Mr John Marshall QC
Chief Commissioner
Transport Accident Investigation Commission

Dear Mr Marshall

Inquiry 12-001: hot-air balloon, collision with power lines and in-flight fire, near Carterton, 7 January 2012
Final recommendation 012/13

Thank you for your letter of 11 October providing me with the Transport Accident Investigation Commission’s (the Commission’s) final recommendation for comment. Below is the Ministry’s response to the final recommendation, noting at this date that I have not seen the final report.

Recommendation 012/13 is that:

“the Secretary for Transport completes, as a matter of priority, all necessary work that will support the introduction of appropriate legislation or rules that will:

Prescribe allowable maximum levels for alcohol;
Prohibit persons from operating an aircraft, vessel or rail vehicle if they are impaired by drugs;
Require operators to implement drug and alcohol detection and deterrence regimes, including random testing; and
Prescribe post occurrence testing requirements for drugs and alcohol.
The legislation or these rules should apply:
Across the aviation, maritime and rail transport modes; and
To persons operating an aircraft or a marine craft for recreational purposes.”

I wish to note that the determination of the need for legislation or rules is a matter for the Minister of Transport, rather than the Secretary for Transport. The Ministry’s response to the recommendation is prepared with this in mind.
I also note that the inquiry’s findings conclude that the accident was caused by errors of judgement by the pilot, but include the possibility that the pilot may not have been impaired.

Before I respond to the recommendation I would like to take this opportunity to comment on relevant work in the transport sector.

Drug and alcohol impairment in the aviation, maritime and rail sectors
Alcohol and drug impairment in the transport sector is an issue that the Ministry takes very seriously. Impairment in driving is one of the largest causes of serious road crashes in New Zealand, contributing to about a third of all road deaths every year.

The impact of drug and alcohol impairment on the aviation, rail and maritime sectors has been an area of focus for the Ministry. Following the review of safety practices within the adventure and outdoors commercial sectors conducted by the previous Department of Labour, in August 2012 the Government agreed to amendments to aviation and maritime rules to improve safety in these sectors. These amendments are now in force and include a requirement for adventure activity operators to include a description of how they will manage the safety risks associated with drug or alcohol impairment in their relevant safety plans (Organisational Management Systems for aviation and Safe Operational Plans for maritime).

To assist maritime operators, Maritime New Zealand has produced safety guidelines for managing risks related to alcohol and other drugs for raft and jet boat operators. The Maritime Transport Amendment Bill 2013, which has had its third reading and will come into force in the next few weeks, will implement the internationally applicable alcohol limit for merchant seafarers established by the 2010 amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1995 (STCW).

The Civil Aviation Authority has worked closely with adventure aviation operators to support the development and implementation of drug and alcohol management policies that include testing. A detailed advisory circular for adventure aviation operators outlines the expectations for drug and alcohol monitoring and management, and what acceptable policies should include.
Many transport operators, particularly those involved in transporting members of the public, already have drug and alcohol management policies in place in the workplace. Operators regard this as good business practice and meeting the duties of employers and employees set out in the Health and Safety in Employment Act 1992. Some operators that are involved in safety sensitive activities, such as Air New Zealand, Qantas, KiwiRail and Maersk Line have also introduced drug and alcohol policies involving testing regimes.

Statistics from the New Zealand Drug Detection Agency show that the number of workplace drug tests carried out in New Zealand increased 31 percent between 2011 and 2012, with an increase in alcohol tests of 32 percent over the same period. These results suggest that employers in safety sensitive areas, including transport, are taking workplace safety very seriously.

Drug testing on the road

The drug driving regime has been in force for just under four years. The Ministry has a project on its work programme to investigate developments in drug screening and testing technologies (and associated issues) that have occurred over this time. This work is due to take place during 2014.

Post accident testing

Aviation, maritime, and rail legislation does not currently provide for transport agencies, the Commission, or Police (except in relation to the STCW alcohol regime for international or large domestic vessels) to conduct toxicological tests following an accident. Only when a fatality occurs can a Coroner test for the presence and level of drugs and alcohol in the deceased as part of the post mortem investigation.

As a result there is a lack of New Zealand data to quantify the extent of alcohol and drug use in the aviation, maritime, and rail sectors, and its links to accidents and incidents. In comparison, the road sector’s drug and random alcohol testing regime provides the necessary data to develop an understanding of the links between drug and alcohol use and accidents and incidents.
Compulsory post accident testing would provide valuable data on alcohol and drug use within the aviation, maritime and rail sectors in New Zealand. Aggregated data from the test results would inform future policy options, including the potential introduction of maximum limits and testing requirements, as noted in the Commission’s recommendation.

In order to establish whether there is a case for a compulsory post accident drug and alcohol testing regime, the Ministry has commissioned the New Zealand Institute of Economic Research (NZIER) to investigate and report on:

criteria to determine which accidents (and incidents) should be covered
who should be tested
the agency responsible for undertaking the testing
the testing procedures to be used (with reference to current national and international standards) in order to safeguard the integrity and accuracy of the testing
an offences and penalties regime for refusing to be tested or interfering with test results or samples
the agency responsible for the data collection
the cost of implementing a compulsory regime
the legislative changes required to give effect to a compulsory regime.
4
Once we have the NZIER report, we will brief the Minister of Transport on the options. We expect to be able to do this in December 2013. The Minister may then need to take a paper to Cabinet regarding any further work.

Response to recommendation

This brings me to the Ministry response to your recommendation that the Ministry completes the work necessary to support the introduction of legislation or rules that will:
1. Prescribe allowable maximum levels for alcohol;
2. Prohibit persons from operating an aircraft, vessel or rail vehicle if they are impaired by drugs;
3. Require operators to implement drug and alcohol detection and deterrence regimes, including random testing; and
4. Prescribe post occurrence testing requirements for drugs and alcohol.
The completion of the first three parts of the recommendation is dependent on the fourth, prescribing post occurrence testing requirements for drugs and alcohol. As I have discussed earlier in this letter, the Ministry of Transport is already undertaking work, as a matter of priority, to determine the case for a compulsory post accident testing regime.

We will be able to confirm the next steps for post accident testing once the Minister has considered our advice. Of course we will keep the Commission informed of the progress of the post accident testing proposal, as well as any other work that relates to the Commission’s recommendation.

Finally, like the Commission, the Ministry also believes there should be zero tolerance of operator impairment where members of the public are being transported by sea, rail and air. We feel very deeply for the families of those who lost their lives in this accident.

Yours sincerely
Martin Matthews
Secretary for Transport

© Scoop Media