Civil Aviation Amendment Bill

I will concentrate my contribution on this part on unruly passenger offences and leave the other parts to my colleagues Dr Wayne Mapp and Brian Connell to reflect their expertise in those particular areas, if for no other reason. I shall concentrate on unruly passenger offences, because the ACT MP Deborah Coddington finished her contribution by referring to passengers sort of banding together in some type of posse-like manner to destroy anybody on an aircraft—

💬 Stephen Franks: Smoking in the toilets.

The member is quite right. We will have to give away all fun under this Government. That will be the next thing. The unruly passenger offences are worth having a look at, because during the second reading I raised a couple of concerns I had about the way in which those clauses would be interpreted. I wonder whether the Minister would be kind enough, as he has indicated to me that he would be, to run through for me a couple of examples on how those particular sections would deal with those examples.

We can see that every person commits an offence who fails to comply with any commands given to him or her directly by a pilot in command, or indirectly by a pilot in command through a crew member. Are we now saying that a new rule of agency exists between a crew member purporting to carry out the instructions of a pilot in command, or are we to believe that that particular individual—that is, the crew member—is to identify to the passenger at the point that the instruction is given that he or she is acting on behalf of, or indirectly by a pilot in command? In other words, how is a passenger to know, when he or she is told by a crew member to follow a certain command, that that crew member is indeed acting with the authority of the pilot in command in giving that instruction? That is the first question I would like the Minister to address.

Secondly, I am very interested in the issue of any person committing an offence on an aircraft who behaves in a threatening, offensive, insulting, or disorderly manner and uses threatening, offensive, or insulting words. I presume that the party who makes the initial decision as to whether that behaviour is threatening, offensive, insulting, or disorderly, or whether the words used by the individual are threatening or offensive, is the pilot in command, or, in a more complicated fashion, a crew member acting on behalf of the pilot in command.

My second question for the Minister is who makes the decision as to whether the behaviour is insulting, offensive, or disorderly, or whether the language is threatening, offensive, or insulting. Members can see where the difficulty lies. For example, a passenger is trying to go to the toilet on the plane, he or she is bumped by the cart, it hits his or her knee, and a word escapes from his or her mouth that otherwise would not in the normal course of events, and under this legislation one presumes that that crew member could then say that he or she was acting under the authority of the pilot in command, and would charge that individual for the use of threatening language.

We need to be very clear about how those offences come about, and clear about the means of carrying out the identification and prosecution of the offence. My colleague Wayne Mapp, associate professor of international law, is whispering in my ear that that will have to be tested in court. We would like to hear from the Minister how that process would work.

The other thing I raised during the second reading that I am worried about is the event where a person may, for example, be intoxicated.

First, I congratulate the Transport and Industrial Relations Committee on the excellent work it has done on this bill. I also congratulate my colleague Peter Brown on the hard work he put into the bill while on the select committee. My congratulations also go to the Minister, who has taken the opportunity to explain a number of parts of this bill that were causing some concern. I suggest that more Ministers could do that during the course of the passage of bills.

I want to pick up on the issue of unruly passengers. I note that the bill, in the tradition of all other aviation bills, continues to keep the pilot in command of the aircraft. The pilot is in complete control and command, with the assistance of his or her crew, and that is very sound. I was absolutely staggered by ACT MP Deborah Coddington’s suggestion that members of the public should be able to retain the means of self-defence, and even weapons of self-defence. She pointed out that perhaps it would be all right to take on board a pair of tweezers. She then blew her argument away, by saying that a passenger had used sharpened chopsticks to try to take over an aircraft and had inflicted some very serious injuries on a member of the crew. The suggestion by that member that passengers should be able to retain the means of self-defence and the ability to gather together was staggering. Where would that stop? Would it mean passengers would be allowed to take a revolver on board as a means of self-defence? I am staggered at that suggestion. But to get back to the crew and the pilot in command being in total control of the aircraft, I say the most important part of the bill is that it has not changed that status.

I now move on to the liability of an airline in the case of a delay. We know that there are times at Wellington Airport, in particular, when it is impossible to get an aircraft off the ground, or even to bring an aircraft into Wellington—not so much because of the wind, but often because, without the wind, fog or a cloud may roll in and visibility problems make it impossible to get an aircraft in or out. In that case, the airline should never be responsible for the delay. But we do have airlines that overbook aircraft. It is a tradition in the airline industry to overbook aircraft to the point where airlines judge that they will have a certain number of no-shows and people who are unable to travel, which will therefore bring passenger numbers back to very close to the capacity level. Those judgments are sometimes thrown out by the fact that everybody shows up. There is a problem then, and the airlines have to bump people off the flight. In those cases, the airlines most definitely should be held responsible for the delay in a passenger’s travel, and they need to compensate the passenger in some way. Many airlines compensate affected passengers by either giving them meal vouchers or putting them up in a hotel overnight, until they can catch the next flight out. That is sound practice, and this bill makes an airline liable for those delays when it has been a deliberate case of the airline either cancelling a flight or bumping passengers off it.

The cancelling of the flight is another means whereby the airlines, if there is a very light passenger loading, will for technical reasons—usually a complaint of a mechanical fault—cancel a flight. I know of airlines that do that on a regular basis. I am not suggesting that our national carrier does it, but I am saying that other carriers that travel in and out of New Zealand definitely do it. They cancel a flight because they do not have enough passengers, and they put them on to another flight.

I will take just a very quick call to sort out one or two things that are obviously puzzling people. First, I say to Ms Coddington that I am amazed at her suggestion, and that is all I will say about it.

Regarding section 65J in the bill—in new Part 5A, inserted by clause 24— in terms of crew members having the say over whether a person is unruly and whom the order comes from, it has rightly been identified that the pilot in command of the aircraft is exactly that: the person in command. He or she will have to be satisfied that there is indeed an offence. So the person in charge, the pilot, will make the decision as to whether the passenger’s behaviour or language is insulting, etc. Normally a crew member—usually a member of the cabin crew—would report to the pilot that the crew was having trouble with a passenger in, say, seat 65J or whatever it was, say what was happening, and ask what should be done. Major aircraft these days do contain means of restraining passengers, usually by the use of the plastic cable tie type of arrangement. The crew can strap people into their seats by strapping their arms to the armrests. Those sorts of restraining devices are quite common, because obviously some people react very badly when they are under the effects of alcohol, or whatever. So the pilot in command can request that that action is taken.

The pilot in command has to be satisfied that there actually is an offence. In the event that the offence is serious enough the pilot in command would notify the Aviation Security Service or the police of the offence, before the aircraft comes into land. The aircraft concerned does not have to be a New Zealand aircraft; it can be any international aircraft or domestic aircraft that is landing at a New Zealand airport. The pilot in command of the aircraft, wherever it has come from and whatever its nationality, can request New Zealand’s Aviation Security Service or the police to meet the aircraft, and the aircraft is regarded as still in flight even after it has landed and the door is opened, until the pilot of the aircraft—the captain in charge—has determined that the incident is over and that the Aviation Security Service or the police has taken whatever action is required. I hope that clarifies the situation for members.

It is a very difficult legal area to determine where the jurisdiction of New Zealand ends and the authority of the pilot begins, particularly in dealing with unruly passengers. I think we can illustrate that with the recent case of the Sri Lankan girl who was deported. She clearly arrived at the airport in a very distressed state, from all reports—television reports, and others—and she was allowed on to the plane. Who was responsible for the offence of allowing that person, who could, according to a certain definition, be described as unruly—in that she was definitely making a lot of noise—to get on to that plane? Under this provision here in this bill, under the infringement procedure the pilot of the aircraft is supposed to inform the police about an unruly passenger. Well, in this case the police were accompanying the unruly passenger, and let that passenger on to the plane in an unruly state. The passenger’s state was such that, I understand, she was sedated. Under New Zealand law, one cannot sedate someone against his or her will, so who committed an offence there?

💬 Simon Power: Was she sedated before she got on the plane, or on the plane?

I understand it happened on the plane, but that is something that perhaps could be investigated. Possibly the investigation that is under way could be expanded to cover that particular point. That case raises a problem, and I think it shows that we have to have some consistency. If we had slightly more humanitarian immigration and asylum-seeker policies, we may not end up with that sort of situation of pushing people on planes when they are in an unruly state, of coming up against the contradictions in this legislation, and of putting undue pressure on pilots to make those sorts of decisions about how to protect the interests of other passengers.

I want to get on to another question. I do not quite agree with Deborah Coddington. In fact, I do not agree at all that we should take on to planes items of self-defence and form posses, etc. But I do spring to the defence of knitters. I have had a lot of complaints from knitters who go on planes. Some people are compulsive knitters. The situation is bad enough for smokers with the provision—and I support this provision—stopping passengers from smoking, but I do not think we need to go further down the track against knitters. There are particularly compulsive knitters who do not have anyone to talk to, who are on their own in a seat, and who do not have a book to read. Those people want to knit, and their knitting needles are stolen—and that is the only word I can use—as they get on to the plane. I think that we are really extending things if we think that the terrorist threat in the world today comes from a lot of people who look very harmless. Some of them are quite aged; some of them are in their 70s and 80s. But that does not matter—they get their knitting needles stolen from them.

There has been a moderation in the seizure of items from people getting on to planes. When the measures first came in after September 11, I lost a couple of pairs of nail scissors. The law was then moderated a little, and people had to have nail scissors over a certain length. My nail scissors get past the screening procedures now, so that is a progressive step. I also understand, with regard to knitting needles, that there has been a certain relaxation for people with plastic, rather than steel, knitting needles. Sometimes people can creep by with plastic knitting needles. I do not know whether there is a minimum or a maximum length, but I did hear—and perhaps I should not report this—that a friend of mine with steel knitting needles was let through the other day. So perhaps informally the situation is loosening up. I hear supportive comments from different parties in this House. If we got together and had a push on the question of knitting needles, we may get an exception for them. We could even put forward an amendment to this legislation. I do not have the drafting skills to immediately construct an amendment, but I would support such a change.

It would be worth reminding the previous speaker that a knitting needle—a steel one, certainly—is actually capable of being used effectively as a stiletto, and if we make an exception for little knitting needles, what else would we be making an exception for? Why would we not make an exception for nail-clipping scissors, for instance? It is really one of those situations where, given the potential risk—

💬 Stephen Franks: What about sharpened glasses?

The member has seen the film. It is simply not appropriate to make those kinds of exceptions when it comes to aviation safety. In the past, box cutters would have been seen as being something relatively harmless. We all know the consequences of that.

I want to talk specifically about the mutual recognition provisions, because these are clearly the most important part of the legislation and they are intended to create a single aviation market. By that I mean operators in Australia, notably Qantas and Virgin Blue Airlines, will be able to operate in New Zealand and Air New Zealand will be able to operate in Australia. Earlier, the Minister observed in a conversation that if this provision had existed back in 1998, one would imagine that Air New Zealand would not have purchased Ansett Australia. That purchase led to the various problems that resulted in the Government bail-out. So, clearly, this is major legislation that builds the unity of the two markets. Obviously, National will support that part, but my concern is this: do the mutual recognition provisions then lead to the lowering of competitive barriers to mergers? Clearly, it is the preference of the Government to allow a merger—in fact, it desires a merger—between Qantas and Air New Zealand, because the Minister, Dr Cullen, was adamantly opposed to the rescue package proposed by Singapore Airlines. The Government put every blockage in place to that, and that ultimately cost the taxpayer a billion dollars. The clear intention was not so much the rescue of Air New Zealand by the taxpayer as to merge Qantas and Air New Zealand, and I guess the Government intends to reduce its ownership through that mechanism.

It has never been satisfactorily explained to the House exactly why the Government places so much importance on the Qantas - Air New Zealand merger, as opposed to, for instance, the intervention by, or involvement in, Singapore Airlines. I have often wondered whether the intent is to take the view that Australia and New Zealand’s aviation companies essentially have to be merged to be a global player, and the involvement in Singapore Airlines would have cut right across that. The Government seems to be willing to use New Zealand taxpayers’ money to achieve that outcome. With the mutual recognition agreements reached in November 2000, one wonders whether they are part and parcel of that overall process.

I have a specific question for the Minister—and I know he might take the view that this legislation is not directly material to this; nevertheless, it is an important question. Will the Government make an undertaking that there will be no legislation to override the decision of the New Zealand Commerce Commission, which, at least currently, prevents the merger of the two airlines? It is a very specific question and I believe the public deserves an answer.

💬 Hon Harry Duynhoven: Can I help the member? My delegation is on the safety side. Perhaps he would like to put a question down for Dr Cullen on that issue. He is the shareholding Minister.

I am grateful to the Minister for that answer, but it does give rise to the implication that that is exactly what is intended.

I move, That the question be now put.

I would like to suggest that Keith Locke move an amendment to clause 15A, because I think that he is absolutely right—people who take knitting needles on to planes should be exempt. It would be very easy to draft an amendment, and I suggest that he does, so that we have an amendment in the bill that respects the right of knitters. Also, I say to the Minister that it does not appear to me that there is a treaty clause in the bill. There is nothing in the bill that states that it must not act in a way that is inconsistent with the principles of the Treaty of Waitangi. I would like Mr Mallard to come down and explain why that is, because I think it is an absolute disgrace that this bill does not respect the principles of the Treaty of Waitangi. I turn now to New Zealand First, which is obviously setting itself up to be the new coalition partner for Labour—if it thinks that Labour will be re-elected. That is a dance of the desperate, if there ever was one. But I return to the issue of self-defence.

💬 Hon Harry Duynhoven: Let me answer you on the Treaty of Waitangi. The Australians don’t have the Treaty of Waitangi.

I thank the Minister. That is very wise, too. They have Mabo. When I went to Cambridge, there was an incident on the plane—

💬 Darren Hughes: Who paid for it?

—Qantas paid for it—and everyone was told to return to their seats and do their seatbelts up. It appeared that somebody had run amok—one of the passengers was threatening to kill everybody on board. The Qantas aircrew managed to restrain him and handcuff him to the seat, 2 hours out of Heathrow. If I had had a gun, I would have quite happily put a bullet between his eyes in order to save 490 people in that jumbo jet. What is more important? The lives of 490 people, or some nutter who cannot handle his alcohol on a plane and threatens to kill everybody else? To me, there is no question.

💬 Brent Catchpole: What about tweezers?

The member questions not being able to take tweezers on to the plane. As Keith Locke pointed out, it is probably quite sensible that one cannot take tweezers on to a plane, because, as Keith Locke says, one could pluck people to death. The same is true of nail files—one could file them to death. Those thick-skinned New Zealand First people would be fine, because one would be filing away for ever, and it would take too long to kill them.

I turn now to the provisions in the bill that deal with airlines delaying passengers and having to be responsible for that. We did argue about that at the select committee, and it was pointed out to us that airlines do take their responsibilities very seriously, voluntarily, and if they muck passengers around they do, in general, help them out, put them up, and that sort of thing. What about the other way round, which the bill does not deal with? What about people who delay an aircraft? I have seen members of Parliament sitting in the Koru lounge eating and holding up a flight. There are no prizes for guessing who that was.

💬 Brent Catchpole: They should be left behind.

Absolutely! They should be left behind, because they disadvantage the whole airline. The whole schedule gets behind. There is no compensation for the airline in terms of that.

💬 Hon Members: Shoot them all!

New Zealand First members are agreeing with me. “Shoot them all,” they are saying. But I think that part of the bill went a bit too far. Perhaps the Minister in the chair, Harry Duynhoven, might like to take a call and explain. He is gesticulating at me and trying to talk to me in sign language with a bandaged hand, and it is very difficult to read sign language from someone with a bandaged hand.

I move, That the question be now put.

I start by thanking Deborah Coddington for the warning. She spoke briefly about New Zealand First going into coalition with Labour, and then immediately spoke about courses on self-defence. I say to the honourable member that I have taken it on board—we will not get any closer than we are right now.

There is one unique clause in this bill—probably several clauses—and it is a bit unusual. The Transport and Industrial Relations Committee has increased the fines for the carriage of dangerous goods, and I think that some comment must be made on that, because usually select committees are prone to reducing fines. Fundamentally, there are two types of passengers who carry dangerous goods. One is the person who innocently takes on cans of paint, or swimming-pool chlorine, or something.

💬 Russell Fairbrother: Or a swimming pool!

Well, chlorine can be used for a number of purposes, and I say to the honourable member that the select committee was shown a series of videos about some very innocuous substances that, when blended together, give quite horrific results. So there is the type of passenger who innocently takes on some dangerous substance, not knowing that it is a dangerous substance. Then there is the second type of passenger—who I think the select committee termed “the travelling salesman”—who specialises in carting dangerous goods from one part of the country to another, and deliberately flouts the law. This bill hugely increases the fines for both types of passenger, and I think that that is worth recording.

One submitter in particular made the select committee sit up and take notice. I think he was from Qantas, and I think he had flown from Singapore that day to talk to the select committee for half an hour. He explained some real concerns about dangerous and unruly passengers. He told us quite informatively, in quite some detail, about Qantas’ move—I hope he was from Qantas; I am either giving it a lot of credit or I should be referring to another airline, but let us say he was from Qantas.

💬 Simon Power: Just say “an airline”.

He was from an airline. He flew from Singapore.

💬 Deborah Coddington: A big one.

It was a big one. He spoke about the training of air marshals. I know that the Minister takes safety very seriously, but that submitter encouraged the select committee—and I regret not having it put in the commentary on the bill—to recommend that New Zealand get involved in the training of air marshals. That would give us the long-term choice about whether to go down that track. He recommended—quite strongly, as I recall—that New Zealand have about 100 air marshals at its disposal. They could come from the army, I think—

💬 Dr Wayne Mapp: The army.

—yes—or the police. It is worth considering, and I regret that I did not endeavour to have that recommendation included in the report. One tends to think that those guys are just policemen or soldiers carrying guns discreetly, but there is quite a lot to it. I will not go into the details, but I was very impressed with the sincerity and the detail that that airline spokesperson gave us at the select committee. When one comes across an unruly passenger it is quite disconcerting. I have said this several times in the debate on this bill. I sympathise, though, with Keith Locke, who cannot take his knitting needles on to a plane, and knit away—probably making a hat for Nandor Tanczos or something like that. I have to say to Keith Locke that he just has to leave them at the terminal. He should give them to the security guards and buy another pair when he gets to Wellington, or vice versa. Or he could have a pair in his desk here, because sometimes the Speaker allows us to knit in Parliament.

💬 Deborah Coddington: Disgraceful.

Disgraceful?

💬 Hon Marian Hobbs: You lose all the stitches.

I could not understand what the Minister said but I am sure that Hansard will record it and I will read it with interest afterwards. This is a good bill, and New Zealand First will support it.

Progress reported.

The House adjourned at 9.55 p.m.