultancy and reduced its chances of obtaining valuable evidence.

What should be done

GAA strongly recommends that the General Direction process be put on hold, pending a full inquiry into the need for such a GD and the motive behind this proposal.

The GAA believes that a strong case can be made for a relaxation of the rules relating to colour vision deficiency - in a similar manner to that which prevails in Australia.

Historical data relating to CVD, gathered over more than 25 years, has been accumulated in Australia. It has been shown that pilots flying with varying degrees of CVD pose no significant aeromedical safety issues.

If the CAA wishes to impose even more restrictive rules, it must first of all provide convincing evidence that CVD is an aviation safety issue for pilots operating in the current commercial and private environment.

More than a quarter of a century ago, and due to a lack of any accident data related to colour deficient vision in pilots, Australia chose to allow pilots to fly commercially, even if they failed the colour vision testing. This was an official departure from the ICAO SARPS (Standards and Recommended Practices). Such contracting state differences are advised to ICAO as a difference and the information is made available to other contracting states through ICAO.

There is no reason why New Zealand, which is an ICAO contracting state, cannot also adopt a similar practice to Australia.

The ICAO Manual of Civil Aviation Medicine 2012, Section 11.8.29 states:

“The problem with colour vision standards for pilots and Air Traffic controllers is that there is very little information which shows the real, practical implications of colour vision defects on aviation safety”.

This is the fact that forms the bedrock of our opposition to the General Direction. On the one hand, we have a proposal - based on bureaucracy - to set stricter rules governing the testing for CVD-affected pilots. On the other, this proposal is not supported by any evidence that improves on the ICAO Manual of Civil Aviation Medicine 2012, Section 11.8.29 that could justify the introduction of an even harsher regime in New Zealand.

We believe the source of this initiative, which we say is misguided, ill-informed and prejudicial to current and future aviators in New Zealand, to be the Principal Medical Officer of the NZ Civil Aviation Authority, Dr Dougal Watson.

Dr Watson claims to have about 600 hours flying experience, “400 as PIC”. Six hundred hours is not sufficient to place Dr Watson in the position of an expert aviator.

Unfortunately, the CAA has refused to provide details of Dr Watson’s aviation qualifications.

Following a request for this information, Diana Johnson, the CAA’s Official Information and Privacy Officer, stated in a letter to the GAA on 17 June 2015: “All information is being withheld in order to protect the privacy of natural persons pursuant to section 9 (2) (a) of the Official Information Act 1982. The CAA does not consider there are any other factors which would render it desirable, in the public interest, to make Dougal Watson’s aviation qualifications available.”

Quite how the release of information relating to Dr Watson’s aviation qualifications might endanger his privacy was not explained. On the other hand, since Dr Watson is, if not the prime mover, a significant supporter of an important change in CAA regulation, it would seem reasonable (and personally harmless) for his opponents to have some idea of what professional aviation experience supports his position on the GD, and as the CAA’s PMO. Such information is also relevant to any other change relating to aviators that Dr Watson, as Principal Medical Officer, might either propose or support.

The GAA’s position is that the professional qualifications of any CAA employee should be open to public scrutiny when their actions may lead to regulatory change, and we may seek an opinion on this from the Privacy Commissioner.

Dr Watson conducted a study titled “Lack of international uniformity in assessing colour vision deficiency in professional pilots” and a report on its findings was published in the February 2014 issue of Aviation, Space, and Environmental Medicine. His report (as quoted in a summary) concluded that “the medical assessment of CVD applicants is not performed consistently across the world. Factors that favor uniformity have been inadequate to encourage countries toward consistent medical assessment outcomes.” This inconsistency does not conform to “the highest practicable degree of uniformity in medical assessment outcomes,” the report said.

Dr Watson went on to state that “A lack of uniformity in assessing pilots with color vision deficiency (CVD) is encouraging ‘aeromedical tourism’ with pilots seeking out aeromedical examiners in countries most likely to accept their particular deficiencies and issue medical certificates”.

D B Watson is listed as the author of, or a contributor to, no less than 31 medical papers, beginning in 1983 through to his latest paper on CVD published in 2014.

Two other papers that he has co-written have interesting titles:

SHOW ME THE EVIDENCE!: NEW EVIDENCE FOR OUR EVIDENCE BASED AEROMEDICAL DECISIONS

and even more intriguingly, in light of the present debate on CVD,

“GOOD EVIDENCE, BAD DECISIONS”: THE USE AND ABUSE OF EVIDENCE IN AEROMEDICAL DECISIONS AND DEBATES

GAA submits that Dr Watson may have been “hoisted by his own petard” in at least helping to promote this General Direction. He appears to have mounted a crusade for global bureaucratic conformity from his office in New Zealand, while conveniently overlooking his previously published, strong desire for evidence-based decisions in aeromedical matters.

Such decisions must be founded on evidence-based reasoning, not on authority-driven pronouncements. It would appear that the NZ CAA PMO was prepared in some forums to argue for international consistency for CVD assessment, while also subscribing to the ICAO SARP. However, it has to be noted that the evidence on degrees of CVD being a central factor in aviation incidents is essentially absent; hence there is international variability, for very practical reasons. If there was some reputable meta-analysis, it would surely have been widely cited. To (in other publications/ presentations) acknowledge the centrality of evidence-based decision-making displays a remarkably selective inconsistency on his part. Although he does not name countries, when Dr Watson refers to “aeromedical tourism”, it could appear to some that he is criticising our neighbouring regulator across the Tasman, the Civil Aviation Safety Authority of Australia (CASA). Of course, “aeromedical tourism” is a catchy term; but it is essentially a journalistic canard intended to disparage others without either naming other jurisdictions or providing substantive evidence that some practice is occurring and that it poses a demonstrated risk. Dr Watson’s statement is adopted for emotive effect and a competent lawyer would tear it to pieces.

After having its hand forced by losing a succession of cases brought by pilots with various degrees of CVD, the Australian Regulator removed previous restrictions it had placed on pilot medical certificates prohibiting night flying and instrument flying. This cleared the way for CVD-affected pilots to gain a career as professional pilots.

We return briefly to Dr Watson’s paper, in which he complains that other ICAO States have no consistency in their CVD aeromedical policy and suggests that this would lead to “aeromedical tourism”.

Perhaps by this he meant that a New Zealand pilot, denied the ability to work as a professional pilot in his own country, by virtue of a draconian and non-evidence-based policy, would have to travel to Australia to begin his career. This is not aeromedical tourism. It is an indictment of the present CVD policy of the NZ CAA, and illustrates just how disadvantageously pilots with varying degrees of CVD are treated in New Zealand compared to Australia.

The General Direction would only make matters worse.

The change to colour vision standards was introduced by Australia’s CASA around 1990. Between 1988 and 1997, its Director of Aviation Medicine (now renamed PMO) was Dr Robert Liddell.

Dr Liddell holds Australian, British and FAA Airline Transport Pilot Licences. He has at least 7000 hours of flight experience with more than 3000 hours in jet operations, mainly in Boeing 727 aircraft in Europe and Australia. In short, Liddell is a doctor and an airline pilot. We observe (sadly, in the absence of a CAA rebuttal) that Dr Liddell’s experience makes him better qualified than Dr Watson in the area of CVD.

Under Dr Liddell’s watch, CASA employed evidence-based decision-making for CVD-affected pilots and Dr Liddell was comfortable with Australia maintaining its State Differences from the ICAO Standard and Recommended Practices. There is no evidence that his policy was wrong.

There are now hundreds of colour deficient pilots flying commercially in all types of operations within Australia and who, over more than 25 years, have accumulated thousands of hours of accident-free aviation.

Recently, there was a move by CASA (for reasons that remain unclear) to change the Australian regulations and make them “compliant” with the ICAO medical standards. This move was without any evidence that adopting more restrictive practices would have any effect on safety, but rather would discriminate against some pilots. This move failed. The prime movers, including a former senior NZ CAA medical unit employee, subsequently resigned.

The NZ CAA Proposed General Direction mirrors the attempt by CASA to change the Australian regulations.

The New Zealand colour vision requirements have consistently discriminated against pilots wishing to enter our aviation industry and seek careers as professional pilots.

It is our opinion that this discriminatory practice by the NZ Regulator must cease.

Legal precedents

Four decisions relating to CVD have gone against CASA, the Australian regulator. These were heard before the Administrative Appeals Tribunal of Australia. They are:

Arthur Marinus Pape and Secretary, Department of Aviation [1987] AATA 109 (26 March 1987) http://www.austlii.edu.au/au/cases/cth/AATA/1987/109.html

Arthur Marinus Pape and Secretary, Department of Aviation [1987] AATA 354 (9 October 1987) http://www.austlii.edu.au/au/cases/cth/AATA/1987/354.html

Hugh Jonathan Denison and Civil Aviation Authority [1989] AATA 84; 10 AAR 242 (7 April 1989) http://www.austlii.edu.au/au/cases/cth/AATA/1989/84.html

The most recent decision was Mr John O’Brien, applicant, and Civil Aviation Safety Authority, respondent, heard before the Australian AAT (Administrative Appeals Tribunal) File Number 2014/1361 http://www.cvdpa.com/images/pdf/aat-decision-2015-02.pdf

It is of some significance that after this latest decision of the AAT (the O’Brien case) went against CASA, the Director (Mr McCormick) and the PMO (Principal Medical Officer) Dr Pooshan Navathe resigned.

Dr Navathe was previously the Senior Medical Officer at NZ CAA, before taking a similar position at CASA. The University of Otago, Wellington, currently lists him as Clinical Senior Lecturer, Aviation Medicine. We provide this link to Dr Navathe’s known qualifications:

http://www.otago.ac.nz/wellington/study/occupationalaviationmedicine/staff/otago023991.html

but we cannot say that the information is up to date.

What we carefully note, however, is his close connection to the New Zealand CAA.

The O’Brien tribunal left a number of restrictions in place:

1. The class 1 medical certificate is only valid for operations within Australia;

2. The applicant is not permitted to conduct night time operations other than as or with a qualified co-pilot; and

3. The applicant must disclose to his employer, any person lawfully training, assessing, endorsing or re-endorsing him on any aircraft in respect of his Air Transport Pilot Licence, and other assigned flight crew members of his colour vision deficiency.

In this submission, we propose that a condition similar to (3) is an acceptable means of temporarily compromising with the NZ CAA for CVD pilots seeking to operate in an ATPL environment. From a practical point of view, this restriction poses no major obstacles.

Condition (1) is largely based on political and policy issues due to Australia’s far more lenient CVD standards compared to the rest of the world. It is a restriction which may still take some time to fully overcome. There has been some confusion regarding the wording of this particular restriction, as many pilots also have a medical certificate which states “Holder does not fully meet requirements of ICAO Convention Chapter 6 of Annex 1.” CASA’s website states that this restriction allows the pilot to operate overseas provided they seek advance permission from the appropriate regulatory authority of that country.

As part of a review of the NZ CAA General Direction Impaired Colour Vision, we will be seeking more clarification on the wording of restriction (1) should the CAA consider introducing similar conditions to that which are imposed by the Australian Regulator.

Condition (2), while not ideal, does not have any effect on a pilot operating at night (or IFR) in a multi-crew environment. At first glance, it appears as though the tribunal may have overlooked the fact that, under his previous CPL privileges, in Australia Mr O’Brien was able to fly unrestricted at night in a single-pilot environment and for more than a decade until early 2014. Early last year, Mr O’Brien was forced by CASA to undergo the CAD test (the same CAD test that is also proposed by the NZ CAA). Mr O’Brien failed that CAD test and, as a result, this particular night restriction was added to his medical certificate.

From reading the decision, it appears that the tribunal focused its attention primarily on the ATPL aspect. Perhaps inadvertently, the tribunal may have assumed that he would only ever be flying in a two-pilot airline cockpit and therefore this particular restriction posed no burden. Possibly this is without having fully considered the consequences as they related to his CPL in the event that he ever wishes or needs to return to general aviation single-pilot operations.

Further clarification is required on restriction (2), given that it appears to contradict the tribunal’s acceptance that the earlier 1989 Denison decision was conducted as a test case that related to commercial pilots. We continue to believe that all CVD pilots (including deutans and protans) should be allowed to operate unrestricted at night, as has been the practice since the Denison decision and until CASA’s regressive actions began last year.

Appeal options

MoT Aviation Medical Convener Review

Whilst Section 27J of the Civil Aviation Act 1990 provides for the Minister of Transport to appoint a Convener and Deputy Convener to review medical certification decisions, we are strongly of the opinion that this is not a suitable forum should the Director or the Minister of Transport suggest it to be directed there.

Section 27J (4) states:

The convener and the deputy convener must —

• (a) be medical practitioners who are suitably qualified, and experienced or knowledgeable in civil aviation; and

• (b) be able to represent the public interest in aviation safety.

The Convener can review a decision made by the Director of Civil Aviation (the Director) about a particular medical certificate. It is our view that the Convener and his Deputy would not normally be expected to make decisions on a medical policy such as that proposed by the General Direction Impaired Colour Vision.

Furthermore, there is no scope under the legislation for the composition of the Medical Convenor process to permit input from other interested parties such as the Human Rights Commission.

Human Rights Commission

We believe that, under the Human Rights Act 1993, there may be grounds for a case of discrimination by the CAA against NZ licensed pilots who have a degree of CVD.

All medical standards, by definition, discriminate. Whatever the standard says, someone has to fail them and if they fail, they will experience discrimination. The discrimination may take the form of exclusion altogether or restriction on the degree of participation.

When a standard has a sound evidence base and is associated with demonstrable risks that impact on ‘safe performance of duties’ then the discrimination that results in exclusion or restriction can be said to be justified, and the standard in question can be said to be ‘TRUE’ or ‘VALID.’

The ‘Cardiovascular Standard’ appears to be one such standard. A pilot who has ischaemic heart disease carries an increased risk of sudden severe incapacitation or sudden death. The evidence base for this is well established and the standard serves the purpose for which it was created: to reduce the risk of occurrence of catastrophic events that endanger the lives of passengers and crew. Many such standards exist and they have indisputable validity in terms of their evidence base. It cannot be argued that a pilot who has known heart disease with significant risk attached should have exclusions or restrictions nullified on the basis of him showing that he can fly the aircraft in spite of his heart problem.

We say that the Aviation Colour Perception Standard is a very different proposition.

While there is no argument as to the existence of a population of individuals with abnormal colour perceptions, the proposition that such individuals can be expected to perform less safely by virtue of their colour vision deficiency has no evidential basis and remains pure assumption.

A valid argument can be made that it is possible to demonstrate that a colour vision deficient individual might demonstrate a totally satisfactory and safe ‘performance of duties’ (and all that that entails).

A single demonstration might carry little weight in terms of the evidentiary value; hundreds or even thousands of demonstrations would be even more convincing.

Such is the situation that exists now in Australia.

Judicial Review

There is provision within the Act for a Judicial Review of any decision made by the Director pursuant to functions under the Act or powers granted under the Civil Aviation Rules. We propose that such a Judicial Review should be convened in regard to the GD on Impaired Colour Vision and that, furthermore, it must be composed of members skilled in sifting through evidence and weighing up opposing points of view.

It is encumbent upon the CAA, if there was to be such a Judicial Review, to produce evidence to show why New Zealand pilots cannot fly under the same CVD medical licensing conditions and enjoy the same pilot licence privileges as their Australian counterparts. There is a lack of clear, empirical evidence to support the continuation of discriminatory CVD testing procedures that can affect pilots, either privately or professionally.

Currently, we have the anomalous situation in which some Australian commercial pilots, licensed to fly with varying degrees of CVD by CASA, are operating in and out of NZ airspace under trans-Tasman agreements and will continue to do so. This situation can only be regarded as discriminatory unless supported by medical data showing that there is an overwhelming case that CVD has an aeromedical significance – something that ICAO has failed to establish. Furthermore, how will the NZ CAA deal with this anomaly, either now or if it succeeds in introducing this GD?

The Australian Administrative Appeals Tribunal unfortunately has no counterpart in New Zealand. The GAA notes that this may inhibit the achievement of evidence-based regulations.

Despite this shortcoming in our system of government, it is imperative that a fair and democratic process be set up to consider the entire CVD issue.

Regulations Review Committee

Undue Trespass on Personal Rights and Liberties: SO 315(2)(b)

A: Standing Order 315(2)(b)

315 Drawing attention to a regulation

(1) In examining a regulation, the committee considers whether it ought to be drawn to the special attention of the House on one or more of the grounds set out in paragraph (2).

(2) The grounds are, that the regulation— ... (b) trespasses unduly on personal rights and liberties:

This ground seeks to enforce a balance between the interests of an individual or group affected by a regulation and the public benefit that that regulation seeks to achieve. Where the Committee considers that a regulation unreasonably impinges on a private right, the regulation may be found to be in breach of Standing Order 315(2)(b).

The Committee has established a three-step test for determining whether a regulation breaches Standing Order 315(2)(b). First, is there a right or liberty to be trespassed against? Secondly, has the regulation trespassed against that right or liberty? Thirdly, if so, is that trespass undue or unreasonable in the circumstances, balanced against the public interest in the making of the regulation? The following analysis of this ground is based on the three limbs of this test.

B: Does a Personal Right or Liberty exist?

The Committee has not laid down a definitive test to determine whether a right or liberty exists for the purposes of this ground. Instead, it has “taken a reasonably liberal approach to what constitutes a right”. It has not limited its definition of rights to those protected by statutes such as the New Zealand Bill of Rights Act 1990, or those recognised by the common law.

The Committee concluded in some cases that the orders “may well result in personal rights and liberties being unduly trespassed upon”. Thus, personal interests such as employment and income can potentially be considered rights or liberties capable of being trespassed upon.

C: Trespass to the Right or Liberty

The Committee investigates to establish if a right or liberty has actually been trespassed upon. The regulations must impact adversely on the right that has allegedly been trespassed upon.

The second requirement was implicit in a statement of the Committee that the “level of the impact will determine whether the regulations constitute an injury”. Thus, if a regulation adversely affects a right or liberty only in a minimal or nominal way, then there may have been no trespass at all (let alone an undue trespass).

D: Undue Trespass

The third test is whether the trespass to the right or liberty is undue.

Cost-benefit Analysis

More often, the Committee will undertake a balancing exercise to determine whether the trespass is undue. On the one hand is the public interest that is served by the regulations. On the other hand is the right or liberty of the individual or group that has been trespassed upon. If the latter outweighs the former, the regulation is likely to be considered in breach of this Standing Order ground. This balancing exercise may take the form of a cost-benefit analysis.

Public Benefit Unclear

When undertaking a cost-benefit analysis, the Committee will be less tolerant of a trespass to personal rights or liberties if the public benefit which the regulation seeks to achieve is unclear.

It is our opinion that it would be possible to develop a very good challenge to the actions of the CAA in its application of CVD criteria and the discriminatory practices emanating from it, through the Regulations Review Committee.

Summation – the bottom line

1. The issues that emanate from the NZ CAA Proposed General Direction Impaired Colour Vision are far too important to be considered and decided “in-house” by the Authority. The consultation process was flawed because it required identification without a guarantee of personal protection, and the Authority has refused to provide the professional credentials of the key member of staff thought to be responsible for initiatiating the proposed GD.

2. It is imperative that this issue be heard by way of a Judicial Review set up in similar manner as the Australian Administrative Appeals Tribunal and with the ability to have input from expert witnesses such as Dr Arthur Pape, Senator David Fawcett, and a previous CASA PMO, Dr Robert Liddell.

3. The overwhelming evidence (which was admitted by the Australian Regulator, CASA, during Senate hearings) is that there have been no recorded aeromedical safety concerns since the change in colour vision regulations 25 years ago. This suggests that the New Zealand authority should adopt a similar position.

4. Without any proven aeromedical evidence to support the case that CVD impacts adversely on flight safety, the NZ Regulator is (and has been for many years) denying career opportunities to aspiring pilots. This is a discriminatory practice. A young male pilot (but not a female pilot, because females are unaffected) by an unfortunate quirk of nature, may find that he has inherited a colour vision gene from his mother that prevents him from flying as a commercial pilot in New Zealand at night or under IFR (Instrument Flight Rules) conditions. He can, however, gain full use of his licence if he obtains a flying job in Australia.

5. The fact that Australian pilots with varying degrees of CVD are able to fly across the Tasman, in and out of NZ airspace and without any air safety concerns or reported incidents, indicates that this proposed GD on Impaired Colour Vision should be withdrawn and that the NZ CAA requirements for colour vision should be relaxed and made consistent with those of the Australian regulator, CASA.

6. Regulatory standards that selectively restrict career opportunities to citizens should be based on valid and compelling evidence. This requirement is fundamental in ‘free’ societies and must be the basis of any regulation proposed by the NZ CAA.

Supporting Information

Case Studies Three Protanopes PAPE ICASM2012 Published on Sep 17, 2012

https://www.youtube.com/watch?v=gjrd-x2KAlQ

Published on Dec 9, 2013 Senator David Fawcett questions CASA regarding suggestions that it plans to re-introduce severe restrictions on colour vision defective (CVD) pilots which would end potentially thousands of careers. A test case in 1989 overwhelmingly found that CVD pilots could still fly safely and the ATSB confirms that there has been no record of any accidents or incidents ever since.

YouTube – Senate Estimates Hearings 18/11/13

Published on Feb 23, 2014 Senators David Fawcett and Nick Xenophon have exposed CASA’s plans to introduce more severe restrictions on CVD pilots which will end many pilots’ careers.

https://www.youtube.com/watch?v=Atab_9NFPA8

Published on May 26, 2014 Senator David Fawcett has again questioned CASA’s Director of Aviation Safety and Principal Medical Officer on their recent decisions affecting the careers of colour vision defective (CVD) pilots.

https://www.youtube.com/watch?v=AIVWO0conJ8

ABC News report 20 June 2014

http://www.abc.net.au/news/2014-06-20/queensland-pilot-challenges-casa-over-colour/5540446?section=qld

Dr Liddell speaks out for Australian pilots

In a supplementary submission to the ASRR Panel, Dr Robert Liddell, an airline pilot who was also the regulator’s Director of Aviation Medicine for nine years, has spoken out bluntly on the flurry of medical uncertainties now affecting Australian pilots. As always, Dr Liddell identifies not only the problem, but the solution:

Aviation Safety Regulation Review Submission

Dr Robert Liddell

This submission is a personal submission in relation to the medical certification of aircrew.

I am a current holder of an Australian, British and FAA Airline Transport Pilot’s Licence. I have 7000 hours of flight experience with over 3000 hours in jet operations, mainly in Boeing 727 aircraft in Europe and Australia.

Between the years of 1988 and 1997, I was employed by CASA (then CAA) as the Director of Aviation Medicine. This position has now been renamed Principal Medical Officer.

Following my resignation at Director of Aviation Medicine, the position has been filled by Dr Peter Wilkins, Dr Ian Hosegood and Dr Pooshan Navathe.

The international nature of aviation and the relationship of each country’s aviation authority with the standards and recommended practices that they are signatory to in the International Civil Aviation Organisation has resulted in a safe system that most major aviation countries have seen fit to deviate from in various ways. The country with arguably the most differences from ICAO is the country with the largest aviation industry in the world, namely the USA.

In Australia, we have had minor differences with the SARPs since their very inception. In some areas we are more restrictive than the SARPs and in others we are more relaxed. For example, during my tenure as Director of Aviation Medicine I had occasion to be called as an expert witness in the Federal Court where a Qantas pilot was claiming discrimination on the basis of age as Qantas were requiring him to retire having reached the age of 60 years. This was done ostensibly on the grounds of medical risk. My contention has always been that age is not a good predictor of risk and many pilots are high risk at a relatively young age and many are low risk even in their 70s. The judge upheld the appeal and Qantas since then and Australia therefore became one of the few countries to allow pilots to fly heavy jets regardless of age. To achieve this, it was requested by the judge that CASA Aviation Medicine

develop a risk mitigation strategy. Consequently we became the first country in the world to put a risk matrix over pilots at every medical examination, and those that are at increased risk of heart disease are required to undergo an exercise ECG to prove cardiovascular health. This is an example where Australian regulations were far more stringent than the ICAO SARPS. In other areas such as colour vision, due to a lack of any accident data related to colour defective vision in pilots, Australia chose to allow pilots to fly commercially even if they failed the colour vision testing. This was a difference from the ICAO SARPS. This change was brought in around 1990 and remained in place until recently. There are now hundreds of colour defective pilots flying commercially in all types of operations and who over 20 years will have built up thousands of hours of accident-free aviation.

These contracting state differences are advised to ICAO as a difference and the information is available to other contracting states through ICAO.

Recently there has been a move for reasons that remain unclear to change the Australian regulations to be totally compliant with the ICAO medical standards. This move is without any evidence that adopting more restrictive practices will have any effect on safety but rather will discriminate against some pilots.

I now have several pilots, one of whom has over 16,000 hours of operation, most of it flying night freight in command on Boeing 727 aircraft, who in mid-career are being advised that they do not meet the standard because of their colour vision and so cannot hold the required class of licence to retain their occupation.

I suspect that due to my previous role in CASA, I seem to attract many pilots who are totally confused and despondent at their medical certification by CASA aviation medicine. This involves conditions such as head injury, hearing, cardio vascular disease and prostate cancer, where the opinions of the pilots’ own specialist doctors are ignored and stringent and expensive repetitive imaging and blood testing is required if the individual wishes to retain their medical certificate. On a weekly basis, I receive requests for assistance by pilots with conditions ranging from renal stones to early type 2 diabetes where the pilots own specialist’s advice is ignored by CASA and further expensive or repetitive testing is required to obtain a medical certificate.

The dangerous result of CASA’s draconian regulatory measures is that now many pilots tell CASA as little as possible about any medical problems in order to protect themselves from expensive and repetitive investigations or possible loss of certification. Most pilots are responsible people and they have no desire to be in charge of an aircraft if their risk of incapacity is unacceptable. When their DAME and their specialist believe they meet the risk target for certification without endless further testing demanded by CASA and the advice of their own specialist is ignored by the regulator, then the pilots lose confidence in the regulator.

In medical certification, CASA appears to have lost sight of the fact that all pilots self-certify themselves fit to fly every day they take control of an aircraft. The only day in the year when a doctor has any control over their fitness to fly is the day that they have their medical examination.

Dr Robert Liddell

The Virgin Independent Pilots Association (VIPA) says new rules relating to colour vision deficiency (CVD) discriminates against pilots already working in Australia’s major airlines, but will fail to deliver any better safety outcomes.

VIPA says a review of the Civil Authority Safety Regulation Part 67 by the CASA states that Class 1 pilots with CVD will have to inform their employers about their CVD, and that pilots may be forced to undergo a colour assessment and diagnostic test (CAD) in the future.

“Whilst VIPA always recognises that aviation safety remains paramount, we condemn CASA’s new procedures relating to CVD pilots,” VIPA executive director, Simon O’Hara, said. “The fact is, there are

hundreds of commercial pilots with CVD who have passed check and line training requirements and subsequently have thousands of hours flying without incident, who will be impacted by these restrictive practices.”

VIPA says it supports an appeal lodged in the Administrative Appeals Tribunal by a CVD pilot against a refusal by CASA to permit him to become a captain (the O’Brien case).

An Australian senator’s defence of ‘colour blind’ pilots

Senator David Fawcett takes a stand against unfair bureaucratic pursuit of not-so- ‘colour blind’ pilots by a dubious and discredited CASA bureaucracy

One of the claimed virtues of parliamentary democracy is the protection of the rights of individuals from the abuse of power by the state or its instrumentalities.

In aviation, there are two matters at this moment where it can fairly be said that governments, present and past, have variously exhibited indifference or even hostility to individual cases of persecution or misrepresentation by the Civil Aviation Safety Authority, and in one instance the Australian Transport Safety Bureau.

The cases are that of the Pel-Air crash near Norfolk Island in 2009 and the current campaign against colour vision deficient pilots on the basis of claimed scientific evidence which has not only not been produced, but not peer reviewed.

The abuse of bureaucratic power is, arguably, part of life. However, the unwillingness of Government to do anything about it, other than to regurgitate statements by the same authorities that are accused of the original wrong doing, is something that ought to be of concern.

The defective and shameful Pel-Air crash report issued by the ATSB remains in place because of this ministerial and self-protective bureaucratic inertia. And this is unjust, and contrary to the public aviation safety interest.

So much for the ‘Labor way’ of screwing individual rights, and the indifference of its reformist Coalition successor.

In the Senate last week, Liberal Senator David Fawcett (South Australia) made some comments about the public administration of aviation safety in this country.

It began with some good news, in that the Coalition has made an encouraging appointment to the board of CASA, consistent with one of the recommendations of the recent Forsyth review of Aviation Safety Regulation in Australia.

That review, by a distinguished figure in aviation engineering and safety in this country, was a Coalition initiative. It’s a good start, but there is a very long way to go.

This is the Hansard of Senator Fawcett’s speech, which comes with the powerful advantage of being protected by parliamentary privilege even if it may be too much information for lay readers.

Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (18:55): I rise to make a few comments this evening on the state of aviation and its regulation in Australia. But first I wish to note the appointment of Jeff Boyd to the CASA board by the government, which I welcome. Mr Boyd has a long history in the aviation industry, as a layman - understanding the engineering and the mechanical side - as an in-flight instructor and with his ownership and running of Brindabella Airlines. He has a depth of experience which will be very welcome on the board, and I look forward to the government’s appointments of other board members in the near future - particularly as the board will have a key role in implementing the recommendations, as the government approves them, from the Forsyth review into aviation safety regulation.

The issue I would like to touch on tonight though is about a small group of people in the aviation environment. One of the characteristics of a plural liberal democracy such as we have here in Australia is that we respect and look after the rights of minorities. Amongst the pilot population in Australia - the estimates vary, but it is well over 30,000 - there is a small group, numbering in their hundreds, potentially around 400, who have a colour vision deficiency. For many years - in fact, going right back, I think the first publication that dealt with this was in 1926. People made the assumption, as they looked at aircraft deriving from the days of sailing ships and steamships where they had red and green lights for

navigation lights, that if a pilot could not discriminate colours, then he was not safe to fly by night. And since 1926, that document has formed bodies of thought that have flowed through into regulation.

The current ICAO - the international organisation that looks after aviation - document recognises that, to use climate change terms, the science is not settled. They are not actually sure what difference a colour vision deficiency makes to an individual’s ability to safely pilot an aircraft by day or by night. Despite that, regulators around the world have tended to err on the side of safety and say, ‘We won’t let people fly by night unless they pass one of a number of tests’. What that has meant is that for around nine per cent of the male population around the world, those who would aspire to be pilots or even air traffic controllers are often denied that opportunity.

That changed here in Australia about 25 years ago. In the Administrative Appeals Tribunal, there was a case that has become known as the Denison case where a colour-vision-deficient pilot took the regulator to the tribunal saying: ‘This is unfair. I can demonstrate that I’m competent to fly.’ The Commonwealth, because of the degree of interest, funded the applicant as well as the defence, through the then CAA, and so you had a test case where both parties brought in lots of experts. At the end of it, the judgment was made that in fact pilots who had a colour vision deficiency should be able to demonstrate their competence and be licensed to fly. The only condition that was put on that was that they could not captain high-capacity airline aircraft.

As a result of that, Australia is unique in the world in that we now have some 25 years of experience of people with a colour vision deficiency who have been flying, and they have been flying everything from light aircraft by day through to regional type airliners; single pilot, for example overnight freight or the Royal Flying Doctor Service, through to co-pilot roles, particularly in regional type aircraft. We also have - because a number of the principal medical officers within the Civil Aviation Safety Authority have sought to facilitate people with a colour vision deficiency to fly and have implemented things like practical flight tests for people to demonstrate their competence - some people now captaining large capacity aircraft and they have been doing so quite safely for a number of years and in some cases have well over 10,000 hours of flying. That says that, despite the theory, much of which has its origins in that 1926 document, practice shows that people with a colour vision deficiency can operate aircraft safely.

There are four key areas that people raise concerns about. One is to do with the tower. If you lose your radio and there is a control tower, you have to look for the red, green or flashing lights to tell you whether you can land, take off et cetera. People are concerned that if you cannot distinguish the lights then you would not be able to land safely. Again that was probably valid in 1926, but the reality is that on the top of the approach plates that I and other pilots use when we fly is the phone number for the tower. It says, ‘If you lose radio contact, phone the tower.’ The headset I use, like many others, has a Bluetooth connection for a phone so you can quite safely, if you need to, have a redundant system that is specified in the publications to call the tower. So I think that argument is somewhat outdated.

There is also the argument that, with the advent of EFIS screens or glass cockpits, the increased use of colour means that you must be able to distinguish the colours in order to be able to operate safely. One pilot recently underwent a test in a simulator with a CASA flying operations inspector. He specifically asked to be tested on all the night sequences information from the cockpit and he was assessed as being quite safe to operate. In my own experience of modifying aircraft and certifying them for use with night-vision goggles, one of the common applications in the cockpit is to put a large green filter over the glass displays so all the colour hierarchies are essentially diminished and yet we certify the aircraft, and pilots fly quite happily by day and night with no incidents. So, whilst the colour is nice to have, clearly it is not an essential characteristic of the cockpit.

There is also concern about traffic and whether you will see the position lights on aircraft. The reality is that many aircraft now have bright white strobe lights for collision avoidance. The interesting part is that the aircraft that most of these people have been able to fly over the 25 years are aircraft that do not have automated systems to support the pilot. The one type of aircraft they are not generally allowed to fly in Australia - your larger airliner - has things like white strobes; predominantly flies in controlled

airspace where air traffic control provides a degree of separation; and has traffic collision avoidance systems, TCASs, that give automated warnings of proximity to other aircraft. So there appears again, both in practice and just conceptually, to be a problem with the restriction that has been placed on people there.

The last area is the PAPI, the precision approach path indicator, which is a glide slope indicator that is positioned next to a runway for pilots to use at night. Because it relies on a combination of red and white lights there is a concern that certain kinds of colour-vision-deficient pilots would not be able to interpret those lights. Again, the confound for that theory is that over 25 years hundreds of pilots have flown thousands of approaches at night using PAPIs quite safely, which says that either the PAPI itself has additional cueing, such as the intensity of the lights, or, more probably, there are enough redundant cues in the surrounding environment that the pilot can land safely. That is backed up by the fact that CASA will provide an exemption if the PAPI is unserviceable: you can still fly your aircraft and land it. That says that the PAPI is a nice thing to have but it is clearly not essential for landing an aircraft.

For this minority group of pilots there has been a change in CASA’s view. They have decided to review the safety of these people flying aircraft. They have written to the individual pilots and to employers saying that research, which they have not published, has shown that these pilots may be unsafe. But they have not clarified what that is. The history over the last 25 years shows that that is not the case. Previous principal medical officers in CASA have shown a willingness to support pilots. I am concerned that the attitudes of a few within the regulator may be putting at risk this group, albeit a minority group. In our democracy, we look after the rights of minorities. There is an injustice being done to this group. I will be working with the government to fund either another test case or research to make sure that this group receives the justice that the last 25 years have shown that they are due.

Addendum 

The following comments have been received from GAA supporters who oppose the proposed General Direction. We consider it in their interests to withhold the authors’ names.

I am a current Air New Zealand Boeing 777-200/300ER Captain.

I had to pass the lantern test back around 1980 due to my colour issue.

Since then, I have had a successful and event-free career, starting with single-engine VFR ops, single-pilot twin operations and then on to Metroliners, Friendships, B737, A320, B767, B747 and now the B777.

I have just under 20,000 hours, with a clean record.

I have never felt my colour vision has impaired my flying - and obviously with 20,000 hours in my log book to support this, I believe the CVD issue is a total “red herring”.

The latest aircraft feature a mass of different colours, but I can obviously see a difference in them and continue to fly all around the world throughout good and bad weather, night and day and in sun and snow.

Look at the latest devices in these jets, including Head Up Displays. Strangely, these are “monochrome” and are used at the most critical phase of flight: the landing. Military pilots use them in even more extreme cases, flying through low terrain (and surviving).

Now, if there was an issue with colour, there might be a problem, but they are one colour and jets aren’t falling out of the sky.

This entire NZ CAA colour issue marks an historical step backwards, to when boating and aviation were in their infancy and all they had were green/red nav lights and white lights in the tower. We have moved on from there. It’s a pity the aviation controlling authorities cannot catch up with the times.

There is no evidence to suggest CVD is an issue in aviation. Australia has allowed CVD pilots for many years and there has not been one single incident attributable to this non-issue. I would suggest the Aussies have got something right for a change, and much of the rest of the world needs to catch up.

As an aside: before flying, I was an electrician. There are many coloured wires used in that industry. I never got any of my wires crossed. I am colour blind and have known about it since I was in primary school. I never learned to fly until I was 30 because I was told I could not fly due to my colour blindness. When I did my initial medical before my first lessons, I was told I could, but only with the restrictions which you have mentioned in your emails, no night flying, no commercial, etc.

I was over the moon because I at least could learn to fly, if only as a day only VFR PPL. So I have had these restrictions on my medical certificate for my whole 23 years of flying. I actually went and had a lantern test (in Dunedin where the only person qualified to carry it out in the South Island was based) but failed the test. (My older brother, also colour blind like me, wound up in Aussie and he flew choppers and light twins with no restrictions.)

In my Air NZ capacity as aircraft engineer, we have to have medicals every couple of years and I run into this colour blindness thing when renewing my aircraft taxying authorisations. We routinely taxy the ATR and A320s and 737s around the airport at night for maintenance purposes. Every time I do this medical, I fail the Ishihara test and have to get a letter from my bosses saying that I can safely taxy an aircraft without any colour vision problems before they will re-issue my authorisation. Needless to say, I have never had any issues with this and all the old excuses relating to red cockpit lighting and warning lights coloured red is a load of rubbish. I have even tried out a HUD in the new A320s while taxying about but there is absolutely no issue there either.

In the department that I work in, I don’t know of anyone else who has this colour blindness problem; we are a relatively small band of people who do the night time work and only a few of us have the taxy authorisation so in our group at least I think I am on my own with this.

I would be very happy to write a statement that colour blindness has not had any effect on my flying or my work at Air NZ but given that I am operating under those restrictions it might not count for much.

Just incidentally, when I was in the army they did not care in the slightest that I was colour blind.

You can use me as an example.

I'm deutiform colour deficient, have had no problems whatsoever in a professional aviation career which spans 30 years, six Boeing types and every country or continent in the world, with the exception of South America. I've done everything from ILS approaches in Borneo in heavy rain with an RVR of 600m at night, NP approaches in IMC into Kathmandu at MLW with a TAS of 170kts and a descent rate of 2300f/min, to autolands in the fog at Heathrow.

Losing my near vision as the result of age has by far been more distressing, especially since I had such good vision. The use of reading glasses on the flight deck is, in my view, a very serious impediment to flight safety. but no mention is made of that.

As you say, all this indicates, a complete lack of the remotest understanding of aviation human factors, by an organisation that has traditionally swung between incompetence to ignorance. When I sat the 'Human factors' exam for my PPL H a few years ago, the book that the CAA recommended to study, was riddled with errors and omissions. A mate of mine summed it up, 'Just learn what they require to pass the exam, regardless of whether it’s right or wrong.' I'd passed the UK CAA human factors ATPL exam about 10 years earlier. The book I used from Oxford training school, to prepare for the exam, is over 500 pages. I knew the whole thing backwards (figured I deserved an honorary medical degree after passing). CVD hardly gets a mention, because as you pointed out, it has had no discernible bearing on any accident where human performance was a factor or cause.

If I can help them see that, just guide me in the right direction.

My son is affected and subsequently has to fly in Australia where he has almost unlimited privileges. He holds MEIR/Single pilot and Grade 2(Bcat) instructors rating. Has nearly 1000 hours.

In NZ he can only be a topdressing pilot. (No night/IMC flying-or passengers for hire or reward.) I am also mildly colour blind, but passed the lantern test , and have now flown 20,000 hours.I can’t see anything in an Ishihara book.

With NVG and HUDs (787) being monochrome I wonder about the relevance of colour these days.The Aussies changed the rules 28 years ago and since then, there have been no known crashes related to colour vision.”

I have a CVD; however I have a Class 1 medical with some restrictions:

- Not valid for flight in the vicinity of a controlled aerodrome (unless the a/c is in radio contact with aerodrome control). not valid for air transport ops.

- Not valid for flight at night

I have a CPL aeroplane and PPL helicopter with a bit over 500 Hours total time. My flying has never been affected to any degree by my CVD.

I am also a LAME and have never been affected adversely in this role.

I have very recently achieved my PPL, and have 11.5 years experience in the RNZAF as an Aircraft tech. I fault-find complicated engine and aircraft systems by means of practical tests (engine runs) and have been chased by the aircrew side of the RNZAF to be a Flight Engineer regardless of my CVD.

ICAO raised these issues in 2008 and after a lot of research from Farnborough and the NTSB human factors lab it was concluded that there has not been a significant change to the human eye for a few thousand years. What has changed is the use of electronic/glass instruments which have the capability of producing very pure colours that DO NOT occur naturally. The fix is to require flight/navigation instruments to display natural (called dirty colours) for use on all glass flight instruments.

The existing colour vision tests, as far as I am aware, do not last for life and I have had to do that test every five years for my medical.

There is a hazard in certain hand-held navigation units and some lap tops that have pure colours on the screen and can cause clarity issues.

As far as any glass/electronic flight instrument are concerned, the other hazard in my experience is the use of sunglasses. Never use polaroid or pure colour lens (such as blue/green or red tint). The old aviator-type greenish/blackish tint are good, as these tints are dirty colours. (A dirty colour is what a natural colour looks like, it might be greenish but is made up of yellows, blues, etc.)

Have had several experiences with training Saudi or Malaysian or Japanese pilots who felt they looked “cool” wearing fashion sunglasses but their glasses would filter out the particular colour on the screen, particularly noticeable on weather radar when the “cool”-looking dark blue lens would filter out that colour.

I understand that as a result of the ICAO work on this in 2005-2008 that aircraft manufacturers ensure that the glass instrumentation they fit is of the dirty colour variety. That is to say, the fire warning light is not the pure red it appears to you and me but is the naturally occurring red with other colours either side of that spectrum. There does need to be a warning about the use of portable devices that may not have dirty colours.

And a totally off-the-wall comment: I am aware of at least three cases of female pilots going for medical upgrades from the private pilot to the commercial when it was discovered they had a partial colour deficiency, which would have made medical history as this does not normally occur in females, until it was revealed they were originally males who had undergone a sex change operation and now are female.

I have known about my CVD since about age 19 when I had to register for CMT way back in about 1959. Prior to that, I was completely unaware of any colour vision deficiency, and since then it has not inhibited me in any way in everyday life. [Try differentiating the colour codes on small resistors when the manufacturers all use different hues for their markings. It helps knowing the logical sequence of course. But I have often had people with normal colour vision check these and they often get them wrong.]

When I was issued my PPL, and had to attempt the Ishihara test, I failed miserably. However, I had the special conditions attached regarding being in radio contact in a control zone, etc. I have never had any problems reading charts, although some of the colours on the print version could be improved to aid those with CVD. The iPad versions are so much better. I installed a variety of colour LEDs in my panel and have absolutely no problem distinguishing between red and green. My wife occasionally tells me I get a little confused at times between red/brown/green, but that is only in low light situations where the colours are quite indistinct anyhow.

I have absolutely no difficulty distinguishing colours on GPS displays, or moving map displays, even if there are warnings in red or green, and no difficulty at all with traffic lights. But could I fly safely? I think the answer is a resounding yes.

My concern initially was to have CAA change the rules applying to the RPL to reflect the dispensations that were already available with the PPL. At least five years waiting for this to happen is ridiculous. But it is equally ridiculous requiring periodic CVD tests. CVD is something we are born with. It is not going to improve or change, so the added expense of periodic testing just to satisfy CAA is a nonsense. I suppose that colour vision might be impaired through a variety of medical issues as life goes by. Certainly colour intensity diminishes if one has cataracts, but that does not impact the ability to differentiate colours. So why the requirement for periodic testing?

I think CAA needs to catch up with the improvements in technology that have made flying more safe. I wonder what evidence, statistical or otherwise, CAA has which can demonstrate the danger, or the comparative safety, in flying with or without CVD.

I am a CVD pilot aged 70 (in July) and have had no problems flying since PPL gained in 1966, PA140 at Omaka. I couldn’t pass the Ishihara test when I joined the Air Force in 1963 as an engineer u/t. I didn’t require it for PPL but knew I couldn’t progress through CPL etc. I hardly flew after gaining PPL so stopped at 50hrs, due marriage, kids, houses, usual stuff. Gliding 1980 - 1990 including instructing. Then micros in 1998 to the present. Only 500hrs accumulated to date.

However, CVD has never been an issue, including two controlled airfield landings with u/s radios. The first in a single-seat Bantam with flat radio battery. I paddock-landed and called Napier tower on cell (no bluetooth then) and was given instructions to join and orbit 500ft in the LFA the land 34 grass on the “green” light. It was difficult to see the “green” due to late afternoon sun reflecting off the control tower; but no real problem. The second time in my Zodiac on the 2013 Air Safari crossing Cook Strait for Hokitika. I lost communication part-way across so landed NORDO at Omaka. Long story short, at Motueka, a cell call to Nelson tower had me 500ft orbit east of Rabbit Island, entry on green to land 02 grass and hold under red light. Proceed to W2 on the green and hold on red. Cross active runway 02 seal on green to service hangar. Absolutely no problems.

A couple of years ago, during a full eye test, I failed the Ishihara test and the test with pinpoint lights in a darkened environment.

My driver’s licence test is OK and I have never had a problem with traffic lights. I do struggle at times with fine colour print on dark backgrounds.

Like many others, I guess we rely on ‘non-disclosure’ and just carry on doing our thing.

This proposal would discriminate against perfectly safe pilots and students who are trying to make a career in aviation. To my knowlege there is no precedent for this, in fact it seems that the opposite is more to the point. Why, when this rule does not apply in many other countries including Australia, would NZ need to implement such a thing?

I am a private pilot, both fixed wing and helicopter, with about 1000 hrs and am a sufferer of CVD and have not been able to get a class 1 medical because of that. My class 2 does have restrictions for night and non-radio-equipped aircraft. It seems to me that this proposal is a backward step. It has no basis in fact as I for one and many other pilots can and do operate in and out of controlled airspace with no problems. Let's face it, when was the last time anyone had a total radio failure? Anyway, you are not allowed in controlled airspace or mandatory transponder space without radio. If you did have a failure, then you just need to go to another uncontrolled airport where there are no lights.