Civil Aviation Amendment Bill

The commencement and purpose clauses of the Civil Aviation Amendment Bill are fairly good indications of what is contained in the legislation. By that I mean that the purpose clause itself sets out, firstly, that the purpose of the bill is to implement the mutual recognition agreements, which we on this side of the Chamber will be exploring in some detail during the course of the Committee stage.

Secondly, the purpose of the bill is to deal with certain types of unruly behaviour that may occur on an aircraft, by providing penalties for that behaviour. Members will be aware that when the House considered this matter during the second reading, I raised a number of concerns about the way in which that portion of the bill was drafted in respect of unruly behaviour, and whether an adult having control over a minor was to be included in that legislation and in those offences. We will certainly be asking the Minister in the chair, the Hon Harry Duynhoven, to take a call and answer some questions on the nature of the care and protection of a child, whether well-behaved or unruly, who is the charge of an unruly adult.

Thirdly, the bill provides for “civil liability for delay suffered by passengers during domestic carriage”. My understanding of this particular portion of the bill is that currently there is provision for civil liability to be incurred by an airline in respect of delays and resultant economic loss—loss of opportunity, one presumes, and the like. However, what this particular provision in the bill does is codify, in a clear and substantial way, the manner in which those particular charges and liabilities are to be dealt with, and, in fact—if memory serves, and the Minister may want to correct me if I am wrong on this—the remedies that flow from those liabilities being enforced against a domestic airline carrier.

I believe that the provisions contained in Part 2—without wanting to pre-empt the debate on that particular part, which we will get to shortly—provide a large and wide-ranging scope of subjects, given the nature of those three areas that I have just outlined.

As we turn our minds and our thoughts for one moment to the commencement date, one presumes that the Minister has a grand scheme in place. It is a pretty confusing commencement date because on the one hand—and I know that my colleague Brian Connell, the MP for Rakaia, is very keen to explore this particular point in a little more detail—we have sections 4(1), 5, 6(1), and 7, etc. coming into force on 31 December 2003, or an earlier date as appointed by the Governor-General by Order in Council. So some sections come into force on that date. I see my honourable colleague nodding frantically because, of course, his knowledge in these areas far surpasses mine. That chunk is to come into force on 31 December 2003—well, that will not happen. Presumably those particular sections will come into force on the date appointed by the Governor-General. The rest of the Act comes into force on 1 March.

💬 John Carter: That’s not that far away.

Well, it is not that far away, as the senior whip quite rightly points out in my ear. We know that there are only 28 days in this month—

💬 Hon Harry Duynhoven: There are 29, actually.

My 5 years in this Parliament have been a blur. One would presume that the Minister has a grand plan for 1 March. This legislation will have to be moved very promptly indeed, unless the Minister has tabled an amendment. Has the Minister tabled an amendment on the commencement date? He has.

💬 Hon Harry Duynhoven: I’m coming to that.

He is coming to that. The Minister will take a call on an even more confusing aspect of the commencement date. We have some sections that came into force last year, presumably, making them retrospective now in the event that the Governor-General does not give her consent until after 1 March. What happens if the Governor-General does not give her consent until after 1 March? Has the Minister thought through what is clearly a confusing and difficult issue for him in the early days of the Committee stage of this bill? One would hope that he would take the opportunity to clarify these issues, because he has not got off to a good start. He has not got off to a good start at all.

I want to follow my colleague from Rangitikei, Simon Power, in exploring the matter of the commencement dates. I ask the Minister to give us a comment on this particular aspect, because I was just starting to search through the bill to see what it meant. I only got to page 7, when it started to get to the stage of being just about impossible to know exactly what commences when—

💬 Hon Harry Duynhoven: Perhaps I can help the member. There are amendments on the Table that help the member.

Could my colleague pass me the amendments? It may help.

💬 Simon Power: Which ones would the member like?

The ones regarding the commencement dates. I hope they are not too clear, otherwise they will take away a lot of my speech. I am looking at the amendment that states: “To omit from the heading to Part 1 the words ‘31 December 2003 or earlier’, and substitute the word ‘a’.” What does that mean? The second reads “To omit from the heading to Part 2 the word ‘March’, and substitute the word ‘June’.” All we know now is that the rest of the Act comes into force on 1 June. Is that what the Minister is telling us?

💬 Hon Harry Duynhoven: Yes.

Well, that is fine, but it does not help me with the question I was going to ask the Minister, which is: if we look at the commencement date, clause 2(1) states that “sections 4(1), 5, 6(1) and (2),” for example, come into force on 31 December or on “an earlier date appointed by the Governor-General by Order in Council.” I ask the Minister whether that is correct. That is what it says, is it not?

💬 Hon Harry Duynhoven: You’re on to it.

I am on to it. But it is confusing that clause 6(1) and (2) commences on 31 December, so why does clause 6(3) not commence on the same date? I am trying to understand the difference between clause 6(1) and (2), and clauses 6(3) and 7, for example. I cannot see any rational difference. There may be a good reason why those provisions are left out and will now come into force on 1 June, and the Minister might like to give some explanation about it.

There are many other clauses the Minister might want to explain to the Committee, and to the many people who will be listening, as to what the difference is between those parts that now commence on 1 June and the rest that will commence on a date appointed by the Governor-General—because they obviously cannot come into force on 31 December 2003. Even I have clicked on to that bit.

The second point I want to raise with the Minister is this—and he might want to help me, because I am not that familiar with the bill; he might have clicked on to that—

💬 Hon Harry Duynhoven: We can tell.

That is OK, because I am doing my best—and I bet that the bell rings before I sit down. I want to get on to the purpose of the bill, which is to implement the Australia - New Zealand aviation mutual recognition agreements. I want the Minister to clarify what that means. Does it now mean that Air New Zealand can negotiate a right, or has a right, to fly domestically in Australia? Is that where the legislation is going? Does that mean Air New Zealand can land planes in Alice Springs and take passengers from Alice Springs to Darwin? Are we expanding here—

💬 Hon Harry Duynhoven: Could well be.

Are we on to it?

💬 Hon Harry Duynhoven: We’re on to it.

Really? Good grief! Very good, so does that also mean that Qantas will continue to fly in here, which it tends to do anyway, and offer competition? In other words, I ask whether what we are doing is balancing up.

💬 Hon Harry Duynhoven: That’s right.

Well, I have to say that that is a positive thing.

The Minister might want to comment then on what reports he has had of the implications the agreement has for Air New Zealand, its ability to compete, and its ability to fly as a successful airline in that field. Does the fact that it can expand into a population base of some 18 million—

💬 Dr Wayne Mapp: No, 19 million.

Oh well, let us not be pedantic—19 million.

I want to bring to the notice of the Committee that this bill reflects the current chaos in the Government. I say that because here we have an amendment tabled today by the Minister, because the Government has only just realised the bill was being implemented on—guess when—31 December 2003.

💬 Simon Power: When was that amendment tabled?

Today. That is amazing, is it not? This is a Government that has the full resources of the State behind it, yet it does not realise until the very day a bill has to be debated that—gosh—“There is a big problem here, Minister.” One can imagine the frantic phoning of officials to the Minister to ensure he got it right. It is reflective of the extraordinary U-turns, about-faces, and pragmatic approaches this Government is now taking.

It is the little things that show the deep distress in the Government. It cannot even handle simple things like getting legislation in order. At least, tabling a Supplementary Order Paper in a timely fashion would have shown that the Government recognised it was about to implement retrospective legislation. As I say, it is something I guess we will see more of. We will see a lot more of this panicked action by Ministers under pressure and scrambling to keep ahead. There is a saying about ducks on the water: the pond is placid, the ducks are going along smoothly, but the feet are paddling furiously underneath. The problem now is that the water is no longer placid, the feathers are ruffled, and the panic is there for all to see. This kind of amendment is simply indicative of that, and we will be seeing more of it.

I want to point out a couple of other important measures in this legislation. One of them is the repeal of the Carriage by Air Act. I am sure the New Zealand First spokesperson on transport, Mr Brown, will be particularly familiar with that Act, because it is a hallowed piece of legislation, known by a generation of those who operate in the field of air carriage as containing the cardinal rules one has to know. I am sure that, as a person long experienced in the carriage of goods, Mr Brown will be lamenting the passing of that legislation—now to be buried within civil aviation legislation itself. Something that generations of carriers—and, indeed, law students through their lectures and practices—have had will now be submersed into this broader legislation. I guess there will be aviation lawyers out there tonight who will be lamenting its passing and having to revise their documentation, and so forth, because they will no longer be able to rely on that trusty piece of legislation, the Carriage by Air Act.

I want to conclude, however, on the important trans-Tasman mutual recognition agreements. We will be speaking at length to those. They are important. They signal a united market. I guess what that also represents—and this is perhaps the most significant issue—is this serious intent by the Government to destroy competition in the New Zealand marketplace, which will inevitably have consumers paying more. Everyone is going to say that the trans-Tasman mutual recognition legislation around air services is a good thing—it is a single market. On the face of it, I guess no one would dispute that, but contained within that legislation is an intense explosion of costs that consumers will now have to bear, because the legislation is one of the foundations of the merger between Qantas and Air New Zealand. Everyone in the country knows—even the Government—that the consumer will be worse off.

Perhaps I can help my learned friend Dr Wayne Mapp who, I believe, has some legal training. If he looks at the Supplementary Order Paper that I have just tabled this evening, the dates that he refers to as having been scandalously not changed earlier, etc. are two dates inside the bill—one is buried in the schedules, and one is on page 54—that were inadvertently missed during the drafting and the earlier Supplementary Order Paper that changes the dates. I want to check with Dr Mapp that he has a copy of the bill in front of him, and that he has realised that it goes right out to the fifties in page numbers. I think it is pretty important that he does look at it thoroughly. Can I just tell the member, and other members who may be interested—and I think Mr Connell was going to speak at length on this issue, as I was told by his colleague—that there are different commencement dates for different purposes. One of the reasons that we had different dates—

💬 Dr Wayne Mapp: I am talking about retrospective—

No, no, not at all. This bill is not retrospective. The reason for an earlier start date originally being printed on the bill was that the Australian Government proposed to have its bill introduced and passed a lot earlier last year. Our bill was to follow. The Australian Government delayed its bill; it has not yet passed it. That is why its mutual recognition legislation and ours have to be kept relatively in step.

💬 Simon Power: Why cannot we pass ours until they pass theirs?

That is exactly the point I am coming to. Most of the provisions of this bill come into force at the royal assent, but the provisions with regard to the mutual recognition bit come into force at a date yet to be determined and to be in concert with the Australians so that we are not out of step with them. Dr Mapp asked me why I did not put that bit of paper on the Table weeks ago. Because the drafter told me only yesterday that he had inadvertently missed those two dates buried in the bill—

💬 Simon Power: Blame the officials.

Not at all, I am not blaming the officials. I think they have done a cracker job in sorting this bill, which has a number of provisions that are widely supported.

I want to come to the comments on the issue of unruly passengers, because I think it is one of the most important parts of this bill. In addition to enabling Australian airlines to operate in New Zealand under Australian Civil Aviation Safety Authority oversight, it complementarily allows New Zealand operators to operate in Australia under the New Zealand Civil Aviation Authority oversight. So that is the major feature of the bill. But the bill also deals with the security of passengers and crew on international and domestic flights in addressing the issue of unruly passengers regardless of whose airline they are on. The provisions relating to civil liability for delay, I think referred to earlier, from the old Carriage By Air Act, continue. That was a matter of some controversy, and the purpose of that is to give people redress if they are delayed in an avoidable way other than because of things like safety or weather issues. The provisions of the bill also bring the law in that area into conformity, particularly with the accident compensation scheme, and transfer various provisions from that Act to this Act. Also, the New Zealand Transport Strategy is a very important document put out by the Government in terms of our future in transport. Provisions of this bill contribute to aspects of the New Zealand Transport Strategy. I will leave it at that for now, because I am sure members would like to ask a whole bunch of questions. I would recommend that they read the commentary from the Transport and Industrial Relations Committee, which did a very good job in terms of the processing of this bill.

I thank the Committee for the invitation to make a contribution to this debate. I also thank my senior whip for giving me the opportunity, as well. He knows that I have been thirsting to do this. I also thank my learned colleague Simon Power for making the Committee aware of my expertise in this area. However, on reflection, and given that my learned colleagues and the Minister have now dealt with this issue of retrospectivity so very well, I do not think it is appropriate or necessary for me to relitigate this component, but with one small exception—that is, to point out that Mr Power made a slight error. However, it has subsequently been corrected. He said that the commencement date would be March, but what he meant to say was June. I do not blame him for getting it wrong, because as the Minister has just explained, the Supplementary Order Paper was put on the Table only today. That made it very difficult for people to get across it. We are a dedicated bunch, and we read everything that is put in front of us, but on this occasion it was not there in good time.

I would like to take a moment to recognise, as the Minister has already pointed out, the good work that the select committee did on putting this legislation together. I was not a member of it, but it is clear that the committee worked in a very cooperative and constructive way. The consequence is that we get good law. I really lament the fact that we cannot use this model more constructively across this House. It would be nice for the 80 percent of legislation that we all tend to agree with that we put some structure together where we could agree with that, and the 20 percent that we do not agree on we could really have quality debate and get down to a punch-up on the issues that are extremely important to us and the points that really separate the parties in Parliament.

I now turn to the purpose and introduction. I agree with the Minister that it is important that we all read the commentary, and I have done that. The most important component of this bill is that it aims to remove the regulatory barriers to airlines operating under the air services arrangements with Australia by allowing progressive implementation of mutual recognition of aviation certification. This mutual recognition terminology is really just code for mutual cooperation and good sense. On that basis I commend the legislation. It is sensible legislation because it has to be good for the travelling public. It streamlines laws, and, more important, it gives them teeth. It will give the travelling public confidence that the airlines and the aviation authority are taking their safety seriously and that their safety is paramount, and that those who jeopardise that safety will be punished.

That is something that we should all reflect on—punished in a way that is not punitive, but basically reflects that we now believe that behaviour and safety in and around airlines is absolutely paramount. Members of this Parliament know, as people who travel regularly, that every time we leave home we expect we will return home safely, but that is not something we can take for granted, which is why I believe that the construct of this bill has been well-thought-through, and it is very well considered. I again commend the work that the select committee has done.

As I read through the commentary I could not help but reflect on the fact that the term for mutual recognition agreements, “ANZA”, is very close to that of Anzac. It is a pity that we do not take more seriously our Australasian security commitments. I lament the fact that our Anzac spirit is dying, and it is something that I deeply regret. I give the undertaking that once the National Party is back in Government—and that will not be very long—we will put that right.

I hope that member will be allowed another call because I would love to hear what he meant by punishing people in way that is not punitive. That is one of the best “Orwellians” I have heard for a long time—that is positive punishment! I thank the Minister for taking a call to explain some of the issues we were puzzled about. I wish more Ministers would do that in the Committee stage instead of just sitting there and ignoring the debate.

The ACT party supports this bill. I was part of the select committee that heard the submissions and watched very dramatic videos of what happens when dangerous goods are taken on to aircraft. However, I think it is coming in far too early. We have not explored enough ways that we can actually deal with unruly passengers. For instance, if we look at some of the articles that were written after September 11—and one of them was a very good one written in the Atlantic Monthly—we would see that it has been pointed out that we take everything away from passengers when they get on a plane and they are not armed with anything at all, and there is absolutely no deterrent on the plane for people not to indulge in some sort of terrorist actions, and a deterrent for other unruly passengers.

💬 Hon Members: Ha!

National Party members laugh, but if we take a look at El-Al, the Israeli airline—how many million people in the world would like to blow that out of the sky—it has air marshals; it has deterrents; it has very, very strict security, and very well trained and well-aware people who travel on that airline. If a person were on a plane and there was the chance that in every seat there was a passenger who might be armed who is a law-abiding citizen, it would perhaps deter that person from getting intoxicated and starting to attack people. If that is going to far—I am just suggesting these things, and the Minister is looking pretty aghast—the officials could have considered the position of arming the aircrew.

We had a classic incident on a Qantas flight last year where the aircrew were attacked with a pair of sharpened chopsticks. This poor air steward had nothing to defend himself with except his hands. That could have brought down the whole plane. That plane could have easily come down. What do we do? We continue to strip people of any form of self-defence when they go on to an aircraft. They are not even allowed a pair of tweezers any more. I would like the Minister to tell us whether any research was done on this. Maybe we could put it to democracy and ask the passengers what they think, but then this Government does not favour “one person, one vote”. So we had better not risk that.

I would like the Minister to take a call to tell us what research went into this, and whether he used the officials to look outside the square and to examine other alternatives. I believe there is some merit in revisiting the situation where we actually take all forms of self-defence off people when they go on to an aeroplane. I think there is another way that we could deter people. The bill states that it is the purpose to deter certain types of unruly behaviour that might occur on aircraft. I think there are other creative ways that we could look at this.

I remember just after September 11 when some passengers boarded a plane in the United States to fly somewhere and the pilot, instead of just saying: “Good morning ladies and gentlemen, thank you for flying with us.”, said: “Don’t be nervous. If anyone gets up and decides to hijack this plane, you all band together and use whatever you can to attack that person.”

I move, That the question be now put.