Civil Aviation Bill

The question is that Parts 1 to 11, Schedules 1 to 10, and clauses 1 and 2 stand part.

I assume this is a very wide-ranging debate now. Is that correct?

CHAIRPERSON (Hon Jenny Salesa): Correct.

SIMEON BROWN: Fantastic. That’s great. I was getting very nervous there, having to find out about every interpretation to try and keep this debate going, but Simon Court was doing a fantastic job, so hat’s off to Simon Court. He’s the man when it comes to the committee of the whole House, from the ACT Party.

Anyway, I’m keen to ask some questions about Supplementary Order Paper 325 which the Minister has tabled. The first change, I think, is one of the substantive changes in relation to the Public Works Act, and, of course, this was one of the significant issues raised by submitters at the select committee, and I’d like the Minister to explain to the committee what these changes make in relation to public works and the public works powers that airport operators can use, because this was a contentious point raised by airport operators, in that the powers that they have around being able to acquire land or dispose of land in the original bill was being significantly curtailed, and those powers were going to be given to Land Information New Zealand to be able to make decisions around whether land was surplus. And, of course, an airport is an asset which has a very long life cycle, and to have a Government department coming in and saying to an airport that certain land was considered surplus, would pay disregard to any long-term plans that an airport operator may have.

So I think it would be useful for the Minister to outline what these changes are doing to ensure that airports are able to make those decisions and what these changes do to ensure that airports continue to hold those powers that they require and to, I guess, give the committee some confidence that these changes are not necessarily winding back the significant amendments made by the select committee, which removed that excessive involvement of Land Information New Zealand into the process. I think that a number of airport operators up and down the country would appreciate hearing directly from the Minister—I’m sure they’re all watching now—to understand exactly what these changes do regarding their powers under the Public Works Act.

First of all, I’d just like to acknowledge the Minister, obviously clearly engaged in identifying what is indeed a significant power and where there were significant and substantive issues raised throughout the select committee process. I think it’s probably just important to note for the record that the select committee changes that the select committee members undertook throughout the course of that process, it did clarify some of those matters. As a matter of fact, in the Supplementary Order Paper (SOP) before us today, it doesn’t renege or pull back on that.

I think that, following the report back by the select committee, it became clear that there was still a significant amount of confusion, I think it’s fair to say, from the industry as to what the clauses in the bill related to the Public Works Act provided for. So this SOP seeks to clarify and expressly state what the law is. These clauses are drafted in a manner that’s consistent with the language used in section 186 of the Resource Management Act, something that operators are familiar with, and it is intended that they’re easier to use.

Clause 227 confirms the general position, as currently stated in the Airports Authorities Act, that an airport operated by an airport operator that is not a local authority must be treated as a Government work. Clause 227A more clearly provides for airports not operated by a local authority to compulsorily acquire lands through the Minister of Lands. Clause 227B more clearly provides for airports that are not operated by a local authority to dispose of land through the Public Works Act, for the chief executive of Land Information New Zealand to be empowered to lodge a caveat on airport land, and for the chief executive of Land Information New Zealand to comply with the procedural requirements in relation to any offer-back process. I hope that clarifies it for the member.

Oh, thank you, Madam Chair. There’s a number of other questions that I’d like to ask in relation to—one of the changes that was proposed at the committee stage was in relation to a new body being set up to review decisions made by the Civil Aviation Authority, and my understanding is that this Supplementary Order Paper puts in place a fees and charges regime for people who apply to the reviewer. It amends clause 416 to allow fees and charges to be prescribed “to reimburse the Secretary and the reviewer for costs directly and indirectly associated with the reviewer’s functions under subpart 4 of Part 10”. I’d like to understand, I guess, the bounds of what those fees and charges may be, because the ability to have decisions reviewed was something which was raised by a large number of submitters through the process because there was a feeling from many submitters that the Civil Aviation Authority was a very challenging organisation to work with from time to time, that the only way to review decisions was to go to judicial review, which, of course, as we know, is time-consuming and expensive for those who feel that the decision that was made by the Civil Aviation Authority was not the one that was right. So the right to be able to have a reviewer was hard fought for by the submitters, would be the way I would put it, and it was agreed that that should be put in place to give them the ability to have those decisions reviewed.

So to now have a Supplementary Order Paper which I guess, in some ways, gives a power to the Civil Aviation Authority to set fees and charges on people who may make an application to have a decision reviewed—well, the Civil Aviation Authority could put those fees and charges at quite a substantial rate to, effectively, make it very difficult for people to be able to have their decisions reviewed, and I think that would go against the principle of why the review body was agreed to at the select committee stage.

It must be noted that this review body has very little teeth, and I think that’s a fair criticism, that many submitters would say that this review body doesn’t have many teeth and are concerned about it. So the question needs to be asked: what parameters are there to ensure that those fees and charges are not going to be used to make it prohibitive for people to be able to have their decisions reviewed and to ensure that the review body is an accountability mechanism to give those people that ability to have their decisions reviewed? I’d appreciate the Minister’s response to those questions.

The member’s absolutely right: it was a very well-advocated position by submitters to the Transport and Infrastructure Committee about being able to test and challenge the decisions outside of a court, and I want to acknowledge, again, just the committee for working together to agree that that policy should indeed be included. My predecessor, the Minister of Transport, the Hon Michael Wood, in particular, was supportive of that policy, and the scope of the decisions that could be considered were to be relatively broad. So I just want to make it clear tonight to this committee, and particularly everybody who’s up watching this with some, indeed, fervour, like we all are this evening in participating in this discussion, that this Supplementary Order Paper (SOP) doesn’t undermine that collective decision made by the committee and, indeed, advocated by those that submitted to that committee.

What the SOP does do is it allows for fees and charges to apply—so, essentially, introducing a user-pays scheme as opposed to anything like a levy. I note that the member was concerned that it would be the Civil Aviation Authority that might, you know, use this as a mechanism to conflate or acquire fees from users. We can assure this committee that it is not going to be the Civil Aviation Authority that sets that fee, that it will be the Minister. So this enables the Minister to be able to set fees and charges in accordance with Treasury and Audit Office guidelines. So I can firmly assure the House that these are not powers that will be exploited.

Thank you, Madam Chair. I just wanted to prod, I guess, the Minister’s view on Supplementary Order Paper (SOP) 329, because throughout the select committee stage we did hear a really strong submission, and, obviously, there’s been a media campaign by Consumer New Zealand around consumer rights and relationships, and the possibility to improve consumer rights as part of the amendments we’re making in this bill.

Basically, one of the things that Consumer New Zealand was arguing is that we have fallen behind two other jurisdictions, particularly the European Union, in relation to the ability to legislate and put in regulations around protecting passengers in the case of delays or cancellations of flights. The SOP that we’ve put forward would, effectively, introduce a code of passenger rights—where the Minister would actually have the ability to design this to better protect consumers, and it would, basically, allow the Minister to have a year to work with entities that would be appropriate to set this out.

In the SOP, we are taking into account the European Union’s way of doing things, as well as the input from Consumer New Zealand to also set out what the content of the code would have, including things like how and when a carrier may deny a passenger boarding on a flight, and carriers’ obligations to offer assistance, refund, or pay compensation. We know that in Aotearoa, consumers are not particularly well protected.

I understand that some feedback has been received around the need to perhaps go through a completely separate legislative process. But I think what this SOP, hopefully, shows is that there is a way to incorporate it within the work that we are doing. So I’d like to hear from the Minister as to whether this could be an opportunity to improve consumer rights, and, if not, whether the Minister has interest in advancing this work elsewhere.

I appreciate and thank the member for his contribution. Indeed, Supplementary Order Paper 329—that has been prepared in an area that’s particularly significant: consumer protection rights.

I note that the bill that’s before the House tonight largely carries over the consumer protections from the current legislative regime and it clarifies the consumers’ recourse to the disputes tribunal. It provides for regulations requiring airlines to inform passengers of their rights. The issue of a comprehensive consumer rights regulation scheme was raised in the Transport and Infrastructure Committee. At that stage, no changes were made.

The Supplementary Order Paper tonight would make such a code mandatory, and is relatively prescriptive in terms of the matters that would need to be included. One of the issues that officials identified is that it didn’t distinguish between international air transport where the code would need to be consistent with international obligations and with domestic travel. Consumer regulations—in essence, they would need to be prioritised within the context of the overall civil aviation regulatory programme. It was the officials’ view that extensive work would be required to determine what matters should be included in any such code to avoid any unintentional consequences in our domestic environment here in Aotearoa, but a proposal put forward by the hard-working officials was that these types of regulations could be provided for in a regulatory systems transport amendment bill.

Thank you, Madam Chair. Another issue I’d like to raise, which I would ask the Minister to give some consideration to, is in relation to Schedule 2, clause 21(2), which is in relation to the medical convenor. This is another issue which was raised by submitters through the process, and has been advocated quite significantly by pilots who have been—sorry, Schedule 2, clause 21(2) in relation to medical convenors. It’s a particular part of the legislation which is in relation to the medical certificates, and the role of the medical convenor.

The issue here at play is the fact that there are no time frames prescribed for a review of a decision made by the medical convenor. The issue here is that there has been a number of stories of pilots who have been required to get medical certificates where there have been disputes in relation to their tests or examinations, and those disputes or those decisions have in some cases taken many, many months before they are overturned, potentially, or a decision is made to give that pilot some form of decision.

If the Minister were to look at other parts of this Schedule, the Minister would note that there are time limits on the director throughout this process in relation to medical examinations—in some areas, 60 days after the date the medical was issued; in other areas, it talks about shorter time frames. The issue in relation to clause 21 of Schedule 2 is in relation to a decision which is made that there is no time frame in relation to how long a period of review could go on for. And so a number of pilots have applied for reviews, they’ve put them in writing within 20 working days after the date that the decision was made, and then they sit waiting and waiting and waiting, and many, many months go by, and there is no requirement in here to actually have a time frame whereby the decision or the review must be made.

So, as the Minister will note, there are time frames throughout this part, in terms of other things. The individual whose licence is in question because of the medical certificate, they have to make an application within 20 working days. But there is no time limit in relation to the convenor actually making a decision. So I put it to the Minister—and I note that there have been many submissions on this particular issue by pilots—that there should be a time limit in relation to that decision, and I would ask the Minister to consider including in that section a time frame.

Now, I did put a written question to the Minister on this very issue around a proposal which has been put by a number of pilots in relation to a 30-day review period. The Minister responded to that question, saying that because of the complexity of the situation the Minister didn’t feel that that time frame was needed. However, I would put it to the Minister that some time frame is required. Thirty days may not be the right number, but the situation is that a number of pilots have been left waiting for many, many months. I don’t think that is a fair response to something which does impact on their ability to undertake their job, to be able to get their licence and be able to fly planes—if indeed the issue that has been raised is being able to be contested, and there’s evidence that can put the potential medical issue at bay.

So I would put it to the Minister that there should be some limit or time frame put in place for these reviews by the convenor. That may not be 30 days; it may be 60 days, or a period around that, but it should not be many, many months in an open-ended situation, which is where a number of pilots have found themselves. And when they finally do have a decision made, they’re then able to have—in some cases—their licence reinstated.

The fact is, though, that many, many months have taken place, and that does seem unfair. And so I would ask the Minister to consider that. I’m happy to put a tabled amendment on the Table around that, if it’s something that the Minister would be open to, but also I understand and appreciate the Minister has the numbers on that issue.

Thank you to the member just for raising that, and that was something that sparked my interest because I think any time we do have unsatisfactory and untimely decisions, it leaves people hinging their lives on the decisions of others. So I acknowledge the member for raising that point.

My understanding is that why there is no prescribed time limit within the Schedule 2, section 21 test really is that the medical reviewer needs to be assured that they’ve got all of the medical history available to them. Secondly, that timeliness is really dependent on a range of other things apparently coming to them—this is how I best understand it.

The officials have said to me that in most cases, this medical review is completed in three months, or not more than three months. However, I think there’s been a couple of particular instances where it really has exceeded that. So, on the advice that’s been provided from the director and from the medical profession, it’s just not tenable—is, essentially, how they described it—to be able to put a strict time limit on it. But I was satisfied to hear on probing that the time frames were, by and large, within that threemonth period, which wouldn’t seem unjustifiably long.

Appreciate the answer from the Minister. So can the Minister clarify: so the Minister has sought evidence around those time frames—that’s what was stated—and she was given evidence that the majority were dealt with within the three-month period. Is the Minister able to provide some additional information to the committee as to what percentage of applications to the medical convenor for review were dealt within that three-month period? Over the last five years, for instance, what percentage were beyond three months? I’m not sure if the Minister has that specific information here, but, if she does, it would be great to have that tabled so that we can actually see it from this side of the Chamber, because I think that that’s a very important piece of information for this particular part of the debate.

No, but in consultation with the officials, I understand that the Ministry of Transport have previously provided that evidence to the select committee. So I don’t have that particular piece of advice here in the Chamber tonight, but I’m happy to provide it to the member through a written question.

Thank you, Madam Chair. I just want to ask the Minister a few questions about the requirements to make space in airports—the provision of space for different activities, particularly those activities undertaken by airport security, biosecurity, and Customs. There was quite a lot of debate at select committee about what that might mean to airport operators who are already facing budget constraints, their own space constraints, infrastructure constraints, and how much of an imposition this might make on airports, particularly those international airports, to provide for Government departments to have a place in the facility.

I just want to draw the Minister’s attention to commentary from travellers arriving at Auckland International Airport for the past few days who have described scenes of feral hordes of thousands and thousands of people queuing for hours just to get through screening. I want to ask the Minister: will the requirements to give space to those Government departments for their screening activities do anything to improve the situation? Is the time frame that the bill now envisages, two years after Royal assent, going to help in any way, in the interim, the way airports are operated—given the imposition that Customs and biosecurity and aviation security put on airports, is it going to provide them with spaces and places to operate? And what are the costs that are likely to flow to the airports and then to the travelling public? Because when we look at Auckland International Airport’s proposal for a $3.7 billion upgrade, it could be asked: well, how much of that cost will be as a result of requirements that have been communicated from Government agencies that have a legal requirement to be in the airport, but who can impose those costs on the airport operator and the travelling public?

So, Minister, just to recap, we’ve heard about terrible queues, long waits to get into the country from airside to landside, particularly at Auckland Airport. Again, in the past few days, we know that Government agencies should have a place in airports, but, given the provisions of this bill which allow them to, essentially, engage in regulatory undertakings to require the airport authorities to give them a space, is there anything likely to happen in the next two years before the bill becomes effective to make it easier on the travelling public?

Thank you to the member, and that was a really important question. I was quickly just consulting with officials about what the actual impacts are, because I think we’ve all been through the border in the last X period of time, and we understand the constraints and timeliness, and it’s not necessarily the best way to introduce New Zealanders to our fine country, so I take that point.

And so what this bill has done is it has, essentially, already kicked off the discussion. There’s a couple of parts to it. So, first, is the requirement right now, as part of being an international airport, is that they need to accommodate those agencies at the border. We can see that there isn’t necessarily the space. What these provisions have already done is kick off that process by which those agencies are engaging—I understand it’s already commenced, that consultative process, because this is what this legislation, effectively, does: it sets out the way that the consultative process should work to get to that end point. So they’re already starting to engage; there’s nothing to prohibit, obviously, that happening swifter, and I’m sure that there’s a collective will within this House and actually by the agencies responsible to ensure that those matters and having that entrance that we all collectively deserve can proceed without any inhibition.

I just want to ask the Minister: that being the case—and look, it’s great to know that these agencies are already engaging with airports. But when Auckland International Airport announced that what is, essentially, a spaceframe shed with a long run ColorSteel cladding on it was going to cost $3.7 billion, many in the industry and airline operators have said, “How on earth could a building that is meant to process people in an hour or so coming from aircraft landing in New Zealand, moving on to domestic flights or moving on to buses or private vehicles into Auckland—how on earth could a building for what is, by international standards, a relatively small airport cost $3.7 billion?”

So would the Minister be able to give any indication about what role these other Government agencies might have had in forcing that $3.7 billion cost on to Auckland International Airport? Because while it’s gratifying to know that they’re engaging in early negotiations, what will result under this bill is an enforceable undertaking—which the airports must comply with. Of course, that means the Government has the power to force them to accept cost. So are we seeing, through Auckland Airport’s announcement of the $3.7 billion build for a new shed, an example about what’s to come?

Obviously we don’t have responsibilities for the decisions of Auckland International Airport; those are commercial and other decisions for them. No, I think, in short, is the answer.

I’d like to ask a couple of extra questions. The first one is in relation to the recent International Civil Aviation Organisation report in relation to New Zealand’s aviation security, which took place towards the end of last year. I’d like to ask whether any findings or recommendations from that review of our aviation security have affected any of the amendments in the Supplementary Order Paper, which we have on the Table today, and, if so, what are the changes that that is making?

The second is in relation to aviation security. I think many who use airports recently would note that aviation security has certainly become wanting, in terms of the timeliness that it is causing upon those who travel up and down our country or internationally, and I note that this bill does provide for aviation security services to be outsourced, potentially. Is that something the Government is considering?

So, in short, just to the primary question, the answer is no. The review hasn’t led into that Supplementary Order Paper. However—where am I? No, I’m on the wrong page—there we go. Look, I understand that, no, that review hasn’t led to any of the amendments. National security is of course a substantive issue which all Governments have taken seriously since 11 September 2001, which changed the modern world, as we’re all well aware. But there’s no intent of the Government at this time; there’s been no discussions to that effect.

Minister, I just want to explore a little bit more about the functions of the Aviation Security Service (AVSEC). The bill attempts to address the perceived conflict of interest between the civil aviation and aviation security. The Civil Aviation Authority (CAA) is responsible for providing the AVSEC service, and the Director of Civil Aviation is responsible for monitoring AVSEC, and that creates a perception of a conflict of interest—or could. AVSEC is tasked with not just a really important security function but also with having a role in getting passengers to their flights in a timely manner.

Just coming back to that theme of what role do these agencies like aviation security and others play in the efficient performance of our airports, has the Minister considered ACT’s proposal—or have officials considered ACT’s proposal—for an independent auditor to evaluate whether aviation security are performing their functions effectively and efficiently, exercising their powers in an appropriate manner, and minimising disruptions to travellers and airport operations? Has the Minister or officials given any consideration to ACT’s proposal to establish an independent performance auditor, such as by the Office of the Auditor-General?

Yes, thank you, Madam Chair. Look, I think, first, just to acknowledge that there is an actual conflict of interest between the director of the Civil Aviation Authority (CAA) and the Aviation Security Service (AVSEC)—that’s clear. The way that they’ve sought to circumvent or protect, limit, impact that conflict is by removing some of the certification, and delineating out the roles. The advice received on this is that it didn’t warrant the cost and time, in terms of having an independent regulator to perform that function, and, given that the costs and the changes within this environment have been pretty substantive, unless there’s a compelling case to do otherwise and implement that type of independent regulatory regime, it’s not something that’s being considered at this time.

Thank you, Madam Chair. Minister, that is a really insightful explanation; I do appreciate it. So what we take from that is that the cost of engaging an independent auditor—and let’s say we’re a corporate business. Imagine we’re a private airport operator, like an Auckland International Airport, for example, or a Wellington International Airport. We would have to have our annual accounts and performance audited by an external auditor so that our shareholders and our board could be satisfied that, as an airport operator, we were operating to a standard expected of us by financial and other regulators. Aviation security around the world, particularly since September 11 2001, has had a very significant role in safeguarding airport operations and airline operations and the safety of passengers. Yet, it appears to many people travelling around the world that in some places and cases, aviation security services are not operated efficiently and they are not necessarily operating in a way that is adapted to our changing needs and people’s expectations of what good customer service looks like in airports.

So I just want to contrast your statement that it was seen as too expensive to engage an independent auditor, with what every other commercial organisation including airports and airlines operating in this space would need to do, which is to engage independent financial auditors, independent health and safety auditors, and all of those independent reviews of their performance so that their shareholders and directors can be satisfied they’re operating to the highest standard.

So, Minister, given that contrast, do you think it’s worthwhile that officials, the Ministry of Transport, have another look at the potential to engage independent audit, whether that’s through the Office of the Auditor-General or a similar function Officer of Parliament, so we can have confidence that aviation security is operating efficiently and effectively.

Yeah, look, I thank the member again for his inquisition into this area, and I don’t want my statements to be conflated as something that I didn’t quite intend. I think what I meant is that in terms of setting up a whole new independent regulatory regime like an independent auditor as an actual separate and independent regulatory function; that was what I meant. That was not a cost that was considered necessary in these circumstances. I note the member is being well engaged on these issues. If I just set them through, the regulatory performance is overseen by the director in the civil aviation board. The ministry then has the governance responsibilities for civil aviation. That falls within my role. In the end, the accounts are audited. And when it comes to the civil aviation, we’ve delineated out so that the director of the civil aviation isn’t the person that’s directly responsible for the Aviation Security Service (AVSEC). Instead, it’s the board of the Civil Aviation Authority that AVSEC is managed by. So I hope that clarifies it. It is a relatively complicated regime.

I move, That the question be now put.

Motion agreed to.

The question is that the Minister’s amendments

Amendments agreed to.

The question is that the Hon Julie Anne Genter’s amendment to clause 3

Amendment not agreed to.

The result corrected after originally being announced as Ayes 10, Noes 108.

The question is that the Hon Julie Anne Genter’s amendment to clause 4

Amendment not agreed to.

The question is that Ricardo Menéndez March’s amendments set out on

Amendments not agreed to.

The question is that Chlöe Swarbrick’s amendment replacing clause 58 set out on

Amendment not agreed to.

Parts 1 to 11, Schedules 1 to 10, and clauses 1 and 2 as amended agreed to.

I move Supplementary Order Paper 326 dividing the bill.

Motion agreed to.

Bill to be reported with amendment and divided into the Civil Aviation Bill and the Civil Aviation Amendment Bill.

House resumed.

The committee has considered the Civil Aviation Bill and reports it with amendment and divided into the following bills: Civil Aviation Bill and Civil Aviation Amendment Bill. I move, That the report be adopted.

Motion agreed to.

Report adopted.