Clause 2(2) specifies that any provision in the bill not already brought into force would take effect on 30 June 2023.

We are aware that a number of complex rules and regulations would be needed to implement some of the changes proposed by the bill. We wish to ensure that enough time is allowed for these to be developed, and for appropriate consultation to occur. Accordingly, we recommend amending clause 2(2) to extend the final commencement date (except for Part 11) to 18 months after the date of Royal assent.

We recommend several amendments to definitions in clauses 5, 6, and 7. The amendments proposed are largely designed to clarify what would or would not be captured by the definitions. We recommend amending the definitions of the following:

• aerodrome, by deleting reference to any area used for the servicing of aircraft

• aviation place, by inserting reference in clause 7 to communication installations used for aviation purposes

• authorised aviation security service provider, by deleting reference to AvSec under clause 135(a).

We also recommend amending the following definitions to align with those of the International Civil Aviation Organization (ICAO):

• accident

• controlled airspace

• controlled flight.

The bill would introduce a “just culture” approach to accident and incident reporting. The protections are designed to encourage employees to report safety-related information openly and honestly. For example, clause 342 would prevent accident and incident notifications from being used in a criminal proceeding against the person who provided the notification.

We consider that the bill as introduced provides sufficient just culture protections. However, it makes no explicit reference to the concept. We recommend amending the bill’s overview section (clause 12(9)(h)) to make it clear that the protections provided in subpart 9 of Part 9 are just culture protections.

Clause 23(d) would require the Civil Aviation Authority (CAA) to provide a service called the Aviation Security Service (AvSec). We believe the CAA, as the authority responsible for providing the service, should also be responsible for ensuring that AvSec is operating to an appropriate standard. We recommend amending clause 23(d) to include oversight of AvSec as a function of the CAA. We note that our proposed amendment would be consistent with clause 32(2)(e), which provides that the functions of the Director of Civil Aviation include monitoring and evaluating the performance of AvSec.

Clause 34(c) would allow for the Secretary for Transport to issue warnings, reports, and guidance about matters relating to civil aviation and aviation participants. However, we understand that having the Secretary issue warnings to aviation participants is not envisaged, and nor would it be appropriate. Rather, clause 34(c) is intended to enable the Secretary to make general comment on aspects of the aviation system. We therefore recommend deleting reference to “warnings” in clause 34(c).

Clause 38(3) would require the CAA to make documents kept in the Civil Aviation Records available for public inspection and for copying, in accordance with the Official Information Act 1982. Clause 38(4) provides that clause 38(3) would be subject to the Privacy Act 2020.

We consider that clause 38 as introduced is unclear. We understand that its purpose is to make civil aviation documents available to the public, unless good reason exists not to do so. We recommend amending this clause to make it clear that nothing in clause 38(3) requires the CAA to make available information that may be withheld in accordance with either the Official Information Act or the Privacy Act.

Clause 41 would make it an offence to act dangerously, or permit another person to, in respect of an aircraft, aerodrome, or aeronautical product.

The bill’s explanatory note states that clause 41(2) would create a strict liability offence, meaning that the person involved would commit an offence regardless of their intention. However, we consider that clause 41 as introduced does not make this clear. We recommend amending it to clarify that there are two offences contained in the provision, and that clause 41(2) is a strict liability offence.

We also recommend similar amendments to clauses 103 and 104 to make it clear that the offences in those provisions also constitute strict liability offences.

Clause 42(1) would make it an offence to intentionally operate an aircraft in a controlled airspace or restricted area without appropriate authorisation. For the purpose of clause 42, “restricted area” is an airspace of defined dimensions that is designated as a restricted area under the rules.

Clause 57 provides that the Minister would be permitted to designate an airspace as “prohibited”, as well as “restricted”. We note that “prohibited airspace” is not a term currently defined by New Zealand aviation rules. However, “prohibited airspace” could be used or provided for by the rules in future. For completeness, we recommend amending clause 42(3) so that the definition of restricted area includes “prohibited airspace”.

Clause 61 sets out the process the Minister would need to follow when making rules pertaining to civil aviation. Before making a rule, the Minister would be required to publish a notice of their intention to do so, and consult with representative groups.

Under clause 62(b), every rule made by the Minister would need to include a statement specifying the objective of the rule. We believe it would be beneficial to the consultation required by clause 61 if the Minister was required to publish that statement before the rule was made. We recommend amending clause 61(1)(a) to this effect.

Clause 61(2)(a) provides that, before making a rule, the Minister would need to be satisfied that the rule would not be inconsistent with any ICAO aviation safety and security standards that have been adopted by New Zealand. We understand that ICAO standards are not “adopted” by member states. Rather, standards are automatically applied to New Zealand, once adopted by the ICAO Council. This practice is in accordance with the Convention on International Civil Aviation.

Accordingly, we recommend amending clauses 61(2), 63(2), 69(2), and 72(b) to reflect that standards are applied rather than adopted.

The bill would introduce a new scheme to manage the risks of drug and alcohol use by safety-sensitive workers. Clause 115 sets out the process that a drug and alcohol management plan operator (DAMP operator) must follow when carrying out random drug and alcohol testing on safety-sensitive workers.

Clause 115(1) states that a DAMP operator must ensure that random testing is carried out. This is at odds with clause 115(2), which allows for random testing only if the worker consents to being tested.

We are concerned that this inconsistency would have the unintended effect of a DAMP operator being in breach of their obligations if a worker did not consent to testing. We therefore consider it more appropriate to require the DAMP operator to provide for testing to take place, rather than ensure that testing takes place. We recommend amending clause 115(1) to this effect.

Clause 115(4) sets out the obligations of the person carrying out random drug and alcohol testing. They would be required to:

• request the worker’s consent before testing the worker

• explain to the worker the consequences of refusing consent

• carry out tests in accordance with the DAMP and any requirements in the rules.

We note that, for Director testing, clause 116 would impose stricter obligations on the person carrying out the test than clause 115(4).

We believe safety-sensitive workers should be afforded the same protections under clause 115(4) as they would be under clause 116. We recommend amending clauses 115 and 116 accordingly. Our amendments would also provide that the wording for both clauses is the same.

We also recommend amending both clauses 115 and 116 to require that a worker be expressly notified of their right to refuse consent to random testing, and any consequences of refusing consent.

Clause 126(1) specifies the circumstances in which the Minister would be permitted to designate a landside security area. Clause 126(1)(c) would allow the Minister to declare a landside security area if they considered it otherwise necessary to support the main or additional purposes of the bill.

We are concerned that this clause would give the Minister a wider power than necessary. We recommend amending clause 126(1)(c) to restrict this power, so that the only additional purpose of the bill that may be relied upon is clause 4(d), which is to preserve New Zealand’s national security and national interests.

The bill seeks to address a perceived conflict of interest between the Civil Aviation Authority and AvSec. It arises because the CAA is responsible for providing the Aviation Security Service, and because the Director of Civil Aviation is responsible for monitoring aviation participants, including AvSec. The CAA is thus regulating and auditing part of its own organisation.

To address this, the bill would remove the requirement for AvSec to hold an aviation document. However, clause 140 would allow the Director of Civil Aviation to require that AvSec meet any rules and regulations that would apply to the holder of an aviation document. Some submitters expressed concern that, as introduced, clause 140 would provide the Director with too much discretion regarding AvSec’s level of compliance.

We understand that AvSec would be expected to comply with the prescribed requirements as if it held an aviation document. We recommend amending clause 140 to make this clear. We also recommend deleting reference to the Director of Civil Aviation, to clarify that the obligation to comply would be placed on AvSec.

Clause 150 provides that an aviation security officer may seize any item or substance in a sterile area before it is carried onto an aircraft if they have reasonable grounds to do so. Clause 160 provides that a government agency or aircraft carrier employee may seize and detain dangerous goods after a plane has landed in New Zealand.

We believe that, as introduced, clause 160 may not capture all situations where a dangerous good may need to be seized and detained. We believe the reference to “an aircraft that has landed” could mean that a dangerous good identified before or during flight could not be seized until the aircraft had landed. We therefore recommend amending clause 160 to allow employees of a government agency or aircraft carrier to seize and detain dangerous goods both before take-off and after landing in New Zealand.

Part 6 of the bill deals with international aviation. Subpart 3 of Part 6 would require New Zealand operators to develop and implement an emissions monitoring plan for international aviation, and submit emissions reports to the Secretary for Transport. This would give legal effect to New Zealand’s agreement to participate in the ICAO’s carbon offsetting and reduction scheme for international aviation (CORSIA).

We note that, at present, only one New Zealand operator would be captured by the scheme. This raises the possibility of commercially sensitive information being directly attributable to that operator. We therefore recommend inserting clause 215A to allow for New Zealand operators to request that the information provided to the Secretary be kept confidential. Our proposed amendment would require the operator to explain why publicly disclosing the information would harm its commercial interests.

We recommend a consequential amendment to clause 216(2) that would require the Secretary to impose reasonable conditions on the provision of the information to ICAO if they determined that it should be treated as confidential.

Clause 226 would require an aerodrome to be operated as a commercial undertaking unless the operator is a council-controlled organisation (CCO). This exemption is designed to provide for circumstances where it would not be in a CCO’s best interest to operate for profit, such as with a small or remote airport.

Some submitters were concerned that the drafting of clause 226 implies that CCOs would not be permitted to operate commercially. We agree, and consider that the purpose of clause 226 would be better expressed as an “opt out” clause. We recommend amending it to insert additional criteria to ensure that a CCO would operate commercially unless:

• the constitution or other governing document of the CCO provides that it will not operate as a commercial undertaking, and;

• the CCO is not one of the airports regulated under the Commerce Act 1986.

Clause 227 provides that, for the purposes of the Public Works Act 1981, airports operated by airport operators that are not local authorities would be treated as a Government work. We recommend amending this clause to make it clear that airports operated by an airport operator other than a regional council or territorial authority (including council-controlled trading organisations) cannot compulsorily acquire or dispose of airport land themselves under that Act.

Clause 230 sets out the process that the Crown or a local authority would need to follow when transferring land to an airport operator. Clause 230(3) provides that, after the transfer, the Public Works Act would continue to apply to the land as if the Crown continued to hold it. Sections 40 to 42 of the Public Works Act provide that the Crown and local authorities must offer back acquired land to its former owner if that land is no longer required for a public work.

Clause 230(4) provides that the chief executive of Land Information New Zealand (LINZ) would be responsible on behalf of the Crown for determining whether any airport land is surplus, and for complying with the offer-back process provided by the Public Works Act.

Although we consider it appropriate for the chief executive of LINZ to be responsible for complying with the Public Works Act, we do not believe it would be appropriate for the chief executive to determine whether airport operator-owned land is surplus to the airport operator’s requirements.

We recommend amending clause 230(4) so that there is no explicit decision-maker for determining whether land is surplus to requirements. This would align with the current process used by airports to dispose land (including the objective test in section 40 of the Public Works Act as to whether land should be disposed of) and provide that airports are treated consistently with all other public works.

We also recommend amending the bill to move subclauses 230(4) and 230(5) into clause 227. Our proposed amendment would reflect that those subclauses are intended to apply to any land that is held by an airport, not just land transferred to an airport by the Crown under clause 230.

Clause 231(1) would allow airport operators to set charges for the use of an airport, its services, and facilities. Airport operators would be required to consult with “substantial customers” (for example, airlines) before setting or altering charges, and within 5 years after doing so.

We believe it would be cumbersome for airport operators to consult on all charges. Existing law requires airport operators to consult only on charges where they are likely to have substantial market power in relation to the services provided. We believe a more limited requirement should be retained. We therefore recommend amending clause 231(1) to provide that an airport operator would be able to set charges for “identified aerodrome activities provided, operated, or managed by the airport operator”.

Part 7 of the bill relates to airports. Subpart 3 of Part 7 would introduce enforceable regulatory undertakings by airport operators. The purpose of an enforceable regulatory undertaking is to ensure that airport operators provide for any space requirements that a relevant government agency (for example, the New Zealand Customs Service) may have in relation to an airport. Government agencies and airport operators would be expected to take a collaborative approach to meeting their respective needs through an enforceable regulatory undertaking.

We recommend several changes to these provisions, outlined below.

Clause 300 provides that an inspector may issue improvement notices if they believe a person is, or is likely to, contravene civil aviation legislation. The improvement notice would set out what the person would need to do to remedy or prevent the contravention.

We recommend amending clause 300 to give the person issued the notice the right to appeal to the District Court. We recommend a similar amendment to clause 304 in relation to non-disturbance notices. Our proposed amendments would align with similar provisions in the Health and Safety at Work Act 2015.

We note that the bill would give the CAA and the Director of Civil Aviation a number of decision-making powers. The Director would also be able to delegate their decision-making powers. We believe the bill should enable more transparency and oversight of these decisions, by allowing the Director’s decisions to be reviewable. We recommend inserting Subpart 4A in Part 10 of the bill to provide for this. Our proposed amendments would:

• allow for a person to apply for a decision to be reviewed by an independent reviewer

• require that the Minister appoint 1 or more persons with relevant experience and expertise to the role

• enable the reviewer to require that the applicant, Director, or any other person provide evidence in relation to the review.

We do not recommend allowing for the independent reviewer to overturn any decision made by the Director. We consider it fundamental to a safe and secure civil aviation system that the Director maintains ultimate responsibility for aviation regulatory decisions. However, our proposed clause 443F provides that the Director would need to consider the reviewer’s report and make a final decision within 10 working days. The Director would need to notify the applicant of the Director’s final decision and reasons for it. We note that our proposed independent review function would be in addition to the other review and appeal functions already included in the bill.

New clause 443A would define “applicant”, “decision”, “final decision”, and “reviewer” for the purposes of our proposed new subpart 4A.

We spent some time considering whether the bill should set out which decisions would be available for independent review, or whether these decisions should be set out in regulations. We have carefully considered both options, and on balance propose that the reviewable decisions should be set out in regulations. This is because the civil aviation sector and its regulatory practices may evolve over time, and regulations would allow for these changes without the need to return any legislation to Parliament. We therefore recommend that “decision” means a “decision specified in the regulations”.

We recommend inserting clauses 461A to 461C and schedule 9A, deleting clause 461, and making a number of technical amendments to clause 460 and Schedules 1 and 9 to:

• clarify the transition for airport authorities beginning with the commencement of the Civil Aviation Bill and ending with the repeal of the Airport Authorities Act 1966

• provide that the status of “airport operators” under relevant legislation would be equivalent to the current status of airport authorities.