Civil Aviation Bill

Civil Aviation Bill

Government Bill

61—1

Explanatory note

General policy statement

This Bill repeals and replaces the Civil Aviation Act 1990 and the Airport Authorities Act 1966 with a single, modern statute that will provide a platform for safety, security, and economic regulation of civil aviation now and well into the future.

The Bill contains a range of policy proposals, which cumulatively will benefit the operation of the aviation sector in terms of safety, security, emissions, and economic outcomes. The Bill has been developed over a 5-year period and policy in the Bill has been subject to a number of consultation processes, including an exposure draft in 2019.

The proposal implements substantive policy changes, including the following:

Remotely piloted or autonomous aircraft: incorporating amendments that account for new and emerging technologies and the responsibilities a person has while operating these, and provide new intervention powers for constables and specially authorised people to respond to serious misuse of remotely piloted or autonomous aircraft:

National security checks: preserving New Zealand’s national security and national interests by empowering the Minister of Transport to consider national security within the aviation system and make rules about when national security considerations apply:

Drug and alcohol management: improving the safety and security of New Zealand’s aviation system by strengthening the management of the risk of drug and alcohol impairment in the commercial aviation sector following the Carterton balloon incident in 2012:

Aviation security: clarifying what powers, protections, and tools aviation security officers have at security designated aerodromes and who can provide aviation security services, and expanding the aviation security regime to enable short-term additional security measures in temporary “landside security areas” at airports when needed to respond to a heightened threat environment:

Emissions: enabling New Zealand to meet its obligations under the International Civil Aviation Organization’s Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA):

Airline alliances: improving the efficiency and effectiveness of regulatory decision-making to facilitate a growing and competitive aviation sector, including by strengthening the process for authorising airline co-operative arrangements:

Airport regulation: introducing a modern registration regime for airports that includes a requirement to consult government agencies on spatial plans, and for some airports includes a requirement called an enforceable regulatory undertaking (ERU). ERUs will require government agencies to collaboratively agree their requirements for space and infrastructure, and airports to present a binding plan to the Secretary for Transport as to how they will meet those requirements. The Bill retains a provision that airports can set charges after consultation but repeals the stipulation that they can do so “as they see fit”:

Offers-back under the Public Works Act: clarifying that the Chief Executive of Land Information New Zealand, rather than airport companies, is responsible for undertaking the offer-back process under the Public Works Act 1981 for airport land:

“Just culture”: improving the quality and level of safety information reported to the safety regulator, including ensuring people who self-report incidents are provided certain protections from enforcement action and reported information is protected:

Financial penalty levels: revising financial penalty levels to provide an effective deterrent and aligning with those for similar offending under other comparable, recent legislation such as the Health and Safety at Work Act 2015.

Departmental disclosure statement

The Ministry of Transport is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact assessment

The Ministry of Transport produced 10 regulatory impact assessments between February 2016 and May 2021 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause. The Bill comes into force on a date or dates appointed by Order in Council. The reason for commencement by Order in Council is to allow time for regulations and rules to be made. All the provisions of the Bill (except Part 11) must have been brought into force no later than 30 June 2023.

Part 11 comes into force in accordance with clause 477.

Part 1Preliminary provisions

Purposes

Clauses 3 and 4 set out the main and additional purposes of the Bill.

Interpretation provisions

Clauses 5 to 8 define terms used in the Bill.

Application of civil aviation legislation

Clause 9 provides for the application of civil aviation legislation (see the definition of that term in clause 5). In general terms, civil aviation legislation applies to—

  • every person, aircraft, aerodrome, aeronautical product, and aviation-related service, in New Zealand:

  • every New Zealand registered aircraft whether within or outside New Zealand:

  • every holder of an aviation document while outside New Zealand and exercising or purporting to exercise privileges accorded by that document:

  • every foreign registered aircraft operating in New Zealand.

This clause also deals with—

  • obligations in respect of New Zealand registered aircraft operating over the high seas:

  • the liability of holders of aviation documents under New Zealand criminal law for their actions and omissions outside New Zealand.

Transitional, savings, and related provisions

Clause 10 indicates that the transitional, savings, and related provisions are set out in Schedule 1.

Act binds the Crown

Clause 11 provides that the Bill binds the Crown. However, unless specifically provided, civil aviation legislation does not apply to the New Zealand Defence Force.

Overview

Clause 12 provides an overview of the content of the Bill.

Part 2Civil aviation system

Subpart 1—Aviation participants

General requirements relating to aviation participants

Clause 13 specifies the general duties of aviation participants to comply with civil aviation legislation and provide services within the civil aviation system in a way that promotes safety and security. It specifically requires aviation participants to ensure that the activities or functions for which an aviation document has been issued are carried out by the aviation participant, and all persons for whom the aviation participant is responsible, safely and in accordance with the relevant prescribed safety and security standards and practices. It replaces section 12 of the Civil Aviation Act 1990 (the current Act) but applies to all aviation participants (see the definition of that term in clause 5).

Provisions relating to pilots-in-command

Clause 14 specifies duties of a pilot-in-command. It is substantially similar to section 13 of the current Act. However, the definition of pilot-in-command in the Bill is expanded to deal with aircraft designed to be operated without a pilot on board (see clause 5).

Clauses 15 and 16 specify circumstances (related to emergencies) in which a pilot-in-command may breach civil aviation legislation. The breaches must be notified to the Director of Civil Aviation (the Director). These clauses replace section 13A of the current Act.

Clause 17 makes it an offence to fail to notify breaches of civil aviation legislation of the kind dealt with in clause 15 or 16. It replaces section 52A of the current Act.

Clause 18 provides the Director or a constable with powers to require the operator of the aircraft or the holder of the certificate of registration for the aircraft to identify a pilot-in-command of the aircraft who is alleged to have committed an offence under the Bill or regulations made under the Bill. It replaces section 26A of the current Act.

Clause 19 makes it an offence to fail to comply with clause 18. It replaces section 52C of the current Act.

The fine penalties in most offences throughout the Bill have been increased from those in the current Act.

Subpart 2—Regulatory roles

CAA

Clause 20 continues the Civil Aviation Authority of New Zealand (the CAA). The CAA is a Crown entity.

Clause 21 provides for the Board of the CAA.

Clauses 22 and 23 set out the objective and functions of the CAA.

Clause 24 sets out the duties of the CAA in relation to search and rescue.

Clause 25 requires the CAA to maintain separate accounts in respect of AvSec.

Clause 26 requires the CAA to consider delegating or contracting out its functions and powers.

Clause 27 requires the CAA to adopt and publish a regulatory strategy setting out how the CAA and the Director will perform their regulatory functions. This requirement is new and has no counterpart in the current Act.

Clause 28 requires the CAA to have an engagement charter and make it available to the public. The required content of this document is similar to the content of the service charter required under section 72G of the current Act.

Clauses 29 and 30 protect the use of the words Civil Aviation Authority, CAA, Aviation Security Service, and AvSec.

Director of Civil Aviation

Clause 31 provides for the appointment, by the board of the CAA, of the Director of Civil Aviation. The Board must also appoint the Director of Civil Aviation as the chief executive of the CAA.

Clause 32 sets out the functions and powers of the Director.

Clause 33 provides for an acting Director of Civil Aviation in certain circumstances.

Regulatory functions, duties, and powers of Secretary

Clause 34 sets out the regulatory functions, duties, and powers of the Secretary for Transport. Paragraph (a) refers to the various functions and powers the Secretary has under other provisions of the Bill. Paragraphs (b) to (g) set out other functions and powers. These are—

  • monitoring, investigation, and enforcement in relation to the matters in paragraph (a):

  • issuing warnings, reports, or guidance about civil aviation matters:

  • collecting, analysing, and publishing statistics:

  • sharing information obtained in the performance of the Secretary’s functions conferred by, or referred to, in this clause:

  • co-operating with or providing assistance to government agencies, local government, and aviation participants:

  • any functions or powers incidental to the above.

The power to share information provided in this clause is intended to be an authority to share the information in terms of section 24(1) of the Privacy Act 2020.

Airways

Clause 35 provides that the Minister may, by notice, specify that only Airways Corporation of New Zealand Limited (Airways) may provide certain aviation services. This clause replaces section 99 of the current Act, but see clause 7 of Schedule 1 which allows the Minister to give a notice under this section with effect on the commencement date of the Bill.

Subpart 3—Registries and information services

Clause 36 provides for the New Zealand Register of Aircraft.

Clause 37 sets out the requirement to register aircraft.

Clause 38 requires the CAA to maintain Civil Aviation Records. This requirement is substantially similar to the requirement to maintain the Civil Aviation Registry under section 74 of the current Act. The differences are as follows:

  • the requirement to publish regulations and rules made under the Act is not carried forward. The requirements of the Legislation Act 2019 relating to publication of regulations and rules will be relied on:

  • the obligation to include the CAA’s statement of intent is not carried forward. Section 149 of the Crown Entities Act 2004 provides for the publication of this statement:

  • the requirement in clause 38(2)(d) that the records include all information provided by applicants for aviation documents is located in this clause but is not new. This is a requirement in section 8 of the current Act.

Clause 39 requires the CAA to ensure that an information service is provided comprising—

  • aeronautical information; and

  • instructions relating to the safety, regularity, and efficiency of air navigation.

This continues the requirement in section 75 of the current Act.

Subpart 4—General offences and liability provisions

Clause 40 makes it an offence to operate an aircraft in a careless manner. It is substantially similar to section 43A of the current Act.

Clause 41 is an offence provision relating to causing unnecessary danger to people or property while performing certain activity involving an aircraft, aerodrome, aeronautical product, or aviation-related service. It is based on the offence in section 44 of the current Act but is split into 2 offences. One is a strict liability offence for a person who causes unnecessary danger (see subclause (2)). The other offence (which carries a term of imprisonment) is causing unnecessary danger while being reckless as to whether the danger will be caused (see subclause (3)). Also, in addition to the existing coverage of section 44, clause 41 applies to the operation of an aerodrome.

Clause 42 is an offence provision relating to operating aircraft in controlled airspace or a restricted area without authorisation. This is a new offence that has no counterpart in the current Act.

Clause 43 is an offence provision relating to communicating false information affecting safety. It is substantially similar to section 56 of the current Act. However, the ability of the court to award part of the fine to a person who suffers financial loss because of the offending is not carried forward.

Clause 44 limits actions in respect of nuisance or trespass in respect of aircraft operations. It replaces section 97(1) and (2) of the current Act.

Clauses 45 to 47 relate to responsibility for, and recovery of, damages caused by aircraft, by persons or articles falling from aircraft, or by persons descending from aircraft by parachute. They replace section 97(3) to (8) of the current Act.

Clause 48 provides that clauses 44 to 47 apply in respect of any claim against the Crown for damage, loss, or injury in connection with the use of any aircraft by the Armed Forces. This clause replaces section 9(3) of the Crown Proceedings Act 1950 (which will be repealed by clause 472).

Subpart 5—Duty to notify accidents and incidents

Clause 49 replaces section 26 of the current Act and requires—

  • a pilot-in-command of an aircraft involved in an accident to notify the accident to the CAA:

  • an aviation participant involved in an incident to notify the CAA.

Clause 50 replaces section 27 of the current Act and requires the CAA to notify the Transport Accident Investigation Commission (TAIC) of an accident or incident reported to the CAA if it is—

  • an accident involving aircraft; or

  • a serious incident in accordance with the Convention on International Civil Aviation (the Convention).

Annex 13 of the Convention defines serious incident.

Clause 51 makes it an offence to fail to comply with the requirements relating to notification of accidents and incidents. This replaces section 52B of the current Act (but, unlike that section, does not include punishment for a continuing offence).

Part 3Rules

Subpart 1—Rules made by Minister or Governor-General

Power of Minister to make rules

Clause 52 provides that the Minister may make rules relating to civil aviation (rules) for the purposes set out in the clause. Subclause (3) provides that rules are secondary legislation under the Legislation Act 2019. The Bill refers to the provisions of the Legislation Act 2019 even though the relevant provisions of that Act are not yet in force. It is expected that those provisions will be in force before the Bill comes into force.

The publication requirements for rules are those referred to in section 74(1)(aa) of the Legislation Act 2019. It is proposed that rules made under clause 52 will (under regulations to be made for the purpose of section 74(1)(aa) of the Legislation Act 2019) be exempt from publication in respect of any material for which publication is inappropriate for reasons of security. While that situation is expected to be rare, it is proposed that publication would be inappropriate where it may hinder the preventative effects of any measures put in place to reduce threats to security.

Under Part 5 of the Legislation Act 2019, rules must be presented to the House of Representatives and are disallowable. However, this is subject to Schedule 3 of the Legislation Act 2019, which provides for exemptions from presentation requirements for rules where presentation would be inappropriate for reasons of security (see Schedule 3 of that Act as amended by Schedule 9 of the Bill).

Further detail of matters for which rules may be made are set out in clauses 53 to 60). Some specific new matters include—

  • prescribing security tiers for aerodromes and navigation installations and the requirements applicable to each tier (see clause 56):

  • prescribing matters relating to security areas at aerodromes, including prescribing the persons or classes of persons who may enter, pass through, and remain in different types of security area (see clause 56):

  • prescribing when an application for an aviation document or for renewal of an aviation document is an application to which national security considerations apply (see clause 59, see also clause 74 and subpart 13 of Part 9).

Clauses 61 and 62 set out procedural requirements for the Minister when making rules. These include the consultation requirements in clause 61(1). The Minister must be satisfied of the matters set out in clause 61(2) and have regard to the matters specified in clause 72.

Powers of Governor-General to make rules

Clause 63 provides that the Governor-General in Council may make rules. As is the case in section 34A of the current Act, the consultation requirements applicable to the making of rules by the Minister do not apply. Before recommending (to the Governor-General) the making of the rules, the Minister must be satisfied of the matters set out in clause 63(2)(a) and have regard to the matters specified in clause 72.

The publication and presentation requirements for rules made under this clause will be the same as those for rules made by the Minister under clause 52.

Provisions concerning rules made by Minister or Governor-General

Clause 64 sets out further provisions about the nature and extent of the rule-making powers of the Minister and the Governor-General. They are substantially unchanged from those in section 28 of the current Act.

Clause 65 provides that a rule may prevail over a bylaw of a local authority if that bylaw is inconsistent with the rule.

Clause 66 provides that, in general, a breach of a rule is not an offence unless prescribed in the regulations (see clause 408).

Subpart 2—Emergency rules made by Director

Power of Director to make emergency rules

Clause 67 provides that the Director may make emergency rules. The criteria for the use of this power are the same as in section 31 of the current Act. That is, the Director may make rules that the Director considers may be necessary to alleviate or minimise any risk of the death of or a serious injury to any person, or of damage to any property. The Director must not make emergency rules unless it is impracticable in the circumstances of the particular case for the Minister to make rules to effectively alleviate or minimise the risk concerned.

The publication and presentation requirements for emergency rules made under this clause will be the same as those for rules made by the Minister under clause 52.

Provisions concerning emergency rules made by Director

Clauses 68 and 69 set out procedural requirements for emergency rules. These include the consultation requirements in clause 69(1). Before making the rules, the Director must be satisfied of the matters set out in clause 69(2)(a) and have regard to the matters specified in clause 72.

Clause 70 provides for the permitted duration of an emergency rule.

Clause 71 provides that an emergency rule may prevail over a rule made by the Minister or the Governor-General if the emergency rule is inconsistent with the rule.

Subpart 3—General provisions

Clause 72 sets out the criteria that the Minister and Director must have regard to before making rules or emergency rules. It is substantially similar to section 33 of the current Act. The difference is that the factors concerning economic development, access and mobility, public health, and environmental sustainability in section 33(2)(f) are not carried forward and are considered to be incorporated in the requirement in clause 72(a) to consider the purposes of the Bill.

Part 4Aviation documents, medical certification, and drug and alcohol testing

Subpart 1—Requirements for aviation documents

Clause 73 provides for applications for an aviation document.

Clause 74 is a new requirement for the Director to refer an application for an aviation document to the Minister for a national security assessment if the application falls within a category of applications specified in the rules as requiring that assessment. See subpart 13 of Part 9 for the Minister’s powers in relation to the application.

Clause 75 specifies the criteria the Director must apply when deciding whether to grant or renew an aviation document. The criteria are substantially the same as in section 9(1) of the current Act. These include holding prescribed qualifications and meeting fit and proper person requirements. However, the clause also prescribes the actions of the Director in respect of an application that has been referred for a national security assessment (see subclauses (2) to (4)). Subclause (5) is also new and provides that the requirement for the applicant to be a fit and proper person does not apply in relation to an applicant if the aviation document applied for is specified in the rules as one to which that requirement does not apply.

Clause 76 provides that the Director may take into account foreign qualifications and certifications when granting or renewing an aviation document.

Clause 77 makes continuing to satisfy the fit and proper person requirement a condition of the document.

Clause 78 provides for the Director to specify the duration and conditions of the document. It also provides that a person has a right of appeal to the District Court against the duration or conditions specified by the Director.

Clause 79 provides a right of appeal to the District Court against a decision to decline an application. This is subject to clause 359, which provides for a review procedure if the Minister has given a notice under clause 357(2) on national security grounds.

Clause 80 sets out the test for determining whether a person is a fit and proper person for any purpose under the Bill. This test replaces the test in section 10(1) of the current Act, with some additions. These are as follows:

  • the Director’s ability to have regard to a person’s history of compliance with transport safety and transport security requirements applies to the person’s history of compliance both inside and outside New Zealand:

  • the Director may have regard to a person’s use of drugs or alcohol:

  • the Director may have regard to any convictions a person has for an offence under the Health and Safety at Work Act 2015.

Subclause (4) is new and provides that the Privacy Act 2020 does not prevent an agency from disclosing personal information to the Director in response to a request made by the Director under this clause. It is intended that this provision is an authority to share the information in terms of the Privacy Act 2020, particularly sections 24(1) and 170(a) of that Act.

Clause 81 requires the Director to disclose prejudicial information to a person if the Director proposes to take the information into account when applying the fit and proper person test. This requirement is subject to exceptions. The exceptions differ from those in section 10 of the current Act. Under section 10(6) of the current Act, the Director may decide not to disclose the information if the disclosure would be likely to endanger the safety of any person. In clause 81 the grounds are broadened so the Director may decide not to disclose the information if,—

  • in the case of non-disclosure to an individual of information about that individual, the Director could withhold the information under any of sections 49 to 53 of the Privacy Act 2020 had the information been requested by that individual under that Act; or

  • in any other case, the Director could withhold the information under section 6, 7, or 9 of the Official Information Act 1982 had the information been requested under that Act.

Clauses 82 and 83 set out the procedure if the Director proposes to make a decision that a person is not a fit and proper person. These clauses are substantially similar to section 11 of the current Act. The only change is in relation to the extent of the obligation of the Director to consider information provided by a person about the proposed adverse decision (see clause 83(1)) where that information is provided after a due date set by the Director. In that case, the Director may consider the information only if there are extenuating circumstances.

Clause 84 is a power for the Director to set examinations and tests and conduct flight testing, etc, for the purposes of granting or renewing aviation documents.

Subpart 2—Australia New Zealand Aviation mutual recognition

Clause 85 sets out an additional purpose of the Bill relating to subpart 2.

Clauses 86 to 95 replace sections 11A to 11J and 46E of the current Act, which enable the implementation of agreements concerning mutual recognition of aviation-related certification between New Zealand and Australia (ANZA mutual recognition agreements). The existing agreement is approved in the Civil Aviation (ANZA Mutual Recognition Agreement) Order 2007 (which is saved in clause 46 of Schedule 1).

These clauses—

  • recognise in New Zealand air operator certificates issued in Australia to air operators domiciled in Australia (Australian AOCs with ANZA privileges):

  • provide for the issue to air operators in New Zealand who are eligible to operate air services under the air services arrangements in place between Australia and New Zealand of air operator certificates that will authorise air operations to be conducted in Australia and be recognised in Australia (New Zealand AOCs with ANZA privileges).

Subpart 3—Powers of Director in relation to aviation documents

Clauses 96 to 101 replace sections 17 to 20 of the current Act. These clauses provide the Director with powers to suspend, impose conditions on, and revoke aviation documents. The differences from the current provisions are—

  • where the Director’s powers are currently exercisable if necessary in the interests of safety they are now exercisable if necessary in the interests of safety and security (see clauses 96(1) and 98(1) and (2)):

  • the Director cannot withdraw an existing condition on a document if the condition was imposed on national security grounds under clause 357:

  • clause 99(5) is new and provides that the Privacy Act 2020 does not prevent an agency from disclosing personal information to the Director in response to a request made by the Director under this clause. It is intended that this provision is an authority to share the information in terms of the Privacy Act 2020, particularly sections 24(1) and 170(a) of that Act:

  • clause 100 requires the Director to disclose prejudicial information to a person if the Director proposes to take the information into account when determining whether to take action under clause 96, 97, or 98. This requirement is subject to exceptions. The exceptions differ from those in section 19 of the current Act. Under section 19(6), the Director may decide not to disclose the information if the disclosure would be likely to endanger the safety of any person. In clause 100, the grounds are broadened so the Director may decide not to disclose the information if,—

    • in the case of non-disclosure to an individual of information about that individual, the Director could withhold the information under any of sections 49 to 53 of the Privacy Act 2020 had the information been requested by that individual under that Act; or

    • in any other case, the Director could withhold the information under section 6, 7, or 9 of the Official Information Act 1982 had the information been requested under that Act.

Clause 102 carries forward the provisions of sections 41 and 42D(3) of the current Act that allow the Director to suspend or revoke an aviation document in the case of unpaid fees, charges, or levies. The period of time after which a power to revoke the document arises from the unpaid fee, charge, or levy is reduced from 6 months to 4 months. The ability of the Director to decline to process an application or provide a service in the case of unpaid fees, charges, or levies is continued by clause 426.

Subpart 4—Offences relating to aviation documents

Clause 103 is an offence provision relating to where an aviation document holder causes unnecessary danger to persons or property. It replaces section 43 of the current Act but differs from that provision in the requirements about the state of mind of the person. Under this offence, the person must cause unnecessary danger and know, or be reckless as to whether, the danger will be caused.

Clause 104 makes it an offence to act without the necessary aviation document. It replaces section 46 of the current Act but, in addition to the existing coverage of that section, applies to the operation of an aerodrome without an aviation document.

Clause 105 replaces section 45 of the current Act and allows a court to disqualify a person from holding or obtaining an aviation document if the court convicts a person of an offence against—

  • clause 40 (operating aircraft in careless manner):

  • clause 41 (dangerous activity involving aircraft, aeronautical product, or aviation-related service):

  • clause 103 (endangerment caused by holder of aviation document).

Clause 106 makes it an offence to apply for or obtain an aviation document while disqualified. This clause replaces section 48 of the current Act but differs from that provision with the introduction of a “without reasonable excuse” element and a requirement that the person must know, or have proper notice, that they are disqualified.

Clause 107 is an offence provision relating to failing to disclose information relevant to the granting or holding of an aviation document. It replaces aspects of section 49 of the current Act. However, in relation to the new offence, there is a requirement that the person must know, or should know, that the information is relevant.

Clause 108 makes it an offence to conduct an air operation while in breach of the obligations under clause 86 (which relate to the obligations to provide the Director with evidence of an operator’s Australian air operator certificate with ANZA privileges and other details about the operator). This clause replaces section 46D of the current Act.

Subpart 5—Medical certification

Provisions relating to medical certification

Clause 109 provides that the provisions of Schedule 2 apply. These relate to medical certification. Schedule 2 replaces Part 2A of the current Act. The provisions are re-organised but substantially similar in effect to Part 2A, except that—

  • some changes are made in respect of the Director’s powers to issue a certificate relying on the concept of flexibility as set out in clause 5(4) of Schedule 2. In particular, the clause now deals with the circumstance where the Director is not satisfied as to whether or not the applicant meets the medical standards prescribed in the rules. It also refers to the Director exercising “judgment” rather than “medical judgment” to reflect the fact that there are a mixture of factors involved in the use of the flexibility test — not all of them medical factors:

  • general directions and emergency directives issued under clause 25 of Schedule 2 will no longer be notified in the Gazette (reflecting changes already proposed in the Secondary Legislation Act 2021 to the equivalent provisions in Part 2A of the current Act).

Offences relating to medical certification

Clause 110 is an offence provision relating to medical certification. It replaces section 46A of the current Act.

Clause 111 is an offence provision relating to making a fraudulent, misleading, or false statement in order to obtain a medical certificate. It replaces section 46B of the current Act with some changes to the requirements as to the state of mind of the person.

Clause 112 is an offence provision relating to failure to disclose medical information. It replaces section 46C of the current Act with some changes to the requirements as to the state of mind of the person.

Subpart 6—Drug and alcohol management plans and testing

Clauses 113 to 119 are new and provide for drug and alcohol testing as follows:

  • a DAMP operator as defined in clause 113 must have a drug and alcohol management plan (a DAMP):

  • the DAMP must provide for the testing of safety-sensitive workers (defined in clause 113) and must include a response plan for cases where the results of any test are non-negative:

  • a DAMP operator must ensure that random testing of safety-sensitive workers is carried out:

  • the Director may, in addition to any testing done by the DAMP operator, carry out drug or alcohol testing of safety sensitive workers of a DAMP operator:

  • if a safety-sensitive worker refuses to consent to random testing or Director testing, or if testing of the worker returns a non-negative result, the DAMP operator must—

    • prohibit the worker from performing safety-sensitive activities until the worker is able to safely perform those activities; and

    • implement the response plan:

  • if a person carrying out testing suspects on reasonable grounds that tampering has occurred, the test result must be treated as non-negative:

  • the test results are not admissible in criminal proceedings other than under the Bill or the Health and Safety at Work Act 2015.

Subpart 6 provides for a number of matters to be specified in rules, including the classes of person who are DAMP operators.

Part 5Aviation security

Subpart 1—Designations and security checks

Clause 120 is an interpretation provision.

Clause 121 provides that the Minister may confer a security designation on an aerodrome or navigation installation. There are various tier levels of security including Tier 1 and other levels that may be prescribed in the rules. The clause also provides that the responsibility for aviation security at a security designated aerodrome or navigation installation rests with the Police and the authorised aviation security provider(s) at the aerodrome or navigation installation.

Airside security areas

Clause 122 provides for the Director to designate airside security areas within any security designated aerodrome or security designated navigation installation. Airside security areas are provided for in section 84 of the current Act.

Clauses 123 to 125 deal with the control of access to airside security areas.

Landside security areas

Clause 126 is new and provides for the Minister to declare that an area within any security designated aerodrome or security designated navigation installation is a landside security area. The implication of this is that aviation security searching powers under subpart 2 are available in that area.

Security checks of persons

Clauses 127 to 133 provide for security checks of persons for aviation security purposes. They replace sections 77G to 77I of the current Act. However, clause 127(5) is new and provides that the Privacy Act 2020 does not prevent an agency from disclosing personal information to the Director in response to a request made by the Director under this clause. This is intended to have the same effect as described in respect of clause 99(5).

Subpart 2—Aviation security services and aviation security powers

Provision of aviation security services

Clause 134 defines terms used in subpart 2.

Clause 135 sets out who may provide aviation security services. It replaces section 79(1) of the current Act but differs from that section in that it provides that an airline may provide aviation security services at a security designated aerodrome at which the airline is operating.

Clause 136 provides that the Minister must ensure that aviation security services are provided at all Tier 1 security designated aerodromes and at all security designated navigation installations.

Clause 137 sets out requirements for aviation security services providers other than AvSec. These requirements are that the provider—

  • must hold an aviation document for the services:

  • has only those functions and duties (being all or any of the functions and duties of AvSec) that are prescribed under the regulations or rules.

The requirement for AvSec (and its employees) to hold an aviation document for the provision of aviation security services is not carried forward. However, see clause 140.

Clause 138 replaces section 79A of the current Act but in a modified form. It provides that the Minister may by notice specify that only AvSec may provide aviation security services at all or any security designated aerodromes or security designated navigation installations.

Clause 139 sets out the functions and duties of AvSec. It replaces section 80 of the current Act but is focused on functions and duties. The specific search powers of aviation security officers are set out in clauses 142 to 145.

Clause 140 provides that the Director may require AvSec to comply with prescribed requirements that would apply to the holder of an aviation document for the provision of aviation security services.

Clause 141 requires the holder of an aviation document for an aviation security service to designate employees as aviation security officers. The powers to search in this subpart are conferred specifically on aviation security officers.

Searching powers at aerodromes and navigation installations

Clauses 142 to 145 set out the search powers of aviation security officers. These powers replace the powers under the current Act to conduct screening and searching at airports for aviation security purposes. The purpose of the search powers is to detect a relevant item or substance as defined in clause 134. The provisions of the current Act have been substantially rewritten with the aim of making them clearer. The powers are intended to correspond in substance with current powers, but with the following changes:

  • while all searches of a person are with consent (see clause 144), there is provision for searching of a thing without consent if it is found attended at an airport or in any case where there is an imminent risk to aviation safety and security that requires an immediate response (see clause 145). A thing includes a vehicle (see clause 134):

  • a passenger is taken for all purposes to consent to the searching of their hold baggage while it is being handled by the airline or inspected by a government agency prior to loading (see clause 144):

  • it is made clear that explosive detection dogs can be used as a searching tool by aviation security officers (see clause 159):

  • there is a new power for aviation security officers to search any person or thing immediately before entering, and while in, landside security areas declared under clause 126:

  • the current Act does not deal with the searching of electronic devices, but the Bill provides that the power of search does not authorise an aviation security officer or any other person to access data in a device or to access data that is not in a device (see clause 142).

The term search is used in the Bill when providing for aviation security officers’ powers. Under the current Act, both screening and searching are referred to, but both are a type of search as that term is understood. Referring just to searching is intended to make the provisions clearer and easier to understand. The concept of a screening point remains in the Bill as a useful tool for defining where (and who or what) can be searched.

Clause 146 authorises an aviation security officer to stop a vehicle in a security enhanced area for the purpose of searching.

Clause 147 is modelled on section 80E of the current Act but expanded to cover additional areas of an airport where a person might be required to be subject to a search but fail or refuse to be searched. That is, it applies to searching in, or immediately before entry into, landside security areas, sterile areas, and security enhanced areas. It sets out the powers of aviation security officers in this case. These include—

  • denying the person entry to the area or requiring the person to leave the area:

  • detaining the person if they refuse, or if the officer suspects an offence against the Aviation Crimes Act 1972 or that a search of the person or a thing in their possession will disclose evidence of such an offence.

Clause 148 is modelled on section 80F of the current Act but expanded to cover additional areas of an airport to which it applies. It sets out powers of a constable in relation to a person who has failed or refused to be searched when required in, or immediately before entry into, a landside security area, sterile area, or security enhanced area. The power applies if the constable suspects an offence against the Aviation Crimes Act 1972 or that there is evidence of such an offence. The constable has a power to search the person or things in their possession and to take possession of items or substances relevant to the Aviation Crimes Act 1972.

The power differs from the current Act in that it provides, in relation to a search of an electronic device, that a constable is not authorised to access data in the device or to access data not in the device.

Clause 149 provides that section 12(2) and (3) of the Aviation Crimes Act 1972 applies in respect of searching under subpart 2. The effect of this is that if a passenger declines to allow himself or herself or his or her baggage to be searched, the carrier must refuse to carry the passenger or the passenger’s baggage.

Dealing with item or substance suspected when searching

Clauses 150 and 151 apply where a relevant item or substance is suspected when searching under subpart 2 or section 12 of the Aviation Crimes Act 1972. They provide for an aviation security officer to verify whether the item or substance is a relevant item or substance and determine whether it may lawfully be carried on an aircraft or into the relevant security area. If there is no lawful authority or reasonable excuse for the item or substance to be carried on an aircraft or into the relevant security area, it may be dealt with as specified in clauses 150(4) and 151(3). These provisions are modelled on and replace the powers to seize and detain items and substances in sections 80B and 80C of the current Act.

Clause 152 is new and applies where an aviation security officer searching in, or immediately before an entry into, a landside security area, sterile area, or security enhanced area—

  • suspects the presence of a relevant item or substance; and

  • has reasonable grounds to believe it may pose an imminent risk to aviation safety and security.

The clause provides the powers for dealing with the item or substance.

Directions relating to searching

Clauses 153 to 156 replace sections 77A and 77B of the current Act. They enable the Minister (clauses 153 and 154) or the Director (clauses 155 and 156) to direct an authorised aviation security provider that all or any of the powers conferred on its aviation security officers by subpart 2 be used to detect any item or substance specified in the direction. The power to issue directions does not include a power to confer searching or seizure powers. It is a power to direct the use of powers set out elsewhere in subpart 2. However, a direction may specify certain items or substances to be searched for. This does expand the scope of what can be searched for in that once an item or substance is specified in a direction, it becomes a relevant item or substance (see paragraph (c) of the definition of relevant item or substance in clause 134). This is the same as the position under the current Act, but made clearer in the Bill.

It is proposed that directions under clauses 153 and 155 will (under regulations to be made for the purpose of section 74(1)(aa) of the Legislation Act 2019) be exempt from publication in respect of any material for which publication would prejudice the national security interests of New Zealand. This will replace the effect of section 77BA of the current Act. It is proposed that in some cases publication may hinder the preventative effects of any measures put in place to reduce threats to national security.

Under Part 5 of the Legislation Act 2019, directions under clauses 153 and 155 must be presented to the House of Representatives and are disallowable. However, this is subject to Schedule 3 of the Legislation Act 2019, which provides for exemptions from presentation requirements where compliance with presentation requirements would prejudice the national security interests of New Zealand.

Other rights and powers of aviation security officers

Clause 157 provides a right of access for an aviation security officer to a security designated aerodrome or security designated navigation installation. It is substantially the same as section 83 of the current Act.

Clause 158 provides that section 12(6) and (7) of the Aviation Crimes Act 1972 applies to searching under clause 142. This carries forward the position under sections 80B and 80C of the current Act.

Clause 159 is new and is intended to make it clear that aviation security officers may use aviation security dogs when searching under subpart 2, patrolling, or exercising any other function under the Bill.

Clause 160 is new. It provides for a government agency or carrier to alert aviation security if the agency or carrier detects an item or substance that has arrived in an incoming flight and that may be dangerous goods. The clause provides an aviation security officer with powers to investigate and deal with the item or substance.

Aviation Crimes Act 1972

Clause 161 provides for the relationship between subpart 2 and the Aviation Crimes Act 1972. Although there is a close relationship between these regimes, neither is intended to limit or affect the other except as expressly provided in subpart 2.

Powers of arrest

Clause 162 provides an aviation security officer with a power of arrest in respect of suspected crimes against the Aviation Crimes Act 1972 or section 45 of the Arms Act 1983. It is substantially the same as section 85 of the current Act.

Clause 163 replaces section 86 of the current Act. It sets out duties and powers of a constable concerning a person who has been arrested under clause 162 and delivered to the constable.

Powers of Police under this Act

Clause 164 replaces section 87 of the current Act and provides that a constable has all the powers that an aviation security officer has under civil aviation legislation.

Powers of members of Armed Forces when providing aviation security services

Clause 165 is new and confers the powers of an aviation security officer on a member of the Armed Forces authorised under the Defence Act 1990 to provide aviation security services.

Protection of aviation security officers

Clause 166 provides immunity from personal liability for an aviation security officer when taking any action under clauses 150 to 152 in good faith.

Subpart 3—Aviation security offences

Clause 167 is an offence provision relating to unauthorised presence in an airside security area or security enhanced area. It is similar to section 54 of the current Act.

Clause 168 is new and makes it an infringement offence to—

  • be present in an airside security area without being searched (where searching was required); or

  • be present in an airside security area or a security enhanced area without the required identification.

Clause 169 makes it an offence to impersonate an aviation security officer. It is substantially the same as the offence in section 55(1)(a) of the current Act.

Clause 170 makes it an offence to obstruct an aviation security officer or authorised security person (see clause 120). It replaces section 55(1)(b) of the current Act (which applies only to aviation security officers).

Clause 171 is new. It makes it an offence to threaten or assault an aviation security officer or authorised security person.

Clause 172 is new. It makes it an offence to obstruct or interfere with an aviation security dog.

Clause 173 is new. It makes it an offence to kill or injure an aviation security dog.

Clause 174 makes it an offence to provide false or misleading information, or to fail to disclose relevant information, for the purpose of a security check under clause 127. It replaces section 56A of the current Act.

Part 6International aviation

Subpart 1—International air services licensing

Subpart 1 relates to international air services licensing. It replaces Part 8A of the current Act with a number of changes.

Clause 175 defines terms used in subpart 1. There are new or amended definitions of capacity, class 1 non-scheduled commercial international flight, class 2 non-scheduled commercial international flight, New Zealand international airline, non-scheduled commercial international flight, restricted scheduled international air service, and scheduled international air service.

Licensing authority may determine that service is scheduled international air service

Clause 176 is new and provides that the licensing authority may determine in a particular case that a series of flights is a scheduled international air service. The criteria specified in the definition of scheduled international air service in Part 8A of the current Act are replaced by factors for the licensing authority to consider when making the determination under this clause. A person deciding whether an operation they wish to carry on is one to which clause 177 applies may request a determination prior to making an application. If the person applies for a licence the licensing authority may make the determination as part of considering the application.

Licence-related provisions

Clause 177 provides that a person who wishes to carry on in New Zealand any scheduled international air service must apply, in accordance with this Act, for a scheduled international air service licence. The provision in Part 8A of the current Act for open market aviation licences is not carried forward.

Clause 178 provides for the making of the application.

Clause 179 sets out when the licensing authority is the Minister and when it is the Secretary. This is substantially similar to the current Act.

Clause 180 provides that an application relating to a restricted scheduled international air service must be notified, and time provided for people to make submissions on the application.

Clause 181 sets out how the licensing authority must consider and determine the application.

Clause 182 provides that the licensing authority may grant the application (with or without conditions) or refuse the application.

Clause 183 provides for the duration of the licence to be as the licensing authority considers appropriate (including an indefinite term).

Clause 184 provides a process for the renewal of a licence. If the licence includes a restricted scheduled international air service for a New Zealand international airline, notification requirements apply.

Clause 185 provides for the variation of terms and conditions of a licence. The same considerations apply as for the granting of a licence with any necessary modifications (see clause 181(1)).

Clause 186 provides that the holder of a licence under this subpart may operate non-scheduled international flights without authorisation under clause 190.

Requirements on licensees

Clauses 187 and 188 set out requirements on licensees relating to insurance against liability and the making of returns.

Suspension and revocation of licences

Clause 189 provides for the suspension or revocation of a licence. It combines and replaces sections 87ZC and 87ZD of the current Act. Currently, a breach of conditions must be wilful to be grounds for revocation. Under this clause, any failure to comply with civil aviation legislation will be grounds for suspension or revocation.

Class 1 non-scheduled commercial international flights

Clause 190 provides that a class 1 non-scheduled commercial international flight must be approved by the Secretary and specifies criteria for the Secretary’s decision. Non-scheduled commercial international flights are divided into 2 categories (class 1 and class 2, see clause 175). A class 1 flight requires approval and a class 2 flight does not.

Miscellaneous provisions

Clause 191 provides that the operation of services to which this Part applies are subject to regulations and rules.

Clause 192 provides that subpart 1 is not in force in Tokelau.

Offences

Clause 193 provides that it is an offence to carry on a schedule international air service without a licence or contrary to the terms of a licence.

Clause 194 is an offence provision relating to operating an unauthorised non-scheduled international flight.

Subpart 2—International air carriage competition

Clauses 195 to 205 replace Part 9 of the current Act with some modifications. Also, section 89 of the current Act, which relates to the issue of commission regimes, is not carried over.

Clause 196 provides that a person may apply to the Minister for an authorisation under this subpart for a contract, arrangement, or understanding relating to the conduct by the person (in co-operation with other parties) of international carriage by air. The purpose of this would be to gain an approval by the Minister of a contract, arrangement, or understanding that might otherwise contravene certain provisions of the Commerce Act 1986.

Clause 197 provides for the giving of notice by the Minister in relation to an application. The Minister must invite written representations regarding the application.

Clauses 198 and 199 provide further for how the Minister may deal with the application.

Clause 200 contains the test to be applied by the Minister in relation to the application for approval. The test has been modified from that in Part 9 of the current Act for greater consistency with the test for restrictive trade practices in section 61(6) of the Commerce Act 1986.

Clause 201 provides that the Minister must give public notice of a proposed decision to grant or decline an authorisation and invite submissions.

Clause 202 requires the Minister to give public notice of the final decision on the application.

Clause 203 provides a power for the Minister to vary or revoke an authorisation in certain circumstances.

Clause 204 replaces section 90(1) of the current Act and allows the Minister to authorise a tariff (as defined in clause 195). The criteria in section 90(2) of the current Act are not carried over.

Clause 205 provides that certain provisions of the Commerce Act 1986 do not apply in respect of negotiations for, or provisions of, a contract, arrangement, or understanding relating to international carriage by air where an authorisation is given under subpart 2.

Subpart 3—Carbon offsetting and reduction scheme for international aviation (CORSIA)

Clauses 206 to 217 provide for New Zealand’s implementation of the carbon offsetting and reduction scheme for international aviation (CORSIA) set out in Volume IV of Annex 16 to the Convention. Subpart 3 provides that—

  • a New Zealand airline operator will be an “eligible New Zealand operator” if it operates internationally and those flights produce annual emissions of greater than a prescribed amount:

  • the operator will be required to have an emissions monitoring plan (see clause 208) and submit emissions reports to the Secretary for Transport (see clause 209):

  • the Secretary will calculate the offsetting requirements for the operator (see clause 211):

  • the operator must offset these using emissions units that meet ICAO criteria (as set out in Volume IV of Annex 16, chapter 4):

  • the operator must submit emissions unit cancellation reports to the Secretary.

Clause 216 provides that the Secretary may provide ICAO with information the Secretary holds in relation to administering this subpart.

Clause 217 provides offences for breaches by an eligible New Zealand operator of the requirements of this subpart.

Part 7Airports

Subpart 1—Interpretation

Clauses 218 and 219 define terms for the purpose of Part 7.

Subpart 2—Airport operators

Subpart 2 provides for a system of registration of airport operators and sets out the powers and obligations of those operators. It replaces the Airport Authorities Act 1966. That Act will be repealed after a transitional period of 5 years (see clause 474 and clauses 37 to 41 of Schedule 1).

Clause 220 requires the Secretary to maintain a register of airport operators and airports.

Clause 221 states that—

  • the operator of an aerodrome, or the proposed operator of an aerodrome not yet in operation, in which space is, or is to be, allocated to 1 or more relevant government agencies must apply to the Secretary to be registered:

  • the operator of any other aerodrome, or the proposed operator of any other aerodrome not yet in operation, may apply to be registered.

Clause 222 requires the Secretary to register the applicant if the Secretary is satisfied of the matters set out in subclause (1). The registration must specify the area of land covered by the registration.

Clause 223 provides that the airport operator may apply to the Secretary for the area of land covered by the registration to be varied.

Clause 224 provides that a registration may cover 2 or more airports.

Clause 225 provides for the grounds on which the Secretary may suspend or cancel a registration.

Clause 226 provides that an aerodrome operated by an airport operator must be operated as a commercial undertaking. This does not apply to an aerodrome that is a council-controlled organisation under the Local Government Act 2002 because the requirements of that Act would apply in that case.

Clause 227 provides that for the purposes of the Public Works Act 1981, an airport operated by an airport operator that is not a local authority must be treated as a Government work.

Clauses 228 to 230 are based on aspects of section 3A of the Airport Authorities Act 1966 concerning land and other property with some clarifications. They provide that—

  • the Crown or a local authority may transfer to an airport operator any land or other property that is part of the airport or being used, or held for future use, for the purposes of the airport:

  • the Reserves Act 1977 does not apply to the transfer but the approval of the Minister to the transfer is required in certain cases:

  • sections 40 to 42 of the Public Works Act 1981 do not apply to the transfer but, for the purpose of sections 40 and 41 of the Public Works Act 1981, the land is to be treated after the transfer as if the Crown holds it:

  • if the land is later sold, the chief executive of Land Information New Zealand will deal with matters concerning sections 40 and 41 of the Public Works Act 1981.

Clause 231 is based on sections 4A and 4B of the Airport Authorities Act 1966 and provides that an airport operator may set charges for the use of the airport or the services or facilities of the airport. It sets out consultation and other requirements.

Clause 232 provides that an airport operator must consult substantial customers (as defined in clause 219) about proposed capital expenditure relating to identified aerodrome activities (as defined in clause 218). This clause is based on sections 4C and 9B of the Airport Authorities Act 1966. The thresholds triggering the obligation to consult have been changed from a measure based on the value of the assets of an airport company to specified amounts based on the annual passenger movements of an airport operator.

Clause 233 is new and provides that an airport operator must consult substantial customers and relevant government agencies before approving a plan for future development of land or infrastructure at the airport.

Clause 234 provides that an airport operator may terminate a lease it has granted of buildings, installations, or land within the airport (as to the whole or part of the property leased) if the property is required for the purposes of the airport. This is subject only to the payment of compensation for improvements.

Clause 235 provides for the application of other legislation to airport subdivisions and laying out of access roads.

Clause 236 provides that an airport operator may make bylaws. The matters on which bylaws may be made are narrower than that under section 9 of the Airport Authorities Act 1966. In particular, the ability to regulate traffic and parking places is confined to roads other than those that would come within the definition of a road under the Land Transport Act 1998. Bylaws will no longer be approved by Order in Council.

Clause 237 provides for consultation requirements for the making of bylaws. It is modelled on section 22AD of the Land Transport Act 1998.

Clause 238 relates to the publication and proof of bylaws. It is modelled on section 22AE of the Land Transport Act 1998.

Clause 239 provides that the Minister may amend, replace, or disallow a bylaw in certain circumstances. This power is new and is modelled on section 22AC of the Land Transport Act 1998.

Clause 240 provides that a breach of a bylaw is an offence. There is also provision for these offences to be prescribed as infringement offences (see subpart 16 of Part 9).

Clause 241 gives effect to provisions in Schedule 3 about aerodromes operated as a joint venture by and between the Crown and another person.

Subpart 3—Enforceable regulatory undertakings

Clauses 242 to 251 are new and provide for the giving of enforceable regulatory undertakings by an airport operator regarding providing space or amenities for government agencies to exercise or carry out functions, powers, or duties at an airport (a space requirement).

Clause 242 provides that an operator must provide the Secretary with an enforceable regulatory undertaking if 1 or more space requirements apply in relation to the airport, or if the airport operator has been notified of a future intended space requirement. The purpose of the undertaking is to set out for the Secretary how the operator will meet the space requirements.

Clause 243 sets out requirements for the operator to consult with the relevant government agencies and the time within which the undertaking must be given.

Clause 244 provides for the decision of the Secretary on the undertaking.

Clause 245 specifies the date on which an undertaking becomes enforceable.

Clause 246 requires the airport operator to review an undertaking.

Clauses 247 to 251 provide various methods of enforcement of an undertaking.

Subpart 4—Exemptions from requirements of subparts 2 and 3

Clause 252 is new and authorises the Secretary to exempt an airport operator or class of airport operator from certain requirements of subparts 2 and 3.

Subpart 5—Sale of alcohol at international airports

Clause 253 replaces section 98 of the current Act dealing with the sale of alcohol at international airports.

Part 8International and domestic carriage of passengers and goods by air

Subpart 1—Additional purpose of Part

Clause 254 sets out an additional purpose of the Bill relating to Part 8.

Subpart 2—International carriage by air

Clauses 255 to 269 replace Part 9A of the current Act implementing international conventions relating to documents of carriage and rules of liability in relation to international carriage by air. The provisions are substantially the same as Part 9A except that provision is made for the possibility of a claim being pursued in the Disputes Tribunal except in any matter relating to liability for passenger injury or death.

Subpart 3—Domestic carriage by air

Clauses 270 to 284 replace Part 9B of the current Act providing for liability for damage caused by delay in relation to domestic carriage by air. The provisions are substantially the same as Part 9B except that—

  • provision is made for the possibility of a claim being pursued in the Disputes Tribunal:

  • provision is made for regulations to specify types of flights that are excluded from the application of subpart 2 (see clause 273):

  • certain provisions of sections 91X, 91ZE, and 91ZF of the current Act relating to the liability of a carrier for its employees are omitted as unnecessary:

  • section 91ZB of the current Act is not carried forward because it is unnecessary:

  • it is clarified that although a contract must not provide for liability that is lower than that provided for under this subpart, it may provide for more advantageous remedies.

Part 9Monitoring, investigation, and enforcement

Subpart 1—Powers of entry and inspection

Clause 285 is a power of entry and inspection. An inspector appointed by the Director (see subpart 7) may enter and inspect an aviation place. The power is available for the purpose of performing any function of the Director or the CAA, or for the purposes of the ANZA mutual recognition agreements. It is modelled on section 168 of the Health and Safety at Work Act 2015 (as are most of the provisions in subpart 1) and replaces the power of inspection in section 15(2) of the current Act. The new clause includes the power to take photographs, require the production of information, and require the making of statements. It is not necessary for the inspector to be physically present at the aviation place to do the inspection (see subclause (2)). The power is also available in respect of a place that was, but is no longer, an aviation place.

Clause 286 provides that the power of entry and inspection must not be used in a home or marae unless a warrant to enter the home or marae for that purpose is first obtained.

Clause 287 requires the inspector to leave notice of entry at the place if the inspector is unable to find any person in charge at the place.

Clause 288 applies where an inspector exercises the power of entry under clause 285 or 286. It provides that the inspector may take samples or seize and retain certain things for the purposes set out in subclause (1).

Clause 289 provides that the Director may authorise a person to enter and search a place, vehicle, or other thing for the purpose of finding evidence of a suspected contravention of civil aviation legislation. The entry and search may be done with consent or under a warrant.

Clause 290 provides that an inspector who finds evidence of a contravention of civil aviation legislation while exercising powers under clause 285 or 286 is not required to obtain a search warrant in order to continue exercising those powers.

Clause 291 replaces section 24(3A) of the current Act and provides that the powers under clauses 283 and 287 cannot be used to access a cockpit voice recording or cockpit video recording.

Clause 292 enables an inspector to direct that an aviation participant or person in charge of an aviation place undergo or conduct examinations, tests, inquiries, inspection, or monitoring. For example, an inspector may require an aviation participant to undergo monitoring or testing by a person other than the inspector or require the aviation participant to do testing and monitoring themselves. This clause replaces section 15(1) of the current Act.

Clause 293 is a power for an inspector to require a person’s identifying details.

Clause 294 provides that an aviation participant has a duty to assist an inspector exercising powers in inspection, etc.

Clause 295 provides immunity from liability for an inspector or a person assisting an inspector in the course of exercising powers under the Bill.

Clause 296 makes it an offence for a person to fail to provide their identifying details when required.

Clause 297 makes it an offence to hinder or obstruct an inspector.

Clause 298 makes it an offence to impersonate an inspector.

Clause 299 makes it an offence to fail to comply with an inspection or monitoring requirement imposed under clause 292.

Subpart 2—Improvement notices and non-disturbance notices

Improvement notices

Clauses 300 to 303 are new and provide that an inspector may issue an improvement notice. The purpose of an improvement notice is to require a person to take specific action to remedy or prevent a contravention of civil aviation legislation. It is an offence to fail to comply with the notice.

Non-disturbance notices

Clauses 304 to 307 are new and provide that an inspector may issue a non-disturbance notice. The purpose of a non-disturbance notice is to preserve, or prevent disturbance of, a site at which a notifiable event (see clause 305(5)) has occurred or in any other circumstance. The notice must specify the non-disturbance measures to be taken. It is an offence to fail to comply with the notice.

General provisions

Clauses 308 to 314 are general provisions about notices, including requirements about how they are issued, varied, or cancelled. Clause 313 requires a person to whom the notice is issued to display it at the place to which it relates.

Subpart 3—Detention, seizure, prohibitions, or conditions in relation to aircraft, aerodrome, or aeronautical product

Clauses 315 to 317 are substantially similar to section 21 of the current Act. Clause 315 provides that the Director or other specified person (as defined in clause 289) may apply for a warrant to—

  • prohibit or impose conditions on the operation or use of an aerodrome:

  • detain an aircraft or any aircraft of a particular class:

  • seize an aeronautical product or any aeronautical products of a particular class:

  • prohibit or impose conditions on the operation of an aircraft or aircraft of a particular class:

  • prohibit or impose conditions on the use of any aeronautical product or any aeronautical products of a particular class.

Clause 316 provides that the Director may, without warrant, exercise similar powers to those in clause 315 in cases where prompt action is necessary to prevent danger. The powers available under this clause are more focused on conditions controlling the operation or use of an aerodrome, aircraft, or aeronautical product.

Clause 317 provides that any detention or seizure under clause 315 or 316 may be maintained for only as long as necessary in the interests of safety and security.

Subpart 4—Seizure, etc, of aircraft without person on board

Clause 318 is new and applies to an aircraft that is designed to be operated without a person on board (a remotely piloted or autonomous aircraft). It applies if a constable or a response officer (an officer appointed for the purpose of subpart 4) believes that—

  • an aircraft that is designed to be operated without a pilot on board is being, or is about to be,—

    • operated in the commission of an offence under civil aviation legislation; or

    • used in the commission of an imprisonable offence under any other Act; or

    • operated in a manner that may endanger people or property; and

  • it is necessary to take action to prevent the offending from being committed or continuing, or to avert the danger; and

  • the aircraft has no person on board.

Clause 318(2) confers powers to deal with the aircraft. These include preventing it from taking off, seizing it, or destroying it.

Clause 319 requires that entry into a home or marae to exercise the powers in clause 318 may be done only under warrant.

Clause 320 provides that reasonable means may be used to bring the aircraft under control.

Clause 321 provides that reasons must be given for detention, seizure, or destruction of an aircraft under clause 318.

Clause 322 provides that any detention or seizure under clause 318 may be maintained for only as long as the constable or response officer considers necessary to prevent the danger to people or property or the commission of an offence.

Clause 323 provides immunity from liability for a constable or response officer for acts done in the course of exercising powers under clause 318.

Subpart 5—Exemptions from compliance with regulations and rules

Clauses 324 and 325 are modelled on the power of exemption conferred on the Director of Land Transport under section 168D of the Land Transport Act 1998. Clause 324 provides a power for the Director of Civil Aviation to grant individual or class exemptions from requirements of regulations and rules. The Director must be satisfied of the matters in clause 324(3) before granting the exemption. The power to exempt from requirements of a rule is not available if the rule provides that no exemptions from its requirements may be granted. The power to exempt from requirements of a regulation is available only if the regulations specify that the exemption power under this clause is available.

Subpart 6—Enforceable undertakings

Clauses 326 to 332 are modelled on sections 123 to 129 of the Health and Safety at Work Act 2015. Clause 326 enables a person to give a written enforceable undertaking to the regulator in respect of a contravention or alleged contravention of civil aviation legislation. The giving of an undertaking is not an admission of guilt (clause 326(3)). An enforceable undertaking is voluntarily given, and provides the Director with a discretion whether to accept or reject the undertaking see clause 327. Clauses 331 and 332 deal with the withdrawal or variation of an undertaking and the enforcement of an undertaking.

Subpart 7—Inspectors and response officers

Clause 333 to 338 provide for the Director to appoint inspectors and response officers.

Subpart 8—Powers of entry of Airways

Clauses 339 and 340 replace section 25 of the current Act relating to a power of entry for Airways. Airways is authorised to enter onto any land to access, inspect, repair, and maintain equipment installed before January 1988.

Subpart 9—Protections in relation to accident and incident notifications under subpart 5 of Part 2

Clauses 341 to 343 are new.

Clause 342 provides protections on the admissibility of accident and incident notifications as follows:

  • an accident notification under clause 49(1) or (4) is not admissible in a criminal proceeding against the individual who provided the notification:

  • an accident notification under clause 49(3) is not admissible in a criminal proceeding against the individual who directly or indirectly (see clause 342(2)(b)) provided it.

However, neither protection applies if the criminal proceeding concerns the falsity of the information.

Clause 343 confers qualified protection from offence proceedings (see the definition of law enforcement action in clause 341) for a person who directly or indirectly (see clause 341(2)(a)(ii)) provides an incident notification under clause 49(3). The Director may take law enforcement action against the person in relation to the incident only if the Director is satisfied that the public interest in taking action in the circumstances outweighs any adverse impact that the proceeding will have on further accident or incident notifications. Clause 343(2) provides that certain matters (eg, recklessly causing unnecessary danger or repeated behaviour causing unnecessary danger) will justify prosecution under the public interest test.

Subpart 10—Protection of flight data recording from use in criminal proceedings against flight crew

Clauses 344 to 346 are new and have no counterpart in the current Act. The provisions are modelled on the protection provided for cockpit voice and video recordings under Part 3 of the Transport Accident Investigation Commission Act 1990 (which implemented paragraph 5.12 of Annex 13 of the Convention relating to the protection of accident and incident investigation records).

Clause 344 defines flight data recorder and flight data recording.

Clause 345 provides that a flight data recording from an aircraft is not admissible against a member of the flight crew of the aircraft in any criminal proceedings under the Bill or under any other Act. This is subject to an order of a court that the evidence is admissible, applying the test in clause 345(3). Unlike the regime for cockpit voice and video recordings, the jurisdiction to order that a flight data recording be admitted as evidence is not confined to the High Court.

The ability to obtain cockpit voice recordings and cockpit video recordings is restricted (see clause 291 and sections 14C and 14P of the Transport Accident Investigation Commission Act 1990). These limits do not apply to the flight data recordings to which clauses 344 and 345 apply.

Clause 346 provides that subpart 10 does not limit or affect the application of Part 3 of the Transport Accident Investigation Commission Act 1990 in relation to a cockpit voice recording or cockpit video recording.

Subpart 11—Disqualification

Clauses 347 to 352 are substantially similar to sections 59 to 64 of the current Act. These clauses—

  • provide machinery provisions dealing with the situation where the holder of an aviation document is disqualified by a court from holding or obtaining an aviation document:

  • deal with appeals against disqualification.

Subpart 12—Injunctions

Clauses 353 to 356 are new. They provide for a court to grant an injunction—

  • restraining a person from engaging in conduct that constitutes or would constitute a breach of civil aviation legislation:

  • requiring a person to do an act or thing if—

    • the person has refused or failed, or is refusing or failing, or is proposing to refuse or fail to do that act or thing; and

    • the refusal or failure was, is, or would be a breach of civil aviation legislation.

The injunction may be on an application made by the Director, the Secretary, or any other person.

Subpart 13—Powers of Minister to intervene on grounds of national security

Clauses 357 to 363 are new. Clause 357 provides that the Minister, on the grounds of national security, may—

  • direct that an application for an aviation document specified in the rules as requiring a national security assessment not be granted (see clause 74); or

  • direct that restrictions or conditions be imposed on an aviation document issued to a person under this Act; or

  • disqualify a person from holding or obtaining an aviation document or a particular aviation document; or

  • prohibit a person from operating, maintaining, servicing, or doing any other act in respect of any aircraft, aerodrome, aeronautical product, or aviation-related service.

Clause 358 requires reasons to be given for the Minister’s decision. Clause 359 provides that a person about whom a notice is given may make a complaint in accordance with section 171 of the Intelligence and Security Act 2017 about any advice given by an intelligence and security agency to the Minister. If the notice relates to a matter on which there is also a right of appeal (eg, where it relates to the granting of an aviation document), the review mechanism in this clause applies in respect of the notice by the Minister under clause 357. There is no right of appeal to a court in respect of the advice given to the Minister.

Clauses 360 to 362 provide for the effects of an order by the Minister under clause 357 disqualifying a person from holding or obtaining an aviation document.

Clause 363 is an offence provision relating to compliance with a notice given by the Minister under clause 357.

Subpart 14—General offences

Clause 364 creates an offence relating to communicating false or misleading information to the Secretary, the CAA, or the Director. It replaces the offence in section 49(1)(a) of the current Act. This offence now also applies to information given to the Secretary.

Clause 365 makes it an offence to obstruct or impede an inspector or other person authorised by the Director or the Secretary. This offence replaces section 50 of the current Act but differs in that the new offence applies only if the person intended to obstruct or impede. It now also applies to obstructing or impeding a person appointed by the Secretary.

Clause 366 is an offence relating to disobeying a direction not to enter an area in which technical facilities for civil aviation are operated. It replaces section 51 of the current Act.

Clause 367 creates an offence for contravening any requirement in or under the Bill to maintain (or provide) accurate records. It replaces section 52 of the current Act.

Clause 368 creates an offence for failure to obey an emergency rule or a prohibition or condition imposed by the Director under clause 315 or 316. It replaces section 53 of the current Act.

Clause 369 makes it an offence for a person to operate a New Zealand registered aircraft, or a New Zealand person to operate any aircraft, in a flight over a foreign country or territory without authority or for an improper purpose. It replaces section 53A of the current Act.

Subpart 15—Additional penalty for offences involving commercial gain

Clause 370 provides a court with power to order an additional penalty when convicting a person for certain offences (listed in clause 370(1)) where the offence was committed in the course of producing a commercial gain. It replaces section 47 of the current Act.

Subpart 16—Infringement offences

Clauses 371 to 379 prescribe the grounds for issuing an infringement notice for an infringement offence (see clause 375) and set out other provisions relating to the infringement offences under the Act. Generally, the Director or a person authorised by the Director will issue infringement notices. However, provision is also made for a person authorised by an airport operator to issue infringement notices for any infringement offences against airport bylaws (see clauses 234, 370, and 408(1)(d)).

Subpart 17—Charging documents and burden of proof

Clauses 380 and 381 provide time limitation rules for the bringing of prosecutions under the Bill by the Director. They replace section 65 of the current Act but are modelled on sections 146 and 147 of the Health and Safety at Work Act 2015 and contain a number of changes. The limitation period under section 65 of the current Act (for any prosecution, not just one by the Director) is 12 months after the date on which the offence was committed. The limitation period in the Bill applies only to proceedings brought by the Director and is 12 months from after the date on which the incident, situation, or set of circumstances to which the offence relates first became known, or ought reasonably to have become known, to the Director. Clause 380 also provides a specific limitation period for the bringing of a prosecution where an enforceable undertaking has been given in relation to the offence. Clause 381 allows the Director to apply to the District Court for an extension of the 12-month limitation period. The test the court must apply is in clause 381(3).

For a prosecution brought by a person other than the Director, section 25 of the Criminal Procedure 2011 would apply.

Clause 382 applies to certain specified offences (including the large number of offences created by regulations made under clause 408). It provides that any exception, exemption, proviso, excuse, or qualification the defendant may seek to invoke in respect of those offences must be proved by the defendant. This clause replaces sections 65AA and 100A of the current Act.

Subpart 18—Evidence and proof

Clauses 383 to 385 relate to matters of evidence and proof in offence-related proceedings and the proof of rules. They replace section 71 of the current Act.

Subpart 19—General provisions relating to proceedings

Clauses 386 and 387 are modelled on sections 160 and 161 of the Health and Safety at Work Act 2015. They relate to the attribution to an individual or other legal person of the state of mind, or conduct, of their employees or agents.

Subpart 20—Unruly passenger offences

Clauses 388 to 407 carry over the provisions in the current Act relating to prohibited conduct of passengers on aircraft. The offences themselves (see clauses 393 to 402) are substantially similar to the existing offences in Part 5A of the current Act except—

  • requirements as to the state of mind of the person have been changed in the offence relating to interference with an aircraft (see clause 397):

  • the offence of smoking on board an aircraft is extended to prohibit vaping.

The penalties for, and procedure for dealing with, unruly passenger offences are substantially the same as in the current Act.

Part 10Regulations and miscellaneous provisions

Subpart 1—Regulations

Subpart 1 contains regulation-making powers relating to—

  • creating offences for breaches of rules and airport bylaws and prescribing other miscellaneous matters:

  • the carbon offsetting and reduction scheme for international aviation (CORSIA):

  • requiring information from aviation participants:

  • requiring disclosure of information by specified aviation participants:

  • international carriage by air and the Montreal Convention:

  • fees, charges, and levies:

  • the control of the sale of alcohol at international airports:

  • transitional matters relating to the coming into force of the Bill.

Some of these regulation-making powers are new and others replace existing regulation-making powers.

There is power to impose levies in sections 42A to 42D of the current Act, but there are some changes in the Bill relating to levies, including the following:

  • the purposes for which levies may be imposed now include the purpose of enabling the carrying out of the Secretary’s functions under the Bill (as well as the existing purpose of enabling funding of the Authority’s functions):

  • levies may be imposed not just on those who are required to hold an aviation document but on any category of persons:

  • levy orders are not confirmable instruments:

  • there is a new power for the Director to audit levy returns:

  • the offences in clause 423 (relating to failure to make returns about levies or making false or misleading returns) are new.

Clauses 424 to 426 replace sections 41(4) and 42 of the current Act relating to the recovery of fees, charges, and levies and the ability of the Director to decline to process an application or provide a service in the case of unpaid fees, charges, or levies.

Incorporation of material by reference in secondary legislation

Clause 429 provides that material may be incorporated by reference in secondary legislation made under the Bill. This clause replaces section 36 of the current Act, which provides for incorporation by reference in rules. This clause carries over the provision in the current Act for amendments to material incorporated by reference to be treated also as incorporated by reference without the need to specifically amend the secondary legislation. This aspect is different to the standard provisions for incorporation by reference that would apply under Part 2 of the Legislation Act 2019.

Subpart 2—Airworthiness directives

Clause 430 provides for the Director to issue airworthiness directives. It is substantially the same as the existing power in section 72I of the current Act.

Subpart 3—Transport instruments

Clauses 431 to 433 are new. They are modelled on similar provisions in the Land Transport Act 1998 and the Maritime Transport Act 1994. They provide for any matter that could be included in a regulation or rule to be dealt with in a transport instrument if the criteria in clause 431(1) are met. A transport instrument may be made by the Secretary or the Director (as specified in the regulation or rule providing for that transport instrument). Clause 433 specifies consultation requirements.

Subpart 4—Cape Town Convention and Aircraft Protocol

Clauses 434 to 443 carry forward sections 104 to 113 of the current Act relating to the Convention on International Interests in Mobile Equipment (the Cape Town Convention) and the protocol to that Convention specifically on aircraft equipment (the Aircraft Protocol). The Cape Town Convention and the Aircraft Protocol provide for a system of registration of interests held in aircraft and aircraft equipment, for example, lenders’ security interests and the interests of lessors of the property. The system is designed to facilitate the financing of the acquisition and use of aircraft and equipment by protecting the interests of those financing it. The registration system is administered in New Zealand by the Director.

Copies of New Zealand’s declarations under the Cape Town Convention and the Aircraft Protocol may, under clause 437, be issued by Order in Council. An order under that clause is exempt from the disallowance under the Legislation Act 2019 (see Schedule 3 of that Act as amended by Schedule 9 of the Bill). An existing order, the Civil Aviation (Cape Town Convention and Aircraft Protocol Declarations) Order 2010, is carried over by the Bill (see clause 46 of Schedule 1).

Subpart 5—Rights of appeal

Clauses 444 to 448 carry forward sections 66 to 70 of the current Act relating to appeals. A person may appeal to the District Court against a specified decision (see clause 444(3)) if another clause in the Bill gives the person a right of appeal.

Subpart 6—Other miscellaneous provisions

Delegations

Clauses 449 to 455 relate to powers of delegation. They replace sections 22 to 23C of the current Act.

Disclosure or publication of information by CAA and information sharing by CAA

Clauses 456 and 457 are new. They are modelled on sections 109A and 109B of the Land Transport Management Act 2003. Clause 456 allows the CAA, in the circumstances set out in the clause, to publish or disclose information it obtains or a document it gains access to in performing or exercising any function, duty, or power under civil aviation legislation. Clause 457 allows the CAA to share information with a designated agency or an overseas agency (see clause 457(6)) if the CAA thinks the information may assist the agency in the performance or exercise of the designated agency’s functions, duties, or powers.

Subpart 7—Consequential and other amendments, repeals, and revocations

Amendments to Airport Authorities Act 1966

Clauses 458 to 461 make amendments to the Airport Authorities Act 1966 that will apply until its repeal by clause 474. Section 3 of the Airport Authorities Act 1966 (providing for the approval of airport authorities) is repealed (see clause 459). The power of an airport authority to make bylaws about traffic and parking is narrowed. It will no longer apply to areas of the airport that are roads as defined in section 2(1) of the Land Transport Act 1998 (see clause 460). However, existing airport bylaws will not be affected by this restriction (see clauses 40 and 41 of Schedule 1). A new regulation-making power is added to the Act. This will authorise regulations to provide that a breach of an airport bylaw is an infringement offence. This is intended to provide a power equivalent to that in clause 408(1)(d) of the Bill for bylaws made under clause 236.

Amendments to Aviation Crimes Act 1972

Clauses 462 to 464 amend the Aviation Crimes Act 1972 to make it an offence to,—

  • without lawful authority or reasonable excuse, take an item or substance specified in section 11(1) of that Act into a landside security area:

  • take into a landside security area an item described in section 11(1B) of that Act with the intention of committing a crime against that Act.

Amendments to Maritime Transport Act 1994

Clauses 465 to 467 move provisions in the current Act concerning the provision of search and rescue facilities into the Maritime Transport Act 1994

Amendment to Transport Accident Investigation Commission Act 1990

Clauses 468 and 469 insert definitions into the Transport Accident Investigation Commission Act 1990. Part 3 of that Act confers protections from disclosure and admissibility in proceedings in respect of cockpit voice recordings and cockpit video recordings. These terms are currently not defined in the Transport Accident Investigation Commission Act 1990. The new definitions are intended to clarify the kinds of recordings the protections apply to in order to preserve the intent of Part 3 (and Annex 13 of the Convention that it implements). Devices such as phones that may happen to be used in the cockpit to make recordings are not intended to be protected.

Amendments to Public Works Act 1981

Clauses 470 and 471 amend the Public Works Act 1981 to clarify how the offer back provisions of that Act work where land used by an airport is no longer required for a public work and is offered back to the previous owners in accordance with that Act. The intention is that the process operate as for a local work only where the airport is operated by a local authority.

Consequential amendments

Clause 472 makes consequential amendments to other legislation.

Repeals

Clause 473 provides for the repeal of the current Act.

Clause 474 provides for the repeal of the Airport Authorities Act 1966 on the 5th anniversary of the date of the repeal of the current Act.

Revocations

Clause 475 revokes secondary legislation made under the current Act. This includes the ordinary rules, which will be remade under the Bill in accordance with clauses 8 to 10 of Schedule 1.

Part 11In-flight security

Part 11 and Schedule 10 replace, with some changes to clarify the intent, provisions of the Civil Aviation Amendment Act 2007 relating to in-flight security officers. These provisions have not been brought into force. It is intended that Part 11 and Schedule 10 be divided into a separate Bill at the committee of the whole House stage. The provisions will come into force on a date to be appointed by Order in Council.

Hon Michael Wood

Civil Aviation Bill

Government Bill

61—1

Contents

Explanatory note
1Title
2Commencement
3Main purpose
4Additional purposes
5Interpretation
6Meaning of accident
7Meaning of aviation place
8Meaning of officer
9Application of civil aviation legislation
10Transitional, savings, and related provisions
11Act binds the Crown
12Overview
13General requirements for aviation participants
14Duties of pilot-in-command
15Duties of pilot-in-command in emergencies arising in flight
16Duties of pilot-in-command and operator in emergencies not arising in flight
17Failure to notify emergency breach of civil aviation legislation
18Identification of pilot-in-command
19Failure to provide identifying information
20Civil Aviation Authority of New Zealand continued
21Board of CAA
22Objective of CAA
23Functions of CAA
24Duties of CAA in relation to search and rescue
25CAA to maintain separate accounts in respect of AvSec
26CAA to consider delegating or contracting out of functions and powers
27CAA must adopt and publish regulatory strategy
28Engagement charter
29Use of words Civil Aviation Authority or CAA
30Use of words Aviation Security Service or AvSec
31Director of Civil Aviation
32Functions and powers of Director
33Acting Director of Civil Aviation
34Regulatory functions, duties, and powers of Secretary
35Airways may be sole provider of certain airways services
36New Zealand Register of Aircraft
37Requirement to register aircraft
38Civil Aviation Records
39Information services
40Operating aircraft in careless manner
41Dangerous activity involving aircraft, aeronautical product, or aviation-related service
42Operating aircraft in controlled airspace or restricted area without authorisation
43Communicating false information affecting safety
44Nuisance and trespass
45Responsibility for damage
46Circumstances in which owner entitled to be indemnified for responsibility for damage
47Responsibility for damage by descent by parachute
48Claim against Crown in respect of damage, loss, or injury due to service aircraft
49Duty to notify accidents and incidents to CAA
50Duty of CAA to notify accidents and incidents to TAIC
51Failure to notify accident or incident
52Power of Minister to make rules
53Rules relating to designation, classification, and certification
54Rules relating to standards, specifications, restrictions, and licensing requirements
55Rules relating to aviation documents
56Rules relating to safety and security
57Rules relating to airspace
58Rules for noise abatement purposes
59Rules relating to national security
60Rules relating to other matters
61Procedure for making rules
62Requirements relating to content of rules made by Minister
63Governor-General may make rules
64Provisions concerning rules made by Minister or Governor-General
65Rule prevails over bylaw if bylaw inconsistent or repugnant
66Offences for breaches of rules
67Power of Director to make emergency rules
68Procedures relating to rules made by Director
69Procedure for making emergency rules
70Duration of emergency rule
71Emergency rule prevails if inconsistent with rule made under subpart 1
72Criteria that Minister and Director must have regard to before making rules or emergency rules
73Application for aviation document
74Application requiring national security assessment
75Grant or renewal of aviation document
76Director may take into account foreign qualifications and certifications
77Condition of aviation document that holder, etc, continues to satisfy fit and proper person test
78Duration and conditions of aviation document
79Right of appeal
80Fit and proper person test
81Disclosure of prejudicial information
82Rights of persons affected by proposed adverse decisions
83Determination by Director as to whether to make adverse decision
84Powers of Director in relation to examinations, etc
85Additional purpose of subpart
86Holder of Australian Air Operator’s Certificate with ANZA privileges entitled to conduct air operations in New Zealand
87New Zealand temporary stop notice
88Contents of New Zealand temporary stop notice
89Director to notify CASA about New Zealand temporary stop notice
90Requirements for New Zealand AOCs with ANZA privileges
91Grant of New Zealand AOC with ANZA privileges
92Action by Director when CASA gives Australian temporary stop notice to holder of New Zealand AOC with ANZA privileges
93Change of country of certification
94Delegation of Australian powers relating to Australian AOCs with ANZA privileges to employees of CAA
95Failure to cease conducting air operations in New Zealand
96Director may suspend, or impose conditions on, aviation document
97Further provisions in relation to suspension of, or imposition of conditions on, aviation document
98Director may revoke, or impose permanent conditions on, aviation document
99Considerations relevant to decision about taking action under section 96, 97, or 98
100Obligations of Director in relation to disclosure or non-disclosure of information obtained under section 96, 97, or 98
101Further powers of Director to amend or revoke aviation document
102Suspension or revocation of aviation document if prescribed fees, charges, or levies unpaid
103Endangerment caused by holder of aviation document
104Acting without necessary aviation document
105Court may disqualify person from holding aviation document or impose conditions on aviation document
106Applying for aviation document while disqualified
107Failing to disclose information relevant to granting or holding of aviation document
108Failure to provide information to Director relating to Australian AOCs with ANZA privileges
109Medical certification
110Acting without required medical certificate
111Fraudulent, misleading, or false statements to obtain medical certificate
112Failure to disclose medical information
113Interpretation
114DAMP operator must develop DAMP
115Random testing by DAMP operator
116Director testing
117What happens if worker refuses consent or test result is not negative
118Tampering
119Test results only to be used in certain prosecutions
120Interpretation
121Security designated aerodromes and navigation installations
122Airside security areas
123Entry into airside security area
124Providing evidence of identity and authority
125Authorised security person may seize evidence of identity
126Landside security areas
127Director may carry out security checks
128Reconsideration of security check determination
129Review procedure for adverse security check determination
130Review procedure for adverse security check determination made wholly or partly on recommendation under Intelligence and Security Act 2017
131Consequences of final adverse security check determination
132Offence to carry out activity while authorisation withdrawn or after authorisation revoked
133Offence to fail to comply with Director’s requirement to withdraw or revoke authorisation
134Interpretation
135Aviation security service providers
136Responsibility of Minister
137Requirements for provider of aviation security services
138Minister may specify only AvSec to provide security at aerodrome or installation
139Functions and duties of AvSec
140Requirements for AvSec to comply with prescribed requirements for provision of aviation security services
141Person who holds aviation document for aviation security service must designate aviation security officers
142Searching powers of aviation security officers
143Requirements and incidental powers relating to manner of searching persons
144Consent requirements for searching
145Circumstances where consent to searching not required
146Power to require drivers to stop vehicles in security enhanced areas for searching
147Powers of aviation security officer in relation to person who is not searched or refuses consent to searching
148Powers of constable in relation to person who is not searched or refuses consent to searching
149Consequences for passenger of refusal to consent to searching
150Item or substance suspected entering into, or in, sterile area
151Item or substance suspected entering into, or in, landside security area or security enhanced area
152Items or substances suspected that may be imminent risk
153Power of Minister to require searching and seizing
154Further provisions in relation to direction by Minister
155Power of Director to require searching and seizing
156Further provisions in relation to direction by Director
157Right of access for aviation security officers
158Use of aids and devices for searching
159Use of dogs
160Power of aviation security officer to seize and detain dangerous goods detected by government agency or carrier
161Relationship of this subpart to Aviation Crimes Act 1972
162Power of arrest for crimes against Aviation Crimes Act 1972 or Arms Act 1983
163Arrest of persons delivered to Police
164Powers of Police
165Powers of members of Armed Forces when providing aviation security services
166Protection of aviation security officers
167Refusal to give particulars or to leave airside security area or security enhanced area
168Being present in security area without being searched or when not authorised
169Offence to impersonate aviation security officer
170Offence to obstruct aviation security officer or authorised security person
171Threatening or assaulting aviation security officer or authorised security person
172Obstruction or interference with aviation security dog
173Killing or injuring aviation security dog
174Security check offences
175Interpretation in this Part
176Licensing authority may determine whether service is scheduled international air service
177Licence for scheduled international air service
178Application for licence
179Licensing authority
180Notice of application for restricted scheduled international air service
181Consideration of application for scheduled international air service licence
182Grant of licence
183Duration of licence
184Renewal of licence
185Variation of terms and conditions of licence
186Holder of licence may operate non-scheduled international flights without authorisation under section 190
187Proof of insurance against liability
188Returns to be made
189Suspension and revocation of licences
190Class 1 non-scheduled commercial international flights must be authorised by Secretary
191Additional requirements of regulations and rules
192This subpart not in force in Tokelau
193Carrying on scheduled international air service without licence or contrary to licence
194Operating unauthorised non-scheduled commercial international flight or carrying on non-scheduled commercial international flight contrary to licence
195Interpretation in this subpart
196When person may apply for authorisation
197Actions following receipt of application for authorisation
198Further provisions relating to application for authorisation
199Powers of Minister to prohibit disclosure of information, documents, and evidence
200Minister may authorise international carriage by air
201Minister must notify proposed decision to grant or decline authorisation
202Minister must notify final decision to grant or decline authorisation
203Further powers of Minister in relation to authorisations
204Authorisation of tariffs by Minister in specified circumstances
205Application of Commerce Act 1986
206Interpretation
207Eligible New Zealand operator must provide contact details
208Emissions monitoring plan
209Emissions reports
210Secretary may determine emissions if eligible New Zealand operator fails to submit emissions report
211Calculation of offsetting requirements for eligible New Zealand operator
212Emissions unit cancellation reports
213Verification of reports
214Secretary may request emissions information from New Zealand operator
215Application of sections 208 to 214 subject to regulations about new entrants
216Sharing of information between Secretary and ICAO
217Offences relating to CORSIA
218Interpretation in this Part
219Meaning of substantial customer
220Secretary must maintain register of airport operators and airports
221Applications for registration
222When aerodrome operator may or must be registered
223Area covered by registration may be varied
224Registration may cover more than 1 airport
225Secretary may suspend or cancel registration
226Aerodrome to be operated commercially
227Airports to be public works
228Crown or local authority may transfer land or other property to airport operator
229Transfer of land to airport operator: application of Reserves Act 1977
230Transfer of land to airport operator: application of Public Works Act 1981
231Airport operators may set charges
232Airport operators must consult concerning capital expenditure plans
233Airport operators must consult concerning spatial plans
234Airport operators may vary leases in certain circumstances
235Application of other Acts to airport subdivisions and laying out of access roads
236Airport bylaws
237Consultation
238Publication and proof of bylaws
239Minister may amend, replace, or disallow bylaws
240Enforcement of bylaws
241Joint venture aerodromes
242Giving of enforceable regulatory undertaking by airport operator
243Consultation and timing requirements
244Decision and notification
245When enforceable regulatory undertaking is enforceable
246Review by airport operator of enforceable regulatory undertaking
247Compliance with enforceable regulatory undertaking
248Contravention of enforceable regulatory undertaking
249Secretary may make direction orders
250Secretary must give notice of orders made under section 249
251Consequences of failing to comply with direction orders
252Exemptions from requirements of subparts 2 and 3
253Sale of alcohol at international airports
254Additional purpose of Part
255Interpretation in this subpart
256Application of Guadalajara Convention
257Conventions to have force of law
258Inconsistency between French and English texts
259Fatal accidents
260Contributory negligence
261Limitation of liability
262Value of special drawing right
263Time for bringing proceedings
264Further provisions in relation to time for bringing proceedings
265Actions against High Contracting Parties
266Actions against Parties to Montreal Convention
267Designation of Parties
268Article 40A of amended Convention
269Power to exclude aircraft in use for military purposes
270Interpretation in this subpart
271Application of this subpart
272Combined carriage
273Exclusions
274Provisions if carriage performed by actual carrier
275Liability of carrier in respect of delay
276Provisions if carriage performed by successive carriers
277Avoidance of liability
278Limitation of liability
279Contracting out
280Wilful or reckless misconduct
281Just and equitable orders and awards
282Application of limitation on liability
283Relationship between carriers
284Limitation of actions
285Powers of entry and inspection
286Power to enter homes or marae
287Notice of entry
288Power to take samples and other objects and things
289Power to authorise making of applications for search warrants
290Continuation of powers of entry and inspection without search warrants
291Limitation relating to powers under sections 285 and 289
292Requirement to conduct or undergo examinations, tests, inquiries, inspections, or monitoring
293Power to require name, address, and date of birth
294Duty to assist inspectors
295Immunity of inspectors and persons assisting inspectors or Director
296Offence for failing to provide inspector with correct name, residential address, and date of birth
297Offence to hinder or obstruct inspector
298Offence to impersonate inspector
299Failure to comply with inspection or monitoring requirement
300Power to issue improvement notices
301Content of improvement notices
302Compliance with improvement notice
303Extension of time for compliance with improvement notices
304Power to issue non-disturbance notice
305Content of non-disturbance notice
306Compliance with non-disturbance notice
307Issue of subsequent non-disturbance notices
308General provisions relating to notices
309Changes to notice by inspector
310Director may vary or cancel notice
311Formal irregularities or defects in notice
312Issue of notice
313Display of notice at aviation place by person issued with notice
314Inspector may display notice
315Director or specified person may obtain search warrant to detain aircraft, seize aeronautical products, and impose prohibitions and conditions in relation to aerodromes, aircraft, and aeronautical products
316Director’s power to detain aircraft, seize aeronautical products, and impose prohibitions and conditions in relation to aerodromes, aircraft, and aeronautical products where prompt action necessary
317Obligations of Director if action taken under section 315 or 316
318Power to seize, detain, or destroy aircraft without person on board
319Power to enter homes or marae
320Provision relating to seizure or detention of aircraft in operation without a person on board
321Requirement to give reasons for action under section 318
322Provisions relating to seizure or detention of aircraft under section 318
323Immunities in relation to exercise of power under section 318
324Director may grant exemptions from compliance with regulations and rules
325General provisions relating to exemptions
326Director may accept enforceable undertakings
327Notice of decision and reasons for decision
328When enforceable undertaking is enforceable
329Compliance with enforceable undertaking
330Contravention of enforceable undertaking
331Withdrawal or variation of enforceable undertaking
332Proceedings for alleged contravention
333Appointment of inspectors
334Appointment of response officers
335Identity cards
336Suspension and ending of appointment of inspectors
337Inspectors subject to Director’s directions
338Director has powers of inspector and response officer
339Meaning of equipment for purposes of section 340
340Powers of entry of Airways
341Interpretation in this subpart
342Restriction on admissibility of accident and incident notifications
343When Director may take law enforcement action
344Interpretation
345Admissibility of flight data recording against flight crew in criminal proceedings
346Subpart does not limit or affect application of Part 3 of Transport Accident Investigation Commission Act 1990
347Effect of disqualification by court
348Commencement of period of disqualification
349Retention and custody of document
350Removal of disqualification
351Particulars of disqualification orders, etc, to be sent to Director
352Appeals against disqualification by court
353Court may grant injunctions
354When court may grant restraining injunctions
355When court may grant performance injunctions
356Undertaking as to damages not required by Director or Secretary
357Powers of Minister to intervene on grounds of national security
358Giving of notice and related matters
359Review procedure in relation to notice under section 357
360Effect of disqualification by Minister
361Commencement of period of disqualification by Minister
362Retention and custody of document following disqualification by Minister
363Offences relating to breach of notice given by Minister on national security grounds
364Communicating false or misleading information
365Obstruction of inspector or other person authorised by Director or Secretary
366Trespass
367Failure to maintain accurate records
368Breach of emergency rule, prohibition, or condition
369Flight over foreign country without authority or for improper purpose
370Additional penalty for offences involving commercial gain
371Interpretation
372Application of this subpart to offences for breach of airport bylaws
373Infringement offences
374Who may issue infringement notices
375When infringement notice may be issued
376Revocation of infringement notice before payment made
377What infringement notice must contain
378How infringement notice may be served
379Payment of infringement fees
380Limitation period for prosecutions brought by Director
381Extension of time if Director needs longer to decide whether to bring prosecution
382Burden of proof of exceptions, etc, for offences
383Evidence and proof in offence-related proceedings: aviation documents and New Zealand Register of Aircraft
384Evidence and proof in offence-related proceedings: other matters
385Evidence and proof of rule in any proceedings
386State of mind of employees and agents attributed
387Conduct of employees and agents attributed
388Interpretation in this subpart
389Application of this subpart
390Exercise of powers under this subpart
391Liability for offences against this subpart despite extraterritoriality
392Liability for offences under Summary Offences Act 1981 despite extraterritoriality
393Liability for offence on foreign aircraft outside New Zealand
394Proceedings for offences
395Passenger endangering safety
396Disruptive conduct towards crew member
397Interference with aircraft
398Intoxicated person on aircraft
399Non-compliance with commands given by pilot-in-command
400Offensive behaviour or words
401Portable electronic devices must not be operated
402Non-compliance with seating and safety belt instructions
403No smoking
404Dangerous goods
405Requirements relating to information and verification
406Consequences for failure to comply with requirements
407Modifications to infringement offence procedure under the Summary Proceedings Act 1957 for unruly passenger offence that is infringement offence
408Regulations
409Provisions relating to regulations generally
410Regulations relating to carbon offsetting and reduction scheme for international aviation
411Regulations relating to information disclosure by aviation participants
412Regulations requiring disclosure of information by specified aviation participants
413Information to be supplied by aviation participants to Secretary
414Offences in relation to information disclosure
415Regulations for international carriage by air
416Regulations relating to fees and charges
417Rebate of fees or charges
418Payment of fees and charges
419Governor-General may impose levies
420Basis on which levies may be imposed
421Other provisions relating to levies
422Director may audit levy returns
423Offences in relation to levy orders
424Recovery of fees, charges, and levies
425Recovery of fee, charge, or levy as debt due to Crown
426Processing application or providing service may be declined if fee, charge, or levy unpaid
427Regulations to control sale of alcohol at international airports
428Regulations providing for transitional matters
429Incorporation of material by reference in secondary legislation
430Airworthiness directives
431Regulations or rules may provide for transport instruments
432Specified person may make transport instruments
433Procedures relating to transport instruments
434Interpretation in this Part
435Cape Town Convention and Aircraft Protocol to have force of law
436Cape Town Convention and Aircraft Protocol to have effect in place of New Zealand law in certain circumstances
437Governor-General may issue copies of declarations
438Certificates about Contracting States
439Irrevocable deregistration and export request authorisations
440Deregistration requests
441Removal requests
442Director must prescribe and publish forms for requests
443Director must not exercise certain powers
444Appeal to District Court
445Consequences of appeal to District Court
446Further action of the Director after appeal determined
447Appeal to High Court on question of law
448Further appeal to Court of Appeal
449Delegation of certain functions of Minister to CAA
450Further provisions regarding delegation of Minister’s functions or powers to CAA
451Delegation of Director’s functions or powers to employees of CAA
452Further provisions regarding delegation of Director’s functions or powers to employees of CAA
453Delegation of Director’s functions or powers to persons outside CAA
454Further provisions regarding delegation of Director’s functions or powers to persons outside CAA
455Restrictions on delegations in relation to AvSec
456Disclosure or publication of information
457Sharing of information between CAA, designated agencies, and overseas agencies
458Principal Act
459Section 3 repealed (Airport authorities may establish and carry on airports)
460Section 9 amended (Bylaws)
461New section 9AAA inserted
9AAAInfringement offences for breach of bylaw
462Principal Act
463Section 2 amended (interpretation)
464Section 11 amended (Taking firearms, explosives, etc, on to aircraft or into sterile area or security enhanced area)
465Principal Act
466New sections 199 and 199A inserted
199Search and rescue operations
199AMinister may direct agencies with respect to search and rescue operations
467Section 431 amended (Functions of Authority)
468Principal Act
469Section 14A amended (Interpretation)
470Principal Act
471Section 2 amended (Interpretation)
472Consequential amendments
473Repeal of Civil Aviation Act 1990
474Repeal of Airport Authorities Act 1966
475Revocations
476Principal Act
477Commencement of this Part
478Section 5 amended (Interpretation)
479Section 56 amended (Rules relating to safety and security)
480New sections 163A and 163B and cross-heading inserted
163ADirector may approve firearms, weapons, ammunition, and other equipment for carriage and use by in-flight security officers
163BForeign in-flight security officers
481Amendments to other legislation

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Civil Aviation Act 2021.

2 Commencement

(1)

This Act comes into force on a date or dates to be appointed by the Governor-General by Order in Council.

(2)

However, any provision that has not earlier been brought into force comes into force on 30 June 2023.

(3)

Subsection (2) does not apply to Part 11, which comes into force as provided in section 477.

Part 1 Preliminary provisions

Purposes

3 Main purpose

The main purpose of this Act is a safe and secure civil aviation system.

4 Additional purposes

This Act has the following additional purposes:

(a)

to maintain, enhance, and promote a transport system that contributes to environmental sustainability, economic prosperity, inclusive access, healthy and safe people, and resilience and security:

(b)

to promote innovation, effectiveness, and efficiency in civil aviation:

(c)

to ensure that New Zealand’s obligations under international civil aviation conventions, agreements, and understandings are implemented:

(d)

to preserve New Zealand’s national security and national interests:

(e)

to take into account the adverse effects of civil aviation on the interests of people, property, and the environment.

Interpretation provisions

5 Interpretation

In this Act, unless the context otherwise requires,—

accident has the meaning given to it in section 6

accounting period, in Part 7, has the meaning given to it in section 218

accredited medical conclusion, in Schedule 2, has the meaning given to it in clause 1(1) of Schedule 2

accredited verification body, in subpart 3 of Part 6, has the meaning given to it in section 206

actual carrier, in subpart 3 of Part 8, has the meaning given to it in section 270

Additional Protocol, in subpart 2 of Part 8, has the meaning given to it in section 255

Additional Protocol No 1, in subpart 2 of Part 8, has the meaning given to it in section 255

Additional Protocol No 2, in subpart 2 of Part 8, has the meaning given to it in section 255

aerodrome

(a)

means any defined area of land or water intended or designed to be used, either wholly or partly, for the landing, departure, surface movement, or servicing of aircraft; and

(b)

includes any other areas, buildings, installations, and equipment that are on or adjacent to an area mentioned in paragraph (a) and that are used in connection with that area or its administration; and

(c)

where an airport operator is registered in respect of the aerodrome, includes any area included under section 222(3)(b)

aerodrome control service means an air traffic control service provided for the control of aerodrome traffic

aerodrome flight information service means a service provided for the purpose of giving advice and information useful for the safe and efficient conduct of flights in the vicinity of an aerodrome

aerodrome traffic means—

(a)

all traffic in the manoeuvring area of an aerodrome; and

(b)

all aircraft flying in the vicinity of an aerodrome

aerodrome traffic circuit means the pattern flown by aircraft operating in the vicinity of an aerodrome

aeronautical product means anything that comprises or is intended to comprise any part of an aircraft or that is or is intended to be installed in or fitted or supplied to an aircraft, including fuel and other similar consumable items necessary for the operation of the aircraft

air service means an air transport service, whether regular or casual

air traffic means all aircraft in flight or operating on any manoeuvring area of an aerodrome

air traffic control service

(a)

means a service provided for the purposes of—

(i)

preventing collisions between aircraft and between aircraft and obstructions on any manoeuvring area; and

(ii)

expediting and maintaining a safe and efficient flow of air traffic; and

(b)

includes—

(i)

an aerodrome control service:

(ii)

an area control service:

(iii)

an approach control service

air traffic service includes—

(a)

a flight information service:

(b)

an aerodrome flight information service:

(c)

an alerting service:

(d)

an air traffic control service

aircraft means any machine that can derive support in the atmosphere from the reactions of the air otherwise than by the reactions of the air against the surface of the earth

aircraft flying in the vicinity of an aerodrome means any aircraft that is in, entering, or leaving an aerodrome traffic circuit

Aircraft Protocol, in subpart 4 of Part 10, has the meaning given to it in section 434

airport means an aerodrome covered by a registration issued under section 222

airport operator means an aerodrome operator registered under section 222

airside security area means an area that the Director has declared to be an airside security area under section 122

Airways means Airways Corporation of New Zealand Limited, or any subsidiary of, or successor to, that company

alerting service means an air traffic service provided to notify appropriate organisations regarding aircraft in need of search and rescue aid, and to assist such organisations as required

amended Convention, in subpart 2 of Part 8, has the meaning given to it in section 255

ANZA means Australia New Zealand Aviation

ANZA mutual recognition agreements means the agreements or arrangements specified in regulations made under section 408(1)(j)

AOC means air operator’s certificate

applicant, in Schedule 2, has the meaning given to it in clause 1(1) of Schedule 2

approach control service means an air traffic control service for arriving or departing controlled flights

area control service means an air traffic control service provided for controlled flights in controlled airspace

attributed flight, in subpart 3 of Part 6, has the meaning given to it in section 206(1)

Australia means the Commonwealth of Australia and, when used in a geographical sense, includes any external territory of Australia

Australian AOC with ANZA privileges has the same meaning as in section 3 of the Civil Aviation Act 1988 (Aust), and Australian Air Operator’s Certificate with ANZA privileges has a corresponding meaning

Australian temporary stop notice has the same meaning as in section 3 of the Civil Aviation Act 1988 (Aust)

authorised aviation security service provider means AvSec and any other person referred to in section 135 who provides aviation security services in accordance with section 137

authorised security person, in subpart 1 of Part 5, has the meaning given to it in section 120

aviation document means any licence, permit, certificate, or other document issued under Part 4 to or in respect of any person, aircraft, aerodrome, aeronautical product, or aviation-related service

aviation examiner, in Schedule 2, has the meaning given to it in clause 1(1) of Schedule 2

aviation participant

(a)

means a person who—

(i)

operates, maintains, services, or does any other act in respect of an aircraft, aerodrome, or aeronautical product; or

(ii)

provides an aviation-related service; and

(b)

includes (without limitation)—

(i)

aircraft pilots:

(ii)

flight crew members:

(iii)

air traffic service personnel:

(iv)

aviation security personnel:

(v)

aviation examiners and medical examiners:

(vi)

aerodrome operators:

(vii)

aircraft engineers; and

(c)

includes a person referred to in section 37(1); and

(d)

includes the holder of an Australian AOC with ANZA privileges

aviation place has the meaning given to it in section 7

aviation-related service

(a)

means any equipment, facility, or service operated in support of or in conjunction with the civil aviation system, including—

(i)

air services:

(ii)

air traffic services:

(iii)

aviation security services:

(iv)

aviation meteorological services:

(v)

aviation communication services:

(vi)

navigation installation providers:

(vii)

aviation training organisations:

(viii)

aircraft design, manufacture, and maintenance organisations:

(ix)

the provision of aeronautical products:

(x)

aeronautical procedures:

(b)

excludes any service of TAIC

aviation security dog means a dog or other animal that is being used, or is intended for use, by an aviation security officer

aviation security officer means—

(a)

a person for the time being employed as such by the CAA in AvSec:

(b)

subject to section 141(2), a person designated as an aviation security officer under section 141(1):

(c)

when section 165 applies, a member of the Armed Forces

aviation security services means,—

(a)

in relation to AvSec, the functions and duties referred to in section 139(1)(a) to (g); and

(b)

in relation to any other person, the functions and duties given to them under section 137(2)(a)

AvSec means the Aviation Security Service provided under section 23(d)

bodily sample, in subpart 6 of Part 4, has the meaning given to it in section 113

CAA means the Civil Aviation Authority of New Zealand continued by section 20

capacity, in subparts 1 and 2 of Part 6 , has the meaning given to it in section 175

Cape Town Convention, in subpart 4 of Part 10, has the meaning given to it in section 434

carrier, in subpart 3 of Part 8, has the meaning given to it in section 270(1)

CASA means—

(a)

the Civil Aviation Safety Authority established by the Civil Aviation Act 1988 (Aust); and

(b)

any successor of that authority

civil aviation legislation means—

(a)

this Act; and

(b)

any secondary legislation made under this Act; and

(c)

in the case of a person holding an Australian AOC with ANZA privileges, the Civil Aviation Act 1988 (Aust) and regulations or orders made under that Act

Civil Aviation Records means the records maintained under section 38

class 1 non-scheduled commercial international flight, in subpart 1 of Part 6, has the meaning given to it in section 175

class 2 non-scheduled commercial international flight, in subpart 1 of Part 6, has the meaning given to it in section 175

contract, in subpart 3 of Part 8, has the meaning given to it in section 270

contracting carrier, in subpart 3 of Part 8, has the meaning given to it in section 270

Contracting State, in subpart 4 of Part 10, has the meaning given to it in section 434

controlled airspace means an airspace of defined dimensions within which an air traffic control service is provided to controlled flights

controlled flight means any flight that is provided with, or required under the rules to make use of, an air traffic control service

convener, in Schedule 2, has the meaning given to it in clause 1(1) of Schedule 2

Convention means the Convention on International Civil Aviation done at Chicago on 7 December 1944, and includes the Annexes to the Convention, which contain the International Standards and Recommended Practices adopted or amended by the Council of the International Civil Aviation Organization in accordance with Articles 54, 37, and 90 of the Convention

court,—

(a)

in subpart 2 of Part 8, has the meaning given to it in section 255

(b)

in subpart 3 of Part 8, has the meaning given to it in section 270

DAMP has the meaning given to it in section 113

DAMP operator has the meaning given to it in section 113

dangerous goods means articles or substances that are capable of posing a risk to health, safety, property, or the environment and—

(a)

are listed in, or classified in accordance with, the ICAO’s Technical Instructions for the Safe Transport of Dangerous Goods by Air; or

(b)

have properties that would result in the articles or substances being classified as dangerous goods under the ICAO’s Technical Instructions for the Safe Transport of Dangerous Goods by Air

declaration, in subpart 4 of Part 10, has the meaning given to it in section 434

deputy convener, in Schedule 2, has the meaning given to it in clause 1(1) of Schedule 2

deregistration request, in subpart 4 of Part 10, has the meaning given to it in section 434

details, in subpart 20 of Part 9, has the meaning given to it in section 388

Director means the person who is for the time being the Director of Civil Aviation under section 31

Director testing, in subpart 6 of Part 4, has the meaning given to it in section 113

drug or alcohol test, in subpart 6 of Part 4, has the meaning given to it in section 113

eligible New Zealand operator, in subpart 3 of Part 6, has the meaning given to it in section 206(2)

eligible unit, in subpart 3 of Part 6, has the meaning given to it in section 206(1)

engagement charter means an engagement charter prepared and made available to the public under section 28

excluded flight, in subpart 3 of Part 6, has the meaning given to it in section 206(1)

flight data recorder, in subpart 10 of Part 9, has the meaning given to it in section 344

flight information service means an air traffic service provided for the purpose of giving advice and information intended for the safe and efficient conduct of flights

foreign international airline, in subpart 1 of Part 6, has the meaning given to it in section 175

Guadalajara Convention, in subpart 2 of Part 8, has the meaning given to it in section 255

Hague Protocol, in subpart 2 of Part 8, has the meaning given to it in section 255

health professional means a person who is, or is deemed to be, registered with an authority established or continued by section 114 of the Health Practitioners Competence Assurance Act 2003 as a practitioner of a particular health profession

High Contracting Party, in subpart 2 of Part 8, has the meaning given to it in section 255

holder, in relation to any aviation document, includes any person lawfully entitled to exercise privileges in respect of that document

ICAO means the International Civil Aviation Organization established under the Convention, and includes any successor to the Organization

identified aerodrome activity, in Part 7, has the meaning given to it in section 218

incident means any occurrence, other than an accident, that is associated with the operation of an aircraft and affects, or could affect, the safety of operation

infringement fee, in relation to an infringement offence, means the infringement fee specified in this Act for the offence or prescribed in regulations

infringement offence means—

(a)

an offence specified as an infringement offence in regulations; or

(b)

an offence identified in this Act as an infringement offence

inspector means a person appointed under section 333

Inspector-General of Intelligence and Security means the person holding office under section 157 of the Intelligence and Security Act 2017

international airport means any airport designated as an airport of entry and departure for international air traffic where customs, immigration, public health, animal and plant quarantine, and similar procedures are carried out

international carriage by air, in subpart 2 of Part 6, has the meaning given to it in section 195

issuing officer has the same meaning as in section 3(1) of the Search and Surveillance Act 2012

joint venture aerodrome, in Part 7 and Schedule 3, has the meaning given to it in section 218

judicial officer means a District Court Judge, a Justice, a Community Magistrate, or a court Registrar (other than a constable)

landside security area means an area that the Minister has declared to be a landside security area under section 126

law enforcement action, in subpart 9 of Part 9, has the meaning given to it in section 341(1)

lease, in Part 7, has the meaning given to it in section 218

licence holder, in Schedule 2, has the meaning given to it in clause 1(1) of Schedule 2

licensee, in subpart 1 of Part 6, has the meaning given to it in section 175

licensing authority, in subpart 1 of Part 6, has the meaning given to it in section 175

local authority has the meaning given to it in section 5(1) of the Local Government Act 2002

manoeuvring area

(a)

means that part of an aerodrome to be used for the take-off and landing of aircraft and for the surface movement of aircraft associated with take-off and landing; but

(b)

does not include areas set aside for loading, unloading, or maintenance of aircraft

medical certificate means a medical certificate—

(a)

issued by the Director under this schedule to an applicant or licence holder; or

(b)

recognised by the Director under the rules

medical examiner means a medical examiner designated under clause 29(1) of Schedule 2

medical practitioner means—

(a)

a health practitioner who is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine; or

(b)

a person in a jurisdiction other than New Zealand who is entitled, licensed, or registered to practise medicine in that jurisdiction

Minister means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act or the relevant Part or provision of this Act

Ministry means the department of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of this Act

Montreal Convention, in subpart 2 of Part 8, has the meaning given to it in section 255

navigation installation

(a)

means any building, facility, work, apparatus, equipment, or place (whether or not part of an aerodrome) that is intended to assist in the control of air traffic or as an aid to air navigation; and

(b)

includes any land adjacent to, and used in connection with, that building, facility, work, apparatus, equipment, or place

negative result, in subpart 6 of Part 4, has the meaning given to it in section 113

new entrant has the meaning given to it in section 206(3)

New Zealand AOC with ANZA privileges means an authorisation granted under section 91

New Zealand international airline, in subpart 1 of Part 6, has the meaning given to it in section 175

New Zealand Register of Aircraft means the register of that name that is maintained under section 36

New Zealand registered aircraft means any aircraft that is for the time being registered under section 37

New Zealand temporary stop notice means a notice given under section 87(1)

non-scheduled commercial international flight, in subpart 1 of Part 6, has the meaning given to it in section 175

notified incident, in subpart 9 of Part 9, has the meaning given to it in section 341

officer has the meaning given to it in section 8

operate, in relation to an aircraft, means to fly or use the aircraft, or to cause or permit the aircraft to fly, be used, or be in any place, whether or not the operator is present with the aircraft

operator,—

(a)

in relation to an aircraft, means a person who causes or permits the aircraft to fly, be used, or be in any place, whether or not the person is present with the aircraft:

(b)

in relation to an aerodrome, means the person who holds the aviation document for operating the aerodrome or, if there is no such person, the person who operates the aerodrome

owner, in relation to any aircraft, includes any person lawfully entitled to the possession of the aircraft for 28 days or longer

passenger, in subpart 3 of Part 8, has the meaning given to it in section 270(1)

pat down search, in subpart 2 of Part 5, has the meaning given to it in section 134

person authorised by the Director,—

(a)

in subpart 16 of Part 9, has the meaning given to it in section 371; and

(b)

in subpart 20 of Part 9, has the meaning given to it in section 388

pilot-in-command, in relation to an aircraft,—

(a)

means the pilot on board the aircraft who is responsible for the operation and safety of the aircraft; and

(b)

in the absence of a pilot on board the aircraft, means the person who the rules specify as responsible for the operation and safety of the aircraft in accordance with the rules; and

(c)

in all other circumstances,—

(i)

means an individual nominated by the operator to be responsible for the operation and safety of the aircraft; and

(ii)

if no individual is nominated by the operator, means the operator

prescribed means prescribed by this Act or by secondary legislation made under this Act

privileges to which a medical certificate relates, in Schedule 2, has the meaning given to it in clause 1(2) of Schedule 2

Protocol No 4, in subpart 2 of Part 8, has the meaning given to it in section 255

qualifying person, in subpart 9 of Part 9, has the meaning given to it in section 341(2)

random testing, in subpart 6 of Part 4, has the meaning given to it in section 113

regulations means regulations made under this Act

relevant government agency, in Part 7, has the meaning given to it in section 218

relevant item or substance, in subpart 2 of Part 5, has the meaning given to it in section 134

removal request, in subpart 4 of Part 10, has the meaning given to it in section 434

reporting period, in subpart 3 of Part 6, has the meaning given to it in section 206(1)

response officer means a person appointed under section 334

response plan, in subpart 6 of Part 4, has the meaning given to it in section 113

restricted scheduled international air service, in subpart 1 of Part 6, has the meaning given to it in section 175

rules means rules made by the Minister or Governor-General, and emergency rules made by the Director, under Part 3

safety-sensitive activity, in subpart 6 of Part 4, has the meaning given to it in section 113

safety-sensitive worker, in subpart 6 of Part 4, has the meaning given to it in section 113

scheduled international air service, in subpart 1 of Part 6, has the meaning given to it in section 175

Secretary means the chief executive of the Ministry

security area has the meaning given to it in section 134

security designated aerodrome means an aerodrome for the time being designated under section 121(1)(a) or (b)

security designated navigation installation means a navigation installation for the time being designated as a security designated navigation installation under section 121(1)(c)

security enhanced area means an area that the Director has declared to be a security enhanced area under section 122(2)

seventh freedom service, in subpart 1 of Part 6, has the meaning given to it in section 175

space requirement, in Part 7, has the meaning given to it in section 218

specified examination, in Schedule 2, has the meaning given to it in clause 1(1) of Schedule 2

specified examination, in Schedule 2, has the meaning given to it in clause 1 of Schedule 2

State services has the same meaning as in section 5 of the Public Service Act 2020

sterile area, in subpart 2 of Part 5, has the meaning given to it in section 134

substantial customer, in Part 7, has the meaning given to it in section 219

successive carrier, in subpart 3 of Part 8, has the meaning given to it in section 270(1)

TAIC means the Transport Accident Investigation Commission established under the Transport Accident Investigation Commission Act 1990

tariff, in subpart 2 of Part 6, has the meaning given to it in section 195

testable drug, in subpart 6 of Part 4, has the meaning given to it in section 113

thing, in subpart 2 of Part 5, has the meaning given to it in section 134

unruly passenger offence

(a)

means an offence against subpart 20 of Part 9; and

(b)

includes an offence to which section 392 applies

Warsaw Convention, in subpart 2 of Part 8, has the meaning given to it in section 255.

6 Meaning of accident

(1)

In this Act, unless the context otherwise requires, accident means an occurrence associated with the operation of an aircraft that,—

(a)

in the case of an aircraft intended to be flown with any person on board, takes place between—

(i)

the time that any person boards the aircraft with the intention of flight; and

(ii)

the time that—

(A)

all persons on board have disembarked; and

(B)

the engine or any propellers or rotors have come to rest; and

(b)

in the case of an aircraft intended to be flown without any person on board, takes place between—

(i)

the time that the aircraft is ready to move with the purpose of flight; and

(ii)

the time that—

(A)

the aircraft comes to rest at the end of the flight; and

(B)

the primary propulsion system is shut down.

(2)

The occurrence must be one in which—

(a)

a person is fatally or seriously injured as a result of—

(i)

being in the aircraft; or

(ii)

direct contact with any part of the aircraft, including any part that has become detached from the aircraft; or

(iii)

direct exposure to jet blast; or

(b)

the aircraft sustains damage or structural failure that—

(i)

adversely affects the structural strength, performance, or flight characteristics of the aircraft; and

(ii)

would normally require major repair or replacement of the affected component; or

(c)

the aircraft is missing or is completely inaccessible.

(3)

Subsection (2)(a) does not include—

(a)

an injury that is self-inflicted or inflicted by another person; or

(b)

an injury to a stowaway hiding outside the areas normally available to passengers and crew.

(4)

In subsection (2)(b), damage or structural failure does not include—

(a)

engine failure; or

(b)

damage that is limited to the engine, its cowlings, or its accessories, or damage limited to propellers, wing tips, antennas, tyres, brakes, fairings, small dents, or puncture holes in the aircraft skin.

7 Meaning of aviation place

(1)

In this Act, unless the context otherwise requires, aviation place

(a)

means a place where an activity is being carried out, or is customarily carried out, by or on behalf of an aviation participant acting in that capacity; and

(b)

includes—

(i)

an aircraft (whether or not in operation) and any aerodrome or navigation installation:

(ii)

a place from which an aircraft is operated and any place where any aircraft, or any aeronautical product, is:

(iii)

a place where an aircraft, or any part of or debris from an aircraft, has fallen.

(2)

In this section, place includes—

(a)

a vehicle, vessel, aircraft, ship, or other mobile structure; and

(b)

any waters and any installation on land, on the bed of any waters, or floating on any waters.

8 Meaning of officer

In this Act, unless the context otherwise requires, officer, in relation to a body corporate,—

(a)

means—

(i)

if the body corporate is a company, any person occupying the position of a director of the company by whatever name called:

(ii)

if the body corporate is not a company, any person occupying a position in the body that is comparable with that of a director of a company; and

(b)

includes any other person occupying a position in relation to the activities of the body corporate that allows the person to exercise significant influence over the management of its activities (for example, a chief executive); but

(c)

does not include a Minister of the Crown acting in that capacity; and

(d)

to avoid doubt, does not include a person who merely advises or makes recommendations to a person referred to in paragraph (a) or (b).

Application of civil aviation legislation

9 Application of civil aviation legislation

(1)

Except as provided in section 369 and subpart 20 of Part 9, civil aviation legislation applies to the following:

(a)

every person, aircraft, aerodrome, aeronautical product, and aviation-related service, in New Zealand:

(b)

every New Zealand registered aircraft whether within or outside New Zealand:

(c)

every holder of an aviation document while outside New Zealand and exercising or purporting to exercise privileges accorded by that document:

(d)

every foreign registered aircraft operating in New Zealand.

(2)

Despite subsection (1), the Minister, acting on the recommendation of the CAA or the Director, as the case may require, may, by agreement with the appropriate foreign aeronautical authority,—

(a)

transfer to the aeronautical authority in the country of a foreign operator all or part of the responsibility for a New Zealand registered aircraft operated by that foreign operator that the CAA or the Director has under civil aviation legislation:

(b)

vest in the CAA or the Director, as the case may require, all or part of the responsibility for foreign registered aircraft operated by a New Zealand operator that arises under civil aviation legislation:

(c)

grant exemptions from civil aviation legislation, relevant to any exercise of the Minister’s powers under this subsection.

(3)

Every New Zealand registered aircraft must, while being operated over the high seas, be operated in a manner that complies with the Rules of the Air contained in Annex 2 of the Convention.

(4)

A holder of an aviation document who, while outside New Zealand and exercising or purporting to exercise the privileges accorded by that document, commits an act or omission that would constitute an offence if it were committed in New Zealand—

(a)

is deemed to commit an offence under this Act; and

(b)

may be proceeded against in New Zealand as if the act or omission had occurred within New Zealand.

(5)

Subsection (4) does not apply if the act or omission is required in order to comply with the laws of any foreign State.

(6)

Nothing in this section requires a person or aircraft to breach or be operated in breach of a law of a foreign State that applies to or in respect of the person or aircraft.

(7)

Nothing in this Act limits the privileges or immunities of—

(a)

any foreign military aircraft; or

(b)

the officers and crew of any foreign military aircraft.

Compare: 1990 No 98 s 4

Transitional, savings, and related provisions

10 Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.

Act binds the Crown

11 Act binds the Crown

(1)

This Act binds the Crown.

(2)

Except as otherwise expressly provided in civil aviation legislation or under any other Act, nothing in civil aviation legislation applies to the New Zealand Defence Force.

Compare: 1990 No 98 s 3

Overview

12 Overview

(1)

This Part (Part 1) deals with preliminary matters, including specifying the purposes of this Act and defining terms. Key terms are accident, aircraft, aviation participant, and pilot-in-command.

(2)

Part 2

(a)

sets out the general obligations of aviation participants:

(b)

sets out duties relating to pilots-in-command:

(c)

continues the CAA and provides for its composition, governance, objective, and functions:

(d)

provides for the Director of Civil Aviation and the Director’s functions and powers:

(e)

sets out regulatory functions, duties, and powers of the Secretary under the Act:

(f)

sets out matters relating to the role of Airways:

(g)

provides for the Register of Aircraft, Civil Aviation Records, and information services:

(h)

contains general offences and liability provisions (see subpart 4):

(i)

provides duties to notify accidents and incidents (see subpart 5).

(3)

Part 3 provides for the making of civil aviation rules.

(4)

Part 4 provides for—

(a)

processes for an aviation participant to obtain an aviation document if the rules provide that an aviation document is required for the person’s participation in the civil aviation system (see subpart 1):

(b)

the recognition in New Zealand of certain Australian air operator certificates, and the granting by the Director of authority to New Zealand air operators to conduct air operations to, from, or within Australia (see subpart 2):

(c)

certain key powers of the Director in relation to aviation document holders and aviation documents (see subpart 3):

(d)

offences relating to aviation documents (see subpart 4):

(e)

the requirements for, and powers relating to, medical certification (see subpart 5):

(f)

a regime for drug and alcohol management plans and testing (see subpart 6).

(5)

Part 5 relates to aviation security, and provides for—

(a)

the designation of aerodromes and navigation installations as security designated aerodromes and navigation installations:

(b)

the conducting of security checks by the Director of persons who are required under the rules to have a security check to perform their roles in the civil aviation system:

(c)

the authorisation of those who provide aviation security services at aerodromes and navigation installations:

(d)

the powers of aviation security officers and the Police in relation to aviation security at aerodromes and navigation installations:

(e)

the consequences, for persons travelling on aircraft, and other persons present at aerodromes or navigation installations, of failure to comply with aviation security requirements, including aviation security offences.

(6)

Part 6 provides for—

(a)

licences for international air services and the requirements for licensees (see subpart 1):

(b)

authorisations by the Minister relating to international carriage competition (see subpart 2):

(c)

a carbon offsetting and reduction scheme for international aviation (CORSIA) (see subpart 3).

(7)

Part 7 contains provisions relating to—

(a)

airport operators (see subpart 2):

(b)

the giving of enforceable regulatory undertakings by airport operators in relation to space requirements at airports (see subpart 3):

(c)

the granting of exemptions by the Secretary to airport operators from the requirements of subparts 2 and 3 (see subpart 4):

(d)

the sale of alcohol to eligible passengers arriving at, or departing from, international airports in New Zealand (see subpart 5).

(8)

Part 8 relates to redress for passengers and others in relation to international and domestic carriage of passengers and goods by air, and—

(a)

provides for international carriage of passengers and goods by air consistent with, and in accordance with, relevant international conventions (see subpart 2), which relate to compensation for the victims of air disasters:

(b)

provides for liability in the case of delay in respect of domestic carriage of passengers and goods by air (see subpart 3), including limitation provisions:

(c)

provides jurisdiction to New Zealand courts and the Disputes Tribunal in relation to liability claims against a carrier or any other person.

(9)

Part 9 provides for monitoring, investigation, and enforcement, including—

(a)

inspection, monitoring, and enforcement powers of the Director, CAA, and inspectors (see subparts 1 and 2):

(b)

powers of the Director in relation to aerodromes, aircraft, and aeronautical products where the operation or use of those things may endanger people or property (see subpart 3):

(c)

powers to seize, detain, or destroy aircraft without a person on board that are operating in breach of the law or in a manner that may endanger people or property (see subpart 4):

(d)

powers of the Director to grant exemptions from compliance with rules or regulations (see subpart 5):

(e)

provisions for a person to give an enforceable undertaking in relation to contraventions of civil aviation legislation (see subpart 6):

(f)

the appointment of inspectors and response officers (see subpart 7):

(g)

powers of entry of Airways (see subpart 8):

(h)

protections provided to people giving accident and incident notifications (see subpart 9):

(i)

protections against the use of flight data recordings against flight crew in criminal proceedings (see subpart 10):

(j)

provisions dealing with the consequences of a court disqualifying a person from obtaining or holding an aviation document (see subpart 11):

(k)

powers of a court to grant injunctions against breaches of civil aviation legislation (see subpart 12):

(l)

powers of the Minister to intervene on grounds of national security in relation to participation in the civil aviation system (see subpart 13):

(m)

general offences (see subpart 14) and a penalty for offences involving commercial gain (see subpart 15):

(n)

infringement offences (see subpart 16) and other miscellaneous matters concerning offence proceedings (see subparts 17 to 19):

(o)

unruly passenger offences (see subpart 20).

(10)

Part 10 provides various regulation-making powers and miscellaneous provisions, including—

(a)

powers to make regulations, airworthiness directives, and transport instruments (see subparts 1 to 3):

(b)

the application of the Cape Town Convention and Aircraft Protocol in New Zealand (see subpart 4):

(c)

provisions conferring rights of appeal under the Act (see subpart 5):

(d)

provisions about the delegation of powers and functions of the Minister and the Director, the disclosure or publication of information, and information sharing (see subpart 6):

(e)

consequential and other amendments to other legislation, repeals, and revocations.

(11)

This section is only a guide to the provisions of this Act.

Part 2 Civil aviation system

Subpart 1—Aviation participants

General requirements relating to aviation participants

13 General requirements for aviation participants

(1)

An aviation participant must comply with—

(a)

civil aviation legislation; and

(b)

the conditions attached to any aviation document held by the aviation participant.

(2)

An aviation participant who does anything for which an aviation document is required must ensure that they hold—

(a)

all the necessary qualifications; and

(b)

the appropriate aviation documents; and

(c)

other necessary documents.

(3)

An aviation participant must ensure that the activities or functions for which an aviation document has been issued are carried out by the aviation participant, and all persons for whom the aviation participant is responsible, safely and in accordance with the relevant prescribed safety and security standards and practices.

(4)

An aviation participant who holds an aviation document that authorises the provision of a service within the civil aviation system—

(a)

must, if required under the rules, establish and follow a management system that will ensure compliance with the relevant prescribed safety and security standards and the conditions attached to the aviation document; and

(b)

must provide training and supervision to all employees of the aviation participant who are doing anything to which the document relates, so as to maintain compliance with the relevant prescribed safety and security standards and the conditions attached to the aviation document and to promote safety and security; and

(c)

must provide sufficient resources to ensure compliance with the relevant prescribed safety and security standards and the conditions attached to the aviation document.

Compare: 1990 No 98 s 12

Provisions relating to pilots-in-command

14 Duties of pilot-in-command

(1)

A pilot-in-command is responsible for—

(a)

the safe operation of the aircraft; and

(b)

the safety and well-being of all passengers and crew; and

(c)

the safety of the cargo carried.

(2)

The pilot-in-command has final authority to control the aircraft while in command and for the maintenance of discipline by all persons on board the aircraft.

(3)

The pilot-in-command is responsible for compliance with all relevant requirements of civil aviation legislation.

(4)

Subsection (3) is subject to sections 15 and 16.

Compare: 1990 No 98 s 13

15 Duties of pilot-in-command in emergencies arising in flight

(1)

In an emergency arising in flight, the pilot-in-command may breach civil aviation legislation only if the pilot-in-command is satisfied that—

(a)

the emergency involves a danger to life or property; and

(b)

the extent of the breach goes only as far as is necessary to deal with the emergency; and

(c)

there is no other reasonable means of alleviating, avoiding, or assisting with the emergency; and

(d)

the degree of danger involved in complying with the provision is clearly greater than the degree of danger involved in deviating from it.

(2)

If the pilot-in-command breaches civil aviation legislation in accordance with this section, the pilot-in-command must—

(a)

immediately notify the relevant air traffic control service of the breach; and

(b)

as soon as practicable, notify the Director of the breach and the circumstances that necessitated it; and

(c)

if requested by the Director, provide to the Director a written report in respect of the breach.

Compare: 1990 No 98 s 13A(1), (2), (6)

16 Duties of pilot-in-command and operator in emergencies not arising in flight

(1)

In an emergency not arising in flight, the pilot-in-command of the aircraft or the operator of the aircraft may breach civil aviation legislation only if—

(a)

the emergency involves a danger to life or property that necessitates the urgent transportation of persons or medical or other supplies for the protection of life or property; and

(b)

the extent of the breach goes only as far as is necessary to deal with the emergency; and

(c)

there is no other reasonable means of alleviating, avoiding, or assisting with the emergency; and

(d)

the degree of danger involved in deviating from the prescribed requirement is clearly less than the degree of risk in failing to attend to the emergency.

(2)

Nothing in this section permits—

(a)

the operation of an aircraft that is not registered in New Zealand or elsewhere; or

(b)

the breach of any prescribed requirement as to the airworthiness of an aircraft; or

(c)

the operation of an aircraft by a person who is not lawfully entitled to operate that aircraft.

(3)

If the pilot-in-command or the operator breaches civil aviation legislation in accordance with this section, the pilot-in-command or the operator (as the case may be) must—

(a)

immediately notify the relevant air traffic control service of the breach; and

(b)

as soon as practicable, notify the Director of the breach and the circumstances that necessitated it; and

(c)

if requested by the Director, provide to the Director a written report in respect of the breach.

Compare: 1990 No 98 s 13A(3)–(6)

17 Failure to notify emergency breach of civil aviation legislation

(1)

A pilot-in-command who, without reasonable excuse, fails to comply with section 15(2) or 16(3) (which relate to the notification of breaches of civil aviation legislation that are committed during an emergency) commits an offence.

(2)

A person who commits an offence against subsection (1) is liable on conviction to a fine not exceeding $15,000.

Compare: 1990 No 98 s 52A

18 Identification of pilot-in-command

(1)

If a pilot-in-command of an aircraft is alleged to have committed an offence under this Act or the regulations, the Director or a constable may—

(a)

inform the operator of the aircraft or the holder of the certificate of registration for the aircraft of the alleged offence; and

(b)

require that person to give all information in that person’s possession or reasonably obtainable by that person that may lead to the identification of the pilot-in-command.

(2)

The requirement under subsection (1)(b) may be given by the Director or constable orally or in writing.

(3)

The operator or holder of the certificate of registration (as the case may be) must give the required information to the Director or a constable—

(a)

on demand; or

(b)

within 10 working days if—

(i)

the information is not in the person’s possession; or

(ii)

the person is unable to give the required information on demand.

(4)

Subsection (1) does not apply if the operator or holder of the certificate of registration has been arrested or detained in relation to the suspected offence.

Compare: 1990 No 98 s 26A

19 Failure to provide identifying information

(1)

An operator of an aircraft or holder of a certificate of registration who, without reasonable excuse, fails to comply with section 18 (which relates to the identification of the pilot-in-command of an aircraft) commits an offence.

(2)

An operator or holder of a certificate of registration who commits an offence against subsection (1) is liable on conviction,—

(a)

in the case of an individual, to a fine not exceeding $30,000:

(b)

in the case of any other person, to a fine not exceeding $100,000.

Compare: 1990 No 98 s 52C

Subpart 2—Regulatory roles

CAA

20 Civil Aviation Authority of New Zealand continued

(1)

There continues to be an authority known as the Civil Aviation Authority of New Zealand.

(2)

The CAA is a Crown entity for the purposes of section 7 of the Crown Entities Act 2004.

(3)

The Crown Entities Act 2004 applies to the CAA except to the extent that this Act expressly provides otherwise.

Compare: 1990 No 98 s 72A(1)–(1B), (10)

21 Board of CAA

(1)

The Minister must appoint at least 5, but no more than 7, persons as members of the board.

(2)

Without limiting section 29 of the Crown Entities Act 2004, the Minister may appoint a person as a member if the Minister considers the person will represent the public interest in civil aviation.

(3)

Before appointing 2 of the members, the Minister must request, from the organisation or organisations that the Minister considers represent those who have a substantial interest in the civil aviation industry in New Zealand, the names of persons the organisation or organisations consider proper candidates for appointment to the board.

(4)

A person may hold office as a member of the board concurrently with any other office, except any office or appointment under the Transport Accident Investigation Commission Act 1990.

(5)

Neither the Director nor any other employee of the CAA may be a member of the board.

Compare: 1990 No 98 s 72A(4)–(8)

22 Objective of CAA

The main objective of the CAA is to undertake its functions to facilitate the operation of a safe and secure civil aviation system.

23 Functions of CAA

The CAA has the following functions:

(a)

to promote civil aviation safety and security in New Zealand:

(b)

to contribute to establishing, implementing, operating, delivering, monitoring, investigating, and enforcing the regulation of the civil aviation system:

(c)

to promote civil aviation safety and security beyond New Zealand in accordance with New Zealand’s international obligations:

(d)

to provide a service to be called the Aviation Security Service, having the functions and duties specified in section 139:

(e)

to investigate and review civil aviation accidents and incidents in its capacity as the responsible safety and security authority (subject to the limitations set out in section 14(3) of the Transport Accident Investigation Commission Act 1990):

(f)

to notify TAIC in accordance with section 50 of accidents and incidents notified to the CAA:

(g)

to maintain and preserve records and documents relating to activities within the civil aviation system, and in particular to maintain the New Zealand Register of Aircraft and the Civil Aviation Registry:

(h)

to ensure the collection, publication, and provision of charts and aeronautical information, and to enter into arrangements with any other person or organisation to collect, publish, and distribute the charts and information:

(i)

to appoint and oversee the performance of the Director, including by ensuring that the Director performs efficiently and effectively:

(j)

to provide to the Minister the information and advice that the Minister may at any time require:

(k)

to advise, assist, or co-operate with, or to provide advice and assistance to, any government agency or local government agency, including sharing information under section 457, if the CAA is satisfied that the performance of the functions and duties of the CAA will not be compromised:

(l)

to issue warnings, reports, and guidance, and to comment about any matter relating to the civil aviation system and its participants or any other persons engaged with the civil aviation system:

(m)

to provide or support the provision of information and advice with respect to civil aviation, and to foster appropriate information education programmes or research with respect to civil aviation:

(n)

to enter into technical or operational arrangements, or both, with civil aviation authorities of other countries:

(o)

to publish its regulatory strategy in accordance with section 27:

(p)

to perform any additional function that the Minister directs under section 112 of the Crown Entities Act 2004:

(q)

to carry out and exercise the functions, powers, or duties that are conferred or imposed on it under this Act or under any other Act:

(r)

any functions that are incidental and related to, or consequential on, the CAA’s functions in paragraphs (a) to (q).

Compare: 1990 No 98 s 72B(1)

24 Duties of CAA in relation to search and rescue

The CAA must, if directed to do so by the Minister under section 199A of the Maritime Transport Act 1994, do any or all of the following:

(a)

operate and maintain the search and rescue co-ordination centre established under section 199(1)(a) of the Maritime Transport Act 1994:

(b)

co-ordinate, or participate in the co-ordination of, any search and rescue operation specified in section 199(1)(a) of the Maritime Transport Act 1994:

(c)

perform, or participate in the performance of, any search and rescue operation specified in section 199(1)(a) of the Maritime Transport Act 1994:

(d)

exercise any or all of the powers of the Minister under section 199(1)(b) and (c) and (2) of the Maritime Transport Act 1994.

Compare: 1990 No 98 s 72B(2A)

25 CAA to maintain separate accounts in respect of AvSec

The CAA must maintain separate accounts in respect of AvSec.

Compare: 1990 No 98 s 72B(3B)

26 CAA to consider delegating or contracting out of functions and powers

Subject to this Act, the CAA must, in the course of performing its functions and exercising its powers, consider whether it could most efficiently and effectively perform those functions and exercise those powers by means of its own operations or by delegating or contracting out those operations to appropriate persons.

Compare: 1990 No 98 s 72E

27 CAA must adopt and publish regulatory strategy

(1)

The CAA must adopt a regulatory strategy that sets out how the CAA and the Director will perform their regulatory functions—

(a)

under civil aviation legislation; and

(b)

under any other Acts that confer significant regulatory functions upon the CAA or the Director.

(2)

The strategy must include the following matters:

(a)

key areas of focus, including the key risks being targeted within those areas; and

(b)

the regulatory approach to be adopted, including in relation to monitoring, enforcement, and compliance; and

(c)

how performance will be assessed; and

(d)

a summary of how the strategy will be updated and reviewed.

(3)

The CAA must make a copy of the strategy publicly available.

28 Engagement charter

(1)

The CAA must at all times have and make available to the public an engagement charter including (but not limited to)—

(a)

a statement by the CAA of the standards of service that the public can expect to apply to the carrying out of functions of the CAA and the Director under this Act; and

(b)

details of the procedures to be followed under the engagement charter by a person who alleges that the standards were not met; and

(c)

details of the remedies that are available under the engagement charter to the person affected where the person establishes to the satisfaction of the CAA that the standards were not met; and

(d)

provision for the appointment by the CAA of an appropriate independent person to assist in the resolution of disputes arising in respect of alleged failures to meet the standards of service specified in the engagement charter.

(2)

The CAA, the Director, any employee or agent of the CAA, and any agent of the Director have a public duty to observe the provisions of the engagement charter.

(3)

The CAA may, in writing, amend the engagement charter, and must make the amendments available to the public.

(4)

Nothing in the engagement charter limits or restricts any right to make any complaint or to bring any proceedings under any Act or rule of law.

Compare: 1990 No 98 s 72G

29 Use of words Civil Aviation Authority or CAA

(1)

No person other than the CAA may, either alone or with another person, be incorporated or registered under other legislation, trade or carry on business, or perform the functions for which it was formed—

(a)

under a name that contains the words “Civil Aviation Authority” or “CAA”; or

(b)

under a name that so resembles the words “Civil Aviation Authority” or “CAA” as to be likely to mislead.

(2)

Subsection (1) does not apply to any person who is appropriately authorised by the CAA.

Compare: 1990 No 98 s 72H

30 Use of words Aviation Security Service or AvSec

(1)

No person other than AvSec may, either alone or with another person, be incorporated or registered under other legislation, trade or carry on business, or perform the functions for which it was formed—

(a)

under a name that contains the words “Aviation Security Service” or “AvSec”; or

(b)

under a name that so resembles the words “Aviation Security Service” or “AvSec” as to be likely to mislead.

(2)

Subsection (1) does not apply to any person who is appropriately authorised by AvSec.

Compare: 1990 No 98 s 72N

Director of Civil Aviation

31 Director of Civil Aviation

(1)

The board of the CAA, after consulting the Minister, must from time to time appoint a Director of Civil Aviation.

(2)

The board of the CAA must also appoint the Director as chief executive of the CAA in accordance with section 117 of the Crown Entities Act 2004.

(3)

Section 117(1) of the Crown Entities Act 2004 applies to the term of office of the Director.

Compare: 1990 No 98 s 72I(1)

32 Functions and powers of Director

(1)

The Director has and may perform or exercise—

(a)

the functions, powers, and duties that may be conferred or imposed directly on the Director under this or any other Act; and

(b)

the functions and powers delegated to the Director by the board of the CAA under this Act or any other Act.

(2)

Without limiting subsection (1), the Director’s functions and powers include—

(a)

providing leadership within the CAA in relation to those matters for which the CAA or the Director is responsible; and

(b)

exercising control over entry into, activities within, and exit from the civil aviation system through aviation documents or other instruments; and

(c)

monitoring and investigating the performance and competence of aviation participants; and

(d)

monitoring, investigating, and enforcement in relation to matters under civil aviation legislation; and

(e)

monitoring and evaluating the performance of AvSec and any person who carries out functions within the civil aviation system in a regulatory capacity; and

(f)

ensuring regular reviews of the civil aviation system to promote the main and additional purposes of this Act; and

(g)

entering into arrangements with CASA for the purpose of giving effect to the ANZA mutual recognition agreements; and

(h)

issuing warnings, reports, or guidance, or making comment about,—

(i)

any matter relating to civil aviation; or

(ii)

1 or more aviation participants; or

(iii)

1 or more persons who engage in conduct in relation to civil aviation; and

(i)

co-operating with, or providing advice and assistance to, any government agency, local government agency, or aviation participant.

(3)

The Director’s independent functions are to—

(a)

issue, suspend, revoke, and impose conditions on aviation documents and medical certificates:

(b)

grant exemptions:

(c)

carry out any enforcement responsibilities conferred on the Director under this or any other Act.

(4)

When performing a function referred to in subsection (3),—

(a)

the Director must act independently; and

(b)

the Minister, the board of the CAA, and the Secretary must not give directions to the Director in relation to performing that function.

Compare: 1990 No 98 s 72I(2), (3), (3D), (4)

33 Acting Director of Civil Aviation

(1)

Subsection (2) applies if—

(a)

the Director is absent from duty (from whatever cause arising); or

(b)

there is a vacancy in the position of Director (whether by reason of death, resignation, or otherwise).

(2)

All or any of the powers and duties of the Director may be exercised and performed by—

(a)

any other employee for the time being directed by the CAA to exercise and perform them; or

(b)

any other person for the time being appointed by the CAA to exercise and perform them.

(3)

Subsection (2) applies whether the direction has been given by the CAA or the appointment has been made by the CAA before the absence or vacancy occurs or while the absence or vacancy continues.

(4)

No direction or appointment under this section, and no acts done by any employee or other person acting under a direction or appointment, may in any proceedings be questioned on the ground that—

(a)

the occasion for the direction or appointment had not arisen or had ceased; or

(b)

the employee or other person has not been appointed to any position to which the direction or appointment relates.

(5)

No person employed within AvSec may be given any direction or appointment by the CAA under this section without the prior written approval of the Minister.

Compare: 1990 No 98 s 72J

Regulatory functions, duties, and powers of Secretary

34 Regulatory functions, duties, and powers of Secretary

The Secretary has the following regulatory functions, duties, and powers under this Act:

(a)

the functions or powers that may be conferred or imposed on or delegated to the Secretary under any other provisions of this Act, including under—

(i)

Part 6 (international air services and carbon offsetting and reduction scheme for international aviation (CORSIA)):

(ii)

Part 7 (airports):

(iii)

Part 8 (international and domestic carriage of passengers and goods by air):

(iv)

sections 410 to 413 (regulations relating to CORSIA and information disclosure); and

(b)

monitoring, investigating, and enforcement in relation to the matters in paragraph (a); and

(c)

issuing warnings, reports, or guidance, or making comment about—

(i)

any matter relating to civil aviation; or

(ii)

1 or more aviation participants; or

(iii)

1 or more persons who engage in conduct in relation to civil aviation; and

(d)

collecting, analysing, and publishing statistics and other information relating to any of the main and additional purposes of this Act, including as provided in regulations made under subpart 1 of Part 10; and

(e)

sharing information obtained in the performance of the Secretary’s regulatory functions under this Act with persons who have a proper interest in receiving that information, including Ministers, State services agencies, local government, aviation participants, and the public; and

(f)

co-operating with, or providing advice and assistance to, any government agency, local government agency, or aviation participant; and

(g)

any functions or powers that are incidental and related to, or consequential on, the Secretary’s functions or powers in paragraphs (a) to (f).

Airways

35 Airways may be sole provider of certain airways services

(1)

The Minister may, by notice in the Gazette, specify that only Airways may provide any or all of the following aviation services in New Zealand:

(a)

area control services:

(b)

approach control services:

(c)

flight information services.

(2)

Before giving a notice under subsection (1),—

(a)

the Minister must have regard to the main and additional purposes in sections 3 and 4; and

(b)

the Minister must consult with any person who already holds an aviation document entitling the person to provide all or any of the services specified in subsection (1)(a) to (c) to which the notice will apply.

(3)

The Minister may at any time, in the event of an emergency or other crisis, direct Airways to provide all or any of the services specified in subsection (1)(a) to (c), even though another aviation participant is providing those services.

(4)

Any direction made under subsection (3) has effect for a period the Minister specifies in the notice, which must not be more than 10 days.

(5)

This section does not apply to aerodrome control services or aerodrome flight information services.

Compare: 1990 No 98 s 99

Subpart 3—Registries and information services

36 New Zealand Register of Aircraft

The CAA must—

(a)

maintain the New Zealand Register of Aircraft in accordance with prescribed requirements (if any); and

(b)

enter in the register the details, as may be prescribed, of every aircraft for which a certificate of registration has been issued by the Director under section 37(2).

Compare: 1990 No 98 s 73

37 Requirement to register aircraft

(1)

This section applies to a person lawfully entitled to the possession for a period of 28 days or longer of an aircraft that flies to, from, within, or over New Zealand territory.

(2)

Except as otherwise provided in this Act or the rules, the person must apply to register that aircraft and hold a valid certificate of registration for that aircraft issued by any of the authorities mentioned in subsection (3).

(3)

The authorities are as follows:

(a)

the Director:

(b)

the appropriate aeronautical authorities of a contracting State of ICAO:

(c)

the appropriate aeronautical authorities of another State that is a party to an agreement with the Government of New Zealand or the CAA that provides for the acceptance of each other’s registrations.

(4)

No aircraft may be, or remain, registered in New Zealand if it is registered in any other country.

(5)

The Director may, in accordance with any requirements of the rules, decline an application to register any aircraft.

(6)

A person may appeal against a decision under this section to the District Court under section 444.

Compare: 1990 No 98 s 6

38 Civil Aviation Records

(1)

The CAA must maintain and provide access to the Civil Aviation Records in accordance with prescribed requirements (if any).

(2)

Copies or appropriate evidence of the following must be recorded and maintained in the Civil Aviation Records:

(a)

every current aviation document:

(b)

every Australian AOC with ANZA privileges:

(c)

the New Zealand Register of Aircraft:

(d)

all information provided under section 73 by an applicant for, or a holder of, an aviation document:

(e)

any material incorporated into secondary legislation by reference under section 429:

(f)

every accident and incident notification given under section 49:

(g)

every airworthiness directive issued by the Director under section 430:

(h)

every delegation, authorisation, and exemption granted in writing under this Act:

(i)

the address for service of every current applicant for an aviation document and of every current aviation document holder:

(j)

all information provided under section 39:

(k)

the current engagement charter.

(3)

Documents kept in the Civil Aviation Records must be made available by the CAA, in accordance with the the Official Information Act 1982,—

(a)

for inspection by the public free of charge; and

(b)

for copying in accordance with that Act.

(4)

Subsection (3) is subject to the Privacy Act 2020.

Compare: 1990 No 98 s 74

39 Information services

(1)

The CAA must ensure provision of an information service that comprises the collection and provision of—

(a)

aeronautical information; and

(b)

instructions relating to the safety, regularity, and efficiency of air navigation.

(2)

The CAA must ensure that the information and instructions are readily available to any person on payment of a reasonable charge fixed by the CAA.

Compare: 1990 No 98 s 75

Subpart 4—General offences and liability provisions

40 Operating aircraft in careless manner

(1)

A person who operates any aircraft in a careless manner commits an offence.

(2)

A person who commits an offence against subsection (1) is liable on conviction,—

(a)

in the case of an individual, to a fine not exceeding $30,000:

(b)

in the case of any other person, to a fine not exceeding $100,000.

(3)

This section is in addition to and does not limit the regulations or rules.

Compare: 1990 No 98 s 43A

41 Dangerous activity involving aircraft, aeronautical product, or aviation-related service

(1)

No person may—

(a)

operate, maintain, or service an aircraft, aerodrome, or aeronautical product, or provides an aviation-related service, in a manner that causes unnecessary danger to any other person or to any property; or

(b)

do any other act in respect of an aircraft, aerodrome, aeronautical product, or aviation-related service in a manner that causes unnecessary danger to any other person or to any property; or

(c)

cause or permit an aircraft, aerodrome, or aeronautical product to be operated, maintained, or serviced, or an aviation-related service to be provided, in a manner that causes unnecessary danger to any other person or to any property; or

(d)

cause or permit any other act to be done in respect of an aircraft, aerodrome, aeronautical product, or aviation-related service in a manner that causes unnecessary danger to any other person or to any property.

(2)

A person who does or omits to do any act in breach of subsection (1) commits an offence.

(3)

A person who does or omits to do any act in breach of subsection (1) being reckless as to whether the act or omission will cause unnecessary danger to any other person or to any property commits an offence.

(4)

A person who commits an offence against subsection (2) is liable on conviction,—

(a)

in the case of an individual, to a fine not exceeding $150,000:

(b)

in the case of any other person, to a fine not exceeding $1,500,000.

(5)

A person who commits an offence against subsection (3) is liable on conviction,—

(a)

in the case of an individual, to imprisonment for a term not exceeding 5 years or to a fine not exceeding $300,000, or both:

(b)

in the case of any other person, to a fine not exceeding $3,000,000.

(6)

This section is in addition to and does not limit the regulations or rules.

Compare: 1990 No 98 s 44

42 Operating aircraft in controlled airspace or restricted area without authorisation

(1)

A person commits an offence who, without reasonable excuse,—

(a)

intentionally operates an aircraft in controlled airspace or a restricted area; and

(b)

knows that he or she does not hold, or is reckless as to whether he or she holds, the appropriate authorisation to operate the aircraft in that airspace or area.

(2)

A person who commits an offence against subsection (1) is liable on conviction,—

(a)

in the case of an individual, to imprisonment for a term not exceeding 3 months or to a fine not exceeding $10,000, or both:

(b)

in the case of any other person, to a fine not exceeding $100,000.

(3)

In this section, restricted area means an airspace of defined dimensions that is designated as a restricted area under the rules.

43 Communicating false information affecting safety

(1)

A person commits an offence if the person—

(a)

by any means provides to another person information relating to—

(i)

the safety of an aircraft, aerodrome, aeronautical product, aviation-related service, or any other facility or product used in or connected with aviation; or

(ii)

the safety of any person associated with any thing referred to in subparagraph (i); and

(b)

knows the information to be false or is reckless as to whether it is false.

(2)

A person who commits an offence against subsection (1) is liable on conviction,—

(a)

in the case of an individual, to imprisonment for a term not exceeding 12 months or to a fine not exceeding $120,000, or both:

(b)

in the case of any other person, to a fine not exceeding $1,000,000.

Compare: 1990 No 98 s 56(1), (2)

44 Nuisance and trespass

(1)

No action lies in respect of nuisance or trespass, by reason only of the flight of aircraft over any property at a height above the ground that, having regard to wind, weather, and all the circumstances of the case, is reasonable, as long as the provisions of this Act and of the rules are complied with.

(2)

No action for nuisance may be brought in respect of the noise or vibration caused by aircraft or aircraft engines on an aerodrome if the noise or vibration is of a kind specified in the rules, as long as the provisions of the rules are complied with.

Compare: 1990 No 98 s 97(1), (2)

45 Responsibility for damage

(1)

This section applies if material damage or loss is caused to property on land or water by—

(a)

an aircraft in flight, taking off, landing, or alighting; or

(b)

any person or article in, or falling from, an aircraft referred to in paragraph (a).

(2)

Damages are recoverable from the owner of the aircraft for the damage or loss, without proof of negligence or intention or other cause of action, as if the damage or loss was caused by the person’s fault.

(3)

Subsection (2) does not apply where the damage or loss was caused by or contributed to by the fault of the person who suffered the damage or loss.

(4)

Civil proceedings may be commenced in a court for recovery of damages under subsection (2).

(5)

If damage or loss is contributed to by the fault of the person who suffered the damage or loss, the provisions of the Contributory Negligence Act 1947 as to apportionment apply.

(6)

If the owner of an aircraft has hired the aircraft out to any other person for a period greater than 28 days and no pilot, commander, navigator, or operative member of the crew of the aircraft is in the employment of the owner, this section and sections 46 and 47 apply as though every reference to the owner were a reference to the person who hired the aircraft.

(7)

For the purposes of this section, fault means negligence, breach of statutory duty, or other act or omission that gives rise to a liability in tort or would, apart from the Contributory Negligence Act 1947, give rise to the defence of contributory negligence.

Compare: 1990 No 98 s 97(3), (5), (7), (8)

46 Circumstances in which owner entitled to be indemnified for responsibility for damage

(1)

This section applies if damage or loss is caused in the manner described in section 45 and—

(a)

damages are recoverable from the owner of the aircraft in respect of the damage or loss only because of the provisions of section 45; and

(b)

some person other than the owner is liable to pay damages in respect of the damage or loss.

(2)

The owner is entitled to be indemnified by the other person referred to in subsection (1)(b) against any claim under section 45 in respect of the damage or loss.

Compare: 1990 No 98 s 97(4)

47 Responsibility for damage by descent by parachute

(1)

This section applies if damage or loss is caused by a person descending from an aircraft by parachute.

(2)

Damages are not recoverable under section 46 from the owner of the aircraft in respect of the damage or loss.

(3)

Section 46 applies, with any necessary modifications, as if the person descending were the owner of the aircraft.

(4)

This section does not apply in respect of damage or loss caused by a person descending from an aircraft by parachute where the descent is required to avoid injury or death.

Compare: 1990 No 98 s 97(6)

48 Claim against Crown in respect of damage, loss, or injury due to service aircraft

(1)

This section applies if a claim is made against the Crown under the Crown Proceedings Act 1950 in respect of any damage, loss, or injury sustained or alleged to have been sustained by or through or in connection with the use of any service aircraft.

(2)

Despite section 11, sections 44 to 47 apply with respect to the aircraft as if the applicable provisions of this Act and the rules (if any) have been complied with.

(3)

In this section, service aircraft means an aircraft that is being used exclusively for the purposes of the Armed Forces of New Zealand.

Subpart 5—Duty to notify accidents and incidents

49 Duty to notify accidents and incidents to CAA

(1)

The pilot-in-command of an aircraft that is involved in an accident must notify the accident to the CAA as soon as practicable.

(2)

The requirement to notify an accident under subsection (1) is subject to any exception specified in the rules in relation to any circumstances or in relation to a type or class of aircraft.

(3)

Every aviation participant who is involved in an incident must notify the incident to the CAA if required by, and in accordance with any requirements specified in, the rules.

(4)

If, due to injury or death, the pilot-in-command is unable to give the necessary notification under subsection (1), the operator must provide the necessary notification.

(5)

The co-ordinator of any search and rescue operation for any aircraft must notify the CAA of the operation as soon as practicable.

(6)

The CAA may, on being notified under subsection (1), (3), (4), or (5), request any additional information, in any form that the CAA considers appropriate in each specific case.

(7)

The pilot-in-command, operator, or person to whom a request is made under subsection (6) must provide the additional information immediately.

(8)

See

(a)

subpart 9 of Part 9 (which provides protections in relation to accident and incident notifications under this subpart):

(b)

section 456 (which relates to disclosure or publication of information).

Compare: 1990 No 98 s 26

50 Duty of CAA to notify accidents and incidents to TAIC

(1)

As soon as practicable after any accident or incident is notified to the CAA under section 49, the CAA must notify TAIC that the CAA has been notified of the accident or incident if it is—

(a)

an accident involving aircraft; or

(b)

a serious incident in accordance with the Convention.

(2)

If the CAA has been notified of a search and rescue operation under section 49(5), the CAA must immediately notify TAIC.

Compare: 1990 No 98 s 27

51 Failure to notify accident or incident

(1)

A pilot-in-command or other aviation participant who, without reasonable excuse, fails to comply with section 49(1), (3), (4), or (7) (relating to the notification of an accident or incident) commits an offence.

(2)

A pilot-in-command or other aviation participant who commits an offence against subsection (1) is liable on conviction,—

(a)

in the case of an individual, to a fine not exceeding $30,000:

(b)

in the case of any other person, to a fine not exceeding $100,000.

Compare: 1990 No 98 s 52B

Part 3 Rules

Subpart 1—Rules made by Minister or Governor-General

Power of Minister to make rules

52 Power of Minister to make rules

(1)

The Minister may make rules relating to civil aviation for all or any of the following purposes:

(a)

regulating aviation participants, aircraft, aeronautical products, and aviation places, and people and things carried, or to be carried, in aircraft:

(b)

regulating people, activities, and things in relation to the safety and security of civil aviation or any other effect or potential effect on civil aviation:

(c)

providing for the implementation of New Zealand’s obligations under the Convention:

(d)

providing for anything this Act says may or must be provided for by rules:

(e)

providing for anything incidental that is necessary for carrying out, or giving full effect to, this Act.

(2)

Nothing in sections 53 to 60 limits the power under this section.

(3)

Rules made under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

(4)

If, under the Legislation Act 2019, a rule is not required to be published, the Minister must serve a copy of it on the persons (if any) whom the Minister considers appropriate.

(5)

An ordinary rule to which subsection (4) applies—

(a)

has effect only in relation to a person on whom it is served under subsection (4); and

(b)

comes into force in relation to the person immediately after it is served on the person (even though it is not published).

(6)

Service under subsection (4) may be effected in any way the Minister considers appropriate.

Compare: 1990 No 98 s 28(1)

53 Rules relating to designation, classification, and certification

(1)

The Minister may make rules under section 52 relating to the designation, classification, and certification of all or any of the following:

(a)

aircraft:

(b)

aerodromes:

(c)

aeronautical products:

(d)

aviation-related services:

(e)

aviation participants:

(f)

aviation places.

(2)

The Minister may make rules for either or both of the following purposes:

(a)

to provide for the privileges of an air operator certificate to include conducting air operations in Australia:

(b)

to allow for the mutual recognition of safety certifications in accordance with the ANZA mutual recognition agreements.

Compare: 1990 No 98 ss 28(1)(ab), 30(a), (ca)

54 Rules relating to standards, specifications, restrictions, and licensing requirements

(1)

The Minister may make rules under section 52 relating to the setting of standards, specifications, restrictions, and licensing requirements for all or any of those persons or things specified in section 53, including but not limited to the following:

(a)

the specification of the privileges, limitations, and ratings associated with licences or other forms of approval:

(b)

the setting of standards for training systems and techniques, including recurrent training requirements:

(c)

the setting of medical standards for personnel:

(d)

the requirement for proof of access to appropriate weather services:

(e)

the specification of standards of design, construction, manufacture, maintenance, processing, testing, supply, approval, and identification of aircraft and aeronautical products:

(f)

the requirements for notification of insurance coverage for air services:

(g)

the provision of information to the CAA or the Director by applicants for or holders of aviation documents:

(h)

the provision by aviation participants of information to any person (for example, information to passengers about rights under Part 8):

(i)

the requirements relating to the classification of aviation examiners and medical examiners and any related standards and restrictions on the exercise of their functions and powers:

(j)

the requirements for the grant of delegations by the Director under clause 27 of Schedule 2:

(k)

the requirements for the purposes of determining suitably qualified medical examiners and establishing the criteria for standard medical assessments under clause 27 of Schedule 2:

(l)

the requirements and criteria for determining medical experts acceptable to the Director for the purposes of reaching an accredited medical conclusion.

(2)

The Minister may make rules under section 52 that are contemplated by or necessary for giving full effect to subpart 2 of Part 4.

(3)

The Minister may make rules under section 52

(a)

prescribing the content or format, or both, of aviation documents, applications, and forms for other matters:

(b)

requiring the use of forms of aviation documents, applications, or forms for other matters where the content or format, or both, of those forms is prescribed or approved by the CAA or the Director.

Compare: 1990 No 98 s 30(b)

55 Rules relating to aviation documents

(1)

The Minister may make rules under section 52 providing that an aviation document is required by or in respect of all or any of the following:

(a)

New Zealand registered aircraft:

(b)

aerodromes:

(c)

aeronautical products:

(d)

aviation participants.

(2)

The requirements, standards, and application procedures for each aviation document, and the maximum period for which each document may be issued, must be prescribed by rules made under section 52.

(3)

The Minister may make rules under section 52 specifying a particular class or classes of aviation document to which the requirements of section 75(1)(b)(ii) and 77 do not apply.

Compare: 1990 No 98 s 7(1), (2)

56 Rules relating to safety and security

The Minister may under section 52 make all or any of the following rules:

(a)

rules providing for the use of aerodromes and other aviation-related facilities, including but not limited to the following:

(i)

the provision of identification procedures for persons, aircraft, and any other aviation-related things:

(ii)

the prevention of interference with aerodromes and other aviation-related facilities:

(b)

general operating rules, air traffic rules, and flight rules, including but not limited to the following:

(i)

the conditions under which aircraft may be used or operated, or under which any act may be performed in or from an aircraft:

(ii)

the prevention of the operation of aircraft in a manner that endangers people or property:

(c)

rules providing for the control of things likely to be hazardous to aviation safety, including but not limited to the following:

(i)

the safe carriage of firearms and other dangerous or hazardous goods or substances by air:

(ii)

the construction, use, or operation of anything likely to be hazardous to aviation safety:

(d)

rules providing for security tiers for aerodromes, including—

(i)

specifying security tiers in addition to tier 1; and

(ii)

providing for the security requirements applicable to tier 1 and any other security tier:

(e)

rules providing for security tiers for navigation installations and for the requirements applicable to each tier:

(f)

rules relating to security areas at aerodromes, including prescribing the persons or classes of persons who may enter, pass through, and remain in different types of security area.

Compare: 1990 No 98 s 29

57 Rules relating to airspace

The Minister may make rules under section 52 providing for the classification, designation, special use, prohibition, and restriction of airspace and things affecting navigable airspace, including airspace used by aircraft used by the New Zealand Defence Force or a visiting force.

Compare: 1990 No 98 s 29A

58 Rules for noise abatement purposes

The Minister may make rules under section 52 prescribing flight rules, flight paths, altitude restrictions, and operating procedures for the purposes of noise abatement in the vicinity of aerodromes.

Compare: 1990 No 98 s 29B

59 Rules relating to national security

The Minister may make rules under section 52 prescribing when an application for an aviation document or for renewal of an aviation document is an application to which national security considerations apply, which may be—

(a)

on the basis of the type of activity for which the document is sought or particular circumstances relating to that activity:

(b)

on the basis of circumstances relating to an applicant or to any person who will conduct the activity for which the document is sought:

(c)

on any other differential basis.

60 Rules relating to other matters

The Minister may make rules under section 52 for all or any of the following purposes:

(a)

the definitions, abbreviations, and units of measurement to apply within the civil aviation system:

(b)

prescribing the design and colours of the New Zealand Civil Air Ensign, and where and by whom it may be flown:

(c)

providing for aviation meteorological services, search and rescue services, and civil aviation security programmes and services:

(d)

providing for the conditions of operation of foreign aircraft and international flights to, from, or within New Zealand.

Compare: 1990 No 98 ss 28(1)(b), 30(c), (d), (e)

61 Procedure for making rules

(1)

Before making a rule, the Minister must, as the Minister in each case considers appropriate,—

(a)

publish a notice of the Minister’s intention to make the rule; and

(b)

consult representative groups within the aviation industry or elsewhere, and any other persons.

(2)

Before making a rule, the Minister must—

(a)

be satisfied that the rule is not inconsistent with—

(i)

the standards of ICAO relating to aviation safety and security, to the extent adopted by New Zealand:

(ii)

New Zealand’s international obligations relating to aviation safety and security; and

(b)

have regard to, and give the weight that the Minister considers appropriate in each case, to the criteria specified in section 72.

Compare: 1990 No 98 s 34

62 Requirements relating to content of rules made by Minister

Every rule made by the Minister must—

(a)

be signed or otherwise authenticated by the Minister; and

(b)

contain a statement specifying the objective of the rule and the extent of any consultation under section 61.

Compare: 1990 No 98 s 32(1)

Powers of Governor-General to make rules

63 Governor-General may make rules

(1)

Despite anything in this Part, the Governor-General may, by Order in Council, on the recommendation of the Minister, make, amend, or revoke a rule for any of the purposes for which the Minister may make, amend, or revoke a rule under this Part.

(2)

Before making a recommendation under subsection (1), the Minister must—

(a)

be satisfied that the rule is not inconsistent with—

(i)

the standards of ICAO relating to aviation safety and security, to the extent adopted by New Zealand:

(ii)

New Zealand’s international obligations relating to aviation safety and security; and

(b)

have regard to, and give the weight that the Minister considers appropriate in each case to, the criteria specified in section 72.

(3)

The Minister may amend or revoke a rule or an amendment to a rule made by Order in Council under subsection (1) as if the Minister had made the rule or the amendment to the rule under this Part.

(4)

An order made under this section—

(a)

is secondary legislation; and

(b)

must be published as part of the rules as if the Minister had made the rule or the amendment to the rule.

(5)

An order made under this section—

(a)

is not required to be drafted by the PCO under section 67(d)(i) of the Legislation Act 2019; but

(b)

may be drafted by the PCO under an agreement under section 67(d)(iii) of that Act, and in that case, must be published as required by subsection (4)(b) despite section 69(1)(c) of the Legislation Act 2019.

(6)

If, under the Legislation Act 2019, the order is not required to be published, the Minister must serve a copy of it on the persons (if any) whom the Minister considers appropriate.

(7)

An order to which subsection (6) applies—

(a)

has effect only in relation to a person on whom it is served under subsection (8); and

(b)

comes into force in relation to the person immediately after it is served on the person (even though it is not published).

(8)

Service under subsection (6) may be effected in any way the Minister considers appropriate.

Compare: 1990 No 98 s 34A

Provisions concerning rules made by Minister or Governor-General

64 Provisions concerning rules made by Minister or Governor-General

(1)

This section and sections 65 and 66 apply in respect of any rule made by the Minister or the Governor-General under this Part.

(2)

A rule may apply generally or with respect to different classes of persons, aircraft, aerodromes, aeronautical products, aviation participants, or aviation-related services or with respect to the same class of persons, aircraft, aerodromes, aeronautical products, aviation participants, or aviation-related services in different circumstances.

(3)

A rule may apply generally throughout New Zealand or within any specified part or parts of New Zealand.

(4)

The commencement of a rule may be wholly suspended until it is applied by the Minister by notice in the Gazette.

(5)

Any rule may, on any terms and conditions that are specified in the rule,—

(a)

require or provide for a matter to be determined, undertaken, or approved by the CAA, the Director, or any other person; or

(b)

empower the CAA, the Director, or any other person to impose requirements or conditions as to the performance of any activity, including (but not limited to) any procedures to be followed.

(6)

To avoid doubt, the terms and conditions specified in a rule may provide for—

(a)

consultation to be undertaken before the exercise of any of the powers given to the CAA, the Director, or any other person by the rule; or

(b)

public notice to be given of the exercise of any powers; or

(c)

any other matter.

(7)

A notice made under subsection (4) is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

Compare: 1990 No 98 s 28(2)–(5A)

65 Rule prevails over bylaw if bylaw inconsistent or repugnant

If a bylaw of a local authority is inconsistent with or repugnant to any rule made under this subpart that is in force in the same locality, the rule prevails to the extent of the inconsistency.

Compare: 1990 No 98 s 28(7), (8)

66 Offences for breaches of rules

(1)

No breach of a rule constitutes an offence against this Act unless that offence is prescribed in the regulations.

(2)

This section is subject to the following sections:

(a)

section 51(2) (which provides for a fine payable on conviction for failing to notify the CAA regarding an accident or an incident involving an aircraft):

(b)

section 399(2) (which provides for a fine payable on conviction for non-compliance with commands given by the pilot-in-command):

(c)

section 401(2) (which provides for an infringement offence for operating a portable electronic device on board an aircraft in breach of the rules):

(d)

section 404(2) (which provides for an infringement offence for carrying, or causing to be carried, dangerous goods on an aircraft in breach of the rules).

Compare: 1990 No 98 s 28(6)

Subpart 2—Emergency rules made by Director

Power of Director to make emergency rules

67 Power of Director to make emergency rules

(1)

Subject to subsection (2), the Director may, in accordance with section 69, make any emergency rules that the Director considers may be necessary to alleviate or minimise any risk of the death of or a serious injury to any person, or of damage to any property.

(2)

The Director must not make emergency rules unless it is impracticable in the circumstances of the particular case for the Minister to make rules to effectively alleviate or minimise the risk concerned.

(3)

The Minister may revoke any emergency rule made under subsection (1), and the revocation must be notified as if it were an emergency rule.

(4)

The following are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements):

(a)

emergency rules under subsection (1):

(b)

a revocation under subsection (3).

(5)

If, under the Legislation Act 2019, an emergency rule or revocation is not required to be published, the Director must serve a copy of it on the persons (if any) who the Director considers appropriate.

(6)

If subsection (5) applies to an emergency rule or revocation,—

(a)

the Director may serve a copy of it on the persons (if any) who the Director considers appropriate; and

(b)

it comes into force in relation to the person immediately after it is served on the person (even though it is not published).

(7)

Service under subsection (5) may be effected in any way the Director considers appropriate.

Compare: 1990 No 98 s 31(1)–(3)

Provisions concerning emergency rules made by Director

68 Procedures relating to rules made by Director

Every emergency rule must—

(a)

be signed or otherwise authenticated by the Director; and

(b)

contain a statement specifying the objective of the rule and the extent of the consultation under section 69 that took place before the making of the rule; and

(c)

set out fully the requirements of the rule, except where certain information is, under section 429, incorporated in the rule by reference.

Compare: 1990 No 98 s 32(2)

69 Procedure for making emergency rules

(1)

Before making an emergency rule, the Director must consult with any persons, representative groups within the aviation industry or elsewhere, government departments, and Crown agencies that the Director in each case considers appropriate.

(2)

Before making an emergency rule, the Director must—

(a)

be satisfied that the rule is not inconsistent with—

(i)

the standards of ICAO relating to aviation safety and security, to the extent adopted by New Zealand:

(ii)

New Zealand’s international obligations relating to aviation safety and security; and

(b)

have regard to, and give the weight that the Director considers appropriate in each case to, the criteria specified in section 72.

Compare: 1990 No 98 s 35(1)

70 Duration of emergency rule

(1)

An emergency rule may be in force for a period not exceeding 90 days, and may be renewed by the Director once only for a further period not exceeding 30 days.

(2)

The Minister may, by notice, at any time while an emergency rule is in force in accordance with subsection (1) extend the duration of the rule in accordance with subsection (3) for a further period not exceeding 180 days from the date of the publication of the rule under the Legislation Act 2019.

(3)

Before extending the duration of an emergency rule under subsection (2), the Minister must consult with any persons, representative groups within the aviation industry or elsewhere, government departments, and Crown agencies that the Minister considers appropriate.

(4)

A notice made under subsection (2) is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

Compare: 1990 No 98 s 35(5), (5A), (5B), (6)

71 Emergency rule prevails if inconsistent with rule made under subpart 1

To the extent that an emergency rule is inconsistent with or repugnant to a rule made by the Minister or Governor-General under subpart 1, the emergency rule prevails.

Compare: 1990 No 98 s 35(6)

Subpart 3—General provisions

72 Criteria that Minister and Director must have regard to before making rules or emergency rules

The criteria referred to in sections 61(2)(b), 63(2)(b), and 69(2)(b) are—

(a)

the main and additional purposes:

(b)

the recommended practices of ICAO relating to aviation safety and security, to the extent adopted by New Zealand:

(c)

the level of risk existing to aviation safety in each proposed activity or service:

(d)

the nature of the activity or service for which the rule is being established:

(e)

the level of risk existing to aviation safety and security in New Zealand in general:

(f)

the need to maintain and improve aviation safety and security, including (but not limited to) personal security:

(g)

the costs of implementing measures for which the rule is being proposed:

(h)

the international circumstances in respect of—

(i)

aviation safety and security; and

(ii)

mutual recognition of safety certifications in accordance with the ANZA mutual recognition agreements:

(i)

any other matters that the Minister or, as the case may be, the Director considers appropriate in the circumstances.

Compare: 1990 No 98 s 33

Part 4 Aviation documents, medical certification, and drug and alcohol testing

Subpart 1—Requirements for aviation documents

73 Application for aviation document

(1)

An application for the grant or renewal of an aviation document must be made to the Director and be in accordance with the requirements of the rules.

(2)

The applicant must include in the application the applicant’s address for service in New Zealand and any other contact details required by the Director.

(3)

The holder of an aviation document must promptly notify the Director of any changes to the address for service, the contact details required by the Director under subsection (2), or any other relevant new contact details.

(4)

Service of any notice under this Act on a holder of, or an applicant for, an aviation document is effective service if served on the address last provided by that holder or applicant under this section.

Compare: 1990 No 98 s 8

74 Application requiring national security assessment

If an application for the grant or renewal of an aviation document falls within a category of applications specified in the rules as requiring a national security assessment, the Director must refer the application to the Minister for consideration in accordance with section 357 before granting the application.

75 Grant or renewal of aviation document

(1)

After considering any application for the grant or renewal of an aviation document, the Director must, as soon as practicable, grant the application if the Director is satisfied that—

(a)

all things in respect of which the document is sought meet the relevant prescribed requirements; and

(b)

the applicant and any person who will have or is likely to have control over the exercise of the privileges under the document—

(i)

either holds the relevant prescribed qualifications and has the prescribed experience or holds foreign qualifications that are acceptable to the Director under section 76; and

(ii)

is, as determined in accordance with section 80, a fit and proper person to have such control or to hold the document; and

(iii)

meets all other relevant prescribed requirements; and

(c)

in the case of a New Zealand AOC with ANZA privileges,—

(i)

the requirements in section 91(2) are met; and

(ii)

the applicant meets or will meet the conditions in section 91(4); and

(d)

it is not contrary to the interests of aviation safety and security for the document to be granted or renewed.

(2)

Despite subsection (1), if the Director has referred the application to the Minister under section 74, the Director must not make a decision on the application until the earliest of the following to occur:

(a)

the Minister issues a notice under section 357(2)(a) or (b) in relation to the application; or

(b)

the Minister notifies the Director that the Minister will not issue a notice under section 357(2)(a) or (b) in relation to the application; or

(c)

6 months has elapsed from the date on which the Director referred the application to the Minister under section 74.

(3)

If the Minister directs under section 357(2)(a) that the application not be granted, the Director must decline the application.

(4)

If the Minister directs under section 357(2)(b) that conditions or restrictions be imposed on an aviation document, the Director must impose those conditions or restrictions on the aviation document if granted under subsection (1).

(5)

Subsection (1)(b)(ii) does not apply in relation to an applicant for an aviation document if the aviation document is in a class specified in the rules as one to which that provision does not apply.

Compare: 1990 No 98 s 9(1)

76 Director may take into account foreign qualifications and certifications

For the purpose of granting or renewing an aviation document, the Director may, subject to any relevant provisions in the rules, accept any foreign qualifications or recognise any foreign certifications that the Director considers appropriate in each case.

Compare: 1990 No 98 s 9(2)

77 Condition of aviation document that holder, etc, continues to satisfy fit and proper person test

(1)

It is a condition of every current aviation document that the holder and any person who has or is likely to have control over the exercise of the privileges under the document must continue to satisfy the fit and proper person test specified in section 75(1)(b)(ii).

(2)

This section does not apply in relation to an aviation document if the aviation document is in a class specified in the rules as one to which section 75(1)(b)(ii) does not apply.

Compare: 1990 No 98 s 9(3)

78 Duration and conditions of aviation document

(1)

Subject to the rules, an aviation document may be issued by the Director for such specified period and subject to the conditions that the Director considers appropriate in each case.

(2)

A person in respect of whom any decision is made under this section may appeal against the decision to the District Court under section 444.

Compare: 1990 No 98 s 7(3), (4)

79 Right of appeal

(1)

If the Director declines to grant an application under section 75, the applicant may appeal against the decision to the District Court under section 444.

(2)

This section is subject to section 359.

Compare: 1990 No 98 s 9(4)

80 Fit and proper person test

(1)

For the purpose of determining whether a person is a fit and proper person for any purpose under this Act, the Director must, having regard to the degree and nature of the person’s proposed involvement in the New Zealand civil aviation system, have regard to, and give the weight that the Director considers appropriate to, the following matters:

(a)

the person’s history of compliance with transport safety and transport security requirements, whether inside or outside New Zealand:

(b)

the person’s related experience (if any) within the transport industry:

(c)

the person’s knowledge of the applicable civil aviation system regulatory requirements:

(d)

any history of physical or mental health problems or serious behavioural problems of the person:

(e)

the person’s use of drugs or alcohol:

(f)

any conviction of the person for a transport safety offence or an offence under the Health and Safety at Work Act 2015, whether or not—

(i)

the conviction was in a New Zealand court; or

(ii)

the offence was committed before the commencement of this Act:

(g)

any evidence that the person has committed a transport safety offence or has contravened or failed to comply with civil aviation legislation:

(h)

if a New Zealand AOC with ANZA privileges applies, the person’s compliance with the conditions specified in section 91(4).

(2)

The Director is not confined to consideration of the matters specified in subsection (1) and may take into account any other matters and evidence that the Director considers may be relevant.

(3)

The Director may, for the purpose of determining whether a person is a fit and proper person for any purpose under this Act,—

(a)

seek and receive any information (including medical reports) that the Director thinks fit; and

(b)

consider information obtained from any source.

(4)

Nothing in the Privacy Act 2020 prevents a person or agency from disclosing personal information to the Director in response to a request made by the Director under subsection (3).

(5)

Subsection (1) applies to a body corporate with the following modifications:

(a)

subsection (1)(a), (b), (c), (e), (f), and (g) must be read as if those paragraphs refer to the body corporate and its officers:

(b)

subsection (1)(d) must be read as if it refers only to the officers of the body corporate.

Compare: 1990 No 98 s 10(1)–(4)

81 Disclosure of prejudicial information

(1)

If, under section 80(1), the Director proposes to take into account any information that is or may be prejudicial to a person, the Director must, subject to subsection (2), disclose that information to the person and, in accordance with section 82, give the person a reasonable opportunity to refute or comment on it.

(2)

The Director may determine not to disclose the information if,—

(a)

in the case of non-disclosure to an individual of information about that individual, the Director could withhold the information under any of sections 49 to 53 of the Privacy Act 2020 had the information been requested by that individual under that Act; or

(b)

in any other case, the Director could withhold the information under section 6, 7, or 9 of the Official Information Act 1982 had the information been requested under that Act.

(3)

If, under subsection (2)(a), the Director determines not to disclose any information,—

(a)

the Director must—

(i)

inform the individual of the non-disclosure; and

(ii)

inform the individual that the individual may, under the Privacy Act 2020, complain to the Privacy Commissioner about that non-disclosure; and

(b)

the Privacy Act 2020 applies to that non-disclosure as if, following a request under that Act for the information that is withheld, the information had been withheld under that Act.

(4)

If, under subsection (2)(b), the Director determines not to disclose any information,—

(a)

the Director must—

(i)

inform the person of the non-disclosure; and

(ii)

inform the person that the person may seek a review by an Ombudsman of that non-disclosure under the Official Information Act 1982; and

(b)

the Official Information Act 1982 applies to that non-disclosure as if, following a request under that Act for the information that is withheld, the information had been withheld under that Act.

Compare: 1990 No 98 s 10(5)–(7)

82 Rights of persons affected by proposed adverse decisions

(1)

In this section and section 83, unless the context otherwise requires,—

adverse decision means a decision of the Director to the effect that a person is not a fit and proper person for any purpose under this Act

affected document holder, in relation to a person directly affected by an adverse decision, means the holder of or the applicant for the aviation document

person directly affected, in relation to any adverse decision, means the person who would be entitled under section 444 to appeal against that adverse decision

person on the basis of whose character the adverse decision arises, in relation to any adverse decision made or proposed to be made on the basis of matters referred to in section 80, means the person whom the Director assesses as not being a fit and proper person.

(2)

If the Director proposes to make an adverse decision under this Act in respect of any person, the Director, by notice in writing, must—

(a)

notify the person directly affected of the proposed decision; and

(b)

subject to subsection (4), inform the person of the grounds for the proposed decision; and

(c)

specify a date by which the person may make submissions to the Director in respect of the proposed decision, which must not be less than 21 days after the date on which the notice is given; and

(d)

where appropriate, specify the date on which the proposed decision will, unless the Director otherwise determines, take effect, being a date not less than 28 days after the date on which the notice is given; and

(e)

notify the person of the person’s right of appeal under section 444 if the Director proceeds with the proposed decision; and

(f)

specify any other matters that in any particular case may be required by this or any other Act.

(3)

If the Director gives a notice under subsection (2), the Director—

(a)

must also give a copy of the notice to—

(i)

any person on the basis of whose character the adverse decision arises, if the person is not the person directly affected by the proposed decision; and

(ii)

any affected document holder, if the Director considers that the proposed decision is likely to have a significant impact on the operations of the document holder; and

(b)

may supply a copy of the notice to any other affected document holder.

(4)

A notice or copy of a notice given under this section must not include or be accompanied by any information referred to in section 81(1), except to the extent that—

(a)

the notice or copy is supplied to the person to whom the information relates; or

(b)

the person to whom the information relates consents to the supply of that information to any other person.

(5)

If any notice or copy of a notice is given to any person under this section, the person must ensure that all information that the person wishes the Director to consider in relation to the proposed decision is received by the Director within the period specified in the notice under subsection (2)(c), or within any further period that the Director may allow.

(6)

The Director may request any further information from the person to whom the notice is given under this section, and may specify a reasonable time within which the information may be supplied.

Compare: 1990 No 98 s 11(1)–(4), (5)(a)

83 Determination by Director as to whether to make adverse decision

(1)

The Director—

(a)

must consider any submissions made in accordance with section 82(5) and made within the time period described or allowed under that subsection; and

(b)

must consider any information provided in accordance with a request made under section 82(6) that is provided within the time specified by the Director under that subsection; and

(c)

if, and only if, the Director is satisfied that there are extenuating circumstances, may consider any information provided in accordance with section 82(5) or a request made under section 82(6) that is provided after the expiry of any period referred to in those subsections.

(2)

After considering the matters referred to in section 82(5) and (6) in accordance with subsection (1), the Director must—

(a)

finally determine whether to make the proposed adverse decision; and

(b)

as soon as practicable after making the determination, notify in writing the person directly affected, and any other person of a kind referred to in section 82(3)(a), of—

(i)

the Director’s decision and the grounds for the decision; and

(ii)

the date on which the decision will take effect; and

(iii)

in the case of an adverse decision, the consequences of that decision and any applicable right of appeal specified in section 79(1), 97(5), or 98(6)).

Compare: 1990 No 98 s 11(5)(b), (c), (6)

84 Powers of Director in relation to examinations, etc

For the purposes of granting or renewing aviation documents under this Act, the Director may set, conduct, and administer examinations and tests, conduct flight testing, and carry out any other functions in relation to those examinations, tests, and flight testing that the Director considers may be necessary.

Compare: 1990 No 98 s 72K

Subpart 2—Australia New Zealand Aviation mutual recognition

85 Additional purpose of subpart

(1)

The purpose of this subpart (in addition to those set out in sections 3 and 4) is to implement the Australia New Zealand Aviation (ANZA) mutual recognition agreements.

(2)

This section does not limit section 3 or 4.

Compare: 1990 No 98 s 11A

Australian Air Operator’s Certificates with Australia New Zealand Aviation privileges

86 Holder of Australian Air Operator’s Certificate with ANZA privileges entitled to conduct air operations in New Zealand

(1)

The holder of an Australian AOC with ANZA privileges may conduct air operations to, from, or within New Zealand if the holder provides the Director with—

(a)

a copy of the Australian AOC with ANZA privileges; and

(b)

written notice of the following:

(i)

the details of all conditions imposed by CASA in relation to the Australian AOC with ANZA privileges; and

(ii)

the holder’s Australian address for service and other contact details as specified by the Director; and

(iii)

the holder’s New Zealand address for service and other contact details as specified by the Director; and

(iv)

any other prescribed information; and

(c)

the holder’s consent in writing to the making of inquiries to, and the exchange of information with, CASA regarding that holder’s civil aviation activities.

(2)

A holder of an Australian AOC with ANZA privileges must ensure that the Director is advised of every alteration to the Australian AOC with ANZA privileges or to the information provided by the holder to the Director within 7 days of the date on which the alteration is made.

Compare: 1990 No 98 s 11B

87 New Zealand temporary stop notice

(1)

The Director may give the holder of an Australian AOC with ANZA privileges a written temporary stop notice that requires the holder to cease conducting all or any air operations in New Zealand for the period (which must not be more than 7 days) specified in the notice.

(2)

The Director may give a New Zealand temporary stop notice only if the Director considers that, as a result of the holder conducting all or any air operations in New Zealand, there is a serious risk to civil aviation safety in New Zealand.

(3)

Immediately on receiving a New Zealand temporary stop notice, the holder must cease conducting the air operations specified in the notice in New Zealand for the period specified in the notice.

(4)

The Director must not delegate the power to give or revoke a New Zealand temporary stop notice.

(5)

The Director may amend or revoke a New Zealand temporary stop notice before the period specified in that notice has expired.

(6)

The Director must revoke a New Zealand temporary stop notice if the CAA receives notification from CASA of the Director of CASA’s response to the New Zealand temporary stop notice.

Compare: 1990 No 98 s 11C

88 Contents of New Zealand temporary stop notice

(1)

A New Zealand temporary stop notice must specify—

(a)

the reasons why the Director considers that there is a serious risk to civil aviation safety in New Zealand; and

(b)

the period for which the holder of the Australian AOC with ANZA privileges must cease conducting air operations in New Zealand.

(2)

Failure to comply with subsection (1) does not invalidate the New Zealand temporary stop notice.

Compare: 1990 No 98 s 11D

89 Director to notify CASA about New Zealand temporary stop notice

As soon as practicable after giving a New Zealand temporary stop notice to the holder of an Australian AOC with ANZA privileges, the Director must give CASA a copy of the notice and any other information that CASA may require.

Compare: 1990 No 98 s 11E

New Zealand Air Operator’s Certificates with Australia New Zealand Aviation privileges

90 Requirements for New Zealand AOCs with ANZA privileges

(1)

Whenever the Director makes a decision under this Act in relation to a New Zealand AOC with ANZA privileges, the Director must take into account all relevant Australian and New Zealand regulatory requirements in relation to New Zealand AOCs with ANZA privileges.

(2)

In making a decision under this Act in relation to a New Zealand AOC with ANZA privileges, the Director—

(a)

must, if appropriate, consult CASA; and

(b)

may take into account any of the following that the Director receives from CASA:

(i)

advice:

(ii)

guidelines:

(iii)

recommendations:

(iv)

other relevant information.

Compare: 1990 No 98 s 11F

91 Grant of New Zealand AOC with ANZA privileges

(1)

The Director may, in accordance with this Act and the rules, grant to an air operator in New Zealand an authorisation (a New Zealand AOC with ANZA privileges) that will authorise the air operator to conduct air operations to, from, or within Australia.

(2)

Before the Director may grant a New Zealand AOC with ANZA privileges, the Director must—

(a)

be satisfied that the air operator will be conducting air operations to, from, or within New Zealand; and

(b)

receive from the licensing authority written confirmation that, if the New Zealand AOC with ANZA privileges is issued to the air operator, the licensing authority considers that the air operator will be eligible to conduct air operations in Australia under the air services arrangements in place between Australia and New Zealand; and

(c)

be satisfied that the air operator has complied with, or is capable of complying with, all the relevant requirements of the Civil Aviation Act 1988 (Aust) and regulations and civil aviation orders made under that Act that relate to safety; and

(d)

consult with CASA.

(3)

A New Zealand AOC with ANZA privileges may be granted by amending an appropriate existing aviation document or by granting an appropriate new aviation document.

(4)

A New Zealand AOC with ANZA privileges is subject to the conditions that the holder—

(a)

must conduct air operations to, from, or within New Zealand; and

(b)

must not hold an Australian AOC with ANZA privileges authorising the holder to conduct air operations that are covered by the New Zealand AOC with ANZA privileges; and

(c)

must comply with all the requirements of the Civil Aviation Act 1988 (Aust) and regulations and civil aviation orders made under that Act that apply to the holder; and

(d)

must undertake the supervision of its management systems from or within New Zealand; and

(e)

must ensure that the training and supervision of its employees is principally undertaken from or within New Zealand; and

(f)

must ensure that the majority of resources associated with the exercise of the privileges of the AOC are situated within New Zealand; and

(g)

must ensure that the people who control the exercise of the privileges of the AOC spend the majority of their time in New Zealand.

(5)

A New Zealand AOC with ANZA privileges may be issued on any other conditions that the Director considers appropriate.

(6)

In subsection (2), licensing authority has the same meaning as in section 175.

Compare: 1990 No 98 s 11G

92 Action by Director when CASA gives Australian temporary stop notice to holder of New Zealand AOC with ANZA privileges

(1)

After the Director receives notification from CASA that CASA has given the holder of a New Zealand AOC with ANZA privileges an Australian temporary stop notice, the Director must—

(a)

immediately consider the circumstances that gave rise to the giving of the notice; and

(b)

decide, as soon as practicable and in accordance with the ANZA mutual recognition agreements, whether the Director should—

(i)

suspend in whole or in part the New Zealand AOC with ANZA privileges under section 96 or 97; or

(ii)

revoke in whole or in part the New Zealand AOC with ANZA privileges under section 98; or

(iii)

impose conditions on the New Zealand AOC with ANZA privileges under section 96, 97, or 98; or

(iv)

take any other action in relation to that New Zealand AOC holder.

(2)

The Director must notify CASA of the Director’s decision and of any action taken.

Compare: 1990 No 98 s 11H

93 Change of country of certification

(1)

This section applies if the Director believes on reasonable grounds that—

(a)

it would be in the interests of Australian and New Zealand civil aviation safety for the holder of a New Zealand AOC with ANZA privileges to conduct air operations in the Australian civil aviation system; but

(b)

the holder is no longer able to comply with all the conditions specified in section 91(4).

(2)

The Director must—

(a)

consult with CASA; and

(b)

notify the holder—

(i)

that the Director believes on reasonable grounds that the holder is no longer able to comply with all the conditions specified in section 91(4); and

(ii)

of the grounds for the Director’s belief; and

(c)

allow the holder at least 90 days from the date of the Director’s notification under paragraph (b) to refute and otherwise comment on the Director’s belief.

(3)

If, after the process referred to in subsection (2) has been properly completed, the Director is satisfied that, in the interests of Australian and New Zealand civil aviation safety, the holder should no longer exercise ANZA privileges, the Director may do either or both of the following:

(a)

amend the New Zealand AOC with ANZA privileges:

(b)

withdraw the privileges attaching to the AOC.

(4)

A person in respect of whom a decision is taken under subsection (3) may appeal against the decision to the District Court under section 444.

Compare: 1990 No 98 s 11I

94 Delegation of Australian powers relating to Australian AOCs with ANZA privileges to employees of CAA

An employee of the CAA may, subject to any directions from the Director of CASA, perform any function or exercise any power delegated to that employee under the Civil Aviation Act 1988 (Aust) for the purpose of enabling that employee to perform the function or exercise the power in New Zealand in respect of Australian AOCs with ANZA privileges.

Compare: 1990 No 98 s 11J

95 Failure to cease conducting air operations in New Zealand

(1)

A person who fails to comply with section 87 commits an offence.

(2)

A person who commits an offence against subsection (1) is liable on conviction,—

(a)

in the case of an individual, to a fine not exceeding $60,000:

(b)

in the case of any other person, to a fine not exceeding 200,000.

Compare: 1990 No 98 s 46E

Subpart 3—Powers of Director in relation to aviation documents

96 Director may suspend, or impose conditions on, aviation document

(1)

The Director may suspend, in whole or in part, an aviation document issued under this Act or impose conditions on an aviation document if the Director considers the action is necessary in the interests of safety and security and if the Director—

(a)

considers the action is necessary to ensure compliance with civil aviation legislation; or

(b)

is satisfied that the holder has failed to comply with any conditions of an aviation document or with the requirements in section 13; or

(c)

is satisfied that the holder has contravened section 107(1) or 364(1); or

(d)

considers that the privileges conferred on or the duties imposed on the holder by the document have been, or are being, carried out by the holder in a careless or incompetent manner; or

(e)

in the case of a holder of a New Zealand AOC with ANZA privileges, has received from the Director of CASA a copy of an Australian temporary stop notice given to the holder.

(2)

Without limiting subsection (1),—

(a)

the Director may suspend an aviation document relating to the use of any aircraft or aeronautical product, or impose conditions on the aviation document, if the Director considers that there is reasonable doubt about the airworthiness of the aircraft or the quality or safety of the aeronautical product to which the document relates; and

(b)

the Director may suspend an aviation document relating to the provision of any aviation-related service, or impose conditions on the aviation document, if the Director considers that there is reasonable doubt about the quality or safety of the service to which the document relates.

(3)

The suspension of an aviation document and any conditions imposed remain in force until the Director determines what action, if any, referred to in section 97 is to be taken.

(4)

However, any suspension or conditions expire 10 working days after the date on which the suspension or conditions are imposed unless, before the expiry of that 10-working-day period, the Director extends the suspension or conditions for a further specified period.

Compare: 1990 No 98 s 17(1)–(3)

97 Further provisions in relation to suspension of, or imposition of conditions on, aviation document

(1)

This section applies if section 96 applies.

(2)

The Director may do 1 or more of the following:

(a)

impose conditions for a specified period:

(b)

withdraw any conditions (other than a condition imposed under section 357(2)(b)):

(c)

suspend an aviation document for a specified period:

(d)

revoke, in whole or in part, an aviation document under section 98:

(e)

impose permanent conditions under section 98.

(3)

If notice of a proposed revocation of an aviation document, or notice of the proposed imposition of permanent conditions on an aviation document, is given in accordance with section 82 (as required by section 98(3)), either at the same time as the suspension of the document under this section is imposed or while the suspension is in force, the document to which the notice relates remains suspended until the Director finally decides whether to revoke the document or to impose permanent conditions on the aviation document under section 98.

(4)

A person whose aviation document has been suspended or made subject to conditions must, if the document is capable of being surrendered (for example, if it is in paper form), immediately produce that document to the Director for appropriate endorsement.

(5)

A person in respect of whom a decision is made under this section may appeal against the decision to the District Court under section 444.

Compare: 1990 No 98 s 17(4)–(7)

98 Director may revoke, or impose permanent conditions on, aviation document

(1)

The Director may revoke, in whole or in part, or impose permanent conditions on an aviation document if the Director considers it necessary in the interests of aviation safety and security after an inspection, monitoring, or an investigation carried out under this Act.

(2)

Without limiting subsection (1), the Director may revoke or impose permanent conditions on an aviation document if—

(a)

the Director of CASA has advised the Director that CASA has given the holder of the document an Australian temporary stop notice; and

(b)

the Director considers that the revocation or imposition of permanent conditions is necessary in the interests of aviation safety and security.

(3)

If the Director proposes to act under this section, the Director must give notice in accordance with section 82, which applies as if the proposed action were a proposed adverse decision under this Act.

(4)

Subsection (5) applies if an aviation document is capable of being produced or surrendered (for example, if the document is in paper form).

(5)

A person whose aviation document is revoked or made subject to permanent conditions under this section must,—

(a)

where the document is made subject to permanent conditions or revoked in part, immediately produce the document to the Director for appropriate endorsement:

(b)

where the whole document is revoked, immediately surrender the document to the Director.

(6)

A person in respect of whom any decision is made under this section may appeal against the decision to the District Court under section 444.

Compare: 1990 No 98 s 18

99 Considerations relevant to decision about taking action under section 96, 97, or 98

(1)

This section applies for the purpose of—

(a)

determining whether an aviation document should be suspended or made subject to conditions under section 96 or 97; or

(b)

determining whether an aviation document should be revoked or made subject to permanent conditions under section 98.

(2)

If this section applies, the Director may have regard to, and give the weight that the Director considers appropriate to, the following matters:

(a)

the person’s history of compliance with transport safety regulatory requirements:

(b)

any conviction of the person for any transport safety offence, whether or not—

(i)

the conviction was in a New Zealand court; or

(ii)

the offence was committed before the commencement of this Act:

(c)

any evidence that the person has committed a transport safety offence or has contravened or failed to comply with civil aviation legislation.

(3)

The Director is not confined to consideration of the matters specified in subsection (2) and may take into account any other matters and evidence that the Director considers may be relevant.

(4)

The Director may—

(a)

seek and receive any information that the Director thinks fit; and

(b)

consider information obtained from any source.

(5)

Nothing in the Privacy Act 2020 prevents a person or agency from disclosing personal information to the Director in response to a request made by the Director under subsection (4).

Compare: 1990 No 98 s 19(1)–(4)

100 Obligations of Director in relation to disclosure or non-disclosure of information obtained under section 96, 97, or 98

(1)

If the Director proposes to take into account under section 96, 97, or 98 any information that is or may be prejudicial to a person, the Director must, subject to subsections (2) and (3), disclose that information to the person and give the person a reasonable opportunity to refute or comment on it.

(2)

The Director may determine not to disclose the information if,—

(a)

in the case of non-disclosure to an individual of information about that individual, the Director could withhold the information under any of sections 49 to 53 of the Privacy Act 2020 had the information been requested by that individual under that Act; or

(b)

in any other case, the Director could withhold the information under section 6, 7, or 9 of the Official Information Act 1982 had the information been requested under that Act.

(3)

Nothing in subsection (1) requires the Director to disclose any information, or the fact of non-disclosure of that information, before suspending an aviation document or imposing conditions on an aviation document under section 96 or 97.

(4)

The disclosure under subsection (1), must be as soon as practicable, but, in the case of the suspension of an aviation document or the imposition of conditions under section 96 or 97, must be no later than 5 working days after suspending the aviation document or imposing the conditions.

(5)

If, in reliance on subsection (2) or (3), the Director determines not to disclose any information, the Director must inform the person of the fact of non-disclosure and,—

(a)

in the case of non-disclosure to an individual of information about that individual, inform the individual that—

(i)

the individual may, under the Privacy Act 2020, complain to the Privacy Commissioner about that non-disclosure; and

(ii)

that Act applies to the non-disclosure as if, following a request under that Act for the information withheld, the information had been withheld under that Act; and

(b)

in any other case, inform the person that—

(i)

the person may seek a review by an Ombudsman of the non-disclosure under the Official Information Act 1982; and

(ii)

that Act applies to the non-disclosure as if, following a request under that Act for the information withheld, the information had been withheld under that Act.

Compare: 1990 No 98 s 19(5)–(7)

101 Further powers of Director to amend or revoke aviation document

(1)

The Director may, if requested to do so in writing by the holder of any aviation document,—

(a)

amend that document in the manner requested; or

(b)

revoke that document.

(2)

The Director may do any of the following:

(a)

amend any aviation document to reflect the fact that any privilege or duty for which the document has been granted is no longer being carried out, or is no longer able to be carried out, by the holder:

(b)

revoke any aviation document if the holder is not carrying out, or able to carry out, any of the privileges or duties for which the document has been granted:

(c)

amend any aviation document to correct any typographical error or obvious mistake in the document.

(3)

Before taking any action under subsection (2)(a) or (b), the Director must notify the holder in writing of the proposed action and give the holder a reasonable opportunity to comment or make submissions on the proposed action.

(4)

The power to amend an aviation document under this section includes—

(a)

power to revoke the document and issue a new document in its place; and

(b)

power to impose reasonable conditions.

(5)

When the holder of an aviation document is notified that specified action is proposed under this section, the holder must, if the document is capable of being surrendered (for example, if it is in paper form), immediately produce the document to the Director.

Compare: 1990 No 98 s 20

Suspension or revocation of aviation document if prescribed fees, charges, or levies unpaid

102 Suspension or revocation of aviation document if prescribed fees, charges, or levies unpaid

(1)

If any fee, charge, or levy payable under this Act is not paid by the date prescribed or fixed for the payment of that fee, charge, or levy, the Director may suspend any aviation document to which the unpaid fee, charge, or levy relates.

(2)

If any fee, charge, or levy payable under this Act is not paid within 4 months after the date prescribed or fixed for the payment of that fee, charge, or levy, the Director may revoke any aviation document to which the fee, charge, or levy relates.

(3)

Before suspending an aviation document under subsection (1), or revoking an aviation document under subsection (2), the Director must notify the holder of the document—

(a)

that the Director intends to suspend or revoke the document; and

(b)

that the person has a right of appeal under section 444 if the Director suspends or revokes the document.

(4)

The holder of an aviation document that is suspended under subsection (1) or revoked under subsection (2), may appeal against the decision to the District Court under section 444.

Compare: 1990 No 98 ss 41(1)–(3), (5), 42D(3)

Subpart 4—Offences relating to aviation documents

103 Endangerment caused by holder of aviation document

(1)

The holder of an aviation document must not, in respect of any activity or service to which the document relates, do or omit to do any act, or cause or permit any act or omission, that causes unnecessary danger to any other person or to any property.

(2)

A person who does or omits to do any act in breach of subsection (1) commits an offence.

(3)

A person who does or omits to do any act in breach of subsection (1), being reckless as to whether the act or omission will cause unnecessary danger to any other person or to any property, commits an offence.

(4)

A person who commits an offence against subsection (2) is liable on conviction,—

(a)

in the case of an individual, to a fine not exceeding $90,000:

(b)

in the case of any other person, to a fine not exceeding $300,000.

(5)

A person who commits an offence against subsection (3) is liable on conviction,—

(a)

in the case of an individual, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding $150,000, or both:

(b)

in the case of any other person, to a fine not exceeding $1,500,000.

(6)

This section is in addition to and does not limit the regulations or rules.

Compare: 1990 No 98 s 43

104 Acting without necessary aviation document

(1)

A person commits an offence if the person—

(a)

operates, maintains, or services an aircraft, aerodrome, or aeronautical product, or provides an aviation-related service, or does any other act in respect of an aircraft, aerodrome, aeronautical product, or aviation-related service; and

(b)

either—

(i)

is required to hold a current aviation document for that activity and does not hold it; or

(ii)

knows that a current aviation document is required to be held in respect of the aircraft, aerodrome, product, or service before the act in paragraph (a) may lawfully be done and knows that the appropriate aviation document is not held.

(2)

A person who commits an offence against subsection (1)(b)(i) is liable on conviction,—

(a)

in the case of an individual, to a fine not exceeding $10,000:

(b)

in the case of any other person, to a fine not exceeding $30,000.

(3)

A person who commits an offence against subsection (1)(b)(ii) is liable on conviction,—

(a)

in the case of an individual, to imprisonment for a term not exceeding 12 months or to a fine not exceeding $90,000, or both:

(b)

in the case of any other person, to a fine not exceeding $300,000.

(4)

In a prosecution of a person referred to in subsection (1)(b)(i), it is not necessary to prove that the person intended to commit the offence.

Compare: 1990 No 98 s 46

105 Court may disqualify person from holding aviation document or impose conditions on aviation document

(1)

In addition to any penalty the court may impose under section 40, 41, or 103, the court may, on convicting any person of an offence against any of those sections,—

(a)

disqualify the person convicted from holding or obtaining an aviation document or a particular aviation document for any period not exceeding 12 months that the court thinks fit; or

(b)

impose on any aviation document held by or issued to the person convicted, for any period not exceeding 12 months that the court thinks fit, any restrictions or conditions or both that the court, having regard to the circumstances of the offence, thinks fit.

(2)

Nothing in subsection (1) affects or prevents the exercise by the Director of the Director’s powers under section 75.

Compare: 1990 No 98 s 45

106 Applying for aviation document while disqualified

(1)

A person who, without reasonable excuse, applies for or obtains an aviation document knowing or having proper notice that they are disqualified by an order of the court from obtaining such a document commits an offence.

(2)

Any aviation document in respect of which an offence is committed under subsection (1) is of no effect.

(3)

A person who commits an offence against subsection (1) is liable on conviction,—

(a)

in the case of an individual, to imprisonment for a term not exceeding 6 months or to a fine not exceeding $15,000, or both:

(b)

in the case of any other person, to a fine not exceeding $50,000.

(4)

If a person is convicted of an offence under subsection (1), the court may order the person to be disqualified from holding or obtaining an aviation document for any period not exceeding 12 months that the court thinks fit.

Compare: 1990 No 98 s 48

107 Failing to disclose information relevant to granting or holding of aviation document

(1)

A person commits an offence if the person—

(a)

is an applicant for an aviation document and fails, without reasonable excuse, to provide to the CAA information known to the person that the person knows or should know is relevant to the CAA’s or the Director’s exercise of powers under civil aviation legislation; or

(b)

is the holder of an aviation document and fails, without reasonable excuse, to provide to the CAA information known to the person that the person knows or should know is relevant to the condition specified in section 77.

(2)

A person who commits an offence against subsection (1) is liable on conviction,—

(a)

in the case of an individual, to imprisonment for a term not exceeding 12 months or to a fine not exceeding $30,000, or both:

(b)

in the case of any other person, to a fine not exceeding $100,000.

Compare: 1990 No 98 s 49(1)(b), (c), (2)

108 Failure to provide information to Director relating to Australian AOCs with ANZA privileges

(1)

A person who conducts an air operation while in breach of section 86(1) or (2) commits an offence.

(2)

A person who commits an offence against subsection (1) is liable on conviction,—

(a)

in the case of an individual, to a fine not exceeding $30,000:

(b)

in the case of any other person, to a fine not exceeding $100,000.

Compare: 1990 No 98 s 46D

Subpart 5—Medical certification

Provisions relating to medical certification

109 Medical certification

The provisions of Schedule 2 apply to medical certification.

Offences relating to medical certification

110 Acting without required medical certificate

(1)

A person who exercises the privileges of any aviation document or operates an aircraft solo commits an offence if the person—

(a)

does not hold an appropriate current medical certificate issued under Schedule 2 or a medical certificate recognised by the Director under the rules; or

(b)

knows or has reasonable grounds to suspect that they can no longer safely exercise the privileges to which their medical certificate relates; or

(c)

fails to comply with any conditions, restrictions, or endorsements specified by the Director under clause 15(a) of Schedule 2.

(2)

A person who commits an offence against subsection (1)(a) or (c) is liable on conviction to a fine not exceeding $30,000.

(3)

A person who commits an offence against subsection (1)(b) is liable on conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding $30,000, or both.

Compare: 1990 No 98 s 46A

111 Fraudulent, misleading, or false statements to obtain medical certificate

(1)

A person commits an offence if the person—

(a)

makes or causes to be made a fraudulent statement, or knowingly or recklessly makes or causes to be made a false or misleading statement,—

(i)

for the purpose of obtaining a medical certificate under Schedule 2; or

(ii)

during an investigation under clause 10 or 11 of Schedule 2 or a review under clauses 19 to 21 of that schedule or an assessment under clause 4 of that schedule; or

(b)

makes or causes to be made a fraudulent entry, or knowingly or recklessly makes or causes to be made a false or misleading entry, in any logbook, record, form, or report that is required to be kept, made, or used to show compliance with any conditions, restrictions, or endorsements placed on a medical certificate under Schedule 2; or

(c)

makes or causes to be made a reproduction or alteration for fraudulent purposes of a medical certificate issued under Schedule 2.

(2)

A person who commits an offence against subsection (1) is liable on conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding $30,000, or both.

Compare: 1990 No 98 s 46B

112 Failure to disclose medical information

(1)

A person commits an offence if the person—

(a)

fails, without reasonable excuse, to advise the Director of information about the person’s medical condition as required by clause 8(1)(a) of Schedule 2; or

(b)

fails, without reasonable excuse, to provide information required by the Director under clause 10 of Schedule 2.

(2)

A person commits an offence if the person—

(a)

is a licence holder and is aware of a change in the licence holder’s medical condition, or the existence of any previously undetected medical condition, that may interfere with the safe exercise of the privileges to which the licence holder’s medical certificate relates; and

(b)

fails, without reasonable excuse, to advise the Director of information about the person’s medical condition as required by clause 8(1)(a) of Schedule 2.

(3)

A person who commits an offence against subsection (1) is liable on conviction to a fine not exceeding $30,000.

(4)

A person who commits an offence against subsection (2) is liable on conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding $30,000, or both.

Compare: 1990 No 98 s 46C

Subpart 6—Drug and alcohol management plans and testing

113 Interpretation

In this subpart, unless the context otherwise requires,—

bodily sample means any of the following:

(a)

biological fluid:

(b)

biological tissue (whether living or not):

(c)

breath

DAMP means a drug and alcohol management plan developed in accordance with section 114

DAMP operator means a person who—

(a)

conducts an operation that involves 1 or more safety-sensitive activities; and

(b)

is required under the rules to hold an aviation document for that operation; and

(c)

is in a class of persons specified in the rules as a DAMP operator

Director testing means drug or alcohol testing carried out under section 116

drug or alcohol test means—

(a)

a test of a person’s bodily sample to determine the presence, but not the level, of alcohol or a testable drug (or both) in the sample; or

(b)

a test of a person’s bodily sample to determine the presence and the level of alcohol or a testable drug (or both) in the sample

negative result, in relation to a drug or alcohol test, means that the test reveals—

(a)

that alcohol or a testable drug (or both) is not present in the bodily sample; or

(b)

if the DAMP specifies a level of alcohol or a testable drug in relation to a test, that alcohol or a testable drug (or both) is not present in the body at or above the specified level

random testing means drug or alcohol testing of a safety-sensitive worker by a DAMP operator under section 115, where the worker—

(a)

is selected for testing in a way that is non-discriminatory; and

(b)

is not given advance notification of the testing

response plan means that part of a DAMP that is concerned with actions taken by the DAMP operator in relation to a safety-sensitive worker who refuses to consent to a drug or alcohol test or whose test returns a result other than a negative result, and includes reasonable arrangements and processes developed by the DAMP operator for—

(a)

prohibiting the worker from performing a safety-sensitive activity; and

(b)

permitting the worker to resume performing safety-sensitive activities, if the worker can do so safely

safety-sensitive activity

(a)

means an activity that—

(i)

could significantly affect the health or safety of any person on board an aircraft, including the person performing the activity; or

(ii)

if not performed safely, could cause or contribute to an accident or incident involving an aircraft; and

(b)

includes an activity prescribed under the rules

safety-sensitive worker

(a)

means an individual employed or engaged by a DAMP operator in a role that involves the individual performing a safety-sensitive activity; and

(b)

includes the DAMP operator, if the DAMP operator is an individual

testable drug, in relation to a DAMP, means a drug specified under section 114(2)(b)(i) in the DAMP.

114 DAMP operator must develop DAMP

(1)

A DAMP operator must have a DAMP for the purpose of managing risks arising from drug or alcohol use by safety-sensitive workers of the DAMP operator when performing safety-sensitive activities in relation to the operator’s operation.

(2)

The DAMP operator must ensure that a DAMP—

(a)

applies to all safety-sensitive activities; and

(b)

provides for random testing of safety-sensitive workers, including by—

(i)

specifying the drugs to be tested for under the DAMP; and

(ii)

setting out procedures and other matters (including any permissible levels of alcohol or a testable drug) in relation to the testing; and

(c)

includes a response plan; and

(d)

is developed in accordance with any requirements under the rules for developing the DAMP (including consultation with affected workers).

(3)

For the purpose of subsection (2)(b)(i), the DAMP operator—

(a)

must specify any drug that is specified by the rules as required to be included as a testable drug in the DAMP; and

(b)

may specify any other drug that could impair a safety-sensitive worker’s performance of a safety-sensitive activity.

(4)

The following must be done as prescribed under the rules:

(a)

the keeping of records in relation to matters done under, or relevant to, the DAMP:

(b)

approval and renewal of the DAMP:

(c)

amendment of the DAMP:

(d)

treatment of the DAMP as forming part of any other document held by the operator.

115 Random testing by DAMP operator

(1)

A DAMP operator must ensure that random testing of safety-sensitive workers is carried out.

(2)

Random testing may be carried out only if the worker consents to be tested.

(3)

The DAMP operator must ensure that a person who carries out random testing is competent to carry out the testing, including by having any necessary experience or qualifications.

(4)

The person who carries out the testing must—

(a)

request the worker’s consent before testing the worker; and

(b)

explain to the worker the consequences of refusing consent; and

(c)

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

116 Director testing

(1)

The Director may carry out drug or alcohol testing of 1 or more safety-sensitive workers of a DAMP operator.

(2)

Director testing,—

(a)

to the extent reasonably practicable in the circumstances, must be carried out without giving advance notification to the DAMP operator or to the workers selected for testing; and

(b)

may be carried out at any reasonable time and in any reasonable circumstances the Director considers appropriate; and

(c)

may be carried out only if the worker consents to be tested; and

(d)

must be carried out by an inspector.

(3)

When carrying out Director testing, an inspector must—

(a)

carry a document that—

(i)

contains an explanation of the statutory power to carry out the test; and

(ii)

sets out any other matter prescribed under the rules; and

(b)

show the document to the worker on first approaching the worker and at any later time on request; and

(c)

take reasonable steps to establish the worker’s identity before testing the worker; and

(d)

ask for the worker’s consent before testing the worker; and

(e)

give the worker a written statement that contains the information and other matters set out in subsection (4); and

(f)

carry out a test or tests only in relation to—

(i)

alcohol and the testable drugs specified in the DAMP; and

(ii)

the permissible levels (if any) for alcohol or testable drugs specified in the DAMP.

(4)

The statement required under subsection (3)(e) must contain the following:

(a)

the matters set out in the document referred to in subsection (3)(a):

(b)

the purpose of the test:

(c)

a general description of how the test will be carried out, including how the bodily sample will be taken and how it will be analysed:

(d)

an explanation of the consequences of refusing to consent or of the worker’s test returning a result other than a negative result:

(e)

advice that the worker will be informed of the result of the test (and approximately when this will happen).

(5)

As soon as practicable after the Director becomes aware of the result of a test, the Director must give the test result to the worker tested and the DAMP operator.

(6)

A failure by the Director to comply with subsection (2)(a) does not invalidate a test.

117 What happens if worker refuses consent or test result is not negative

(1)

If a safety-sensitive worker refuses to consent to random testing or is tested and returns a result other than a negative result, or if the Director notifies the DAMP operator under subsection (3), the DAMP operator must—

(a)

prohibit the worker from performing safety-sensitive activities until the worker is able to safely perform those activities; and

(b)

implement the response plan.

(2)

If a worker refuses to consent to Director testing or is tested and returns a result other than a negative result, the Director must notify the worker’s DAMP operator of that fact as soon as practicable.

(3)

If a worker refuses to consent to random testing or is tested and returns a result other than a negative result, the DAMP operator must, in accordance with any requirements of the rules, notify the Director of that fact as soon as practicable.

118 Tampering

(1)

This section applies if a person who is carrying out a random test or Director testing suspects on reasonable grounds that a person being tested has—

(a)

consumed, administered, or supplied any substance with intent to dilute, contaminate, or otherwise alter any sample:

(b)

otherwise tampered with the testing.

(2)

This subpart and the relevant DAMP applies as if the test returned a result other than a negative result.

119 Test results only to be used in certain prosecutions

Test results obtained by a DAMP operator from carrying out random testing or by the carrying out of Director testing under section 116 are not admissible in any criminal proceedings other than the prosecution of an offence under—

(a)

this Act; or

(b)

the Health and Safety at Work Act 2015.

Part 5 Aviation security

Subpart 1—Designations and security checks

120 Interpretation

In this subpart, authorised security person, in relation to a security designated aerodrome or security designated navigation installation, means an aviation security officer or a person authorised by the Director or the operator of the aerodrome or installation.

121 Security designated aerodromes and navigation installations

(1)

The Minister may, by notice in the Gazette, having regard to the main and additional purposes of this Act,—

(a)

designate an aerodrome as a Tier 1 security designated aerodrome:

(b)

designate an aerodrome as having any other tier of security specified in the rules:

(c)

designate a navigation installation as a security designated navigation installation.

(2)

The New Zealand Police and the authorised aviation security service provider or providers at a security designated aerodrome or security designated navigation installation are jointly responsible for—

(a)

the prevention of the commission of crimes against the Aviation Crimes Act 1972 at that aerodrome or installation; and

(b)

the protection of persons and property from dangers arising from the commission or attempted commission of such crimes.

Compare: 1990 No 98 ss 76, 82

Airside security areas

122 Airside security areas

(1)

The Director may declare, by a sign or signs affixed at the perimeter of the area, that an area within any security designated aerodrome or security designated navigation installation is an airside security area.

(2)

The Director may declare, by appropriate notification, that an area within an airside security area is a security enhanced area.

Compare: 1990 No 98 s 84(1), (1A)

123 Entry into airside security area

(1)

Except as provided in this section, only the following persons may enter or remain in any airside security area or part of an airside security area:

(a)

a constable on official duties or an aviation security officer on official duties:

(b)

a person who is—

(i)

authorised by the Director or a person acting under the authority of the operator of the aerodrome or navigation installation; and

(ii)

bearing, in accordance with any requirements specified in the rules, evidence of the person’s identity:

(c)

a person or class of persons approved by the Director for the purpose of this section.

(2)

The evidence of identity required by subsection (1)(b)(ii) must be the evidence of identity required under the rules or approved by the Director under the rules.

(3)

Despite subsection (1),—

(a)

a passenger embarking or disembarking directly through a gateway or thoroughfare in an aerodrome approved for that purpose by the aerodrome manager may pass through an airside security area or part of an airside security area forming part of the gateway or thoroughfare without the evidence of identity referred to in subsection (1)(b)(ii):

(b)

a person allowed under the rules may pass through an airside security area or part of an airside security area without the evidence of identity referred to in subsection (1)(b)(ii).

Compare: 1990 No 98 s 84(2), (7), (8)

124 Providing evidence of identity and authority

(1)

A person in an airside security area or part of an airside security area must, on the request of an authorised security person,—

(a)

state the person’s name, address, and date of birth, and the purpose of the person’s presence in the airside security area or part of an airside security area, and the person’s authority to enter it; and

(b)

provide satisfactory evidence of the person’s stated name and authority to enter the area.

(2)

An authorised security person may order a person to leave an airside security area or part of an airside security area if the person fails or refuses to comply with a requirement of subsection (1)(a) or (b) when requested.

(3)

If a person fails or refuses without reasonable excuse to immediately comply with an order under subsection (2), an authorised security person, and any person whom the authorised security person calls to assist the authorised security person, may use such force that is reasonably necessary to remove the person.

(4)

Any person who without reasonable excuse refuses to comply with a request or order under subsection (1) or (2) and, after having been warned that the person is committing an offence under section 167, persists in its commission may be detained by an aviation security officer.

(5)

A person detained under subsection (4) must as soon as practicable be delivered to a constable.

Compare: 1990 No 98 s 84(3)–(6)

125 Authorised security person may seize evidence of identity

(1)

This section applies if a person produces the evidence of identity referred to in section 123(1)(b)(ii) to an authorised security person, and an authorised security person is satisfied that—

(a)

the evidence of identity is being used in breach of civil aviation legislation; or

(b)

the approval of the evidence of identity has been withdrawn or has expired.

(2)

The authorised security person may seize the evidence of identity and—

(a)

return it to the Director or otherwise notify the Director in accordance with the rules; or

(b)

if not issued by the Director, return it to the person or agency that issued it or otherwise notify the person or agency in accordance with any requirements of the rules.

Landside security areas

126 Landside security areas

(1)

The Minister may exercise the power in this section if the Minister considers that it is—

(a)

necessary in order to respond to a threat to civil aviation; or

(b)

necessary to enable New Zealand to be part of a concerted international response to a threat to aviation security; or

(c)

otherwise necessary to support the main or additional purposes of this Act.

(2)

The Minister may declare, by a sign or signs affixed at the perimeter of the area, that an area within any security designated aerodrome or security designated navigation installation is a landside security area.

(3)

A declaration made under this section has effect for a period the Minister specifies in it, which must not be more than 30 days.

Security checks of persons

127 Director may carry out security checks

(1)

The Director may carry out a security check of a person who falls within a category of persons specified in the rules as requiring a security check if—

(a)

the security check is for the purpose of determining whether the person poses a threat to aviation security; and

(b)

the person consents.

(2)

If a person refuses consent to a security check under subsection (1), the person must not be granted any authorisation under the rules if the rules require a favourable security check determination.

(3)

The Director may grant a favourable security check determination if the Director decides that the person has undergone an alternative security check that is acceptable to the Director.

(4)

For the purpose of determining whether a person poses a threat to aviation security, the Director may—

(a)

seek and receive any information that the Director considers relevant, including (but not limited to) a recommendation made by the New Zealand Security Intelligence Service under section 11 of the Intelligence and Security Act 2017; and

(b)

give weight to any component of the information as the Director considers appropriate in the circumstances.

(5)

Nothing in the Privacy Act 2020 prevents disclosure of personal information by a person or agency to the Director in response to a request made by the Director under subsection (4).

(6)

If the Director determines that a person does not pose a threat to aviation security, the Director must advise the person of the favourable security check determination.

Compare: 1990 No 98 s 77F(1)–(5)

128 Reconsideration of security check determination

(1)

The Director may reconsider any previous security check determination that the Director has made under section 127 if—

(a)

new information is made available; or

(b)

the Director has reason to suspect that the person may pose a threat to aviation security.

(2)

If the Director proposes to reconsider any previous security check determination, the Director must—

(a)

advise the person to whom the security check determination relates that the Director is reconsidering that determination; and

(b)

complete the reconsideration of that determination within 20 working days of advising the person under paragraph (a); and

(c)

if the reconsideration results in an adverse security check determination or a proposed adverse security check determination, initiate the appropriate review procedure set out in section 129 or 130; and

(d)

if a favourable security check determination is required for any previous authorisation granted to the person under the rules, withdraw that authorisation for—

(i)

the period of the reconsideration; and

(ii)

any subsequent review period under section 129 or 130; and

(e)

if a favourable security check determination is required for any previous authorisation granted to the person by any other entity, require that entity to withdraw the authorisation for—

(i)

the period of the reconsideration; and

(ii)

any subsequent review period under section 129 or 130.

(3)

Section 127(4) and (5) applies to the reconsideration of a security check determination under this section.

(4)

Nothing in this section limits the power of the Director to grant an exemption under section 324.

Compare: 1990 No 98 s 77F(6)–(8)

129 Review procedure for adverse security check determination

If the Director proposes to make an adverse security check determination with respect to a person (other than a determination to which section 130 applies), the Director must—

(a)

advise the person in writing of the proposed determination and the reasons for the proposed determination; and

(b)

give the person written notice that, within 20 working days of the date of the notice, the person may—

(i)

seek legal advice or assistance with respect to the proposed determination:

(ii)

respond to, comment on, or make submissions on the proposed determination:

(iii)

provide new information relevant to the proposed determination; and

(c)

give the person written notice of the date on which the proposed determination will, unless the Director decides otherwise, be made (which must be a date that is as soon as practicable after the expiry of the 20-working-day period referred to in paragraph (b)); and

(d)

consider any response, comment, submission, or new information that the person provides along with the information on which the proposed determination was made; and

(e)

make a final determination and inform—

(i)

the person of the final determination and the reasons for the final determination; and

(ii)

any other affected party of the final determination but not the reasons for the final determination.

Compare: 1990 No 98 s 77G(2)

130 Review procedure for adverse security check determination made wholly or partly on recommendation under Intelligence and Security Act 2017

(1)

If the Director makes an adverse security check determination with respect to a New Zealand person based on a recommendation made by the New Zealand Security Intelligence Service under section 11 of the Intelligence and Security Act 2017, the Director must advise the New Zealand person that the person may, in accordance with section 171 of that Act, make a complaint regarding the recommendation to the Inspector-General of Intelligence and Security.

(2)

If the Director proposes to make an adverse security check determination based on a recommendation made by the New Zealand Security Intelligence Service and on information other than that recommendation, the Director must—

(a)

follow the procedure set out in section 129 with respect to the information other than the recommendation and advise the person that the proposed determination is based on—

(i)

a recommendation made by the New Zealand Security Intelligence Service; and

(ii)

information other than the recommendation; and

(b)

then follow the procedure set out in subsection (1) with respect to the recommendation if—

(i)

the Director is satisfied that the information other than the recommendation is no longer sufficient to support an adverse security check determination; and

(ii)

the person is a New Zealand person.

(3)

For the purposes of this section, New Zealand person has the meaning given to it in section 4 of the Intelligence and Security Act 2017.

Compare: 1990 No 98 s 77G(1), (3), (5)

131 Consequences of final adverse security check determination

If the Director makes a final adverse security check determination, the Director must—

(a)

revoke any authorisation granted to the person by the Director under the rules, if a favourable security check determination is required under the rules for the authorisation; and

(b)

require any other entity to revoke any authorisation granted to the person, if a favourable security check determination is required under the rules for the authorisation.

Compare: 1990 No 98 s 77G(4)

132 Offence to carry out activity while authorisation withdrawn or after authorisation revoked

(1)

A person commits an offence if the person carries out an activity that requires an authorisation—

(a)

during a period when that authorisation has been withdrawn under section 128(2)(d) or (e); or

(b)

if that authorisation has been revoked under section 131.

(2)

A person who commits an offence against subsection (1) is liable on conviction to a fine not exceeding $10,000.

Compare: 1990 No 98 s 77H

133 Offence to fail to comply with Director’s requirement to withdraw or revoke authorisation

(1)

A person commits an offence if the person fails, without reasonable excuse, to comply with the Director’s requirement to—

(a)

withdraw an authorisation under section 128(2)(e); or

(b)

revoke an authorisation under section 131(b).

(2)

A person who commits an offence against subsection (1) is liable on conviction to a fine not exceeding $37,500.

Compare: 1990 No 98 s 77I

Subpart 2—Aviation security services and aviation security powers

134 Interpretation

In this subpart,—

data means information in digital format and other intangible material in an electronic device

electronic device or device means anything that contains data (including an electronic communication device or any other data storage device)

pat down search means a search of a clothed person in which the person conducting the search does all or any of the following:

(a)

runs or pats their hand over the body of the person being searched, whether outside or inside the clothing (other than any underclothing) of the person being searched:

(b)

inserts their hand inside any pocket or pouch in the clothing (other than any underclothing) of the person being searched:

(c)

for the purpose of permitting a visual inspection, requires the person being searched to do all or any of the following:

(i)

open their mouth:

(ii)

display the palms of their hands:

(iii)

display the soles of their feet:

(iv)

lift or rub their hair

relevant item or substance means—

(a)

dangerous goods:

(b)

any item or substance specified in section 11(1) of the Aviation Crimes Act 1972:

(c)

any item or substance not already included in paragraph (a) or (b) that is specified in a direction under section 153 or 155

security area means a landside security area or an airside security area

sterile area means the area at an aerodrome, between the passenger inspection and screening station and the aircraft, into which access is strictly controlled

thing includes, without limitation, an item, a substance, or a vehicle.

Provision of aviation security services

135 Aviation security service providers

Aviation security services may be provided by—

(a)

AvSec, at any security designated aerodrome or security designated navigation installation; or

(b)

the operator of a security designated aerodrome or security designated navigation installation, at that aerodrome or navigation installation; or

(c)

an airline, at a security designated aerodrome at which the airline is operating.

Compare: 1990 No 98 s 79(1)

136 Responsibility of Minister

The Minister must ensure that aviation security services are provided at all Tier 1 security designated aerodromes and at all security designated navigation installations.

Compare: 1990 No 98 s 77

137 Requirements for provider of aviation security services

(1)

No person referred to in section 135(b) or (c), and no person employed or engaged by the person, may provide aviation security services at an aerodrome or, as the case may be, a navigation installation, except in accordance with a current aviation document for the services issued under this Act.

(2)

The holder of an aviation document referred to in subsection (1)

(a)

has only those functions and duties (being all or any of the functions and duties of AvSec) that are prescribed under the regulations or rules; and

(b)

must comply with the relevant prescribed requirements and standards.

(3)

To avoid doubt, neither AvSec nor any person employed to work in AvSec is required to have an aviation document for the provision of aviation security services.

Compare: 1990 No 98 ss 79(2), (3), 81(1)

138 Minister may specify only AvSec to provide security at aerodrome or installation

(1)

Despite section 135, but subject to subsection (3), the Minister may by notice in the Gazette specify that only AvSec may provide aviation security services at all or any security designated aerodromes or security designated navigation installations.

(2)

Before giving a notice under subsection (1), the Minister—

(a)

must have regard to the main and additional purposes in sections 3 and 4; and

(b)

must consult with any person who already holds an aviation document entitling the person to provide aviation security services at a security designated aerodrome or security designated navigation installation to which the notice will apply.

(3)

Despite anything in section 135, the Minister may at any time, in the event of an emergency or other crisis, appoint AvSec to provide aviation security services at any security designated aerodrome or security designated navigation installation, even though another authorised aviation service provider is providing aviation security services.

(4)

Any appointment made under subsection (3) has effect for a period specified by the Minister, which must not be more than 10 days.

Compare: 1990 No 98 s 79A

139 Functions and duties of AvSec

(1)

AvSec has the following functions and duties:

(a)

to carry out—

(i)

crew, passenger, and baggage searching for all international aircraft passenger services:

(ii)

the directions of the Minister or the Director under section 153 or 155:

(iii)

aerodrome security patrols and patrols of security designated navigation installations:

(b)

to review, inquire into, and keep itself informed on security techniques, systems, devices, practices, and procedures related to the protection of civil aviation and persons employed in or using it:

(c)

to undertake, or encourage or supervise, any experimental or research work in respect of any aspect of aviation security that the Director specifies:

(d)

for the purpose of better carrying out any of its functions under this Act, to co-operate with the Police, government departments, airport operators, operators, authorities administering the airport security services of other countries, and any appropriate international organisation:

(e)

to provide security support services to the Police when requested by the Commissioner of Police, but only if—

(i)

the Commissioner of Police is satisfied that the provision of those services to the New Zealand Police is necessary to enable the New Zealand Police to carry out its security duties; and

(ii)

the Minister and the CAA agree that the provision of those services to the New Zealand Police will not compromise aviation security:

(f)

to co-operate with, or to provide advice and assistance to, any government agency or local government agency when requested to do so by the Minister, but only if the Minister and the CAA agree that the performance of the functions and duties of AvSec will not be compromised:

(g)

to carry out or exercise any other functions, powers, or duties that are conferred or imposed on it under this Act or any other legislation.

(2)

AvSec is not required to perform the functions and duties in subsection (1) at an aerodrome or navigation installation to the extent that an authorised aviation security service provider is performing those functions and duties at that aerodrome or navigation installation under an aviation document in accordance with section 137.

(3)

Nothing in subsection (1) limits the powers, functions, duties, or responsibilities of the Police under this Act or any other legislation, or the generality of section 136.

Compare: 1990 No 98 s 80

140 Requirements for AvSec to comply with prescribed requirements for provision of aviation security services

The Director may—

(a)

require AvSec to comply with all or any requirements prescribed under the rules or regulations that would apply to the holder of an aviation document for the provision of aviation security services; and

(b)

exercise in relation to AvSec any power given to the Director under this Act that is exercisable in relation to the holder of an aviation document for the provision of aviation security services.

141 Person who holds aviation document for aviation security service must designate aviation security officers

(1)

A person who holds an aviation document for an aviation security service must designate persons employed by the person to be aviation security officers.

(2)

An officer designated under subsection (1) has, in relation to the aerodrome or navigation installation at which the person is employed, all the powers of an aviation security officer under this Part.

Compare: 1990 No 98 s 81

Searching powers at aerodromes and navigation installations

142 Searching powers of aviation security officers

(1)

An aviation security officer may, at an aerodrome or a navigation installation, for the purpose of detecting any relevant item or substance, undertake reasonable searching of—

(a)

a person or thing—

(i)

at a screening point immediately before the person or thing enters a landside security area; or

(ii)

while the person or thing is present in a landside security area; or

(iii)

at a screening point immediately before the person or thing enters a sterile area; or

(iv)

while the person or thing is present in a sterile area; or

(v)

at a screening point immediately before the person or thing enters a security enhanced area; or

(vi)

while the person or thing is present in a security enhanced area:

(b)

any place within the aerodrome or installation:

(c)

any of the following at any place within the aerodrome or installation:

(i)

a crew member or passenger and any thing in the person’s possession:

(ii)

a thing to be carried on an aircraft:

(iii)

any thing that is found unattended:

(iv)

a vehicle:

(v)

an aircraft.

(2)

In relation to an electronic device, the power in this section does not authorise an aviation security officer or any other person to access data in the device or to access data that is not in the device.

(3)

No provision in subsection (1) limits or affects any other provision in that subsection.

(4)

A search under this section may be done at the request of an aerodrome operator or the Police, or on the initiative of an aviation security officer.

Compare: 1990 No 98 ss 80(a)(ii), (ab), 80A(1), 80B(1), 80C(1)

143 Requirements and incidental powers relating to manner of searching persons

(1)

With respect to a search of a person under section 142, a person must, if directed to do so by an aviation security officer,—

(a)

remove, raise, lower, or open any outer clothing, including (but not limited to) any coat, jacket, jumper, cardigan, or similar article that the person is wearing, to enable the search to be carried out, except where the person has no other clothing, or only underclothing, under the outer clothing:

(b)

remove any gloves, footwear (including socks or stockings), head coverings, belts, jewellery, or other accessories:

(c)

allow an aviation security officer to carry out a pat down search.

(2)

The search of a person may include a search (whether involving physical contact or not) of—

(a)

any outer clothing of the person removed, raised, lowered, or opened for the purposes of the search of the person; and

(b)

any head covering, gloves, or footwear (including socks or stockings) of the person removed for the purposes of the search of the person.

(3)

If a search of a person is made by means other than solely an aviation security dog or a mechanical or electrical or electronic or other similar device, the person must be searched by—

(a)

an aviation security officer who is of the same sex as the person being searched; or

(b)

if the person being searched reasonably requests, a person of a different sex.

Compare: 1990 No 98 s 80G

144 Consent requirements for searching

(1)

The power of search in section 142 may be exercised only,—

(a)

in the case of the search of a person, with the consent of the person:

(b)

in the case of the search of a thing, with the consent of the person in possession of the thing.

(2)

If a person is at a screening point, the person is taken for all purposes to consent to—

(a)

any searching of the person that involves little or no physical contact with the person being searched:

(b)

any searching of baggage presented by the person for carriage, including the use of reasonable force to open the baggage.

(3)

Subsection (2) does not apply to a search described in that subsection if the person refuses before the search begins to undergo the search or to allow a search of an item in the person’s possession.

(4)

A person (including a person to whom subsection (2) applies) may withdraw their consent at any time before a search is finished but, if the person does so, the person is treated for the purposes of this subpart and subpart 3 as if they had refused consent to the search.

(5)

A person is taken for all purposes to consent to the searching of the person’s baggage while it is temporarily under the control, or in the charge, of—

(a)

an airline operator or other person at an aerodrome for the purpose of transporting it within the aerodrome or loading it or any other similar purpose; or

(b)

a government agency for the purpose of inspecting it or exercising any other regulatory function.

(6)

This section is subject to section 145.

145 Circumstances where consent to searching not required

(1)

The power in section 142(1)(c)(iii) to search an unattended thing may be exercised without consent.

(2)

The power in section 142 may be exercised without consent to search anything other than a person if an aviation security officer has reasonable grounds to suspect that—

(a)

there is an imminent risk to aviation safety and security; and

(b)

the risk requires an immediate response.

(3)

This section applies despite anything in section 12(1) of the Aviation Crimes Act 1972 relating to a requirement for consent.

146 Power to require drivers to stop vehicles in security enhanced areas for searching

(1)

An aviation security officer who is in uniform may signal or request the driver of a vehicle in a security enhanced area to stop the vehicle as soon as is practicable for the purpose of searching the vehicle, and any thing or person in the vehicle, under section 142.

(2)

The driver of a vehicle that is stopped by an aviation security officer must remain stopped for as long as is reasonably necessary for the aviation security officer to search the vehicle, and any thing or person in the vehicle.

(3)

A person commits an offence and is liable on conviction to a fine not exceeding $2,500 if the person, without lawful authority or reasonable excuse, fails to—

(a)

stop a vehicle in a security enhanced area as soon as is practicable when required to do so by an aviation security officer; or

(b)

remain stopped for as long as is reasonably necessary for the aviation security officer to search the vehicle, and any thing or person in the vehicle.

(4)

In proceedings for an offence against subsection (3),—

(a)

the prosecutor need not assert absence of lawful authority or reasonable excuse in the charging document; and

(b)

the burden of proving that the defendant had lawful authority or a reasonable excuse lies on the defendant.

Compare: 1990 No 98 s 80H

147 Powers of aviation security officer in relation to person who is not searched or refuses consent to searching

(1)

This section applies if a person—

(a)

is required to be subject to a search at a screening point immediately before entering into a landside security area, a sterile area, or a security enhanced area and attempts to enter without having undergone searching; or

(b)

is required to be subject to a search while in a landside security area, a sterile area, or a security enhanced area and attempts to remain in that area without having undergone searching; or

(c)

refuses to consent to searching immediately before entry into, or while in, a landside security area, a sterile area, or a security enhanced area.

(2)

An aviation security officer may,—

(a)

if the person is outside the landside security area or, as the case may be, the sterile area or security enhanced area, deny the person entry into that area:

(b)

if the person is in the landside security area or, as the case may be, the sterile area or security enhanced area, require the person to—

(i)

leave the area:

(ii)

remove any thing in the person’s possession from the area.

(3)

An aviation security officer may—

(a)

prevent a person from entering a landside security area or, as the case may be, a sterile area or security enhanced area if the person is denied entry under subsection (2)(a):

(b)

remove a person from a landside security area or, as the case may be, a sterile area or security enhanced area if the person is required to leave under subsection (2)(b).

(4)

An aviation security officer may detain a person who—

(a)

attempts to enter when denied entry under subsection (2)(a), or refuses to leave when required to leave under subsection (2)(b), and persists in that refusal (or attempt) after being warned that the person commits an offence by not complying:

(b)

refuses to be searched at a screening point immediately before entering into a landside security area, a sterile area, or a security enhanced area, if the aviation security officer has reasonable grounds to suspect that—

(i)

an offence against the Aviation Crimes Act 1972 has been, is being, or is likely to be committed, whether by the person or by any other person; or

(ii)

a search of the person refusing to consent is likely to disclose evidence that an offence against the Aviation Crimes Act 1972 has been, is being, or is likely to be, committed, whether by the person or any other person.

(5)

A person detained under subsection (4) must be delivered to a constable as soon as practicable.

(6)

An aviation security officer, or any person assisting an aviation security officer, may use reasonable force, or any assistance that is reasonably necessary in the circumstances, to—

(a)

prevent a person from entering a landside security area, a sterile area, or a security enhanced area under subsection (3)(a):

(b)

remove a person from a landside security area, a sterile area, or a security enhanced area under subsection (3)(b):

(c)

detain a person under subsection (4).

Compare: 1990 No 98 s 80E

148 Powers of constable in relation to person who is not searched or refuses consent to searching

(1)

This section applies if —

(a)

a person is not searched, or refuses consent to searching, before entry into, or while being in, a landside security area, a sterile area, or a security enhanced area; and

(b)

a constable has reasonable grounds to suspect that—

(i)

an offence against the Aviation Crimes Act 1972 has been, is being, or will be committed, whether by the person or by any other person; and

(ii)

a search of the person, or any thing in the person’s possession, is likely to disclose evidence that an offence against the Aviation Crimes Act 1972 has been, is being, or will be committed, whether by the person or by any other person.

(2)

The refusal of a person to consent to the searching of the person, or any thing in the person’s possession, does not of itself constitute reasonable grounds for suspecting that an offence against the Aviation Crimes Act 1972 has been, is being, or will be, committed.

(3)

A constable may, without a warrant,—

(a)

search the person, and any thing in the person’s possession; and

(b)

detain the person for the purposes of the search; and

(c)

take possession of any item or substance found in the course of the search that is specified in section 11(1) of the Aviation Crimes Act 1972.

(4)

In relation to an electronic device, the power in subsection (3) does not authorise a constable to access data in the device or to access data that is not in the device.

(5)

A constable exercising the power of search under subsection (3) must, before the search is conducted, and on any subsequent request,—

(a)

provide evidence of the constable’s identity to the person to be searched; and

(b)

inform the person to be searched that the search is authorised under this section; and

(c)

if not in uniform, provide evidence, if asked, of the constable’s identity to the person to be searched.

(6)

If a constable exercises the power of search under subsection (3), the constable must, within 3 working days after the day on which the constable exercises the power, give to the Commissioner of Police a written report on the exercise of the power and the circumstances in which it came to be exercised.

Compare: 1990 No 98 s 80F

149 Consequences for passenger of refusal to consent to searching

Section 12(2) and (3) of the Aviation Crimes Act 1972 applies in respect of searching under this subpart.

Dealing with item or substance suspected when searching

150 Item or substance suspected entering into, or in, sterile area

(1)

This section applies if—

(a)

the presence of a relevant item or substance is suspected by an aviation security officer when searching a person or thing under section 142 of this Act or section 12 of the Aviation Crimes Act 1972 immediately before entry into, or in, a sterile area; and

(b)

an aviation security officer has reasonable grounds to believe that, if the item or substance is a relevant item or substance, there is no lawful authority or reasonable excuse for the item or substance to be carried on an aircraft or into a sterile area.

(2)

The aviation security officer may seize and detain the item or substance for the purpose of determining whether it is a relevant item or substance and whether there is lawful authority or reasonable excuse for the item or substance to be carried on an aircraft or into a sterile area.

(3)

If the aviation security officer determines that the item or substance may be lawfully carried into, or remain in, an aircraft or a sterile area, the aviation security officer must,—

(a)

if practicable, return the item or substance to the person from whom it was seized; or

(b)

if it is impracticable to return the item or substance to the person from whom it was seized, deliver the item or substance to the carrier of the aircraft that the person boarded or intended to board when the item or substance was seized.

(4)

If the aviation security officer determines that there is no lawful authority or reasonable excuse for the item or substance to be carried on an aircraft or into a sterile area, the aviation security officer may—

(a)

detain the item or substance until it is dealt with in accordance with paragraphs (b) to (d); or

(b)

deliver the item or substance to the operator of an air service or delivery service; or

(c)

dispose of or destroy the item or substance; or

(d)

deliver the item or substance to a constable.

(5)

Despite subsections (3) and (4), if the aviation security officer has reasonable grounds to believe that an item or a substance poses an imminent risk to safety and security, the aviation security officer may destroy or otherwise dispose of the item or substance.

(6)

If an aviation security officer delivers an item or a substance to a constable under subsection (4)(d), the aviation security officer must record the delivery and the relevant details of the seizure.

Compare: 1990 No 98 s 80B(3)–(7)

151 Item or substance suspected entering into, or in, landside security area or security enhanced area

(1)

This section applies if—

(a)

a relevant item or substance is suspected by an aviation security officer when searching a person or thing under section 142 of this Act or section 12 of the Aviation Crimes Act 1972 immediately before entry into, or in, a landside security area or a security enhanced area; and

(b)

an aviation security officer has reasonable grounds to believe that, if the item or substance is a relevant item or substance, there is no lawful authority or reasonable excuse for the item or substance to be carried on an aircraft or into a landside security area or security enhanced area.

(2)

The aviation security officer may seize and detain the item or substance for the purpose of determining whether it is a relevant item or substance and whether there is lawful authority or reasonable excuse for the item or substance to be carried on an aircraft or into a landside security area or a security enhanced area.

(3)

If the aviation security officer determines that there is no lawful authority or reasonable excuse for the item or substance to be carried into or remain in the landside security area or security enhanced area, the aviation security officer must—

(a)

detain the item or substance until it is delivered to a constable or, if the Director agrees, destroyed or otherwise disposed of; or

(b)

deny entry into the landside security area or security enhanced area to any person in possession of the item or substance; or

(c)

direct the person in possession of the item or substance to leave the landside security area or security enhanced area, with or without—

(i)

the item or substance:

(ii)

any vehicle used to transport the item or substance.

(4)

If the aviation security officer determines that the item or substance may be lawfully carried into or remain in the landside security area or security enhanced area, the aviation security officer must, if practicable, return the item or substance to the person from whom the item or substance was seized.

(5)

Despite anything in this section, if the aviation security officer has reasonable grounds to believe that the item or substance poses an imminent risk to safety and security, the aviation security officer may destroy or otherwise dispose of the item or substance.

(6)

An aviation security officer must make a record of any item or substance seized under this section and the person from whom it was seized.

Compare: 1990 No 98 s 80C(3)–(6)

152 Items or substances suspected that may be imminent risk

(1)

This section applies if—

(a)

an aviation security officer is searching a person or thing under section 142 at a place in the aerodrome or installation to which section 150 or 151 applies and suspects the presence of a relevant item or substance; and

(b)

the aviation security officer has reasonable grounds to believe that, if the item or substance is a relevant item or substance, it may pose an imminent risk to aviation safety and security.

(2)

The aviation security officer may seize and detain the item or substance for the purpose of determining whether it is a relevant item or substance and whether it poses an imminent risk to aviation safety and security.

(3)

If the aviation security officer determines that the item or substance poses an imminent risk to aviation safety and security, the aviation security officer may—

(a)

deliver the item or substance to a constable; or

(b)

destroy or otherwise dispose of the item or substance.

(4)

If the aviation security officer determines that the item or substance does not pose an imminent risk to aviation safety and security, the aviation security officer must,—

(a)

if practicable, return the item or substance to the person from whom it was seized; or

(b)

if it is impracticable to return the item or substance to the person from whom it was seized,—

(i)

deliver the item or substance to the aerodrome operator; or

(ii)

deliver the item or substance to the operator of an air service or delivery service; or

(iii)

deliver the item or substance to a constable.

(5)

An aviation security officer must make a record of any item or substance seized under this section and the person from whom it was seized.

Directions relating to searching

153 Power of Minister to require searching and seizing

(1)

The Minister may exercise the power in this section if the Minister considers that it is—

(a)

necessary to improve or enhance aviation security; or

(b)

necessary to enable New Zealand to be part of a concerted international response to a threat to aviation security; or

(c)

otherwise necessary to support the main or additional purposes of this Act.

(2)

The Minister may, by notice, direct an authorised aviation security service provider that all or any of the powers conferred on aviation security officers under this subpart be used by its aviation security officers to detect any item or substance specified in the direction.

(3)

The direction may—

(a)

direct that the powers be exercised in respect of any class of passenger service, aircraft, aerodrome, navigation installation, or thing, or on any other differential basis specified in the direction:

(b)

direct that the powers be exercised at a particular place or particular places at an aerodrome or navigation installation (within any limits as to places in section 142):

(c)

authorise the Director to direct that aviation security officers not carry out the direction in relation to a particular flight or in other particular circumstances if the Director considers that searching is not necessary in that case or in those circumstances.

(4)

If the direction specifies an item or a substance that is not within the meaning of paragraph (a) or (b) of the definition of relevant item or substance in section 134, the direction may—

(a)

specify the item or substance with reference to—

(i)

the item or substance being present in, above, or below a particular quantity; or

(ii)

the item or substance being in particular packaging; or

(iii)

any other circumstance; or

(b)

specify the item or substance and authorise the Director to determine the matters described in paragraph (a)(i) to (iii) in relation to the item or substance.

(5)

Sections 150 to 152 apply if any item or substance specified in the direction is suspected.

(6)

An authorised aviation security service provider directed under this section must ensure the direction is complied with.

(7)

A notice under subsection (2) is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

Compare: 1990 No 98 s 77A(1), (1A)

154 Further provisions in relation to direction by Minister

(1)

Before giving a direction under section 153, the Minister must consult—

(a)

the Director; and

(b)

as the Minister in each case considers appropriate and practical, representative groups in the aviation industry.

(2)

A direction made under section 153 takes effect on the date specified in the notice, which may be a date before the notice is published under the Legislation Act 2019 if the Minister—

(a)

considers that urgent action is required; and

(b)

has consulted the Director before that date; and

(c)

has notified all affected parties (other than persons boarding an aircraft) before that date.

(3)

If a direction takes effect on a date before the notice is published under the Legislation Act 2019, the direction expires 28 days after that date.

(4)

The Minister may, by notice, rescind a direction made under section 153.

(5)

Subject to subsection (3), a direction remains in effect until it is rescinded.

(6)

A notice under subsection (4) is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

Compare: 1990 No 98 s 77A(2)–(8)

155 Power of Director to require searching and seizing

(1)

The Director may exercise the power in this section if the Director has reasonable grounds to believe that a security risk exists.

(2)

The Director may, by notice, direct an authorised aviation security service provider that all or any of the powers conferred on aviation security officers under this subpart be used by its aviation security officers to detect any item or substance specified in the direction.

(3)

The direction may—

(a)

direct that the powers be exercised in respect of any class of passenger service, aircraft, aerodrome, navigation installation, or thing, or on any other differential basis specified in the direction:

(b)

direct that the powers be exercised at a particular place or particular places at an aerodrome or navigation installation (within any limits as to places in section 142):

(c)

provide that the Director may direct that aviation security officers not carry out the direction in relation to a particular flight or in other particular circumstances if the Director considers that searching is not necessary in that case or in those circumstances.

(4)

If the direction specifies an item or a substance that is not within the meaning of paragraph (a) or (b) of the definition of relevant item or substance in section 134, the direction may—

(a)

specify the item or substance with reference to—

(i)

the item or substance being present in, above, or below a particular quantity; or

(ii)

the item or substance being in particular packaging; or

(iii)

any other circumstance; or

(b)

specify the item or substance but provide that the Director may further determine the matters described in paragraph (a)(i) to (iii) in respect of the item or substance.

(5)

Sections 150 to 152 apply if any item or substance specified in the direction is suspected.

(6)

An authorised aviation security service provider directed under this section must ensure the direction is complied with.

(7)

A notice under subsection (2) is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

Compare: 1990 No 98 s 77B(1), (1A)

156 Further provisions in relation to direction by Director

(1)

Before giving a direction under section 155, the Director must, to determine whether the direction is necessary to meet the security risk, consult, as the Director in each case considers appropriate and practical, representative groups in the aviation industry, government departments, and relevant Crown agencies.

(2)

A direction made under section 155 takes effect on the date specified in the notice, which may be a date before the notice is published under the Legislation Act 2019 (see subsection 6), if the Director—

(a)

considers that urgent action is required; and

(b)

has notified all affected parties (other than persons boarding an aircraft) before that date.

(3)

If a direction takes effect on a date before the notice is published under the Legislation Act 2019, the direction expires 28 days after that date.

(4)

The Director may, by notice, rescind a direction made under section 155.

(5)

Subject to subsection (3), a direction remains in effect until it is rescinded.

(6)

A notice under subsection (4) is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

Compare: 1990 No 98 s 77B(2)–(7)

Other rights and powers of aviation security officers

157 Right of access for aviation security officers

(1)

An aviation security officer while on duty may at any time enter any security designated aerodrome or a security designated navigation installation, or any aircraft, building, or place in any part of a security designated aerodrome or security designated navigation installation, for the purpose of exercising and carrying out the officer’s powers, functions, and duties under this Act.

(2)

Unless the aviation security officer is accompanied by a constable, the power of entry conferred by subsection (1) is limited to peaceful and non-forcible entry.

(3)

Despite subsection (1), if the Police have taken command of any situation at an aerodrome or navigation installation, the rights of aviation security officers to enter any part of the aerodrome or navigation installation or any aircraft, building, or place are subject to any limitations that the senior constable present at the aerodrome or navigation installation specifies.

(4)

Where an aircraft or a vehicle is not being used for commercial purposes, subsection (1) does not apply unless the aviation security officer has reasonable grounds to believe that there is in that vehicle or aircraft a person or thing likely to endanger the aerodrome or installation or any of its facilities or any person.

Compare: 1990 No 98 s 83

158 Use of aids and devices for searching

Section 12(6) and (7) of the Aviation Crimes Act 1972 applies to searching carried out under section 142.

159 Use of dogs

Without limiting section 158, an aviation security officer may use an aviation security dog to—

(a)

conduct searching under this Part:

(b)

assist with any patrol of a security designated aerodrome or security designated navigation installation:

(c)

assist the aviation security officer to exercise or perform any other functions and duties under this Act.

160 Power of aviation security officer to seize and detain dangerous goods detected by government agency or carrier

(1)

This section applies if—

(a)

an item or a substance is identified by an employee of a government agency or carrier of an aircraft; and

(b)

the item or substance was carried on an aircraft that has landed at a security designated aerodrome in New Zealand from any place within or outside New Zealand; and

(c)

the person referred to in paragraph (a) has reason to believe that the item or substance is dangerous goods and may not lawfully be carried on an aircraft.

(2)

The person referred to in subsection (1) may seize and detain the item or substance and may give it to, or draw it to the attention of, an aviation security officer.

(3)

An aviation security officer may seize and detain the item or substance for the purpose of determining whether the item or substance is dangerous goods and whether there is lawful authority or reasonable excuse for the item or substance to be carried on an aircraft.

(4)

If the aviation security officer determines that the item or substance is dangerous goods and may not lawfully be carried on an aircraft, the aviation security officer may—

(a)

deliver the item or substance to a constable; or

(b)

retain the item or substance if required for investigative or evidential purposes; or

(c)

return the item or substance to the agency or carrier that identified it or, if practicable, to its owner or the person entitled to possession of it.

(5)

If the aviation security officer determines that the item or substance is not dangerous goods, the aviation security officer may return the item or substance to the agency or carrier that identified it or, if practicable, to its owner or the person entitled to possession of it.

Aviation Crimes Act 1972

161 Relationship of this subpart to Aviation Crimes Act 1972

Except as provided in this subpart,—

(a)

nothing in this subpart limits or affects the Aviation Crimes Act 1972; and

(b)

nothing in the Aviation Crimes Act 1972 limits or affects this subpart.

Powers of arrest

162 Power of arrest for crimes against Aviation Crimes Act 1972 or Arms Act 1983

(1)

Every aviation security officer is justified in arresting without warrant any person on or in the vicinity of any security designated aerodrome or security designated navigation installation if the officer has reasonable grounds to believe that an offence has been or is being committed by the person against any of the following legislation:

(a)

sections 3, 4, 5, 5A, and 11 of the Aviation Crimes Act 1972:

(b)

section 45 of the Arms Act 1983 (which relates to unlawful carriage of firearms, ammunition, or explosives).

(2)

An aviation security officer may—

(a)

search a person arrested under subsection (1):

(b)

seize any item or substance that may be evidence of an offence against legislation specified in subsection (1), if the officer has reasonable grounds to believe that—

(i)

the person has an item or a substance hidden or in clear view on or about the person’s body that is evidence of an offence against legislation specified in subsection (1); and

(ii)

the item or substance poses a threat to the safety of the officer or any other person; and

(iii)

immediate action is necessary to address the threat.

(3)

An aviation security officer may use reasonable force, or any assistance that is reasonably necessary in the circumstances, to—

(a)

arrest a person under subsection (1):

(b)

search a person under subsection (2):

(c)

seize an item or a substance under subsection (2).

(4)

To avoid doubt, an aviation security officer may search a person under this section whether or not an aviation security officer has previously searched the person under another section of this Act or under the Aviation Crimes Act 1972.

(5)

An aviation security officer who undertakes a search under this section must, within 3 working days of the search, give the Director a written report of the search, the circumstances in which it was conducted, and the matters that gave rise to the reasonable grounds to believe required by subsection (2)(b).

(6)

Any person called upon to do so by an aviation security officer is justified in assisting the officer in good faith to arrest any person.

(7)

An aviation security officer must as soon as may be practicable deliver any person the officer arrests, and any item or substance the officer seizes, to a constable.

(8)

An aviation security officer may seize an item or a substance in the possession of a person that the aviation security officer arrests if the aviation security officer has reasonable grounds to believe that the item or substance is evidence of an offence against legislation specified in subsection (1).

Compare: 1990 No 98 s 85

163 Arrest of persons delivered to Police

(1)

If an aviation security officer delivers a person to a constable under this Part, the constable must accept delivery of the person if the constable has reasonable grounds to suspect the person of an act or omission that is an offence against section 167 or any legislation specified in section 162(1).

(2)

A constable who accepts delivery of a person under subsection (1) may immediately arrest the person.

(3)

An aviation security officer who detains any person in accordance with section 124(4) and delivers the person to a constable, and any person who at the aviation security officer’s request and in good faith assists an aviation security officer in doing so, is justified in detaining and delivering the person and in using any force that may be reasonably necessary to do so.

Compare: 1990 No 98 s 86

Powers of Police under this Act

164 Powers of Police

Every constable has and may exercise all or any of the powers conferred on an aviation security officer under civil aviation legislation.

Compare: 1990 No 98 s 87

Powers of members of Armed Forces when providing aviation security services

165 Powers of members of Armed Forces when providing aviation security services

(1)

This section applies to a member of the Armed Forces who has been authorised under section 9 of the Defence Act 1990 to provide aviation security services.

(2)

When providing aviation security services, the member of the Armed Forces has and may exercise all or any of the powers conferred on an aviation security officer under civil aviation legislation.

Protection of aviation security officers

166 Protection of aviation security officers

An aviation security officer is not subject to personal liability in respect of any act done under sections 150 to 152 if done in good faith and in the exercise of powers or the performance of duties under this Act.

Compare: 1990 No 98 s 80I

Subpart 3—Aviation security offences

167 Refusal to give particulars or to leave airside security area or security enhanced area

(1)

A person commits an offence if, on being found in an airside security area or security enhanced area, the person—

(a)

refuses to state the person’s name, address, and date of birth and the purpose of the person’s presence in, and their authority to enter, the airside security area or security enhanced area after—

(i)

having been informed that the person is in an airside security area or security enhanced area; and

(ii)

having been requested by an authorised security person to state those particulars; or

(b)

refuses to leave the airside security area or security enhanced area immediately after being ordered by an authorised security person to do so.

(2)

A person who commits an offence against subsection (1) in relation to—

(a)

an airside security area is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $2,500, or both:

(b)

a security enhanced area is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $5,000, or both.

Compare: 1990 No 98 s 54

168 Being present in security area without being searched or when not authorised

(1)

A person commits an infringement offence if—

(a)

the person—

(i)

is present in an airside security area; and

(ii)

is required under subpart 2 to be searched before entering that area, or that part of the area where the person is present; and

(iii)

has not been searched as required; or

(b)

the person is present in an airside security area or security enhanced area in breach of section 123.

(2)

A person commits an infringement offence if the person—

(a)

is present in a landside security area; and

(b)

is required under subpart 2 to be searched before entering that area, or that part of the area where the person is present; and

(c)

has not been searched as required.

(3)

A person who commits an offence against this section is liable to—

(a)

an infringement fee of $1,000; or

(b)

a fine imposed by a court not exceeding $2,500.

169 Offence to impersonate aviation security officer

(1)

A person who is not an aviation security officer but, by words, conduct, demeanour, or the assumption of the dress, name, designation, or description of an aviation security officer, holds himself or herself out as being an aviation security officer commits an offence.

(2)

A person who commits an offence against subsection (1) is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $10,000, or both.

Compare: 1990 No 98 s 55(1)(a)

170 Offence to obstruct aviation security officer or authorised security person

(1)

A person who wilfully obstructs, or incites or encourages any person to obstruct, an aviation security officer or an authorised security person in the execution of the person’s duty commits an offence.

(2)

A person who commits an offence against subsection (2) is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $7,500, or both.

Compare: 1990 No 98 s 55(1)(b)

171 Threatening or assaulting aviation security officer or authorised security person

(1)

A person who threatens or assaults an aviation security officer or an authorised security person acting in the execution of their duty commits an offence.

(2)

A person who commits an offence against subsection (1) is liable on conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding $15,000, or both.

172 Obstruction or interference with aviation security dog

(1)

A person commits an offence if the person—

(a)

intentionally interferes with an aviation security dog; or

(b)

does any act with the intention of impairing the effectiveness of an aviation security dog.

(2)

A person who commits an offence against subsection (1) is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $5,000, or both.

173 Killing or injuring aviation security dog

(1)

A person who, without lawful authority or reasonable excuse, and intentionally, kills, maims, wounds, or otherwise injures an aviation security dog commits an offence.

(2)

A person who commits an offence against subsection (1) is liable on conviction to imprisonment for a term not exceeding 24 months or to a fine not exceeding $15,000, or both.

174 Security check offences

(1)

A person commits an offence if the person, in relation to a security check of the person under section 127,—

(a)

provides information that the person knows is false or misleading in a material particular; or

(b)

fails to disclose, without reasonable excuse, information that the person knows to be materially relevant.

(2)

A person who commits an offence against subsection (1) is liable on conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding $10,000, or both.

Compare: 1990 No 98 s 56A

Part 6 International aviation

Subpart 1—International air services licensing

175 Interpretation in this Part

In this Part, unless the context otherwise requires,—

capacity, in relation to a scheduled international air service, means the service provided on a route or routes with reference to 1 or more of the following:

(a)

number of aircraft:

(b)

types of aircraft:

(c)

number of seats:

(d)

volume or weight of cargo:

(e)

any other differential basis

class 1 non-scheduled commercial international flight means a non-scheduled commercial international flight (or a series of flights) where the flight routing or frequency requires or would require the operator to hold a certificate under the rules

class 2 non-scheduled commercial international flight means a non-scheduled commercial international flight (or a series of flights) where the flight routing or frequency does not require or would not require the operator to hold a certificate under the rules

foreign international airline means an air transport enterprise of a country or territory other than New Zealand that—

(a)

is offering or operating a scheduled international air service; or

(b)

intends to offer or operate a scheduled international air service

licensee means the holder for the time being of a licence issued under this Part

licensing authority, in relation to scheduled international air service licences, means the Minister or the Secretary, as determined under section 179

New Zealand international airline means an air transport enterprise that—

(a)

is designated, or seeking to be designated, as an airline that is entitled to offer air transport services as a New Zealand airline under an air services agreement (or similar arrangement) between New Zealand and any other country or territory; or

(b)

has its principal place of business in New Zealand and is operating, or seeking to operate, a scheduled international air service under the single aviation market arrangements set out in the air services agreement in force between New Zealand and Australia

non-scheduled commercial international flight means a flight (or a series of flights) that—

(a)

is offered otherwise than under an international air services licence; and

(b)

is engaged in the carriage of passengers, cargo, or mail for remuneration or hire between New Zealand and 1 or more points in any other country or territory

restricted scheduled international air service means a scheduled international air service that is subject to any restriction in relation to capacity or route of flights that is stipulated in an air services agreement (or similar arrangement) between New Zealand and any other country or territory

scheduled international air service,—

(a)

if a particular series of flights has been determined under section 176 to be a scheduled international air service, includes that series of flights; and

(b)

in relation to a New Zealand international airline, includes a seventh freedom service

seventh freedom service means a series of flights between 1 or more points in 1 country or territory other than New Zealand and 1 or more points in another country or territory other than New Zealand, if—

(a)

the airline is designated by New Zealand as a seventh freedom service under the air services agreement (or similar arrangement) between New Zealand and each country or territory in which the service is being performed; and

(b)

the service is performed according to the traffic rights allocated to the airline under those agreements (or arrangements); and

(c)

the service is a scheduled service.

Compare: 1990 No 98 s 87A

Licensing authority may determine that service is scheduled international air service

176 Licensing authority may determine whether service is scheduled international air service

(1)

The licensing authority may determine in a particular case that a series of flights performed by aircraft between New Zealand and 1 or more points in any other country or territory is a scheduled international air service.

(2)

In making a determination, the licensing authority may take into account—

(a)

the substantive nature of the flights; and

(b)

the manner in which the flights are operated, including the regularity and frequency of the flights; and

(c)

the manner in which the flights are open to use by members of the public.

(3)

In this section, licensing authority means,—

(a)

where the determination is made as part of considering an application for a licence under this subpart, the licensing authority that is considering the application; and

(b)

in any other case, the person who would in accordance with section 179 be the licensing authority if an application were to be made in respect of the particular series of flights concerned.

Licence-related provisions

177 Licence for scheduled international air service

(1)

A person who wishes to carry on in New Zealand any scheduled international air service must apply, in accordance with this Act, for a scheduled international air service licence.

(2)

Any scheduled international air service in New Zealand must be conducted—

(a)

in accordance with civil aviation legislation; and

(b)

in conformity with the terms and conditions of the appropriate licence.

Compare: 1990 No 98 s 87B

178 Application for licence

An application for a licence under this Part must—

(a)

be made to the Ministry; and

(b)

be in the form (if any) that the Secretary requires; and

(c)

include the information and documents—

(i)

as may be required under this Act; or

(ii)

that are specified by the Secretary.

Compare: 1990 No 98 s 87C

179 Licensing authority

(1)

The licensing authority for the grant of scheduled international air service licences is—

(a)

the Minister, if the applicant is—

(i)

a New Zealand international airline, and the application relates to a restricted scheduled international air service; or

(ii)

a foreign international airline of a country or territory with which New Zealand does not have an air services agreement (or similar arrangement); or

(b)

the Secretary, in all other cases.

(2)

The licensing authority is responsible for—

(a)

determining applications for scheduled international air service licences, taking into account the matters specified in section 181; and

(b)

exercising jurisdiction in respect of scheduled international air service licences in accordance with this Part.

Compare: 1990 No 98 ss 87D, 87L

180 Notice of application for restricted scheduled international air service

If an application relating to a restricted scheduled international air service is made by a New Zealand international airline in accordance with section 178, the Secretary must—

(a)

give notice on the Ministry’s Internet site of the receipt of the application; and

(b)

specify in the notice a time, not less than 21 days from the date of the notice, within which the Secretary will receive written representations from any person relating to the application.

Compare: 1990 No 98 s 87E

181 Consideration of application for scheduled international air service licence

(1)

In considering and determining any application for a scheduled international air service licence, the licensing authority—

(a)

must take into account the following matters:

(i)

the main and additional purposes of this Act:

(ii)

any relevant international agreement, convention, or arrangement to which New Zealand is a party:

(iii)

in relation to an application for a restricted scheduled international air service licence made by a New Zealand international airline, any written representations received by the Secretary in relation to the application in accordance with section 180(b):

(b)

may take into account any other matter that the licensing authority thinks fit in the public interest.

(2)

If the granting of a licence would be contrary to any agreement, convention, or arrangement referred to in subsection (1)(a), the licensing authority must refuse to grant the licence.

Compare: 1990 No 98 ss 87F, 87M

182 Grant of licence

(1)

The licensing authority, after considering the application in accordance with section 181, may—

(a)

refuse it; or

(b)

grant it (either in whole or in part)—

(i)

unconditionally; or

(ii)

subject to conditions that the licensing authority thinks relevant.

(2)

The scheduled international air service licence may be in a form that the licensing authority thinks fit.

(3)

Without limiting subsection (1), the licensing authority, in granting a scheduled international air service licence, may specify—

(a)

the countries or territories, or points within those countries or territories, that may be served and the route or routes that may be followed:

(b)

the maximum capacity that may be provided:

(c)

a date before which the service must commence.

(4)

If the licensing authority grants a licence, the Ministry must give notice in the Gazette that the licence has been granted.

Compare: 1990 No 98 ss 87G, 87N

183 Duration of licence

(1)

A licence granted under section 182

(a)

takes effect on the date stated in the licence; and

(b)

may be granted—

(i)

for a term that the licensing authority considers appropriate in the particular case; and

(ii)

for an indefinite term, if the licensing authority thinks fit.

(2)

A licence, subject to subsection (3), continues in effect beyond the date of expiry of the licence if—

(a)

an application is made under section 184 for the renewal of the licence; and

(b)

the application is not disposed of before the date of expiry of the licence.

(3)

If subsection (2) applies, the scheduled international air service licence expires when the application is disposed of.

Compare: 1990 No 98 ss 87H, 87O

184 Renewal of licence

(1)

The licensing authority may renew a licence granted under section 182.

(2)

An application for the renewal of a licence granted under section 182 must—

(a)

be lodged with the Ministry not less than 1 month before the date on which the licence expires; or

(b)

be lodged with the Ministry not less than 3 months before the date on which the licence expires, if the licence includes a restricted scheduled international air service for a New Zealand international airline.

(3)

If the licence includes a restricted scheduled international air service for a New Zealand international airline, the Secretary must—

(a)

publish a notice of the application for renewal of a licence; and

(b)

specify in the notice a time, not less than 21 days from the date of the notice, within which the Secretary will receive written representations from any person relating to the application.

(4)

The licensing authority must consider and determine an application for renewal of a licence in accordance with the requirements of section 181(1)(a) and (b), which applies with any necessary modifications.

(5)

A licence renewed under this section—

(a)

takes effect from the date of the expiry of the licence for which the renewal is granted; and

(b)

may be granted—

(i)

for a term that the licensing authority considers appropriate in the particular case; and

(ii)

for an indefinite term, if the licensing authority thinks fit.

Compare: 1990 No 98 ss 87I, 87P

185 Variation of terms and conditions of licence

(1)

The licensing authority may do any of the things specified in subsection (2) in relation to a scheduled international air service licence granted under section 182

(a)

if the scheduled international air service licence is in force; and

(b)

on—

(i)

the licensing authority’s own volition; or

(ii)

the application of the licensee.

(2)

The licensing authority may do 1 or more of the following things:

(a)

amend any of the terms and conditions of the licence:

(b)

revoke any of the terms and conditions of the licence:

(c)

add any new terms or conditions to the licence.

(3)

If the licensing authority intends to exercise the power under subsection (1)(b)(i), the licensing authority must give notice of that intention to the licensee in accordance with the following:

(a)

if the proposed variation relates to, or involves, a restricted scheduled international air service, the authority must give not less than 21 days’ notice in writing:

(b)

in any other case, the authority must give not less than 21 days’ notice in writing unless the licensee and the licensing authority agree on a shorter period.

(4)

If the proposed variation relates to, or involves, a restricted scheduled international air service, the licensing authority must—

(a)

give public notice of the licensing authority’s intention to consider exercising a power under this section, if any proposed variation involves—

(i)

a change or an addition to the route or routes to be operated; or

(ii)

an increase in the capacity of the service to be provided; and

(b)

specify in the notice a time, not less than 21 days from the date of the notice, within which the Secretary will receive written representations from any person regarding the proposed variation.

(5)

The licensing authority must consider and determine an application under this section in accordance with the requirements of section 181(1)(a) and (b), which applies with any necessary modifications.

(6)

If the licensing authority varies the terms or conditions of a licence that relates to, or includes, a restricted scheduled international air service, the licensing authority must give notice in the Gazette of the fact of, and the terms and conditions of, that variation.

Compare: 1990 No 98 ss 87J, 87Q

186 Holder of licence may operate non-scheduled international flights without authorisation under section 190

If a person holds a licence under this subpart, the person is entitled to carry on specified non-scheduled commercial international flights, without authorisation under section 190, to or from the countries or territories that may be served under the licence, within the capacity limits, if any, of the licence.

Compare: 1990 No 98 s 87Z

Requirements on licensees

187 Proof of insurance against liability

(1)

The licensing authority may ask an applicant or a licensee (as the case may be) to provide proof of insurance against liability that may arise out of, or in connection with, the operation of the service in respect of—

(a)

the death of, or bodily injury to, any person; and

(b)

the loss of, or damage to, any property.

(2)

The licensing authority may exercise the power in this section at 1 or more of the following times:

(a)

before granting a licence:

(b)

before renewing a licence:

(c)

at any other time while the licence is in force.

(3)

If the licensing authority exercises the power under this section, the applicant or licensee must provide the proof of insurance to the licensing authority’s satisfaction within any reasonable time that is specified by the licensing authority.

Compare: 1990 No 98 s 87ZA

188 Returns to be made

(1)

The Secretary may, by notice in writing to a relevant person, require the relevant person to make—

(a)

financial and statistical returns and statements as at specific dates, or in relation to specified periods, or on the occurrence of specified events, including on an ongoing basis; or

(b)

financial and statistical returns and statements that the Secretary requires from time to time.

(2)

The relevant person must provide the Secretary with financial and statistical returns and statements to the Secretary’s satisfaction within any reasonable time that is specified by the Secretary.

(3)

In this section, relevant person means a person who is carrying out—

(a)

a scheduled international air service under a licence; or

(b)

a class 1 non-scheduled commercial international flight.

Compare: 1990 No 98 s 87ZB

Suspension and revocation of licences

189 Suspension and revocation of licences

The Minister may suspend a licence granted under this Part for a period that the Minister thinks fit, or revoke a licence granted under this Part, if—

(a)

the licensee has failed to comply with any civil aviation legislation; or

(b)

the service authorised by the licence is not commenced on the date specified in the licence; or

(c)

the Minister is satisfied that the service authorised by the licence has not been or is not being carried on in conformity with the terms and conditions of the licence; or

(d)

the service authorised by the licence has been terminated; or

(e)

the licence—

(i)

has been granted under, or in accordance with, any convention, agreement, or arrangement between the Government of New Zealand and the Government of any other country or territory; and

(ii)

that convention, agreement, or arrangement has been terminated or has ceased to bind or apply to the Government of New Zealand or the Government of that other country or territory; or

(f)

the licence—

(i)

has been granted under, or in accordance with, any convention, agreement, or arrangement referred to in paragraph (e)(i); and

(ii)

circumstances have occurred, or any condition has been fulfilled, following which the Minister, or the Government of New Zealand, has become entitled under, or in accordance with, the convention, agreement, or arrangement to revoke the licence.

Compare: 1990 No 98 ss 87ZC, 87ZD

Class 1 non-scheduled commercial international flights

190 Class 1 non-scheduled commercial international flights must be authorised by Secretary

(1)

This section applies to class 1 non-scheduled commercial international flights between—

(a)

New Zealand; and

(b)

1 or more points in any other country or territory.

(2)

No person may operate a class 1 non-scheduled commercial international flight referred to in subsection (1), except as authorised by the Secretary.

(3)

The Secretary must not authorise a series of non-scheduled commercial international flights under this section—

(a)

if the effect of authorisation would circumvent any convention, agreement, or arrangement between the Government of New Zealand and the Government of any other country or territory; and

(b)

unless the flights have all other necessary approvals to operate.

(4)

Nothing in subsections (1) to (3) applies to any class 2 non-scheduled commercial international flight.

(5)

This section is subject to section 186.

Compare: 1990 No 98 s 87ZE

Miscellaneous provisions

191 Additional requirements of regulations and rules

No aircraft is exempt from the operation of any regulation or rules made under this Act only because it is being used in connection with—

(a)

a scheduled international air service under a licence granted under this Part; or

(b)

a non-scheduled commercial international flight.

Compare: 1990 No 98 s 87ZF

192 This subpart not in force in Tokelau

(1)

This subpart is not in force in Tokelau.

(2)

However, regulations may be made under section 4 of the Tokelau Act 1948 bringing this subpart, with or without modifications, into force in Tokelau.

Compare: 1990 No 98 s 87ZG

Offences

193 Carrying on scheduled international air service without licence or contrary to licence

(1)

A person commits an offence if the person—

(a)

carries on a scheduled international air service in New Zealand without a licence granted under this subpart; or

(b)

is the holder of a licence granted under this subpart, and carries on a scheduled international air service in New Zealand in a manner contrary to the terms and conditions of the licence.

(2)

A person who commits an offence against subsection (1) is liable on conviction,—

(a)

in the case of an individual, to a fine not exceeding $30,000:

(b)

in the case of any other person, to a fine not exceeding $200,000.

Compare: 1990 No 98 s 49A

194 Operating unauthorised non-scheduled commercial international flight or carrying on non-scheduled commercial international flight contrary to licence

(1)

A person commits an offence if the person—

(a)

operates a non-scheduled commercial international flight to which section 190 applies contrary to the provisions of that section; or

(b)

is the holder of a licence under this subpart and carries on a non-scheduled commercial international flight in a manner contrary to the terms and conditions of the licence.

(2)

A person who commits an offence against subsection (1) is liable on conviction,—

(a)

in the case of an individual, to a fine not exceeding $30,000:

(b)

in the case of any other person, to a fine not exceeding $200,000.

Compare: 1990 No 98 s 49B

Subpart 2—International air carriage competition

195 Interpretation in this subpart

In this subpart, unless the context otherwise requires,—

capacity has the meaning given to it in section 175

international carriage by air means the carriage by air of persons, baggage, or cargo—

(a)

between New Zealand and any place outside New Zealand; or

(b)

where that carriage is purchased, sold, or arranged in New Zealand, between places outside New Zealand

tariff means a statement—

(a)

that is expressed to apply—

(i)

to 1 or more specified airlines; or

(ii)

to all airlines other than 1 or more specified airlines; or

(iii)

to all airlines; and

(b)

that specifies—

(i)

the fares, rates, and charges applicable to international carriage by air between specified points (irrespective of whether direct, indirect, or involving any stopovers) that may, at any time, be provided by the airlines to which it is expressed to apply; and

(ii)

any conditions subject to which the fares, rates, and charges, or any of them, are to apply to international carriage by air between those points; and

(iii)

any conditions subject to which international carriage by air between those points is to be provided on such fares, rates, and charges.

Compare: 1990 No 98 s 88(1)

196 When person may apply for authorisation

(1)

A person may apply to the Minister for an authorisation in accordance with this subpart if—

(a)

the person is conducting, or intends to conduct, international carriage by air; and

(b)

the person wishes to—

(i)

enter into a contract or an arrangement, or arrive at an understanding, where all parties to the contract, arrangement, or understanding are, or will be, conducting international carriage by air in co-operation with each other; or

(ii)

give effect to a provision of a contract or an arrangement or understanding where all parties to the contract, arrangement, or understanding are, or will be, conducting international carriage by air in co-operation with each other; and

(c)

the person considers that—

(i)

the contract, arrangement, or understanding would, or might, contravene section 27 of the Commerce Act 1986; or

(ii)

the contract, arrangement, or understanding would, or might, contravene section 30 of the Commerce Act 1986 and section 31 of that Act does not apply to the contract, arrangement, or understanding.

(2)

The application must be made in any form and manner required by the Minister.

(3)

This section is subject to section 205.

197 Actions following receipt of application for authorisation

(1)

If the Minister receives a properly completed application for authorisation in accordance with section 196, the Minister must—

(a)

give public notice of—

(i)

the Minister’s intention to consider exercising the power to grant an authorisation; and

(ii)

the details of the application for authorisation as the Minister thinks fit; and

(b)

specify in the notice a time within which the Minister will receive written representations from any person regarding the application for authorisation.

(2)

In relation to any application, the Minister may consult with any person who, in the Minister’s opinion, is able to assist the Minister to determine the application.

198 Further provisions relating to application for authorisation

(1)

On receipt of an application for authorisation that is incomplete, not in accordance with any other requirements of the Minister, or not accompanied by the prescribed fee, the Minister may, at the Minister’s discretion,—

(a)

accept the application and do the things referred to in section 197(1) in respect of that application; or

(b)

return the application to the person by or on whose behalf it was made; or

(c)

decline to register the application until the application is completed, made in accordance with prescribed requirements, or accompanied by the prescribed fee (as relevant).

(2)

If the Minister declines to register an application under subsection (1)(c), the Minister must immediately notify the person by or on whose behalf the application was made.

(3)

The Minister may require the following persons to provide, and those persons must provide, within the time the Minister specifies, further documents or information in relation to the application for authorisation for the purpose of enabling the Minister to exercise the Minister’s functions under this subpart:

(a)

the person making the application:

(b)

any person on whose behalf the application was made:

(c)

any person to whom the application relates.

(4)

Despite section 197(1) and subsection (3), if the Minister is of the opinion that the matters to which an application relates are, for reasons other than those arising from the application of any provision of this Act, unlikely to be proceeded with, the Minister may, in the Minister’s discretion, return the application to the person by or on whose behalf the application was made.

(5)

Any person who has applied to the Minister for an authorisation may, at any time, by notice in writing to the Ministry, withdraw the application.

199 Powers of Minister to prohibit disclosure of information, documents, and evidence

(1)

The Minister may, in relation to any application for authorisation, make an order prohibiting—

(a)

the publication or communication of all or any information, document, and evidence which is given to, or obtained by, the Ministry under this subpart:

(b)

the giving of any evidence involving any information, document, or evidence referred to in paragraph (a).

(2)

An order may be expressed to have effect for the period specified in the order.

(3)

However, no order has effect,—

(a)

if the order was made in connection with any application for authorisation, after the expiry of 20 working days from the date on which the Minister makes a final determination in respect of that application; or

(b)

if the application is withdrawn before the Minister makes a final determination, after the date on which the application is withdrawn.

(4)

On the expiry of an order, the Official Information Act 1982 applies in respect of any information, document, or evidence that was the subject of that order.

(5)

A person who, contrary to an order, publishes or communicates any information, document, or evidence that was the subject of that order commits an offence and is liable on conviction,—

(a)

in the case of an individual, to a fine not exceeding $7,500:

(b)

in the case of any other person, to a fine not exceeding $25,000.

Compare: 1986 No 5 s 100

200 Minister may authorise international carriage by air

(1)

The Minister may, in relation to an application for an authorisation under this subpart, authorise a provision or provisions of a contract, an arrangement, or an understanding where—

(a)

all parties to the contract, arrangement, or understanding are conducting international carriage by air in co-operation with each other; and

(b)

the provision or provisions relate to—

(i)

a specified activity carried out for the purposes of the co-operation; or

(ii)

an activity that is ancillary to a specified activity and that is reasonably necessary for the purpose of the co-operation.

(2)

The Minister may grant an authorisation if the Minister is satisfied that—

(a)

granting the authorisation will contribute to the main purpose or any of the additional purposes of this Act; and

(b)

giving effect to the provisions of the contract, arrangement, or understanding to which the application relates will in all the circumstances result, or be likely to result, in a benefit to the public that would outweigh any lessening in competition that would result, or would be likely to result, from those provisions.

(3)

When granting an authorisation, the Minister must—

(a)

specify the duration of the authorisation:

(b)

specify any conditions that apply to the authorisation.

(4)

In subsection (1), specified activities means—

(a)

the scheduling, capacity, or frequency of services:

(b)

the fixing of tariffs:

(c)

the conditions and benefits associated with tariffs:

(d)

frequent flyer schemes:

(e)

lounge access and other preferential services:

(f)

revenue sharing or profit sharing, or both.

Compare: 1990 No 98 s 88(2), (4)

201 Minister must notify proposed decision to grant or decline authorisation

If the Minister intends to grant or decline an application for authorisation, the Minister must—

(a)

give public notice of the Minister’s intention to grant or decline the application; and

(b)

specify a time within which the Minister will receive written representations from any person regarding the proposed decision to grant or decline the authorisation.

202 Minister must notify final decision to grant or decline authorisation

After the Minister makes a final decision to grant or decline an authorisation, the Minister must give public notice of that final decision with the Minister’s reasons for the decision.

203 Further powers of Minister in relation to authorisations

(1)

The Minister may take 1 or more of the following actions in accordance with this section:

(a)

vary the duration of an authorisation (even if the duration to be varied is stated as indefinite):

(b)

vary or revoke the conditions that apply to an authorisation or specify new conditions:

(c)

revoke an authorisation.

(2)

The Minister may take an action under subsection (1) only if the Minister is satisfied that—

(a)

the authorisation was given on information that was false or misleading in a material particular; or

(b)

there has been a material change of circumstance; or

(c)

a condition upon which the authorisation was granted has not been complied with.

(3)

The Minister must not take an action under subsection (1), unless the Minister—

(a)

has given the person to whom the authorisation was given, and any other person who in the opinion of the Minister is likely to have an interest in the matter, a reasonable opportunity to make submissions to the Minister; and

(b)

has had regard to those submissions.

204 Authorisation of tariffs by Minister in specified circumstances

(1)

The Minister may authorise any tariff in respect of international carriage by air in the circumstances in subsection (2).

(2)

The circumstances are—

(a)

that the relevant places of departure and destination in relation to the international carriage by air are within the territories of 2 countries, one of which is New Zealand (irrespective whether there is to be a break in the carriage or a transhipment); and

(b)

that an agreement, an arrangement, or an understanding contains a provision that requires the tariff to be subject to an authorisation by the Minister.

Compare: 1990 No 98 s 90(1)

205 Application of Commerce Act 1986

(1)

Nothing in sections 27, 30, and 30C to 33 of the Commerce Act 1986 applies to, or in respect of,—

(a)

the negotiation or conclusion of any contract, arrangement, or understanding—

(i)

if, and to the extent that, it contains a provision relating to international carriage by air; and

(ii)

if, and only if, that provision is not given effect to before its authorisation under section 200; or

(b)

any provision of a contract, an arrangement, or an understanding relating to international carriage by air if, and only if, it is not given effect to before its authorisation under section 200.

(2)

Every authorisation by the Minister under section 200 is declared to be a specific authorisation by legislation for the purposes of section 43 of the Commerce Act 1986.

Compare: 1990 No 98 s 91

Subpart 3—Carbon offsetting and reduction scheme for international aviation (CORSIA)

206 Interpretation

(1)

In this subpart, unless the context otherwise requires,—

accredited verification body means an entity accredited by the Secretary to verify emissions reports under this subpart

attributed flight

(a)

means a flight attributed to an eligible New Zealand operator in accordance with the regulations; but

(b)

does not include any flight that is an excluded flight

eligible unit means an emissions unit approved under the regulations

excluded flight means a flight that—

(a)

is principally for medical, firefighting, humanitarian, or search and rescue purposes; or

(b)

is conducted on behalf of the New Zealand Government for non-commercial purposes in the exercise of New Zealand’s functions or duties as a sovereign State

regulations means regulations made under section 410

reporting period means a reporting period prescribed by the regulations.

(2)

A person is an eligible New Zealand operator in relation to a calendar year if the person—

(a)

has a registered place of business in New Zealand and holds a New Zealand AOC with ANZA privileges; and

(b)

operates an air service offering air services to 1 or more places outside New Zealand as a New Zealand airline; and

(c)

in the previous calendar year produced from its attributed flights annual emissions of greater than an amount prescribed by the regulations.

(3)

A person is a new entrant if—

(a)

the person meets the criteria specified in subsection (2)(a) to (c) for the first time on or after the date on which this subpart comes into force; and

(b)

the activity in respect of which the person meets those criteria is not in whole or in part a continuation of an activity previously performed by another person.

207 Eligible New Zealand operator must provide contact details

(1)

An eligible New Zealand operator must ensure that it provides to the Secretary all contact details required by the Secretary for the purpose of this subpart.

(2)

The eligible New Zealand operator must promptly notify the Secretary of any changes to the contact details required by the Secretary under subsection (1) or any other relevant new contact details.

208 Emissions monitoring plan

(1)

An eligible New Zealand operator must develop, implement, and maintain an emissions monitoring plan for monitoring and recording fuel used in attributed flights.

(2)

An emissions monitoring plan must be approved under subsection (6) before it is implemented.

(3)

No material change to an emissions monitoring plan may be implemented unless it is approved under subsection (6).

(4)

A draft plan, or a proposed amendment to a plan, must be submitted to the Secretary in accordance with any prescribed requirements.

(5)

The Secretary may require the operator to provide, and the operator must provide, within the time the Secretary specifies, further documents or information in relation to the plan, or proposed amendment to a plan, that the Secretary considers necessary to make a decision under subsection (6).

(6)

The Secretary must approve an emissions monitoring plan, or an amendment to a plan, if the Secretary is satisfied that the plan complies, or as proposed to be amended will comply, with the requirements of the regulations.

209 Emissions reports

(1)

An eligible New Zealand operator must submit emissions reports to the Secretary.

(2)

Each emissions report must—

(a)

be submitted by the time specified in the regulations; and

(b)

meet all other requirements of the regulations; and

(c)

be verified in accordance with section 213.

210 Secretary may determine emissions if eligible New Zealand operator fails to submit emissions report

(1)

This section applies if an eligible New Zealand operator fails to submit an emissions report to the Secretary under section 209 by the time referred to in section 209(2)(a).

(2)

The Secretary may estimate the operator’s emissions for the relevant reporting period—

(a)

using the information available to the Secretary; and

(b)

in accordance with the regulations.

(3)

The regulations apply with any necessary modifications where the calculation is made under subsection (2).

211 Calculation of offsetting requirements for eligible New Zealand operator

The Secretary must calculate the offsetting requirements for each reporting period for each eligible New Zealand operator in accordance with the regulations.

212 Emissions unit cancellation reports

(1)

An eligible New Zealand operator must submit emissions unit cancellation reports to the Secretary for each reporting period.

(2)

Each emissions unit cancellation report must—

(a)

be submitted by the time specified in the regulations; and

(b)

meet all other requirements of the regulations; and

(c)

be verified in accordance with section 213.

213 Verification of reports

Emissions reports and emissions unit cancellation reports must be verified by an accredited verification body—

(a)

by the time specified in the regulations; and

(b)

in accordance with all other requirements of the regulations.

214 Secretary may request emissions information from New Zealand operator

(1)

This section applies to a person who—

(a)

has a registered place of business in New Zealand and holds a New Zealand AOC with ANZA privileges; and

(b)

operates an air transport service offering air transport services to 1 or more places outside New Zealand as a New Zealand airline; and

(c)

is not already complying with the other provisions of this subpart as an eligible New Zealand operator.

(2)

The Secretary may request the emissions information prescribed in the regulations from any person to whom this section applies for the purpose of monitoring whether the person may be required to comply with the other requirements of this subpart.

(3)

Any emissions information requested under subsection (2) must—

(a)

be submitted by the time specified in the regulations or any other time that the Secretary specifies; and

(b)

meet any other requirements of the regulations.

215 Application of sections 208 to 214 subject to regulations about new entrants

Sections 208 to 214 are subject to any regulations that relate to a new entrant.

216 Sharing of information between Secretary and ICAO

(1)

The Secretary may provide ICAO with any information, or a copy of any document, that—

(a)

the Secretary holds in relation to the performance or exercise of the Secretary’s functions, duties, or powers under this subpart; and

(b)

it is necessary or desirable to provide to ICAO for the performance or exercise of the functions, duties, or powers of ICAO under Annex 16, Vol IV of the Convention.

(2)

The Secretary may impose conditions that the Secretary thinks fit relating to the provision of the information or documents, including conditions consistent with Annex 16, Vol IV of the Convention relating to—

(a)

the publication, storage, and use of, or access to, anything provided:

(b)

the copying, returning, or disposing of copies of any documents provided.

(3)

Nothing in this section limits the Privacy Act 2020.

(4)

This section applies despite anything to the contrary in any contract, deed, or document.

217 Offences relating to CORSIA

(1)

A person commits an offence if the person,—

(a)

operates an attributed flight without an emissions monitoring plan contrary to section 208:

(b)

fails to provide an emissions report required under section 209:

(c)

fails to complete the carbon offsetting requirements specified by the Secretary under section 211:

(d)

fails to provide an emissions unit cancellation report required under section 212.

(2)

A person who commits an offence against subsection (1) is liable on conviction,—

(a)

in the case of an individual, to a fine not exceeding $50,000:

(b)

in the case of any other person, to a fine not exceeding $250,000.

Part 7 Airports

Subpart 1—Interpretation

218 Interpretation in this Part

In this Part and in Schedule 3, unless the context otherwise requires,—

accounting period has the meaning given in section 5(1) of the Financial Reporting Act 2013

identified aerodrome activity means any of the following:

(a)

the provision, within a security area of an aerodrome, of—

(i)

a hangar; or

(ii)

a facility or service for aircraft refuelling, flight catering, waste disposal, or freight storage; or

(iii)

a security, customs, or quarantine service for freight:

(b)

any other activity to enable—

(i)

aircraft to be serviced or maintained within a security area of the aerodrome; or

(ii)

freight that is transported (or to be transported) by aircraft to be handled within a security area of the aerodrome:

(c)

any activity to enable aircraft to land or take off, including the provision of—

(i)

an aerodrome or part of an aerodrome; or

(ii)

an air traffic service; or

(iii)

aerodrome lighting; or

(iv)

a service to maintain or repair an aerodrome or part of an aerodrome; or

(v)

a rescue, fire, safety, or environmental hazard control service; or

(vi)

an aerodrome supervisory or security service:

(d)

any activity, other than the provision of space for retail activities, in relation to aircraft passengers who are in a security area of an aerodrome, including the provision of—

(i)

a passenger seating area or thoroughfare or an airbridge; or

(ii)

a flight information or public address system; or

(iii)

a facility or service for operating customs, immigration, or quarantine checks or control; or

(iv)

a facility for collecting duty-free items; or

(v)

a facility or service for operating aviation security or Police services:

(e)

any activity in a passenger terminal to enable the check-in of aircraft passengers, including the provision of a baggage handling service:

(f)

the holding of land, or of any other facility or asset, for an activity under any of paragraphs (a) to (e) in the future (whether or not the land or other facility or asset is used for another purpose in the meantime)

joint venture aerodrome means an aerodrome operated as a joint venture by and between the Crown and another person

lease includes any form of tenancy or a licence to occupy or use premises or an appliance

relevant government agency means any part of the State services (within the meaning of section 5 of the Public Service Act 2020) that is listed on the Ministry’s Internet site as a relevant government agency for the purposes of this Part

space requirement means a requirement under legislation for an airport operator to provide space or amenities for a relevant government agency to carry out or exercise functions, powers, or duties at an airport, including—

(a)

a requirement under section 37 of the Biosecurity Act 1993 to make arrangements, facilities, or systems available:

(b)

a requirement under section 385 of the Immigration Act 2009 to provide or maintain operating areas, accommodation, facilities, buildings, equipment, or storage:

(c)

a requirement under section 70 of the Customs and Excise Act 2018 to provide or maintain operating areas, accommodation, facilities, buildings, equipment, or storage, or to store goods:

(d)

a requirement under the rules to make areas, facilities, or systems available for the provision of aviation security services by AvSec:

(e)

a requirement under the Health Act 1956 for a Public Health Unit or District Health Board to undertake any functions or duties set out in that Act

substantial customer has the meaning given to it by section 219.

Compare: 1966 No 51 s 2, 1990 No 98 s 92

219 Meaning of substantial customer

(1)

For the purposes of this Part, a person is a substantial customer of an airport operator if subsection (2) or (3) applies (or they both apply).

(2)

This subsection applies if the person paid, or was liable to pay, the airport operator an amount—

(a)

relating to identified aerodrome activities undertaken during the airport operator’s last accounting period; and

(b)

exceeding 5% of the total revenue paid or payable to the airport operator in relation to identified aerodrome activities undertaken during that period.

(3)

This subsection applies if the person is authorised in writing to represent, and exercise the powers of a substantial customer under this subpart in relation to, a number of persons and—

(a)

those persons in aggregate paid, or were liable to pay, the airport operator an amount—

(i)

relating to identified aerodrome activities undertaken during the airport operator’s last accounting period; and

(ii)

exceeding 5% of the total revenue paid or payable to the airport operator in relation to identified aerodrome activities undertaken during that period; and

(b)

the person has provided the airport operator with a copy of the authorisations for inspection.

Compare: 1966 No 51 s 2A

Subpart 2—Airport operators

220 Secretary must maintain register of airport operators and airports

(1)

The Secretary must maintain a register of airport operators on the Ministry’s Internet site in accordance with prescribed requirements (if any).

(2)

The register must state, for each airport operator,—

(a)

the aerodrome and any other area that the registration of the operator under section 222 covers; and

(b)

the name of the operator; and

(c)

when the operator was registered; and

(d)

if the registration has been suspended or cancelled, that fact and the date on which the suspension or cancellation took effect; and

(e)

the space requirements that apply in relation to the airport operator; and

(f)

any other prescribed information.

(3)

The Secretary may include in the register any other information that the Secretary thinks fit.

(4)

The Secretary must update the register if they become aware that there is a change or error in the information on the register (for example, a change in the name of an airport operator).

221 Applications for registration

(1)

The operator of an aerodrome, or the proposed operator of an aerodrome not yet in operation, in which space is, or is to be, allocated to 1 or more relevant government agencies must apply to the Secretary to be registered in relation to the aerodrome.

(2)

The operator of any other aerodrome, or the proposed operator of any other aerodrome not yet in operation, may apply to the Secretary to be registered in relation to the aerodrome.

(3)

An application under this section may be made by 2 or more people acting jointly as the operator or proposed operator.

(4)

An application under this section must be made in the manner specified by the Secretary on the Ministry’s Internet site.

(5)

The applicant must provide the Secretary with the information required by the Secretary to assist in determining the application.

Compare: 1966 No 51 s 3

222 When aerodrome operator may or must be registered

(1)

After receiving an application under section 221, the Secretary must register the applicant, and provide them with written notice of the registration, if satisfied that—

(a)

the persons or representatives of the persons the Secretary considers will be substantially affected by the registration have been consulted; and

(b)

registering the operator in relation to the aerodrome is consistent with the main and additional purposes of this Act; and

(c)

there is no reason to believe that the applicant will not comply with their airport operator obligations.

(2)

The notice to the applicant under subsection (1) must specify the area covered by the registration.

(3)

That area—

(a)

must include the aerodrome; and

(b)

may include any other area that the Secretary is satisfied is being used, or held for future use, for the purposes of the airport.

223 Area covered by registration may be varied

(1)

An airport operator may apply to the Secretary for the area covered by a registration notified to it under section 222 to be varied.

(2)

After receiving an application under subsection (1), the Secretary must vary the area by amending the register, and must provide written notice of the variation to the airport operator, if satisfied that—

(a)

the persons or representatives of the persons the Secretary considers will be substantially affected by the variation have been consulted; and

(b)

making the variation is consistent with the main and additional purposes of this Act; and

(c)

there is no reason to believe that, as a result of the variation, the airport operator will not comply with their airport operator obligations.

(3)

The notice under subsection (2) must specify the area as varied that is covered by the registration.

224 Registration may cover more than 1 airport

(1)

The same registration may cover 2 or more airports.

(2)

In that case,—

(a)

a reference in this Act to the airport (or to the aerodrome) covered by the registration is taken instead to be a reference to each of the airports (or aerodromes or areas) severally; and

(b)

the decision to add another airport to a registration must be made on the same basis as a decision to register an airport; and

(c)

the registration may be suspended or cancelled in respect of 1 of those airports as if each airport were separately registered; and

(d)

a reference in this Act to a registration being issued, suspended, or cancelled is to be taken to be a reference to the registration being issued, added to, suspended, or cancelled, in respect of 1 or more of those airports.

225 Secretary may suspend or cancel registration

(1)

The Secretary may, by written notice to the airport operator, suspend (for a specified period or until a specified requirement is met) or cancel a registration under section 222 in relation to an airport if—

(a)

the airport operator, by written notice, requests the Secretary to do so; or

(b)

the Secretary is satisfied that—

(i)

the airport operator is not carrying on the business or undertaking of operating the airport (for example, due to insolvency); or

(ii)

the airport operator does not hold an aviation document that, under the rules, is required to operate the airport.

(2)

Despite subsection (1), the registration of an airport operator that has space requirements must not be cancelled, unless a new airport operator is first registered for the airport.

226 Aerodrome to be operated commercially

An aerodrome operated by an airport operator (other than an aerodrome that is a council-controlled organisation as defined in section 6(1) of the Local Government Act 2002) must be operated as a commercial undertaking.

227 Airports to be public works

(1)

For the purposes of the Public Works Act 1981, an airport operated by an airport operator that is not a local authority must be treated as a Government work.

(2)

This section is subject to section 235.

Compare: 1966 No 51 s 3D

228 Crown or local authority may transfer land or other property to airport operator

(1)

The Crown or a local authority may, on terms and conditions that it thinks fit, transfer to an airport operator any land or other property that—

(a)

is, or is part of, the airport; or

(b)

is being used, or held for future use, for the purposes of the airport.

(2)

Any transfer of land in accordance with subsection (1) is subject to sections 229 and 230.

(3)

If land is transferred to an airport operator in accordance with subsection (1), the airport operator must, immediately after the transfer, apply under section 223 for the registration covering the airport to be varied to include the transferred land.

(4)

This section applies despite any other legislation or rule of law to the contrary.

Compare: 1966 No 51 s 3A(6)

229 Transfer of land to airport operator: application of Reserves Act 1977

(1)

This section applies if the Crown or a local authority proposes to transfer land to an airport operator in accordance with section 228(1).

(2)

The Reserves Act 1977 does not apply to the proposed transfer except as provided by subsection (3).

(3)

If the proposed transfer is by a local authority and the land was vested in the local authority under the Reserves Act 1977 (or is treated by that Act as having been vested in the local authority under that Act), the transfer may take place only if—

(a)

the Minister has consented in writing to the transfer, and the local authority has given a copy of the consent to the Registrar-General of Land; or

(b)

the Surveyor-General has certified in writing that the land was not vested in the local authority by the Crown, and the local authority has given a copy of the certificate to the Registrar-General of Land.

(4)

In considering whether to give consent for the purposes of subsection (3)(a), the Minister may (despite anything to the contrary in this Act or the Reserves Act 1977) take into account any matter the Minister considers appropriate.

(5)

If the proposed transfer takes place, any application of the Reserves Act 1977 in relation to the transferred land ends with the transfer.

(6)

A signed or otherwise authenticated certificate of the Surveyor-General certifying that, under subsection (5), the Reserves Act 1977 no longer applies in relation to particular land is, in the absence of proof to the contrary, sufficient evidence that that Act no longer applies in relation to that land.

Compare: 1966 No 51 s 3A(7) to (8)

230 Transfer of land to airport operator: application of Public Works Act 1981

(1)

This section applies if the Crown or a local authority proposes to transfer land to an airport operator in accordance with section 228(1).

(2)

Sections 40 to 42 of the Public Works Act 1981 do not apply to the proposed transfer.

(3)

If the proposed transfer takes place, the land is to continue to be treated for the purposes of sections 40 and 41 of the Public Works Act 1981,—

(a)

if the transfer was by the Crown, as if the transfer had not taken place and the Crown continued to hold the land; or

(b)

if the transfer was by a local authority, as if the Crown rather than the local authority had acquired the land previously and continued to hold it.

(4)

At any time after the transfer of the land,—

(a)

it is the chief executive within the meaning of section 4 of the Cadastral Survey Act 2002 (the chief executive) and not the airport operator who—

(i)

determines whether section 40(1) of the Public Works Act 1981 applies; and

(ii)

must comply with sections 40 and 41 of the Public Works Act 1981 in relation to any sale of the land; and

(b)

the chief executive may lodge a caveat under section 138 of the Land Transfer Act 2017 against dealings in relation to the land to protect any interest of persons to have that land offered to them under section 40(2) of the Public Works Act 1981.

(5)

For the purposes of this section,—

(a)

the rights of persons referred to in subsection (4)(b) are an interest in land for the purposes of section 138 of the Land Transfer Act 2017; and

(b)

in stating that interest, it is sufficient for the caveat to refer to sections 40 to 42 of the Public Works Act 1981 and this section.

Compare: 1966 No 51 s 3A(6A)

231 Airport operators may set charges

(1)

An airport operator may set charges for the use of the airport operated or managed by it, or the services or facilities of the airport.

(2)

If the charge is, or is proposed to be, payable by a substantial customer, the airport operator must consult the customer—

(a)

before fixing or altering the amount of the charge; and

(b)

within 5 years after fixing or altering the amount of the charge.

(3)

If the charge is, or is proposed to be, payable by a passenger, the airport operator must consult all of its substantial customers—

(a)

before fixing or altering the amount of the charge; and

(b)

within 5 years after fixing or altering the amount of the charge.

(4)

Despite subsections (2) and (3), the airport operator need not consult a substantial customer under this section if the substantial customer has consented in writing to not being consulted (and has not withdrawn that consent).

(5)

If the airport operator is a specified airport company as defined in section 56A of the Commerce Act 1986 and specified airport services of the operator are subject to negotiate/arbitrate regulation or price-quality regulation under Part 4 of that Act, consultation about those specified airport services that has occurred or will occur with the substantial customer for the purposes of that Act may be treated as consultation for the purpose of this section.

(6)

A failure by an airport operator to comply with this section does not affect the validity or enforceability of any deed, agreement, right, or obligation entered into, obtained, or incurred by the airport operator.

(7)

Section 43 of the Commerce Act 1986 does not apply (and, accordingly, Part 2 of that Act applies) in relation to the charge.

(8)

This section does not limit the application of Part 4 of the Commerce Act 1986.

(9)

No charge may be set under this section for the carrying out of an activity for which a charge is payable under regulations made under section 408 or 416.

(10)

In this section, charge includes a fee, a due, or rent payable under a lease.

Compare: 1966 No 51 ss 4A, 4B

232 Airport operators must consult concerning capital expenditure plans

(1)

This section applies if—

(a)

an airport operator proposes an item or a programme of identified capital expenditure; and

(b)

the total of any expenditure for the item or under the programme, and any related capital expenditure, that will or is likely to be incurred by the airport operator by the end of the following 5-year period exceeds the relevant amount.

(2)

The airport operator must consult all of its substantial customers about the proposed item or programme of identified capital expenditure before approving it.

(3)

Despite subsection (2), the airport operator need not consult a substantial customer under this section if the substantial customer has consented in writing to not being consulted (and has not withdrawn that consent).

(4)

If the airport operator is a specified airport company as defined in section 56A of the Commerce Act 1986 and specified airport services of the operator are subject to negotiate/arbitrate regulation or price-quality regulation under Part 4 of that Act, consultation about those specified airport services that has occurred or will occur with the substantial customer for the purposes of that Act may be treated as consultation for the purpose of this section.

(5)

A failure by an airport operator to comply with this section does not affect the validity or enforceability of any deed, agreement, right, or obligation entered into, obtained, or incurred by the airport operator.

(6)

In this section,—

following 5-year period, in relation to an item or a programme of identified capital expenditure, means the period beginning with the date on which the airport operator approves the item or programme and ending with the date on which 5 accounting periods have been completed following that approval date

identified capital expenditure means capital expenditure relating to identified aerodrome activities

related capital expenditure, in relation to an item or a programme of identified capital expenditure, means capital expenditure connected with the identified capital expenditure

relevant amount, in relation to a proposal by an airport operator with annual passenger movements (during the most recently ended accounting period preceding the proposal) that are specified in the first column of the following table, means the amount specified for those passenger movements in the second column of the table:

Annual passenger movements of airport operatorAmount ($)
Less than 1,000,0005,000,000
1,000,000 or more but not more than 3,000,00010,000,000
More than 3,000,000 30,000,000

Compare: 1966 No 51 ss 4C, 9B

233 Airport operators must consult concerning spatial plans

(1)

This section applies if an airport operator proposes to approve a spatial plan for the airport.

(2)

Before approving the spatial plan, the airport operator must consult the substantial customers of the operator, and the relevant government agencies, that the operator considers appropriate having regard to the plan’s subject matter.

(3)

Despite subsection (2), the airport operator need not consult a customer or agency under this section if the customer or agency has consented in writing to not being consulted (and has not withdrawn that consent).

(4)

A failure by an airport operator to comply with this section does not affect the validity or enforceability of any deed, agreement, right, or obligation entered into, obtained, or incurred by the airport operator.

(5)

In this section, spatial plan means a document setting out a plan, strategy, or statement of intent, for the future development of land or infrastructure at the airport.

234 Airport operators may vary leases in certain circumstances

(1)

This section applies if—

(a)

an airport operator has leased buildings, installations, or land (or any part of them) within the land that is registered as an airport; and

(b)

during the term of the lease, the building, installation, or land is required for the purposes of the airport.

(2)

The airport operator may terminate the lease as to the whole of the property leased or as to so much of it as is required for the purposes of the airport.

(3)

No action may be brought in any court for the payment of damages or compensation in respect of the termination except an action for the payment of compensation provided for in the lease under subsection (4).

(4)

A lease referred to in subsection (1) may contain a provision requiring the airport operator to pay the lessee on the termination of the lease under subsection (1) compensation for improvements effected by the lessee during the term of the lease.

(5)

Compensation for improvements effected by the lessee must be an amount agreed between the parties or, failing agreement, an amount determined by arbitration under the Arbitration Act 1996.

(6)

If the amount of compensation for improvements is submitted for arbitration under the Arbitration Act 1996, this subsection is to be treated as a submission within the meaning of that Act.

Compare: 1966 No 51 s 6(3)–(7)

235 Application of other Acts to airport subdivisions and laying out of access roads

Parts 8 and 9 of the Public Works Act 1981, Part 21 of the Local Government Act 1974, and section 11 and Part 10 of the Resource Management Act 1991 do not apply to the subdivision of an airport by an airport operator or to the laying out of access roads to the land subdivided.

Compare: 1966 No 51 s 6(8)

236 Airport bylaws

(1)

An airport operator may, in respect of the airport that it operates, make bylaws for all or any of the following purposes:

(a)

the good rule and management of the airport:

(b)

more effectively carrying out functions and powers of the airport operator in respect of the airport:

(c)

protecting property used in connection with the airport from damage or injury:

(d)

prescribing precautions to be taken to protect people or property from accidents or damage:

(e)

regulating (other than on a road as defined in section 2(1) of the Land Transport Act 1998) traffic, whether pedestrian or vehicular, and the provision and use of parking places for vehicles at the aerodrome:

(f)

prescribing the times, terms, and conditions on which the public may enter or be in the airport:

(g)

providing for facilities to be established and maintained at the airport to receive and store lost property.

(2)

Bylaws under subsection (1)(g) may provide for—

(a)

lost property to be sold by auction if it is unclaimed after being held by the airport operator for at least 3 months:

(b)

publicising, in what the operator considers to be a fair and reasonable manner, the proposed sale of lost property:

(c)

despite paragraphs (a) and (b), disposing of perishable or valueless lost property in any manner determined by the operator.

(3)

Bylaws made under subsection (1) may—

(a)

provide differently for different types of persons, vehicles, roads or other places within the airport, aviation participants, or aviation-related services or on any other differential basis; or

(b)

provide differently for the same class of person, vehicle, road or other place within the airport, aviation participant, or aviation-related service or any other thing in different circumstances.

(4)

Bylaws made under subsection (1) are not invalid merely because they confer any discretion on, or allow any matter to be determined or approved by, the airport operator or any other person or allow the airport operator or any other person to impose requirements as to the performance of any activities.

(5)

Bylaws made under this section by an airport operator are secondary legislation for the purposes of the Legislation Act 2019, but section 161A of the Local Government Act 2002 applies to them as if they were made by a local authority.

Compare: 1966 No 51 s 9(1), (1A), (2)

237 Consultation

(1)

Section 156 of the Local Government Act 2002 applies to a bylaw made under section 236 by an airport operator that is a local authority as if that bylaw had been made under that Act.

(2)

An airport operator must not make a bylaw under section 236 unless it has consulted—

(a)

the CAA; and

(b)

the Secretary; and

(c)

any government agency operating at the airport to which the content of the proposed bylaw may be relevant; and

(d)

the Police; and

(e)

any other person who the airport operator considers may be substantially affected by the proposed bylaw.

(3)

The airport operator must—

(a)

give notice in writing to the persons and agencies specified in subsection (2) of the airport operator’s proposal to make, amend, or replace a bylaw; and

(b)

give those persons and agencies a reasonable time, which must be specified in the notice, to make submissions on the proposal.

Compare: 1998 No 110 s 22AD

238 Publication and proof of bylaws

(1)

As soon as practicable after a bylaw is made, the airport operator must give public notice of the making of the bylaw, stating—

(a)

the date on which the bylaw comes into force; and

(b)

that copies of the bylaw may be inspected and obtained at the office of the relevant road controlling authority on payment of a specified amount.

(2)

An airport operator must—

(a)

keep copies of all its bylaws at the office of the airport operator; and

(b)

make the bylaws available at all reasonable times on an Internet site maintained by or on behalf of the airport operator; and

(c)

supply to any person, on request and on payment of a reasonable charge, a copy of any of its bylaws.

(3)

The production of any document purporting to contain a printed copy of any bylaw made under section 236 and authenticated by the airport operator that made it is, until the contrary is proved, sufficient evidence of the existence and provisions of the bylaw.

Compare: 1998 No 110 s 22AE

239 Minister may amend, replace, or disallow bylaws

(1)

The Minister may amend, replace, or disallow, either wholly or in part, any bylaw made by an airport operator under section 236 (whether before or after the commencement of this section) if the bylaw—

(a)

is inconsistent with any enactment; or

(b)

is unreasonable or undesirable to the extent that it relates to or may affect traffic.

(2)

On any disallowance under subsection (1), the bylaw must, to the extent to which it is disallowed, be treated as having been revoked.

(3)

Any disallowance under subsection (1) takes effect either on the day after the notice of disallowance is published under the Legislation Act 2019 (see subsection (4)) or on a later date that may be specified in the notice.

(4)

A notice under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

Compare: 1998 No 110 s 22AC

240 Enforcement of bylaws

(1)

A person who breaches a bylaw in force under this subpart commits an offence and is liable on conviction to a fine not exceeding $500.

(2)

If a person commits a continuing breach of a bylaw in force under this subpart, then, despite anything in any other Act, the District Court may, on application by the airport operator, grant an injunction restraining the further continuation of the breach by the person.

(3)

An injunction may be granted under subsection (2)

(a)

even though proceedings for the offence constituted by the breach have not been taken; or

(b)

if the person is convicted of an offence constituted by the breach,—

(i)

in the proceedings for the offence, in substitution for or in addition to any penalty imposed for the offence; or

(ii)

in subsequent proceedings.

Compare: 1966 No 51 s 9(8)

241 Joint venture aerodromes

The provisions of Schedule 3 have effect.

Subpart 3—Enforceable regulatory undertakings

242 Giving of enforceable regulatory undertaking by airport operator

(1)

This section applies if—

(a)

1 or more space requirements apply in relation to an airport; or

(b)

1 or more relevant government agencies have notified an airport operator that they intend in the future to impose 1 or more space requirements on the airport (and have not withdrawn that notification).

(2)

The operator must provide the Secretary with an enforceable regulatory undertaking setting out, to the Secretary’s satisfaction, how the operator will meet the space requirements.

(3)

An enforceable regulatory undertaking offered under this section must—

(a)

specify the space requirements and relevant government agencies concerned; and

(b)

specify projects, milestones, and implementation time frames to meet the space requirements and the related obligations (if any); and

(c)

be made in the manner specified by the Secretary; and

(d)

comply with any prescribed requirements relating to the content, form, timing, and publication for enforceable regulatory undertakings.

(4)

An operator giving an enforceable regulatory undertaking under this section must provide the Secretary with the information required by the Secretary to assist the Secretary in deciding whether the enforceable regulatory undertaking complies with this section.

243 Consultation and timing requirements

(1)

An airport operator must make reasonable efforts to obtain the relevant government agencies’ endorsement of an enforceable regulatory undertaking before providing the undertaking to the Secretary under section 242(2).

(2)

The agencies—

(a)

must not unreasonably withhold or delay their endorsement; and

(b)

must make reasonable efforts to co-ordinate their response.

(3)

The operator must take all reasonable steps to ensure that the undertaking is given and accepted—

(a)

before the end of the 3-month period beginning with,—

(i)

if section 242(1)(a) applies, the date on which the space requirement arises; or

(ii)

if section 242(1)(b) applies, the date on which the relevant government agency notifies the operator that it intends to impose the space requirement; or

(b)

by any other deadline specified by the Governor-General by Order in Council made on the recommendation of the Minister.

(4)

An Order in Council made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

244 Decision and notification

On receiving the enforceable regulatory undertaking under section 242, the Secretary may—

(a)

accept the undertaking if it meets the requirements of section 242(2) and (3); or

(b)

refer the undertaking back to the operator, specifying any matters that must be addressed before the undertaking is resubmitted; or

(c)

reject the undertaking and provide reasons for the decision.

245 When enforceable regulatory undertaking is enforceable

An enforceable regulatory undertaking takes effect and becomes enforceable when notice of the Secretary’s decision to accept the undertaking is given to the operator who gave the undertaking, or at any later date specified by the Secretary.

246 Review by airport operator of enforceable regulatory undertaking

(1)

An airport operator who has given an enforceable regulatory undertaking that is in effect in accordance with section 245 must review it—

(a)

if notified by a relevant government agency that—

(i)

there has been, or is proposed to be, a significant change to the agency’s space requirements; or

(ii)

the undertaking does not meet the requirements or no longer meets them; and

(b)

in any case, at intervals of no more than 5 years.

(2)

The airport operator must give a copy of a review under subsection (1) to the Secretary.

(3)

If, as a result of the review, the operator determines, or is notified in writing by the Secretary, that the undertaking no longer meets the requirements of section 242(2) and (3)), the operator must vary the undertaking to meet those requirements or give a replacement undertaking that meets them.

(4)

Sections 242 to 245 apply to the variation or replacement in the same manner as they apply to the undertaking being varied or replaced.

247 Compliance with enforceable regulatory undertaking

(1)

An airport operator must not contravene an enforceable regulatory undertaking that is in effect in accordance with section 245.

(2)

A person who breaches subsection (1) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $50,000:

(b)

in the case of any other person, to a fine not exceeding $250,000.

(3)

If an airport operator commits an offence against this section, any officer of the operator who participates in, directs, authorises, acquiesces in, or assents to the conduct comprising the offence also commits an offence and is liable on conviction to a fine not exceeding $50,000.

248 Contravention of enforceable regulatory undertaking

(1)

The Secretary may apply to the District Court for an order under this section if an airport operator contravenes, or the Secretary believes that the airport operator is likely to contravene, an enforceable undertaking that is in effect in accordance with section 245.

(2)

If the court is satisfied that the operator has contravened the undertaking, the court may make either or both of the following orders:

(a)

an order directing the operator to comply with the undertaking:

(b)

an order that the Secretary could make under section 249.

(3)

In addition to the orders referred to in subsection (2), the court may make any other order that the court considers appropriate in the circumstances, including orders directing the operator to pay to the Secretary—

(a)

the costs of the proceedings; and

(b)

the reasonable costs of the Secretary in monitoring compliance with the enforceable regulatory undertaking in the future.

(4)

This section does not prevent proceedings being brought for the contravention or alleged contravention of space requirements to which the enforceable undertaking relates.

249 Secretary may make direction orders

(1)

The Secretary may make an order under this section (a direction order) if satisfied that an airport operator has contravened, or is likely to contravene, a provision of this subpart or an enforceable regulatory undertaking that is in effect in accordance with section 245.

(2)

The direction order may—

(a)

direct the operator to comply with the provision or the undertaking:

(b)

specify any reasonable steps that the operator must take in order to comply with the provision or undertaking, or to avoid or mitigate any actual or potential adverse effects of a contravention:

(c)

require the operator to report to the Secretary within the time specified in the order stating how and when the order has been or will be implemented.

(3)

The Secretary may make an order under this section only if the Secretary first takes the following steps:

(a)

give the person to whom the order is proposed to be directed written notice—

(i)

that the Secretary may make an order under this section; and

(ii)

of the reasons why the Secretary is considering exercising that power; and

(b)

give the notice referred to in paragraph (a) at least 5 working days before the Secretary makes the order; and

(c)

give each person to whom notice of the order must be given or the person’s representative an opportunity to make written submissions and to be heard on the matter within that notice period.

250 Secretary must give notice of orders made under section 249

If the Secretary makes an order under section 249, the Secretary—

(a)

must, as soon as is reasonably practicable, give written notice to the person to whom the order is directed of—

(i)

the terms and conditions of the order; and

(ii)

the reasons for the order; and

(iii)

any other information the Secretary thinks relevant in the circumstances; and

(b)

may also make the notice or any part of the notice available on its Internet site; and

(c)

may also give notice to any other person of those matters.

251 Consequences of failing to comply with direction orders

(1)

An airport operator must comply with a direction order given to the operator.

(2)

A person who refuses or fails, without reasonable excuse, to comply with a direction order commits an offence and is liable on conviction,—

(a)

in the case of an individual, to a fine not exceeding $50,000:

(b)

in the case of any other person, to a fine not exceeding $250,000.

(3)

If an airport operator commits an offence against this section, any officer of the operator who participates in, directs, authorises, acquiesces in, or assents to the conduct comprising the offence also commits an offence and is liable on conviction to a fine not exceeding $50,000.

Subpart 4—Exemptions from requirements of subparts 2 and 3

252 Exemptions from requirements of subparts 2 and 3

(1)

The Secretary may exempt an airport operator or any class of airport operators from all or any of the requirements of the following:

(a)

section 231(2) and (3) (airport operators may set charges):

(b)

section 232 (airport operators must consult concerning capital expenditure plans):

(c)

section 233 (airport operators must consult concerning spatial plans):

(d)

section 242 (giving of enforceable regulatory undertaking by airport operator):

(e)

section 243 (consultation and timing requirements):

(f)

section 246 (review by airport operator of enforceable regulatory undertaking).

(2)

The Secretary must not grant an exemption under subsection (1) unless the Secretary is satisfied that—

(a)

the extent of the exemption is not broader than is reasonably necessary to address the matters that gave rise to the proposed exemption; and

(b)

the exemption is consistent with the main purpose of the Act; and

(c)

it is appropriate to grant the exemption after considering—

(i)

the additional purposes of the Act; and

(ii)

any other matters that the Secretary considers appropriate in the circumstances.

(3)

When determining whether to grant an exemption under subsection (1) from section 231(2) or (3), 232, or 233, the Secretary may take into account whether—

(a)

services of the airport operator are subject to price-quality regulation or negotiate/arbitrate regulation under Part 4 of the Commerce Act 1986; and

(b)

consultation in respect of those services has occurred or will occur pursuant to determinations made under Part 4 of that Act.

(4)

A class exemption is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

(5)

In this section, class exemption means an exemption granted under subsection (1) that relates to more than 1 airport operator.

Subpart 5—Sale of alcohol at international airports

253 Sale of alcohol at international airports

(1)

Alcohol may be sold at any international airport to any passenger on an aircraft departing from or arriving in New Zealand for consumption on or off the airport premises if the passenger is of or over the purchase age as defined in section 5 of the Sale and Supply of Alcohol Act 2012.

(2)

Unless alcohol sold under the authority of subsection (1) has been entered by the passenger concerned for home consumption in accordance with the Customs and Excise Act 2018,—

(a)

the buyer must not deliver it, and no person may deliver it on behalf of the buyer, to any other person within New Zealand; and

(b)

no person may consume it within New Zealand.

(3)

A person commits an offence if the person—

(a)

sells alcohol at any international airport to any passenger on an aircraft departing from or arriving in New Zealand who is under the age referred to in subsection (1)(a) or (b) (as the case requires); or

(b)

fails to comply with subsection (2).

(4)

A person who commits an offence against subsection (3) is liable on conviction to a fine not exceeding $2,500.

(5)

Nothing in the Sale and Supply of Alcohol Act 2012 applies to the sale of alcohol under the authority of this section or of any regulations made under section 427.

Compare: 1990 No 98 s 96(1), (2), (4)–(6)

Part 8 International and domestic carriage of passengers and goods by air

Subpart 1—Additional purpose of Part

254 Additional purpose of Part

(1)

The purpose of this Part (in addition to those set out in sections 3 and 4) is to provide effective redress for passengers and others in relation to international and domestic carriage of passengers and goods by air.

(2)

This section does not limit section 3 or 4.

Subpart 2—International carriage by air

255 Interpretation in this subpart

In this subpart, unless the context otherwise requires,—

Additional Protocol means the Additional Protocol—

(a)

that is included in the Warsaw Convention with reference to Article 2 of that Convention; and

(b)

that appears before the Additional Provisions of the Hague Protocol affecting the Warsaw Convention in the amended Convention, as set out in Schedule 4

Additional Protocol No 1 means Additional Protocol No 1 to amend the Warsaw Convention that opened for signature at Montreal on 25 September 1975

Additional Protocol No 2 means Additional Protocol No 2 to amend the Warsaw Convention and the Hague Protocol that opened for signature at Montreal on 25 September 1975

amended Convention means the Convention—

(a)

that is the Warsaw Convention as amended by the following protocols:

(i)

the Hague Protocol:

(ii)

Additional Protocols Nos 1 and 2, and Protocol No 4:

(b)

the English text of which is set out in Schedule 4

court,—

(a)

in relation to an arbitration allowed by the Montreal Convention, the amended Convention, or the Guadalajara Convention, includes an arbitrator; and

(b)

includes the Disputes Tribunal, except in any matters relating to liability for passenger injury or death

Guadalajara Convention means the Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier,—

(a)

which opened for signature at Guadalajara on 18 September 1961:

(b)

the English text of which is set out in Schedule 5

Hague Protocol means the Protocol to amend the Warsaw Convention that opened for signature at the Hague on 28 September 1955

High Contracting Party has the same meaning as in Article 40A of the amended Convention

Montreal Convention means the Convention for the Unification of Certain Rules for International Carriage by Air,—

(a)

which opened for signature at Montreal on 28 May 1999:

(b)

the English text of which is set out in Schedule 6

Protocol No 4 means Protocol No 4 to amend the Warsaw Convention and the Hague Protocol that opened for signature at Montreal on 25 September 1975

Warsaw Convention means the Convention for the Unification of Certain Rules Relating to International Carriage by Air, which opened for signature at Warsaw on 12 October 1929, and includes the Additional Protocol to that Convention.

Compare: 1990 No 98 s 91A

256 Application of Guadalajara Convention

In this Part, references to the amended Convention or to any Article of that Convention are, where applicable and subject to any necessary modifications, to be read as references to that Convention or Article as supplemented by the Guadalajara Convention.

Compare: 1990 No 98 s 91B

257 Conventions to have force of law

(1)

This section relates to the Montreal Convention, the amended Convention, and the Guadalajara Convention (the Conventions).

(2)

The Conventions have the force of law in New Zealand in relation to any carriage by air to which any of the Conventions, as the case may require, applies.

(3)

However, the Conventions have the force of law in New Zealand only to the extent that they relate to the rights and liabilities of carriers, carriers’ servants and agents, passengers, consignors, consignees, and other persons.

(4)

The Conventions apply in New Zealand—

(a)

subject to this subpart; and

(b)

irrespective of the nationality of the aircraft performing the carriage by air.

(5)

Each version of Article 22 of the amended Convention set out in Schedule 4 applies in the circumstances outlined in the heading of that version.

Compare: 1990 No 98 s 91C

258 Inconsistency between French and English texts

(1)

If there is any inconsistency between the English text of the amended Convention set out in Schedule 4 and the corresponding text in French, the text in French prevails.

(2)

If there is any inconsistency between the English text of the Guadalajara Convention set out in Schedule 5 and the corresponding text in French, the text in French prevails.

(3)

The Secretary of Foreign Affairs and Trade may give a certificate stating that a document to which the certificate is annexed is a true copy of the authentic text in the French language of 1 or more of the following:

(a)

Additional Protocol No 1:

(b)

Additional Protocol No 2:

(c)

the Guadalajara Convention:

(d)

the Hague Protocol:

(e)

Protocol No 4:

(f)

the Warsaw Convention.

(4)

Any certificate given must be received in evidence in any proceedings and, in the absence of proof to the contrary, is sufficient evidence of the matters stated in the certificate.

Compare: 1990 No 98 s 91D

259 Fatal accidents

References in section 4 of the Deaths by Accidents Compensation Act 1952 to a wrongful act, neglect, or default include references to any occurrence that gives rise to a liability under—

(a)

Article 17(1) of the Montreal Convention; or

(b)

Article 17 of the amended Convention.

Compare: 1990 No 98 s 91E

260 Contributory negligence

The provisions of the Contributory Negligence Act 1947 are the provisions of the law of New Zealand under which a court may exonerate a carrier wholly or partly from the carrier’s liability for the purposes of—

(a)

Article 20 of the Montreal Convention; or

(b)

Article 21 of the amended Convention.

Compare: 1990 No 98 s 91F

261 Limitation of liability

(1)

The limitations on liability referred to in Articles 21 and 22 of the Montreal Convention or in Article 22 of the amended Convention apply whatever the nature of the proceedings by which liability may be enforced.

(2)

Without limiting subsection (1),—

(a)

the limitations on liability apply where proceedings are brought by a person (person A) to obtain contribution from another person (person B) if person B is the carrier or a servant or an agent of the carrier; and

(b)

the limitation for each passenger referred to in Article 21 of the Montreal Convention or in paragraph (1) of Article 22 of the amended Convention applies to the aggregate liability of the carrier in—

(i)

all proceedings that may be brought against the carrier under the law of New Zealand; and

(ii)

any proceedings brought against the carrier outside New Zealand.

(3)

A court or the Disputes Tribunal (as relevant) before which proceedings are brought to enforce a liability that is limited by Article 21 or Article 22 of the Montreal Convention or Article 22 of the amended Convention may, at any stage of the proceedings, make any order that appears to the court or the Disputes Tribunal (as relevant) to be just and equitable, in view of—

(a)

Article 21 or Article 22 of the Montreal Convention or Article 22 of the amended Convention; and

(b)

any other proceedings which have been, or are likely to be, commenced in New Zealand or elsewhere to enforce the liability in whole or in part.

(4)

A court or the Disputes Tribunal (as relevant) before which proceedings are brought to enforce a liability that is limited by Article 21 or Article 22 of the Montreal Convention or Article 22 of the amended Convention has jurisdiction, where the liability is, or may be, partly enforceable in other proceedings in New Zealand or elsewhere, to—

(a)

award an amount less than the court would have awarded if the limitation applied solely to the proceedings before the court; or

(b)

make any part of its award conditional on the result of any other proceedings.

(5)

Subsection (4) does not limit the powers conferred on a court or the Disputes Tribunal by subsection (3).

(6)

Unless the context otherwise requires, references in this section to Article 22 of the amended Convention are, subject to any necessary modifications, to be read as references to that Article as applied or supplemented by—

(a)

Article 25A of the amended Convention; and

(b)

Articles V and VI of the Guadalajara Convention.

Compare: 1990 No 98 s 91G

262 Value of special drawing right

(1)

For the purposes of Article 23 of the Montreal Convention or Article 22 of the amended Convention, the value of 1 special drawing right must be treated as equal to a sum in New Zealand currency that is fixed by the International Monetary Fund as being the equivalent of 1 special drawing right for—

(a)

the date of judgment; or

(b)

any other relevant date; or

(c)

if no sum has been fixed for that date, the last preceding date for which a sum has been fixed.

(2)

For the purposes of subsection (1), a certificate may be given by, or on behalf of, the Secretary to the Treasury stating that—

(a)

a particular sum in New Zealand currency has been fixed as the equivalent of 1 special drawing right for a particular date; or

(b)

no sum has been fixed for that date, and that a particular sum has been fixed for the date most recently preceding a particular date.

(3)

Any certificate given must be received in evidence in any proceedings and, in the absence of proof to the contrary, is sufficient evidence of the value of 1 special drawing right in New Zealand currency.

(4)

Unless the context otherwise requires, references in this section to Article 22 of the amended Convention are, subject to any necessary modifications, to be read as references to that Article as applied or supplemented by—

(a)

Article 25A of the amended Convention; and

(b)

Articles V and VI of the Guadalajara Convention.

Compare: 1990 No 98 s 91H

263 Time for bringing proceedings

(1)

No action against a carrier’s servant or agent that arises out of damage to which this Part relates may be brought after more than 2 years if the servant or agent was acting within the scope of the person’s employment.

(2)

For the purposes of subsection (1), the period of 2 years is calculated from the earliest of the following dates:

(a)

the date of arrival at the destination:

(b)

the date the aircraft ought to have arrived:

(c)

the date carriage stopped.

(3)

Neither Article 35 of the Montreal Convention nor Article 29 of the amended Convention applies to any proceedings for contribution between tortfeasors.

(4)

Despite subsection (3), no action may be brought by a person to obtain a contribution from a carrier—

(a)

in respect of a tort to which either of the following applies:

(i)

Article 35 of the Montreal Convention:

(ii)

Article 29 of the amended Convention; and

(b)

after the expiry of 2 years from the time when judgment is obtained against the person seeking to obtain the contribution.

Compare: 1990 No 98 s 91I(1)–(4)

264 Further provisions in relation to time for bringing proceedings

(1)

The following provisions have effect as if references in those provisions to an action included references to an arbitration:

(a)

section 263:

(b)

Article 35 of the Montreal Convention:

(c)

Article 29 of the amended Convention.

(2)

Subsections (3) and (4) (which determine the time at which an arbitration is deemed to have commenced) apply for the purposes of subsection (1).

(3)

An arbitration (whether under legislation or under an arbitration agreement) must be treated as being commenced in the same manner as provided in Article 21 of Schedule 1 of the Arbitration Act 1996.

(4)

If the High Court orders that an award be set aside, it may also order that the period between the commencement of the arbitration and the date of the setting aside order must be excluded in computing the time prescribed by this section for the commencement of civil proceedings (including arbitration) with respect to the dispute referred.

(5)

Subsections (2) to (4) do not limit or affect section 39 of the Limitation Act 2010.

Compare: 1990 No 98 s 91I(5)–(9)

265 Actions against High Contracting Parties

(1)

Every High Contracting Party to the amended Convention is to be regarded as having submitted to the jurisdiction of the court in the circumstances described in subsection (2).

(2)

Subsection (1) applies where any action is brought in a court in New Zealand by a High Contracting Party, to enforce a claim in respect of carriage undertaken by that Party, in accordance with—

(a)

Article 28 of the amended Convention; or

(b)

Article VIII of the Guadalajara Convention.

(3)

Rules of court may provide for the manner in which any action is to be commenced and carried on.

(4)

This section does not—

(a)

authorise the issue of execution against the property of any High Contracting Party; or

(b)

apply to any High Contracting Party to the amended Convention that has availed itself of the provisions of the Additional Protocol.

Compare: 1990 No 98 s 91J

266 Actions against Parties to Montreal Convention

(1)

Every Party to the Montreal Convention is to be regarded as having submitted to the jurisdiction of the court in the circumstances described in subsection (2).

(2)

Subsection (1) applies if any action is brought in a court in New Zealand by a Party to the Montreal Convention, to enforce a claim in respect of carriage undertaken by that Party, in accordance with Article 46 of the Montreal Convention.

(3)

Rules of court may provide for the manner in which any action is to be commenced and carried on.

(4)

This section does not authorise the issue of execution against the property of any Party to the Montreal Convention.

Compare: 1990 No 98 s 91JA

267 Designation of Parties

(1)

The Governor-General may, by Order in Council, certify—

(a)

the identity of—

(i)

the High Contracting Parties to the amended Convention; or

(ii)

the Parties to the Guadalajara Convention; or

(iii)

the Parties to the Hague Protocol; or

(iv)

the Parties to Additional Protocol No 1; or

(v)

the Parties to Additional Protocol No 2; or

(vi)

the Parties to Protocol No 4; or

(vii)

the High Contracting Parties to the Warsaw Convention; or

(viii)

the Parties to the Montreal Convention; or

(b)

the territories in respect of which the parties referred to in paragraph (a)(i), (ii), (iii), (iv), (v), (vi), (vii), or (viii) are respectively parties; or

(c)

to what extent the parties referred to in paragraph (a)(i), (ii), (iii), (iv), (v), (vi), or (vii) have availed themselves of the Additional Protocol.

(2)

An Order in Council under this section is sufficient evidence of the matters certified in it.

(3)

An Order in Council under this section may contain transitional and other consequential provisions as the Governor-General considers to be desirable.

(4)

An Order in Council certifying the identity of Parties under subsection (1)(a) must specify the date on and from which any Party became or ceased to be a Party.

(5)

An order under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

Compare: 1990 No 98 s 91K

268 Article 40A of amended Convention

(1)

Paragraph (2) of Article 40A of the amended Convention does not extend references in the amended Convention to the territory of a High Contracting Party to include any territory in respect of which that High Contracting Party is not a Party.

(2)

Subsection (1) does not apply to references in the amended Convention to the territory of any State, whether a High Contracting Party or not.

Compare: 1990 No 98 s 91L

269 Power to exclude aircraft in use for military purposes

(1)

The Governor-General may, by Order in Council, direct that subsection (2) applies or ceases to apply to New Zealand or any other State specified in the order.

(2)

The Montreal Convention or the amended Convention does not apply to the carriage of persons, cargo, and baggage for the military authorities of a State to which this subsection applies if—

(a)

the carriage is undertaken in aircraft registered in that State; and

(b)

the whole capacity of the aircraft has been reserved by, or on behalf of, those authorities.

(3)

An order under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

Compare: 1990 No 98 s 91M

Subpart 3—Domestic carriage by air

270 Interpretation in this subpart

(1)

In this subpart, unless the context otherwise requires,—

actual carrier means a person, other than the contracting carrier, who—

(a)

performs the whole or part of the carriage contracted for by the contracting carrier with the authority of the contracting carrier; but

(b)

is not, in relation to that carriage, a successive carrier

carrier includes a contracting carrier and an actual carrier

contract includes an arrangement made without consideration

contracting carrier

(a)

means a person who, as a principal, makes a contract for carriage with a passenger, or with a person acting on behalf of the passenger; and

(b)

includes a successive carrier

court includes the Disputes Tribunal

passenger means a person carried under a contract for carriage other than a person—

(a)

assigned by the carrier for duty as a member of the crew of the aircraft; or

(b)

carried for the sole purpose of receiving or giving instruction in the control or navigation of an aircraft in flight

successive carrier means a person who performs part of the carriage if the carriage—

(a)

is performed by 2 or more persons in successive stages; and

(b)

has been regarded by the parties as a single operation, whether it has been agreed on by a single contract or by 2 or more contracts.

(2)

If any question arises as to whether an actual carrier has authority from a contracting carrier to perform any carriage, that authority is, in the absence of proof to the contrary, to be presumed.

Compare: 1990 No 98 s 91U

271 Application of this subpart

(1)

This subpart applies to any carriage by air (other than international carriage described in subsection (3)) in which, according to the contract between the parties,—

(a)

the place of departure and the place of destination are both in New Zealand; and

(b)

there is no agreed stopping place outside New Zealand.

(2)

Subsection (1) applies even if the aircraft in which the carriage takes place is at the same time engaged in the international carriage described in subsection (3).

(3)

The international carriage referred to in subsections (1) and (2) is carriage in which, according to the contract between the parties, the place of departure and the place of destination, whether or not there is a break in the carriage or a transhipment, are—

(a)

within the territories of 2 countries; or

(b)

within the territory of a single country if there is an agreed stopping place within the territory of another country.

(4)

This section applies subject to section 273.

Compare: 1990 No 98 s 91V

272 Combined carriage

If a contract of carriage made with an air carrier provides for the carriage to be performed partly by air and partly by a mode of carriage other than by air, this subpart applies only to the carriage by air.

Compare: 1990 No 98 s 91ZM

273 Exclusions

This subpart does not apply to—

(a)

any carriage by air on a single flight in respect of which, according to the contract between the parties, the place of departure and the intended place of destination are the same; or

(b)

any other types of flights that are excluded from the application of this subpart by the regulations.

Compare: 1990 No 98 s 91W

274 Provisions if carriage performed by actual carrier

If the whole or any part of any carriage to which this subpart applies is performed by an actual carrier,—

(a)

both the contracting carrier and the actual carrier are subject to any liability imposed by this subpart as follows:

(i)

the contracting carrier is liable in respect of the whole of the carriage contemplated in the contract between the contracting carrier and the passenger; and

(ii)

the actual carrier is liable solely in respect of the carriage that the actual carrier performs:

(b)

any special agreement under which the contracting carrier assumes obligations not imposed by this subpart, or any waiver of rights conferred by this subpart, does not affect the actual carrier unless agreed to by the actual carrier.

Compare: 1990 No 98 s 91X

275 Liability of carrier in respect of delay

(1)

A carrier is liable under this section for damage caused by delay in the carriage of passengers.

(2)

Despite subsection (1), a carrier is not liable for damage caused by delay if the carrier proves that the delay—

(a)

arose by reason of—

(i)

meteorological conditions; or

(ii)

compliance with instructions, advice, or information given by an air traffic control service; or

(iii)

obedience to orders or directions given by a lawful authority; or

(b)

was made necessary by force majeure; or

(c)

was necessary for the purpose of saving or attempting to save life.

(3)

This section does not limit or affect the liability of a carrier under any other enactment or rule of law.

Compare: 1990 No 98 s 91Z

276 Provisions if carriage performed by successive carriers

If carriage is performed or is to be performed by successive carriers, the contracting carrier who is liable is the successive carrier who performed or was to perform the carriage where the delay occurred.

Compare: 1990 No 98 s 91Y

277 Avoidance of liability

The carrier is not liable under this subpart if the carrier proves that—

(a)

the carrier, or the carrier’s servants or agents, took all necessary measures to avoid the damage; or

(b)

it was not possible for the carrier, or the carrier’s servants or agents, to take those measures.

Compare: 1990 No 98 s 91ZA

278 Limitation of liability

(1)

The liability of the carrier in respect of damage caused by delay is limited to the lesser of—

(a)

the amount of damage proved to have been sustained as a result of the delay; and

(b)

an amount representing 10 times the sum paid for the carriage.

(2)

Despite subsection (1), the carrier may, by special contract, increase the amount of the carrier’s liability under that subsection.

(3)

This subpart does not affect any rule of law relating to remoteness of damage.

Compare: 1990 No 98 s 91ZC

279 Contracting out

(1)

The provisions of this subpart have effect despite anything to the contrary in any contract or in any bylaws made by a carrier purporting to relieve the carrier of liability.

(2)

A provision of a contract of carriage or any bylaw that has the effect of overriding or limiting a carrier’s liability under this subpart (whether directly or indirectly) is unenforceable.

(3)

Subsections (1) and (2) are subject to subsection (4).

(4)

Nothing in subsection (1) or (2) applies in respect of a provision that—

(a)

imposes a stricter duty on the carrier than would be imposed under this subpart; or

(b)

provides a more advantageous remedy against the carrier than would be provided under this subpart.

Compare: 1990 No 98 s 91ZD, 1986 No 121 s 5C

280 Wilful or reckless misconduct

The limits of liability referred to in section 278 do not apply if it is proved that the damage resulted from an act or omission of the carrier done—

(a)

with intent to cause damage; or

(b)

recklessly as to whether damage would result.

Compare: 1990 No 98 s 91ZE(1)

281 Just and equitable orders and awards

(1)

In proceedings to enforce a liability that is limited by this subpart, a court may, at any stage of the proceedings, make any order that appears to the court to be just and equitable in view of—

(a)

this subpart; and

(b)

any other proceedings that have been, or are likely to be, commenced in New Zealand or elsewhere to enforce the liability in whole or in part.

(2)

Without limiting subsection (1), the court may, if the liability is, or may be, enforceable in other proceedings in New Zealand or elsewhere,—

(a)

award an amount less than the court would have awarded if the limitation applied solely to the proceedings before the court; or

(b)

make any part of its award conditional on the result of any other proceedings.

Compare: 1990 No 98 s 91ZI

282 Application of limitation on liability

(1)

The limitations on liability referred to in section 278 apply if—

(a)

a person (person A) brings proceedings against another person (person B) to obtain a contribution from person B; and

(b)

person B is the carrier, or a servant or an agent of the carrier.

(2)

Person A must not bring proceedings referred to in subsection (1) to obtain a contribution from person B later than 2 years after the time when judgment is obtained against person A.

(3)

This subpart does not affect proceedings brought against any person other than the carrier, or servant or agent of the carrier.

Compare: 1990 No 98 s 91ZJ

283 Relationship between carriers

This subpart does not—

(a)

prevent a carrier from entering into special contractual arrangements with another carrier; or

(b)

affect the rights and obligations of the carriers between themselves.

Compare: 1990 No 98 s 91K

284 Limitation of actions

(1)

An action must not be brought under this subpart against a carrier later than 2 years after the later of the following dates:

(a)

the date on which the aircraft arrived at the destination:

(b)

if the aircraft did not arrive at the destination,—

(i)

the date on which the aircraft ought to have arrived at the destination; or

(ii)

the date on which the carriage stopped.

(2)

Despite subsection (1), application may be made to the court, after giving notice to the intended defendant, for leave to bring an action at any time within 6 years after the date on which the cause of action accrued as provided in subsection (1).

(3)

On application under subsection (2), the court may grant leave accordingly if it considers that it is just to do so and if it considers that—

(a)

the delay in bringing the action was caused by—

(i)

mistake of fact; or

(ii)

mistake of any matter of law other than the provisions of this subsection; or

(iii)

any other reasonable cause; or

(b)

the intended defendant was not materially prejudiced in the defendant’s defence or otherwise by the delay.

(4)

If the court grants leave under subsection (3), that leave may be subject to any conditions that the court thinks just to impose.

(5)

This section applies subject to section 282.

Compare: 1990 No 98 s 91ZL

Part 9 Monitoring, investigation, and enforcement

Subpart 1—Powers of entry and inspection

285 Powers of entry and inspection

(1)

Subject to section 286, for the purpose of performing any function of the Director, the CAA, or an inspector under this Act, or for the purposes of the ANZA mutual recognition agreements, any inspector may, at any reasonable time, enter any aviation place and—

(a)

conduct examinations, tests, inquiries, and inspections:

(b)

be accompanied and assisted by any other person, and bring into the aviation place any equipment necessary, to carry out the inspector’s functions:

(c)

take photographs and measurements and make sketches and recordings:

(d)

require the aviation participant or a person who is or appears to be in charge of the aviation place to ensure that the aviation place or any place or thing in the aviation place specified by the inspector is not disturbed for a reasonable period pending examination, testing, inquiry, or inspection:

(e)

require the aviation participant or a person who is or appears to be in charge of the aviation place to—

(i)

produce information relating to the aviation place, the activities carried out there, or the people who carry out those activities; and

(ii)

produce information relating to the aviation participant’s compliance with relevant civil aviation legislation; and

(iii)

permit the inspector to examine and make copies of, or take extracts from, the information:

(f)

require the aviation participant or a person who is or appears to be in charge of the aviation place to make or provide statements, in any form and manner that the inspector specifies.

(2)

An inspector may do any of the things referred to in subsection (1), whether or not—

(a)

the inspector or the person the inspector is dealing with is in the aviation place; or

(b)

the place is still an aviation place; or

(c)

the aviation participant is still operating at the place; or

(d)

in respect of any information, the information is—

(i)

in the place; or

(ii)

in the place where the inspector is; or

(iii)

in another place.

(3)

In the case of a person holding an Australian AOC with ANZA privileges, the power conferred by subsection (1) may be exercised only at the request of CASA.

(4)

Nothing in this section affects the application of section 60 of the Evidence Act 2006.

(5)

For the purpose of this section, if the inspector considers that it is necessary to enter any other building or land in order to get to the aviation place, the inspector may do so after taking any steps that the inspector considers reasonable in the circumstances to obtain the consent of the occupier of the building or place.

(6)

In this section, information includes any document.

Compare: 2015 No 70 s 168, 1990 No 98 s 15(2)

286 Power to enter homes or marae

(1)

Despite section 285(1), (2), and (5), an inspector must not, except with the consent of an occupier or pursuant to a warrant issued under subsection (2),—

(a)

enter an aviation place or a former aviation place that is, or is within, a home, a marae, or a building associated with a marae; or

(b)

enter an aviation place or a former aviation place through a home, a marae, or a building associated with a marae.

(2)

An issuing officer may, on an application made by an inspector in the manner provided in subpart 3 of Part 4 of the Search and Surveillance Act 2012, issue a warrant to enter a home (or part of a home), a marae (or part of a marae), or a building associated with a marae (or part of a building associated with a marae) if the issuing officer is satisfied that there are reasonable grounds to believe that the home, marae, or building associated with a marae—

(a)

is an aviation place or a former aviation place or has an aviation place or a former aviation place within it; or

(b)

is the only practicable means through which the inspector may enter the aviation place or former aviation place.

(3)

A warrant issued under subsection (2) authorises an inspector to enter the home or marae only to exercise the powers specified in section 285.

Compare: 2015 No 70 s 169, 1990 No 98 s 24(4)–(5A)

287 Notice of entry

(1)

If an inspector enters an aviation place or a former aviation place under this Act and is unable, despite reasonable efforts, to find any person in charge, the inspector must before leaving the place leave a written notice stating—

(a)

the inspector’s identity; and

(b)

the inspector’s contact information; and

(c)

the date and time of entry; and

(d)

the inspector’s reasons for entering.

(2)

In this section, contact information includes—

(a)

the name of the inspector; and

(b)

1 or more of the following:

(i)

telephone number:

(ii)

email address:

(iii)

physical or postal address.

Compare: 2015 No 70 s 171

288 Power to take samples and other objects and things

(1)

An inspector who enters an aviation place or a former aviation place under section 285 or 286 may take or remove a sample of any material, substance, or thing (including, without limitation, an aircraft or aeronautical product) for analysis, or seize and retain any material, substance, or thing, for the purpose of—

(a)

monitoring activities being carried out in the aviation place; or

(b)