Civil Aviation (Cape Town Convention and Other Matters) Amendment Bill

The Committee of the whole House is now considering the Civil Aviation (Cape Town Convention and Other Matters) Amendment Bill, and as signalled to the Minister during the second reading, the Opposition has some questions on which we are seeking clarification. I have three or four questions, and I know my colleagues have some as well. I should say that we are now considering every clause, both parts, plus the title and commencement as one question, so the comments and observations we are making range across the 15 clauses and the various schedules that are set out in the bill.

My first question to the Minister in the chair, Kate Wilkinson, is to note that Part 1, as she will be aware, inserts a new Part 12 into the principal legislation. I want the Minister to comment on which of those parts will take precedence if New Zealand domestic law goes down a different path from what may be in a clause within new Part 12. Once it is inserted into the principal legislation, presumably Part 12 will not be in a position to be amended by the New Zealand Parliament, because it will need to reflect the requirements of the Convention on International Interests in Mobile Equipment, which have been carefully negotiated by our negotiators and those who participated in the agreement. If Parliament is to consider other matters to do with civil aviation that amend the principal legislation, I ask how new Part 12, which we are inserting in Part 1, will make a difference in our law for this country. I think that goes to the heart of economic sovereignty for New Zealand. If the Minister can give us an answer on that matter, it will answer some questions we have about how these conventions fit in when they are not stand-alone and end up fitting in with existing New Zealand legislation. I would be very interested in her comments on that.

Clause 6 sets out matters that are to be taken into account by the Minister when making rules. It is an amendment to section 33(2) of the Civil Aviation Act. I wonder whether the Minister could set out the kinds of matters the Government thinks the Minister will have to take into account when he or she is making any rules, or recommending the making of any rules, as part of clause 6. I am also interested in clause 7, which is the procedure for making ordinary rules, which the Minister must take into account, and the question of consultation. I wonder how that was arrived at. Clause 7(1)(b)(i) mentions “the persons, representative groups within the aviation industry or elsewhere, government departments, and Crown agencies;”, and it would be helpful if the Minister gave us a flavour of the kinds of organisations we are talking about there. When the Government uses language like that in legislation that, of course, we are supporting, to what extent is it making that consultation as broad or as narrow as possible? Given that we are talking about simplifying civil aviation rules in other parts of this bill, it would help if she could clarify for us who will be affected by the consultation provisions set out in clause 7 for the procedure for making these ordinary rules. Those are just some questions I have, and if we could get some answers or clarification on them from the Minister, I would be most interested.

I make the observation that new section 34A, inserted by clause 8, gives the Governor-General new powers to make ordinary rules in respect of civil aviation, and ask whether the Government gave any consideration to the Governor-General’s other role as Commander-in-Chief of New Zealand, and whether that vests just far too much power in the hands of one person. Oh, my luck has turned: the Minister of Transport has arrived, just to take those questions. I hope the Minister of Labour, who has been the Minister in the chair, will give him the notes she took of my questions. It would be a shame if I was to be seated, and he was not in a position to answer my questions. I am not getting an indication from either of them that that is the case. I will update Mr Joyce, who was no doubt behind the Cape Town Convention, and the suggestion for it, because we know from the feature articles that he has arranged to be written about himself what a quite high opinion he has on the world stage. New Zealand would be quite a small market for him, so probably in Cape Town he was the guy who sealed the deal.

I will recap, now that the Minister who is sponsoring this legislation is in the chair. I have a question concerning clause 6, which covers the matters that are taken into account when making ordinary rules. I have another question about clause 5, on the power of the Minister to make ordinary rules, and a further question on the insertion of new Part 12, which sits in Part 1, into the principal legislation. If there are changes in other civil aviation law that are not consistent with the convention, and if the convention is now being codified as the new Part 12 of the law, I ask which one takes precedence. I presume the Government is not in a position to make any amendments to new Part 12, which is presumably the text of the convention that we have signed up to at another level. If the Minister could answer those very simple and very few questions that we have put to him—

💬 Hon Pete Hodgson: They are searching questions, not simple.

It is very generous of my colleague to say so. As this Minister is constantly telling his colleagues, nothing is beyond his purview, remit, or ability, so we look forward to elucidation by him of the questions I have asked, and those of my colleagues Darien Fenton and Carol Beaumont. Thank you.

While the Minister is consulting, I ask that he take note of my questions as well, because they are serious questions. I will refer to new Part 12 and the interpretation clause. I note that the national interest analysis states that although reservations are not permitted, declarations are. It states: “Article 56 of the convention and Article XXX of the Aircraft Protocol provide that States may make up to 20 declarations, ‘opting in’ or ‘opting out’ of various articles in the Convention and the Aircraft Protocol. Declarations are intended to allow some tailoring of the Convention and Aircraft Protocol to domestic circumstances.” It goes on to state that some declarations must be made at the time of accession.

I am very, very interested to get information from the Minister about declarations. In new section 104(1), declaration means “a declaration made by New Zealand under the Cape Town Convention and the Aircraft Protocol”. I am very interested to know whether the Government intends to make any declarations on accession in relation to the convention, and whether it has any intention to make future declarations. It is a very, very important question. I know that the Minister is occupied at the moment, but I would like an answer to that, because the answer may well make a difference in terms of whether we continue to vote for the bill. A declaration can completely change the nature of a convention, so it is very, very important that we get an answer to that.

The other part of my question relating to new Part 12 is that there is a definition of a “Contracting State”, which means “a State that is a party to the Cape Town Convention and the Aircraft Protocol”. In the national interest analysis it talks about the “Obligations which would be imposed on New Zealand by the treaty action, the position for reservations to the convention, and an outline of any dispute settlement mechanisms.” I have read this several times, and I appreciate the efforts to which people have gone to try to make this clear to us, but I really cannot understand much of what it means. I suppose my question is what it means in terms of the obligations of New Zealand. What will we have to do as a country? Will there have to be Budget appropriations for the implementation of this convention? Will it require more resources for the Civil Aviation Authority? Will the Governor-General need to have more resources? I would like some clarification of what the obligations are for New Zealand, and what the implications are in terms of resourcing. Now that the Minister has returned from his distraction, I draw his attention—

💬 Hon Darren Hughes: China’s not a distraction.

I know he is working; I am not being critical. I know he is just trying to get an answer to our questions. My question earlier, I say to the Minister, was about declarations, and whether we intend to make any declarations on accession to the convention, because they must be made at the time of the treaty, according to the national interest analysis. I would like to know, if that is the case, what they are, and what difference it will make in terms of the international obligations we have as a country under this convention.

It is with great pleasure I rise again to speak on the Civil Aviation (Cape Town Convention and Other Matters) Amendment Bill 2010. I have focused primarily to date on the actual Cape Town Convention and its associated protocol. I will talk now about the provisions in the bill that provide more flexibility in civil aviation rule-making. Like my colleagues Darren Hughes and Darien Fenton, I will also ask the Minister some questions.

The reason for the changes in Part 1 are to do with making sure that ordinary rules, and the making of ordinary rules, are expressed in a more straightforward way. New section 28(5), substituted by clause 5, rules that an ordinary rule may allow “a matter to be determined … by the Authority, the Director, or any other person; or … empower the Authority, the Director, or any other person to impose requirements or conditions …”. Amendments are also made, in clause 6, to provisions relating to “Matters to be taken into account in making rules”.

The consultation requirements in section 34(1), which must be observed before ordinary rules are made, are amended by clause 7(1) to require the Minister to “(a) publish a notice of his or her intention to make the rule;” and to consult certain persons. I will talk a little more about that provision. It is primarily outlined in clause 5, which amends section 28, the “Power of Minister to make ordinary rules”. I am very interested to know, in relation to the consultation requirements—and I know that the Hon Darren Hughes has already asked some questions on this—what the Minister of Transport’s view is on what “consultation” really means, and how robust, I suppose, he believes the consultation process needs to be in the civil aviation area.

When I look at the annual report of the Civil Aviation Authority, I see that the authority needs to deal with some very important matters. As I noted earlier, the authority is part of an international system. Civil aviation, by its very nature, is an international system. The role of the Civil Aviation Authority is to provide policy advice and civil aviation rules development; to certify and license aviation participants; to monitor the compliance to civil aviation and security standards by participants; to educate about and promote aviation rules, advisory circulars, and other safety and security-related information; to investigate aviation incidents and analyse safety trends; to enforce civil aviation legislation and rules; to publish aeronautical information; and to oversee the administration of the Health and Safety in Employment Act and the Hazardous Substances and New Organisms Act 1996 in the aviation sector. That is a fairly significant range of responsibilities that the Civil Aviation Authority has. They are quite critical: the safety of people who are flying, the safety of people who work in civil aviation, and making sure that we comply with important legislation.

I am interested in how the new consultation requirements outlined in clause 5 of this bill, the Civil Aviation (Cape Town Convention and Other Matters) Amendment Bill, will work, and in how robust the consultation processes are that the Minister is envisaging in relation to the development of rules in civil aviation. We all know that consultation can mean different things to different people. Unfortunately, I have had the experience in my working life where consultation has meant that an employer, for example, might tell a group of workers something and put it in a notice, and that was seen as consultation. I am hoping that consultation in this regard will be more robust, and I look forward to hearing the Minister’s response to that question. Thank you.

I thank Opposition members for their fulsome analysis of this Civil Aviation (Cape Town Convention and Other Matters) Bill. I think it is very important that it be analysed fully. I will offer a couple of matters in response. Firstly, the declarations that were the subject of one of Darien Fenton’s requests are contained in the national interest analysis. They are all laid out there for the member, and I refer her to them.

In regard to—working alphabetically is, I think, the best way—clause 6—

💬 Hon Darren Hughes: That’s not alphabetically; that’s numerically.

No, clause 6 begins with “c”. The clauses are all alphabetical and they all begin with “c”. Therefore, I can put them in whatever order I wish for that member.

💬 Hon Darren Hughes: He’s the Government’s numbers man!

Clause 6—alphabetically and, subsequently, numerically—amends section 33, “Matters to be taken into account in making rules”, of the Civil Aviation Act. It aligns section 33(2) with new section 34A, and it states that the Minister is to consider those matters when recommending rule-making action to the Governor-General.

Clause 7 concerns the procedures for making rules, and the whole point of this exercise is to streamline and simplify the rule-making process. It provides some flexibility in terms of the notification requirements. Obviously, that still has to be appropriate to the rule-making procedure.

One of the issues we have in civil aviation is the very long time that it takes to make rules, and we are trying to simplify the process and speed it up. In fact, civil aviation is unlike other industries. The civil aviation industry, in the general rules, is looking to make civil aviation rules faster to match the International Civil Aviation Organization requirements.

Clause 8—which Darren Hughes was concerned about with regard to the Governor-General and his unfettered and outrageous powers; I am paraphrasing the member a little bit—refers to the Governor-General making rules on the recommendation of the Minister. The Governor-General does not wander out and make rules on a daily basis to suit the Governor-General.

Finally, clause 12 does give the convention primacy over the relevant New Zealand law. The convention is consistent with, and additional to, the relevant New Zealand law. That is the point of clause 12. I think that covers most, if not all, of the matters raised by members opposite.

The question was put that the amendments set out on Supplementary Order Paper 145 in the name of the Hon Steven Joyce be agreed to.

Amendments agreed to.

Parts 1 and 2, schedules 1 and 2, and clauses 1 to 3, as amended, agreed to.

Bill reported with amendment.

Report adopted.

Third Reading