Civil Aviation Amendment Bill

I move, That the Civil Aviation Amendment Bill be now read a first time. At the appropriate time I will move that the bill be referred to the Transport and Industrial Relations Committee, that the committee finally report on the bill by 13 November 2003, and that the committee have the authority to meet at any time while the House is sitting, except during questions for oral answer and during any evening on a day in which there has been a sitting of the House, and to meet on Friday in a week in which there has been a sitting of the House, despite Standing Orders 193 and 196(1)(b) and (c).

The bill proposes that amendments be made to the provisions of the Civil Aviation Act without altering the basic policy that underpins the Act. The bill also provides a number of changes to support the Government’s objective of assisting economic development, safety, and personal security. The provisions will remove regulatory barriers for Australia and New Zealand airlines, taking up opportunities to operate within and between each country. It will provide improvements in aviation safety and security and it will ensure aviation safety law is clear, effective, and relevant.

A memorandum of understanding on open skies was signed on 20 November 2000 by the New Zealand and Australian Ministers of Transport. This reaffirmed the commitment of New Zealand and Australia to adopt mutual recognition of aviation-related safety certification by December 2003. Part 2 makes the legislative changes required to implement this Government-to-Government commitment. Similar legislation was introduced in the Australian Parliament on 25 June 2003. The mutual recognition regime proposed in this legislation will improve the ability of New Zealand airlines to enter the Australian market by enabling eligible air operators certified in New Zealand to operate domestic services in Australia on the sole basis of New Zealand certification. Complementary measures in Australia will enable Australian airlines operating in New Zealand to operate in New Zealand on a similar basis.

At present, airlines wishing to operate domestic services in both countries must obtain and hold an air operator certificate issued by each country. In New Zealand the issue of an air operator certificate requires, among other things, that the airline has a head office and operational base, as well as a chief executive and other relevant personnel based in the country issuing the air operator certificate. The mutual recognition amendment will remove the need for duplicate certification, and therefore many of the costs associated with obtaining and maintaining separate certification in Australia and New Zealand. Upon mutual recognition, arrangements mean the certification is issued in one country on the basis of certification issued in the other country. However, Australia and New Zealand are breaking new ground by implementing a mutual recognition regime whereby each country will simply accept the safety certification issued by the other as authorisation for operations in both countries. Individual differences in safety standards can be accommodated, because each country accepts that the other has a safety regulatory regime that delivers an equivalent level of public safety to its own.

A feature of the mutual recognition arrangements is that the safety oversight of a New Zealand airline operating in Australia will still be undertaken by the New Zealand Civil Aviation Authority, and vice versa. This already applies in respect of New Zealand international airlines operating in other parts of the world, but is unique in terms of domestic operations. Under mutual recognition, any safety concerns that might be held by one authority about the other country’s airline will be resolved through direct communication between the Civil Aviation Authority and the Australian Civil Aviation Safety Authority. However, in the unlikely event of an unacceptable departure from safety standards requiring urgent action the host authority will be able to issue a temporary stop notice. This means the visiting operator will cease operations and the home authority must deal with the solution or the situation under the home regulatory system.

In recent years there have been a number of high-profile incidents of unruly passenger behaviour on board aircraft, ranging from those involving offensive language and behaviour to those raising serious safety concerns, such as tampering with smoke detectors. Obviously, such incidents can be distressing and frightening for those on board. If an unruly passenger incident occurs in New Zealand the present law is not always adequate to ensure firm and effective enforcement action, because the particular incident may not fall within the description of an existing offence. In addition, if an incident of unruly behaviour occurs outside New Zealand it cannot be addressed under current legislation, at all, unless the behaviour involves a serious criminal offence. In such cases the consent of the Attorney-General, and, if a foreign aircraft is involved, of the relevant foreign Government, is required before proceedings can be brought. However, most unruly passenger incidents do not involve serious criminal offences. Consequently, New Zealand cannot usually take enforcement action if they occur beyond its borders. This is inconsistent with emerging international practice and the expectations of the International Civil Aviation Organisation. Accordingly, this bill proposes a coherent regime of offences and penalties that will have an extraterritorial effect, thus enabling New Zealand to prosecute passengers committing offences on aircraft flying outside New Zealand where New Zealand is the next port of call after the occurrence takes place. To ensure the new regime of offences and penalties is workable the bill contains an accelerated infringement offence procedure to ensure that, as much as possible, visitors on short-term stay in New Zealand do not escape the enforcement of the law.

I would like to take the opportunity to acknowledge the previous Minister of Transport, the Hon Mark Gosche, for his work in developing this initiative. The bill also makes a number of minor amendments to civil aviation legislation to further enhance civil aviation safety and personal security. Firstly, the bill amends the functions and duties of the Aviation Security Service to enable it to provide security support services outside of aviation at the request of the Commissioner of Police. This may include screening of people and baggage or the use of the Aviation Security Service, such as the explosive detector dog capability. The Aviation Security Service would provide an off-airport service to the police only if it did not compromise its core airport services.

The bill also proposes amending the maximum fines for various offences against the Act to ensure the Act is an effective deterrent. The fines need to be amended to take account of inflation since 1990 and to bring them into line with the penalties of similar offences created subsequently. The final package of changes proposed responds to a need to update, consolidate, and ensure consistency across different pieces of legislation.

Two main sets of provisions relate to domestic air carrier liability: the carrying over of the existing regime in respect of damages for passenger delay and the repeal of personal injury regime. Both are currently contained in the outdated Carriage by Air Act. It is proposed that the provisions imposing liability for delay in domestic flights be carried over to the Civil Aviation Act. These provide that unless delay is caused by factors beyond the airline’s control, such as weather conditions, or is due to reasons of safety, airlines are liable for damages to the value of ten times the price of the passenger’s tickets or the actual cost of his or her delay, whichever is the lesser.

The bill also proposes to repeal the provisions of the Carriage by Air Act, imposing liability on airlines for aviation-related personal injury. These apply only to non-physical mental injury, such as may be caused by witnessing the death of another passenger. The changes will enable common law claims to be brought against airlines for mental injury. This would mean that the burden of proving the airline was responsible would lie with the passenger, just as it would if the injury were suffered in any other mode of transport. However, it would also remove the statutory limit on the level of damages that may be obtained. Airlines are also currently required to maintain adequate insurance for such mental injury claims. In the 36 years since the Carriage by Air Act was passed no completed cases have been heard before the courts on the issue. It is proposed to dispense with this requirement, thus further ensuring a uniform approach to mental injury claims across all modes of transport.

Finally, the bill proposes a variety of minor and consequential amendments. These include a minor amendment to the definition of dangerous goods to align more closely with the Chicago convention. The bill makes provision for the application of the Privacy Act to ensure that requests by individuals for information held about them must be dealt with under information privacy principle 6 of the Privacy Act. The bill also makes a minor procedural amendment to recognise the director’s new power to impose permanent conditions on an aviation document. This will ensure a streamlined process if the director proposes to exercise the power where the document has already been suspended. Other minor amendments have been inserted into the bill to rectify omissions from previous amendments and to ensure consistency with other provisions in the Act.

This bill ensures our civil aviation is safe and workable, and it offers New Zealand’s aviation community the opportunity to benefit from a closer working relationship with our Australian neighbours. I commend the bill to the House.

National will be supporting this bill, but before I touch on a few remarks about it I want to draw reference to a statement made by the Minister when he began his speech. He said he intends to move a motion at the end of this debate—assuming the legislation passes its first reading—to instruct the select committee that will review this legislation to meet on a Friday and during the sitting hours of the House. The Minister is capable of doing that, but it goes outside Standing Orders 193 and 196, and National is very disappointed he has flagged this. We wish him to recognise that we do not believe that is the way things should happen.

We will support this legislation to the select committee because it endeavours to do two very important things. The first is to improve aircraft security and safety, which is something that has become far more paramount to individuals post - September 11, 2001. I think most of us recognise the significance of that event and that an aircraft must be a safe and secure environment. The bill contains quite broad definitions of what is unruly, but I thought I might recall for members an experience I had before the Act came into being. It involved an unruly passenger and way he was dealt with. It was a somewhat unusual technique—

💬 Hon Paul Swain: Maurice Williams.

Well, there are few National Ministers who got into trouble with this legislation, but, no, that is not what I was thinking about. My experience happened 21 years ago when I went overseas with my wife—my girlfriend at the time. We were going to Singapore. As it was her first time overseas she was very excited, so I suggested to her that we go up to the lounge at Auckland airport and through the bar where we would get the best opportunity to view the plane—a jumbo jet. As we walked through the bar we saw a guy who happened to be a tour leader. His name was Roy. Roy, surrounded by the tour party he was intending to take to Singapore, was drinking heavily at this point. I said to my then-to-be wife, Rona: “You wouldn’t want to be sitting on the plane next to Roy.” Well, those words came back to haunt me as we were escorted to seats 56K and 56J on the jumbo jet. There was Roy in full flight.

As the flight progressed, Roy became more and more unruly and obnoxious. As the meal went through, the staff came around with trays of port and cognac, as they did in those days. I was sitting there saying: “No, no. Don’t give him any more to drink. He can’t possibly have any more to drink.” But the gentleman next to me said: “No, you’ve got completely the wrong approach. Give him as much as he can possibly take and he’ll definitely flake out between here and Singapore.” Well, sure enough he drank what every member of his tour did not want—every port and every cognac on that plane. He was asleep within half an hour. That would not have been so amusing except that when we got to Singapore, my last memory of Roy was seeing him being helped off the plane by the tour party he was meant to be leading. He was literally being dragged out through Customs in a semi-conscious state. Two days later we found ourselves in a Buddhist temple in Malaysia, and, lo and behold, there was the same tour group. So I asked one of the gentlemen on the group how Roy was. Roy was still in his hotel in Singapore, some 2 days later! I am not sure whether he ever went on to lead another tour, but he certainly should not have. That was one way of dealing with an unruly passenger. However, I suggest that the Civil Aviation Amendment Bill is a much better way to do it.

The House will be interested to note the range of offences people can be charged with if they are unruly on an aircraft. They range all the way from disruptive conduct towards a crew member to interference with the aircraft, being intoxicated—as indeed Roy was before he got on the aircraft—not obeying commands by the pilot in command, offensive behaviour or language, behaving in a threatening or disorderly manner, which sounds like Parliament, operating portable electronic devices, not obeying seating and seat belt instructions, and smoking or carry on dangerous goods. If members refer to the legislation—and I am sure the select committee will have a look at this part of it—they may be interested to see that the different offences carry a range of different penalties. For instance, non-compliance with commands by the pilot carries a fine not exceeding $3,000, as indeed does stumbling on to the plane in an intoxicated condition. But offensive behaviour or language carries a fine of only $2,500. Not switching off portable devices carries a fine of $2,500.

Some members of the public may ask what difference it makes if one does not obey the portable electronic devices. I simply reflect on a comment I saw—I do not know how much truth there is in it—in one of the papers that reported on the very unfortunate and tragic crash some weeks ago with the Crop and Food Research scientists on it. One of the possible reasons given was that a mobile phone may have been left on, and a text message may have been sent. The coroner is looking into the full reasons for the crash, but there is certainly no doubt that there is risk when those safety rules are not followed. So a whole range of potential things can take place under this legislation.

The second thing I want to touch on for a moment is something the Minister outlined in his remarks: the ability to implement the mutual recognition of an aviation-related certificate between Australia and New Zealand. We see that as very positive, although I must say that the sceptical side of me looks out at this with a degree of cynicism and hopes it will not be brought in, because if the Government-backed Qantas - Air New Zealand deal goes through that will be just another thing not to have to worry about. One of the reasons we see this as being very beneficial is that clearly airline costs in this country will be reduced, and, if that is the case, as it certainly will be—and clearly the safety standards coming out of either Australian-serviced aircraft or New Zealand - serviced aircraft is to a world-class level, as indeed it is—then reducing that cost will simply mean that travel will be cheaper for trans-Tasman flights and for New Zealand carriers. That is good for New Zealand business and for New Zealand travellers. We all know that New Zealanders like to travel abroad, so we see that provision as a very positive part of this legislation. We will be looking at it in the select committee, but we certainly support it.

I want to turn for a moment to one other alteration that the law will be making to the existing domestic air carrier liability. The provisions in clause 32 allow for the repeal of the current regime for mental injury in favour of the common law. There is an anomaly in the law as it currently stands, whereby the liability as currently stated in the Act requires the airlines themselves to prove they are not guilty, as opposed to the complainant proving the airline has done something wrong.

One might ask what kind of situation could occur in aircraft travel where someone sustained mental injury. The very obvious example is, as some members might remember—I think it was Aloha Airlines or Hawaiian Airlines—where the top of a 737 ripped out and people were sucked out of the plane, eight or 10 being killed. A whole lot of people actually saw that take place. That would be a really horrific sort of event to witness—one where mental injury would definitely occur. This provision will change the legislation to give such people protection under the law and to tidy up the way it is covered.

We will be supporting this bill. We do not want to see New Zealand travellers suffer in any way from legislation that fails to deal with those who are unruly—the Roys of the world who make aircraft travel less pleasant for others—and we are certainly in favour of lower airfares for New Zealand travellers. We see some great strength here. We hope that in the next few moments the Minister will reconsider the position he took in respect of the select committee. He is a very understanding, kind, and generous Minister, and I can see from the look in his eyes now that he probably will change his mind—[Interruption] I hope I do not have a privileges claim taken against me!

We will be supporting this bill to the select committee.

Debate interrupted.