Clause 13 specifies the general duties of aviation participants to comply with civil aviation legislation and provide services within the civil aviation system in a way that promotes safety and security. It specifically requires aviation participants to ensure that the activities or functions for which an aviation document has been issued are carried out by the aviation participant, and all persons for whom the aviation participant is responsible, safely and in accordance with the relevant prescribed safety and security standards and practices. It replaces section 12 of the Civil Aviation Act 1990 (the current Act) but applies to all aviation participants (see the definition of that term in clause 5).

Clause 14 specifies duties of a pilot-in-command. It is substantially similar to section 13 of the current Act. However, the definition of pilot-in-command in the Bill is expanded to deal with aircraft designed to be operated without a pilot on board (see clause 5).

Clauses 15 and 16 specify circumstances (related to emergencies) in which a pilot-in-command may breach civil aviation legislation. The breaches must be notified to the Director of Civil Aviation (the Director). These clauses replace section 13A of the current Act.

Clause 17 makes it an offence to fail to notify breaches of civil aviation legislation of the kind dealt with in clause 15 or 16. It replaces section 52A of the current Act.

Clause 18 provides the Director or a constable with powers to require the operator of the aircraft or the holder of the certificate of registration for the aircraft to identify a pilot-in-command of the aircraft who is alleged to have committed an offence under the Bill or regulations made under the Bill. It replaces section 26A of the current Act.

Clause 19 makes it an offence to fail to comply with clause 18. It replaces section 52C of the current Act.

The fine penalties in most offences throughout the Bill have been increased from those in the current Act.

Clause 20 continues the Civil Aviation Authority of New Zealand (the CAA). The CAA is a Crown entity.

Clause 21 provides for the Board of the CAA.

Clauses 22 and 23 set out the objective and functions of the CAA.

Clause 24 sets out the duties of the CAA in relation to search and rescue.

Clause 25 requires the CAA to maintain separate accounts in respect of AvSec.

Clause 26 requires the CAA to consider delegating or contracting out its functions and powers.

Clause 27 requires the CAA to adopt and publish a regulatory strategy setting out how the CAA and the Director will perform their regulatory functions. This requirement is new and has no counterpart in the current Act.

Clause 28 requires the CAA to have an engagement charter and make it available to the public. The required content of this document is similar to the content of the service charter required under section 72G of the current Act.

Clauses 29 and 30 protect the use of the words Civil Aviation Authority, CAA, Aviation Security Service, and AvSec.

Clause 31 provides for the appointment, by the board of the CAA, of the Director of Civil Aviation. The Board must also appoint the Director of Civil Aviation as the chief executive of the CAA.

Clause 32 sets out the functions and powers of the Director.

Clause 33 provides for an acting Director of Civil Aviation in certain circumstances.

Clause 34 sets out the regulatory functions, duties, and powers of the Secretary for Transport. Paragraph (a) refers to the various functions and powers the Secretary has under other provisions of the Bill. Paragraphs (b) to (g) set out other functions and powers. These are—

• monitoring, investigation, and enforcement in relation to the matters in paragraph (a):

• issuing warnings, reports, or guidance about civil aviation matters:

• collecting, analysing, and publishing statistics:

• sharing information obtained in the performance of the Secretary’s functions conferred by, or referred to, in this clause:

• co-operating with or providing assistance to government agencies, local government, and aviation participants:

• any functions or powers incidental to the above.

The power to share information provided in this clause is intended to be an authority to share the information in terms of section 24(1) of the Privacy Act 2020.

Clause 35 provides that the Minister may, by notice, specify that only Airways Corporation of New Zealand Limited (Airways) may provide certain aviation services. This clause replaces section 99 of the current Act, but see clause 7 of Schedule 1 which allows the Minister to give a notice under this section with effect on the commencement date of the Bill.

Clause 36 provides for the New Zealand Register of Aircraft.

Clause 37 sets out the requirement to register aircraft.

Clause 38 requires the CAA to maintain Civil Aviation Records. This requirement is substantially similar to the requirement to maintain the Civil Aviation Registry under section 74 of the current Act. The differences are as follows:

• the requirement to publish regulations and rules made under the Act is not carried forward. The requirements of the Legislation Act 2019 relating to publication of regulations and rules will be relied on:

• the obligation to include the CAA’s statement of intent is not carried forward. Section 149 of the Crown Entities Act 2004 provides for the publication of this statement:

• the requirement in clause 38(2)(d) that the records include all information provided by applicants for aviation documents is located in this clause but is not new. This is a requirement in section 8 of the current Act.

Clause 39 requires the CAA to ensure that an information service is provided comprising—

• aeronautical information; and

• instructions relating to the safety, regularity, and efficiency of air navigation.

This continues the requirement in section 75 of the current Act.

Clause 40 makes it an offence to operate an aircraft in a careless manner. It is substantially similar to section 43A of the current Act.

Clause 41 is an offence provision relating to causing unnecessary danger to people or property while performing certain activity involving an aircraft, aerodrome, aeronautical product, or aviation-related service. It is based on the offence in section 44 of the current Act but is split into 2 offences. One is a strict liability offence for a person who causes unnecessary danger (see subclause (2)). The other offence (which carries a term of imprisonment) is causing unnecessary danger while being reckless as to whether the danger will be caused (see subclause (3)). Also, in addition to the existing coverage of section 44, clause 41 applies to the operation of an aerodrome.

Clause 42 is an offence provision relating to operating aircraft in controlled airspace or a restricted area without authorisation. This is a new offence that has no counterpart in the current Act.

Clause 43 is an offence provision relating to communicating false information affecting safety. It is substantially similar to section 56 of the current Act. However, the ability of the court to award part of the fine to a person who suffers financial loss because of the offending is not carried forward.

Clause 44 limits actions in respect of nuisance or trespass in respect of aircraft operations. It replaces section 97(1) and (2) of the current Act.

Clauses 45 to 47 relate to responsibility for, and recovery of, damages caused by aircraft, by persons or articles falling from aircraft, or by persons descending from aircraft by parachute. They replace section 97(3) to (8) of the current Act.

Clause 48 provides that clauses 44 to 47 apply in respect of any claim against the Crown for damage, loss, or injury in connection with the use of any aircraft by the Armed Forces. This clause replaces section 9(3) of the Crown Proceedings Act 1950 (which will be repealed by clause 472).

Clause 49 replaces section 26 of the current Act and requires—

• a pilot-in-command of an aircraft involved in an accident to notify the accident to the CAA:

• an aviation participant involved in an incident to notify the CAA.

Clause 50 replaces section 27 of the current Act and requires the CAA to notify the Transport Accident Investigation Commission (TAIC) of an accident or incident reported to the CAA if it is—

• an accident involving aircraft; or

• a serious incident in accordance with the Convention on International Civil Aviation (the Convention).

Annex 13 of the Convention defines serious incident.

Clause 51 makes it an offence to fail to comply with the requirements relating to notification of accidents and incidents. This replaces section 52B of the current Act (but, unlike that section, does not include punishment for a continuing offence).

Clause 52 provides that the Minister may make rules relating to civil aviation (rules) for the purposes set out in the clause. Subclause (3) provides that rules are secondary legislation under the Legislation Act 2019. The Bill refers to the provisions of the Legislation Act 2019 even though the relevant provisions of that Act are not yet in force. It is expected that those provisions will be in force before the Bill comes into force.

The publication requirements for rules are those referred to in section 74(1)(aa) of the Legislation Act 2019. It is proposed that rules made under clause 52 will (under regulations to be made for the purpose of section 74(1)(aa) of the Legislation Act 2019) be exempt from publication in respect of any material for which publication is inappropriate for reasons of security. While that situation is expected to be rare, it is proposed that publication would be inappropriate where it may hinder the preventative effects of any measures put in place to reduce threats to security.

Under Part 5 of the Legislation Act 2019, rules must be presented to the House of Representatives and are disallowable. However, this is subject to Schedule 3 of the Legislation Act 2019, which provides for exemptions from presentation requirements for rules where presentation would be inappropriate for reasons of security (see Schedule 3 of that Act as amended by Schedule 9 of the Bill).

Further detail of matters for which rules may be made are set out in clauses 53 to 60). Some specific new matters include—

• prescribing security tiers for aerodromes and navigation installations and the requirements applicable to each tier (see clause 56):

• prescribing matters relating to security areas at aerodromes, including prescribing the persons or classes of persons who may enter, pass through, and remain in different types of security area (see clause 56):

• prescribing when an application for an aviation document or for renewal of an aviation document is an application to which national security considerations apply (see clause 59, see also clause 74 and subpart 13 of Part 9).

Clauses 61 and 62 set out procedural requirements for the Minister when making rules. These include the consultation requirements in clause 61(1). The Minister must be satisfied of the matters set out in clause 61(2) and have regard to the matters specified in clause 72.

Clause 63 provides that the Governor-General in Council may make rules. As is the case in section 34A of the current Act, the consultation requirements applicable to the making of rules by the Minister do not apply. Before recommending (to the Governor-General) the making of the rules, the Minister must be satisfied of the matters set out in clause 63(2)(a) and have regard to the matters specified in clause 72.

The publication and presentation requirements for rules made under this clause will be the same as those for rules made by the Minister under clause 52.

Clause 64 sets out further provisions about the nature and extent of the rule-making powers of the Minister and the Governor-General. They are substantially unchanged from those in section 28 of the current Act.

Clause 65 provides that a rule may prevail over a bylaw of a local authority if that bylaw is inconsistent with the rule.

Clause 66 provides that, in general, a breach of a rule is not an offence unless prescribed in the regulations (see clause 408).

Clause 67 provides that the Director may make emergency rules. The criteria for the use of this power are the same as in section 31 of the current Act. That is, the Director may make rules that the Director considers may be necessary to alleviate or minimise any risk of the death of or a serious injury to any person, or of damage to any property. The Director must not make emergency rules unless it is impracticable in the circumstances of the particular case for the Minister to make rules to effectively alleviate or minimise the risk concerned.

The publication and presentation requirements for emergency rules made under this clause will be the same as those for rules made by the Minister under clause 52.

Clauses 68 and 69 set out procedural requirements for emergency rules. These include the consultation requirements in clause 69(1). Before making the rules, the Director must be satisfied of the matters set out in clause 69(2)(a) and have regard to the matters specified in clause 72.

Clause 70 provides for the permitted duration of an emergency rule.

Clause 71 provides that an emergency rule may prevail over a rule made by the Minister or the Governor-General if the emergency rule is inconsistent with the rule.

Clause 72 sets out the criteria that the Minister and Director must have regard to before making rules or emergency rules. It is substantially similar to section 33 of the current Act. The difference is that the factors concerning economic development, access and mobility, public health, and environmental sustainability in section 33(2)(f) are not carried forward and are considered to be incorporated in the requirement in clause 72(a) to consider the purposes of the Bill.

Clause 73 provides for applications for an aviation document.

Clause 74 is a new requirement for the Director to refer an application for an aviation document to the Minister for a national security assessment if the application falls within a category of applications specified in the rules as requiring that assessment. See subpart 13 of Part 9 for the Minister’s powers in relation to the application.

Clause 75 specifies the criteria the Director must apply when deciding whether to grant or renew an aviation document. The criteria are substantially the same as in section 9(1) of the current Act. These include holding prescribed qualifications and meeting fit and proper person requirements. However, the clause also prescribes the actions of the Director in respect of an application that has been referred for a national security assessment (see subclauses (2) to (4)). Subclause (5) is also new and provides that the requirement for the applicant to be a fit and proper person does not apply in relation to an applicant if the aviation document applied for is specified in the rules as one to which that requirement does not apply.

Clause 76 provides that the Director may take into account foreign qualifications and certifications when granting or renewing an aviation document.

Clause 77 makes continuing to satisfy the fit and proper person requirement a condition of the document.

Clause 78 provides for the Director to specify the duration and conditions of the document. It also provides that a person has a right of appeal to the District Court against the duration or conditions specified by the Director.

Clause 79 provides a right of appeal to the District Court against a decision to decline an application. This is subject to clause 359, which provides for a review procedure if the Minister has given a notice under clause 357(2) on national security grounds.

Clause 80 sets out the test for determining whether a person is a fit and proper person for any purpose under the Bill. This test replaces the test in section 10(1) of the current Act, with some additions. These are as follows:

• the Director’s ability to have regard to a person’s history of compliance with transport safety and transport security requirements applies to the person’s history of compliance both inside and outside New Zealand:

• the Director may have regard to a person’s use of drugs or alcohol:

• the Director may have regard to any convictions a person has for an offence under the Health and Safety at Work Act 2015.

Subclause (4) is new and provides that the Privacy Act 2020 does not prevent an agency from disclosing personal information to the Director in response to a request made by the Director under this clause. It is intended that this provision is an authority to share the information in terms of the Privacy Act 2020, particularly sections 24(1) and 170(a) of that Act.

Clause 81 requires the Director to disclose prejudicial information to a person if the Director proposes to take the information into account when applying the fit and proper person test. This requirement is subject to exceptions. The exceptions differ from those in section 10 of the current Act. Under section 10(6) of the current Act, the Director may decide not to disclose the information if the disclosure would be likely to endanger the safety of any person. In clause 81 the grounds are broadened so the Director may decide not to disclose the information if,—

• in the case of non-disclosure to an individual of information about that individual, the Director could withhold the information under any of sections 49 to 53 of the Privacy Act 2020 had the information been requested by that individual under that Act; or

• in any other case, the Director could withhold the information under section 6, 7, or 9 of the Official Information Act 1982 had the information been requested under that Act.

Clauses 82 and 83 set out the procedure if the Director proposes to make a decision that a person is not a fit and proper person. These clauses are substantially similar to section 11 of the current Act. The only change is in relation to the extent of the obligation of the Director to consider information provided by a person about the proposed adverse decision (see clause 83(1)) where that information is provided after a due date set by the Director. In that case, the Director may consider the information only if there are extenuating circumstances.

Clause 84 is a power for the Director to set examinations and tests and conduct flight testing, etc, for the purposes of granting or renewing aviation documents.

Clause 85 sets out an additional purpose of the Bill relating to subpart 2.

Clauses 96 to 101 replace sections 17 to 20 of the current Act. These clauses provide the Director with powers to suspend, impose conditions on, and revoke aviation documents. The differences from the current provisions are—

• where the Director’s powers are currently exercisable if necessary in the interests of safety they are now exercisable if necessary in the interests of safety and security (see clauses 96(1) and 98(1) and (2)):

• the Director cannot withdraw an existing condition on a document if the condition was imposed on national security grounds under clause 357:

• clause 99(5) is new and provides that the Privacy Act 2020 does not prevent an agency from disclosing personal information to the Director in response to a request made by the Director under this clause. It is intended that this provision is an authority to share the information in terms of the Privacy Act 2020, particularly sections 24(1) and 170(a) of that Act:

• clause 100 requires the Director to disclose prejudicial information to a person if the Director proposes to take the information into account when determining whether to take action under clause 96, 97, or 98. This requirement is subject to exceptions. The exceptions differ from those in section 19 of the current Act. Under section 19(6), the Director may decide not to disclose the information if the disclosure would be likely to endanger the safety of any person. In clause 100, the grounds are broadened so the Director may decide not to disclose the information if,—

  • in the case of non-disclosure to an individual of information about that individual, the Director could withhold the information under any of sections 49 to 53 of the Privacy Act 2020 had the information been requested by that individual under that Act; or

  • in any other case, the Director could withhold the information under section 6, 7, or 9 of the Official Information Act 1982 had the information been requested under that Act.

Clause 102 carries forward the provisions of sections 41 and 42D(3) of the current Act that allow the Director to suspend or revoke an aviation document in the case of unpaid fees, charges, or levies. The period of time after which a power to revoke the document arises from the unpaid fee, charge, or levy is reduced from 6 months to 4 months. The ability of the Director to decline to process an application or provide a service in the case of unpaid fees, charges, or levies is continued by clause 426.

Clause 103 is an offence provision relating to where an aviation document holder causes unnecessary danger to persons or property. It replaces section 43 of the current Act but differs from that provision in the requirements about the state of mind of the person. Under this offence, the person must cause unnecessary danger and know, or be reckless as to whether, the danger will be caused.

Clause 104 makes it an offence to act without the necessary aviation document. It replaces section 46 of the current Act but, in addition to the existing coverage of that section, applies to the operation of an aerodrome without an aviation document.

Clause 105 replaces section 45 of the current Act and allows a court to disqualify a person from holding or obtaining an aviation document if the court convicts a person of an offence against—

• clause 40 (operating aircraft in careless manner):

• clause 41 (dangerous activity involving aircraft, aeronautical product, or aviation-related service):

• clause 103 (endangerment caused by holder of aviation document).

Clause 106 makes it an offence to apply for or obtain an aviation document while disqualified. This clause replaces section 48 of the current Act but differs from that provision with the introduction of a “without reasonable excuse” element and a requirement that the person must know, or have proper notice, that they are disqualified.

Clause 107 is an offence provision relating to failing to disclose information relevant to the granting or holding of an aviation document. It replaces aspects of section 49 of the current Act. However, in relation to the new offence, there is a requirement that the person must know, or should know, that the information is relevant.

Clause 108 makes it an offence to conduct an air operation while in breach of the obligations under clause 86 (which relate to the obligations to provide the Director with evidence of an operator’s Australian air operator certificate with ANZA privileges and other details about the operator). This clause replaces section 46D of the current Act.

Clause 109 provides that the provisions of Schedule 2 apply. These relate to medical certification. Schedule 2 replaces Part 2A of the current Act. The provisions are re-organised but substantially similar in effect to Part 2A, except that—

• some changes are made in respect of the Director’s powers to issue a certificate relying on the concept of flexibility as set out in clause 5(4) of Schedule 2. In particular, the clause now deals with the circumstance where the Director is not satisfied as to whether or not the applicant meets the medical standards prescribed in the rules. It also refers to the Director exercising “judgment” rather than “medical judgment” to reflect the fact that there are a mixture of factors involved in the use of the flexibility test — not all of them medical factors:

• general directions and emergency directives issued under clause 25 of Schedule 2 will no longer be notified in the Gazette (reflecting changes already proposed in the Secondary Legislation Act 2021 to the equivalent provisions in Part 2A of the current Act).

Clause 110 is an offence provision relating to medical certification. It replaces section 46A of the current Act.

Clause 111 is an offence provision relating to making a fraudulent, misleading, or false statement in order to obtain a medical certificate. It replaces section 46B of the current Act with some changes to the requirements as to the state of mind of the person.

Clause 112 is an offence provision relating to failure to disclose medical information. It replaces section 46C of the current Act with some changes to the requirements as to the state of mind of the person.

Clauses 113 to 119 are new and provide for drug and alcohol testing as follows:

• a DAMP operator as defined in clause 113 must have a drug and alcohol management plan (a DAMP):

• the DAMP must provide for the testing of safety-sensitive workers (defined in clause 113) and must include a response plan for cases where the results of any test are non-negative:

• a DAMP operator must ensure that random testing of safety-sensitive workers is carried out:

• the Director may, in addition to any testing done by the DAMP operator, carry out drug or alcohol testing of safety sensitive workers of a DAMP operator:

• if a safety-sensitive worker refuses to consent to random testing or Director testing, or if testing of the worker returns a non-negative result, the DAMP operator must—

  • prohibit the worker from performing safety-sensitive activities until the worker is able to safely perform those activities; and

  • implement the response plan:

• if a person carrying out testing suspects on reasonable grounds that tampering has occurred, the test result must be treated as non-negative:

• the test results are not admissible in criminal proceedings other than under the Bill or the Health and Safety at Work Act 2015.

Subpart 6 provides for a number of matters to be specified in rules, including the classes of person who are DAMP operators.

Clause 120 is an interpretation provision.

Clause 121 provides that the Minister may confer a security designation on an aerodrome or navigation installation. There are various tier levels of security including Tier 1 and other levels that may be prescribed in the rules. The clause also provides that the responsibility for aviation security at a security designated aerodrome or navigation installation rests with the Police and the authorised aviation security provider(s) at the aerodrome or navigation installation.

Clause 122 provides for the Director to designate airside security areas within any security designated aerodrome or security designated navigation installation. Airside security areas are provided for in section 84 of the current Act.

Clauses 123 to 125 deal with the control of access to airside security areas.

Clause 126 is new and provides for the Minister to declare that an area within any security designated aerodrome or security designated navigation installation is a landside security area. The implication of this is that aviation security searching powers under subpart 2 are available in that area.

Clauses 127 to 133 provide for security checks of persons for aviation security purposes. They replace sections 77G to 77I of the current Act. However, clause 127(5) is new and provides that the Privacy Act 2020 does not prevent an agency from disclosing personal information to the Director in response to a request made by the Director under this clause. This is intended to have the same effect as described in respect of clause 99(5).

Clause 134 defines terms used in subpart 2.

Clause 135 sets out who may provide aviation security services. It replaces section 79(1) of the current Act but differs from that section in that it provides that an airline may provide aviation security services at a security designated aerodrome at which the airline is operating.

Clause 136 provides that the Minister must ensure that aviation security services are provided at all Tier 1 security designated aerodromes and at all security designated navigation installations.

Clause 137 sets out requirements for aviation security services providers other than AvSec. These requirements are that the provider—

• must hold an aviation document for the services:

• has only those functions and duties (being all or any of the functions and duties of AvSec) that are prescribed under the regulations or rules.

The requirement for AvSec (and its employees) to hold an aviation document for the provision of aviation security services is not carried forward. However, see clause 140.

Clause 138 replaces section 79A of the current Act but in a modified form. It provides that the Minister may by notice specify that only AvSec may provide aviation security services at all or any security designated aerodromes or security designated navigation installations.

Clause 139 sets out the functions and duties of AvSec. It replaces section 80 of the current Act but is focused on functions and duties. The specific search powers of aviation security officers are set out in clauses 142 to 145.

Clause 140 provides that the Director may require AvSec to comply with prescribed requirements that would apply to the holder of an aviation document for the provision of aviation security services.

Clause 141 requires the holder of an aviation document for an aviation security service to designate employees as aviation security officers. The powers to search in this subpart are conferred specifically on aviation security officers.

Clauses 142 to 145 set out the search powers of aviation security officers. These powers replace the powers under the current Act to conduct screening and searching at airports for aviation security purposes. The purpose of the search powers is to detect a relevant item or substance as defined in clause 134. The provisions of the current Act have been substantially rewritten with the aim of making them clearer. The powers are intended to correspond in substance with current powers, but with the following changes:

• while all searches of a person are with consent (see clause 144), there is provision for searching of a thing without consent if it is found attended at an airport or in any case where there is an imminent risk to aviation safety and security that requires an immediate response (see clause 145). A thing includes a vehicle (see clause 134):

• a passenger is taken for all purposes to consent to the searching of their hold baggage while it is being handled by the airline or inspected by a government agency prior to loading (see clause 144):

• it is made clear that explosive detection dogs can be used as a searching tool by aviation security officers (see clause 159):

• there is a new power for aviation security officers to search any person or thing immediately before entering, and while in, landside security areas declared under clause 126:

• the current Act does not deal with the searching of electronic devices, but the Bill provides that the power of search does not authorise an aviation security officer or any other person to access data in a device or to access data that is not in a device (see clause 142).

The term search is used in the Bill when providing for aviation security officers’ powers. Under the current Act, both screening and searching are referred to, but both are a type of search as that term is understood. Referring just to searching is intended to make the provisions clearer and easier to understand. The concept of a screening point remains in the Bill as a useful tool for defining where (and who or what) can be searched.

Clause 146 authorises an aviation security officer to stop a vehicle in a security enhanced area for the purpose of searching.

Clause 147 is modelled on section 80E of the current Act but expanded to cover additional areas of an airport where a person might be required to be subject to a search but fail or refuse to be searched. That is, it applies to searching in, or immediately before entry into, landside security areas, sterile areas, and security enhanced areas. It sets out the powers of aviation security officers in this case. These include—

• denying the person entry to the area or requiring the person to leave the area:

• detaining the person if they refuse, or if the officer suspects an offence against the Aviation Crimes Act 1972 or that a search of the person or a thing in their possession will disclose evidence of such an offence.

Clause 148 is modelled on section 80F of the current Act but expanded to cover additional areas of an airport to which it applies. It sets out powers of a constable in relation to a person who has failed or refused to be searched when required in, or immediately before entry into, a landside security area, sterile area, or security enhanced area. The power applies if the constable suspects an offence against the Aviation Crimes Act 1972 or that there is evidence of such an offence. The constable has a power to search the person or things in their possession and to take possession of items or substances relevant to the Aviation Crimes Act 1972.

The power differs from the current Act in that it provides, in relation to a search of an electronic device, that a constable is not authorised to access data in the device or to access data not in the device.

Clause 149 provides that section 12(2) and (3) of the Aviation Crimes Act 1972 applies in respect of searching under subpart 2. The effect of this is that if a passenger declines to allow himself or herself or his or her baggage to be searched, the carrier must refuse to carry the passenger or the passenger’s baggage.

Clauses 150 and 151 apply where a relevant item or substance is suspected when searching under subpart 2 or section 12 of the Aviation Crimes Act 1972. They provide for an aviation security officer to verify whether the item or substance is a relevant item or substance and determine whether it may lawfully be carried on an aircraft or into the relevant security area. If there is no lawful authority or reasonable excuse for the item or substance to be carried on an aircraft or into the relevant security area, it may be dealt with as specified in clauses 150(4) and 151(3). These provisions are modelled on and replace the powers to seize and detain items and substances in sections 80B and 80C of the current Act.

Clause 152 is new and applies where an aviation security officer searching in, or immediately before an entry into, a landside security area, sterile area, or security enhanced area—

• suspects the presence of a relevant item or substance; and

• has reasonable grounds to believe it may pose an imminent risk to aviation safety and security.

The clause provides the powers for dealing with the item or substance.

Clauses 153 to 156 replace sections 77A and 77B of the current Act. They enable the Minister (clauses 153 and 154) or the Director (clauses 155 and 156) to direct an authorised aviation security provider that all or any of the powers conferred on its aviation security officers by subpart 2 be used to detect any item or substance specified in the direction. The power to issue directions does not include a power to confer searching or seizure powers. It is a power to direct the use of powers set out elsewhere in subpart 2. However, a direction may specify certain items or substances to be searched for. This does expand the scope of what can be searched for in that once an item or substance is specified in a direction, it becomes a relevant item or substance (see paragraph (c) of the definition of relevant item or substance in clause 134). This is the same as the position under the current Act, but made clearer in the Bill.

It is proposed that directions under clauses 153 and 155 will (under regulations to be made for the purpose of section 74(1)(aa) of the Legislation Act 2019) be exempt from publication in respect of any material for which publication would prejudice the national security interests of New Zealand. This will replace the effect of section 77BA of the current Act. It is proposed that in some cases publication may hinder the preventative effects of any measures put in place to reduce threats to national security.

Under Part 5 of the Legislation Act 2019, directions under clauses 153 and 155 must be presented to the House of Representatives and are disallowable. However, this is subject to Schedule 3 of the Legislation Act 2019, which provides for exemptions from presentation requirements where compliance with presentation requirements would prejudice the national security interests of New Zealand.

Clause 157 provides a right of access for an aviation security officer to a security designated aerodrome or security designated navigation installation. It is substantially the same as section 83 of the current Act.

Clause 158 provides that section 12(6) and (7) of the Aviation Crimes Act 1972 applies to searching under clause 142. This carries forward the position under sections 80B and 80C of the current Act.

Clause 159 is new and is intended to make it clear that aviation security officers may use aviation security dogs when searching under subpart 2, patrolling, or exercising any other function under the Bill.

Clause 160 is new. It provides for a government agency or carrier to alert aviation security if the agency or carrier detects an item or substance that has arrived in an incoming flight and that may be dangerous goods. The clause provides an aviation security officer with powers to investigate and deal with the item or substance.

Clause 161 provides for the relationship between subpart 2 and the Aviation Crimes Act 1972. Although there is a close relationship between these regimes, neither is intended to limit or affect the other except as expressly provided in subpart 2.

Clause 162 provides an aviation security officer with a power of arrest in respect of suspected crimes against the Aviation Crimes Act 1972 or section 45 of the Arms Act 1983. It is substantially the same as section 85 of the current Act.

Clause 163 replaces section 86 of the current Act. It sets out duties and powers of a constable concerning a person who has been arrested under clause 162 and delivered to the constable.

Clause 164 replaces section 87 of the current Act and provides that a constable has all the powers that an aviation security officer has under civil aviation legislation.

Clause 165 is new and confers the powers of an aviation security officer on a member of the Armed Forces authorised under the Defence Act 1990 to provide aviation security services.

Clause 166 provides immunity from personal liability for an aviation security officer when taking any action under clauses 150 to 152 in good faith.

Clause 167 is an offence provision relating to unauthorised presence in an airside security area or security enhanced area. It is similar to section 54 of the current Act.

Clause 168 is new and makes it an infringement offence to—

• be present in an airside security area without being searched (where searching was required); or

• be present in an airside security area or a security enhanced area without the required identification.

Clause 169 makes it an offence to impersonate an aviation security officer. It is substantially the same as the offence in section 55(1)(a) of the current Act.

Clause 170 makes it an offence to obstruct an aviation security officer or authorised security person (see clause 120). It replaces section 55(1)(b) of the current Act (which applies only to aviation security officers).

Clause 171 is new. It makes it an offence to threaten or assault an aviation security officer or authorised security person.

Clause 172 is new. It makes it an offence to obstruct or interfere with an aviation security dog.

Clause 173 is new. It makes it an offence to kill or injure an aviation security dog.

Clause 174 makes it an offence to provide false or misleading information, or to fail to disclose relevant information, for the purpose of a security check under clause 127. It replaces section 56A of the current Act.

Subpart 1 relates to international air services licensing. It replaces Part 8A of the current Act with a number of changes.

Clause 175 defines terms used in subpart 1. There are new or amended definitions of capacity, class 1 non-scheduled commercial international flight, class 2 non-scheduled commercial international flight, New Zealand international airline, non-scheduled commercial international flight, restricted scheduled international air service, and scheduled international air service.

Clause 176 is new and provides that the licensing authority may determine in a particular case that a series of flights is a scheduled international air service. The criteria specified in the definition of scheduled international air service in Part 8A of the current Act are replaced by factors for the licensing authority to consider when making the determination under this clause. A person deciding whether an operation they wish to carry on is one to which clause 177 applies may request a determination prior to making an application. If the person applies for a licence the licensing authority may make the determination as part of considering the application.

Clause 177 provides that a person who wishes to carry on in New Zealand any scheduled international air service must apply, in accordance with this Act, for a scheduled international air service licence. The provision in Part 8A of the current Act for open market aviation licences is not carried forward.

Clause 178 provides for the making of the application.

Clause 179 sets out when the licensing authority is the Minister and when it is the Secretary. This is substantially similar to the current Act.

Clause 180 provides that an application relating to a restricted scheduled international air service must be notified, and time provided for people to make submissions on the application.

Clause 181 sets out how the licensing authority must consider and determine the application.

Clause 182 provides that the licensing authority may grant the application (with or without conditions) or refuse the application.

Clause 183 provides for the duration of the licence to be as the licensing authority considers appropriate (including an indefinite term).

Clause 184 provides a process for the renewal of a licence. If the licence includes a restricted scheduled international air service for a New Zealand international airline, notification requirements apply.

Clause 185 provides for the variation of terms and conditions of a licence. The same considerations apply as for the granting of a licence with any necessary modifications (see clause 181(1)).

Clause 186 provides that the holder of a licence under this subpart may operate non-scheduled international flights without authorisation under clause 190.

Clauses 187 and 188 set out requirements on licensees relating to insurance against liability and the making of returns.

Clause 189 provides for the suspension or revocation of a licence. It combines and replaces sections 87ZC and 87ZD of the current Act. Currently, a breach of conditions must be wilful to be grounds for revocation. Under this clause, any failure to comply with civil aviation legislation will be grounds for suspension or revocation.

Clause 190 provides that a class 1 non-scheduled commercial international flight must be approved by the Secretary and specifies criteria for the Secretary’s decision. Non-scheduled commercial international flights are divided into 2 categories (class 1 and class 2, see clause 175). A class 1 flight requires approval and a class 2 flight does not.

Clause 191 provides that the operation of services to which this Part applies are subject to regulations and rules.

Clause 192 provides that subpart 1 is not in force in Tokelau.

Clause 193 provides that it is an offence to carry on a schedule international air service without a licence or contrary to the terms of a licence.

Clause 194 is an offence provision relating to operating an unauthorised non-scheduled international flight.

Clauses 195 to 205 replace Part 9 of the current Act with some modifications. Also, section 89 of the current Act, which relates to the issue of commission regimes, is not carried over.

Clause 196 provides that a person may apply to the Minister for an authorisation under this subpart for a contract, arrangement, or understanding relating to the conduct by the person (in co-operation with other parties) of international carriage by air. The purpose of this would be to gain an approval by the Minister of a contract, arrangement, or understanding that might otherwise contravene certain provisions of the Commerce Act 1986.

Clause 197 provides for the giving of notice by the Minister in relation to an application. The Minister must invite written representations regarding the application.

Clauses 198 and 199 provide further for how the Minister may deal with the application.

Clause 200 contains the test to be applied by the Minister in relation to the application for approval. The test has been modified from that in Part 9 of the current Act for greater consistency with the test for restrictive trade practices in section 61(6) of the Commerce Act 1986.

Clause 201 provides that the Minister must give public notice of a proposed decision to grant or decline an authorisation and invite submissions.

Clause 202 requires the Minister to give public notice of the final decision on the application.

Clause 203 provides a power for the Minister to vary or revoke an authorisation in certain circumstances.

Clause 204 replaces section 90(1) of the current Act and allows the Minister to authorise a tariff (as defined in clause 195). The criteria in section 90(2) of the current Act are not carried over.

Clause 205 provides that certain provisions of the Commerce Act 1986 do not apply in respect of negotiations for, or provisions of, a contract, arrangement, or understanding relating to international carriage by air where an authorisation is given under subpart 2.

Clauses 206 to 217 provide for New Zealand’s implementation of the carbon offsetting and reduction scheme for international aviation (CORSIA) set out in Volume IV of Annex 16 to the Convention. Subpart 3 provides that—

• a New Zealand airline operator will be an “eligible New Zealand operator” if it operates internationally and those flights produce annual emissions of greater than a prescribed amount:

• the operator will be required to have an emissions monitoring plan (see clause 208) and submit emissions reports to the Secretary for Transport (see clause 209):

• the Secretary will calculate the offsetting requirements for the operator (see clause 211):

• the operator must offset these using emissions units that meet ICAO criteria (as set out in Volume IV of Annex 16, chapter 4):

• the operator must submit emissions unit cancellation reports to the Secretary.

Clause 216 provides that the Secretary may provide ICAO with information the Secretary holds in relation to administering this subpart.

Clause 217 provides offences for breaches by an eligible New Zealand operator of the requirements of this subpart.

Clauses 218 and 219 define terms for the purpose of Part 7.

Subpart 2 provides for a system of registration of airport operators and sets out the powers and obligations of those operators. It replaces the Airport Authorities Act 1966. That Act will be repealed after a transitional period of 5 years (see clause 474 and clauses 37 to 41 of Schedule 1).

Clause 220 requires the Secretary to maintain a register of airport operators and airports.

Clause 221 states that—

• the operator of an aerodrome, or the proposed operator of an aerodrome not yet in operation, in which space is, or is to be, allocated to 1 or more relevant government agencies must apply to the Secretary to be registered:

• the operator of any other aerodrome, or the proposed operator of any other aerodrome not yet in operation, may apply to be registered.

Clause 222 requires the Secretary to register the applicant if the Secretary is satisfied of the matters set out in subclause (1). The registration must specify the area of land covered by the registration.

Clause 223 provides that the airport operator may apply to the Secretary for the area of land covered by the registration to be varied.

Clause 224 provides that a registration may cover 2 or more airports.

Clause 225 provides for the grounds on which the Secretary may suspend or cancel a registration.

Clause 226 provides that an aerodrome operated by an airport operator must be operated as a commercial undertaking. This does not apply to an aerodrome that is a council-controlled organisation under the Local Government Act 2002 because the requirements of that Act would apply in that case.

Clause 227 provides that for the purposes of the Public Works Act 1981, an airport operated by an airport operator that is not a local authority must be treated as a Government work.

Clauses 228 to 230 are based on aspects of section 3A of the Airport Authorities Act 1966 concerning land and other property with some clarifications. They provide that—

• the Crown or a local authority may transfer to an airport operator any land or other property that is part of the airport or being used, or held for future use, for the purposes of the airport:

• the Reserves Act 1977 does not apply to the transfer but the approval of the Minister to the transfer is required in certain cases:

• sections 40 to 42 of the Public Works Act 1981 do not apply to the transfer but, for the purpose of sections 40 and 41 of the Public Works Act 1981, the land is to be treated after the transfer as if the Crown holds it:

• if the land is later sold, the chief executive of Land Information New Zealand will deal with matters concerning sections 40 and 41 of the Public Works Act 1981.

Clause 231 is based on sections 4A and 4B of the Airport Authorities Act 1966 and provides that an airport operator may set charges for the use of the airport or the services or facilities of the airport. It sets out consultation and other requirements.

Clause 232 provides that an airport operator must consult substantial customers (as defined in clause 219) about proposed capital expenditure relating to identified aerodrome activities (as defined in clause 218). This clause is based on sections 4C and 9B of the Airport Authorities Act 1966. The thresholds triggering the obligation to consult have been changed from a measure based on the value of the assets of an airport company to specified amounts based on the annual passenger movements of an airport operator.

Clause 233 is new and provides that an airport operator must consult substantial customers and relevant government agencies before approving a plan for future development of land or infrastructure at the airport.

Clause 234 provides that an airport operator may terminate a lease it has granted of buildings, installations, or land within the airport (as to the whole or part of the property leased) if the property is required for the purposes of the airport. This is subject only to the payment of compensation for improvements.

Clause 235 provides for the application of other legislation to airport subdivisions and laying out of access roads.

Clause 236 provides that an airport operator may make bylaws. The matters on which bylaws may be made are narrower than that under section 9 of the Airport Authorities Act 1966. In particular, the ability to regulate traffic and parking places is confined to roads other than those that would come within the definition of a road under the Land Transport Act 1998. Bylaws will no longer be approved by Order in Council.

Clause 237 provides for consultation requirements for the making of bylaws. It is modelled on section 22AD of the Land Transport Act 1998.

Clause 238 relates to the publication and proof of bylaws. It is modelled on section 22AE of the Land Transport Act 1998.

Clause 239 provides that the Minister may amend, replace, or disallow a bylaw in certain circumstances. This power is new and is modelled on section 22AC of the Land Transport Act 1998.

Clause 240 provides that a breach of a bylaw is an offence. There is also provision for these offences to be prescribed as infringement offences (see subpart 16 of Part 9).

Clause 241 gives effect to provisions in Schedule 3 about aerodromes operated as a joint venture by and between the Crown and another person.

Clauses 242 to 251 are new and provide for the giving of enforceable regulatory undertakings by an airport operator regarding providing space or amenities for government agencies to exercise or carry out functions, powers, or duties at an airport (a space requirement).

Clause 242 provides that an operator must provide the Secretary with an enforceable regulatory undertaking if 1 or more space requirements apply in relation to the airport, or if the airport operator has been notified of a future intended space requirement. The purpose of the undertaking is to set out for the Secretary how the operator will meet the space requirements.

Clause 243 sets out requirements for the operator to consult with the relevant government agencies and the time within which the undertaking must be given.

Clause 244 provides for the decision of the Secretary on the undertaking.

Clause 245 specifies the date on which an undertaking becomes enforceable.

Clause 246 requires the airport operator to review an undertaking.

Clauses 247 to 251 provide various methods of enforcement of an undertaking.

Clause 252 is new and authorises the Secretary to exempt an airport operator or class of airport operator from certain requirements of subparts 2 and 3.

Clause 253 replaces section 98 of the current Act dealing with the sale of alcohol at international airports.

Clause 254 sets out an additional purpose of the Bill relating to Part 8.

Clauses 255 to 269 replace Part 9A of the current Act implementing international conventions relating to documents of carriage and rules of liability in relation to international carriage by air. The provisions are substantially the same as Part 9A except that provision is made for the possibility of a claim being pursued in the Disputes Tribunal except in any matter relating to liability for passenger injury or death.

Clauses 270 to 284 replace Part 9B of the current Act providing for liability for damage caused by delay in relation to domestic carriage by air. The provisions are substantially the same as Part 9B except that—

• provision is made for the possibility of a claim being pursued in the Disputes Tribunal:

• provision is made for regulations to specify types of flights that are excluded from the application of subpart 2 (see clause 273):

• certain provisions of sections 91X, 91ZE, and 91ZF of the current Act relating to the liability of a carrier for its employees are omitted as unnecessary:

• section 91ZB of the current Act is not carried forward because it is unnecessary:

• it is clarified that although a contract must not provide for liability that is lower than that provided for under this subpart, it may provide for more advantageous remedies.

Clause 285 is a power of entry and inspection. An inspector appointed by the Director (see subpart 7) may enter and inspect an aviation place. The power is available for the purpose of performing any function of the Director or the CAA, or for the purposes of the ANZA mutual recognition agreements. It is modelled on section 168 of the Health and Safety at Work Act 2015 (as are most of the provisions in subpart 1) and replaces the power of inspection in section 15(2) of the current Act. The new clause includes the power to take photographs, require the production of information, and require the making of statements. It is not necessary for the inspector to be physically present at the aviation place to do the inspection (see subclause (2)). The power is also available in respect of a place that was, but is no longer, an aviation place.

Clause 286 provides that the power of entry and inspection must not be used in a home or marae unless a warrant to enter the home or marae for that purpose is first obtained.

Clause 287 requires the inspector to leave notice of entry at the place if the inspector is unable to find any person in charge at the place.

Clause 288 applies where an inspector exercises the power of entry under clause 285 or 286. It provides that the inspector may take samples or seize and retain certain things for the purposes set out in subclause (1).

Clause 289 provides that the Director may authorise a person to enter and search a place, vehicle, or other thing for the purpose of finding evidence of a suspected contravention of civil aviation legislation. The entry and search may be done with consent or under a warrant.

Clause 290 provides that an inspector who finds evidence of a contravention of civil aviation legislation while exercising powers under clause 285 or 286 is not required to obtain a search warrant in order to continue exercising those powers.

Clause 291 replaces section 24(3A) of the current Act and provides that the powers under clauses 283 and 287 cannot be used to access a cockpit voice recording or cockpit video recording.

Clause 292 enables an inspector to direct that an aviation participant or person in charge of an aviation place undergo or conduct examinations, tests, inquiries, inspection, or monitoring. For example, an inspector may require an aviation participant to undergo monitoring or testing by a person other than the inspector or require the aviation participant to do testing and monitoring themselves. This clause replaces section 15(1) of the current Act.

Clause 293 is a power for an inspector to require a person’s identifying details.

Clause 294 provides that an aviation participant has a duty to assist an inspector exercising powers in inspection, etc.

Clause 295 provides immunity from liability for an inspector or a person assisting an inspector in the course of exercising powers under the Bill.

Clause 296 makes it an offence for a person to fail to provide their identifying details when required.

Clause 297 makes it an offence to hinder or obstruct an inspector.

Clause 298 makes it an offence to impersonate an inspector.

Clause 299 makes it an offence to fail to comply with an inspection or monitoring requirement imposed under clause 292.

Clauses 300 to 303 are new and provide that an inspector may issue an improvement notice. The purpose of an improvement notice is to require a person to take specific action to remedy or prevent a contravention of civil aviation legislation. It is an offence to fail to comply with the notice.

Clauses 304 to 307 are new and provide that an inspector may issue a non-disturbance notice. The purpose of a non-disturbance notice is to preserve, or prevent disturbance of, a site at which a notifiable event (see clause 305(5)) has occurred or in any other circumstance. The notice must specify the non-disturbance measures to be taken. It is an offence to fail to comply with the notice.

Clauses 308 to 314 are general provisions about notices, including requirements about how they are issued, varied, or cancelled. Clause 313 requires a person to whom the notice is issued to display it at the place to which it relates.

Clauses 315 to 317 are substantially similar to section 21 of the current Act. Clause 315 provides that the Director or other specified person (as defined in clause 289) may apply for a warrant to—

• prohibit or impose conditions on the operation or use of an aerodrome:

• detain an aircraft or any aircraft of a particular class:

• seize an aeronautical product or any aeronautical products of a particular class:

• prohibit or impose conditions on the operation of an aircraft or aircraft of a particular class:

• prohibit or impose conditions on the use of any aeronautical product or any aeronautical products of a particular class.

Clause 316 provides that the Director may, without warrant, exercise similar powers to those in clause 315 in cases where prompt action is necessary to prevent danger. The powers available under this clause are more focused on conditions controlling the operation or use of an aerodrome, aircraft, or aeronautical product.

Clause 317 provides that any detention or seizure under clause 315 or 316 may be maintained for only as long as necessary in the interests of safety and security.

Clause 318 is new and applies to an aircraft that is designed to be operated without a person on board (a remotely piloted or autonomous aircraft). It applies if a constable or a response officer (an officer appointed for the purpose of subpart 4) believes that—

• an aircraft that is designed to be operated without a pilot on board is being, or is about to be,—

  • operated in the commission of an offence under civil aviation legislation; or

  • used in the commission of an imprisonable offence under any other Act; or

  • operated in a manner that may endanger people or property; and

• it is necessary to take action to prevent the offending from being committed or continuing, or to avert the danger; and

• the aircraft has no person on board.

Clause 318(2) confers powers to deal with the aircraft. These include preventing it from taking off, seizing it, or destroying it.

Clause 319 requires that entry into a home or marae to exercise the powers in clause 318 may be done only under warrant.

Clause 320 provides that reasonable means may be used to bring the aircraft under control.

Clause 321 provides that reasons must be given for detention, seizure, or destruction of an aircraft under clause 318.

Clause 322 provides that any detention or seizure under clause 318 may be maintained for only as long as the constable or response officer considers necessary to prevent the danger to people or property or the commission of an offence.

Clause 323 provides immunity from liability for a constable or response officer for acts done in the course of exercising powers under clause 318.

Clauses 324 and 325 are modelled on the power of exemption conferred on the Director of Land Transport under section 168D of the Land Transport Act 1998. Clause 324 provides a power for the Director of Civil Aviation to grant individual or class exemptions from requirements of regulations and rules. The Director must be satisfied of the matters in clause 324(3) before granting the exemption. The power to exempt from requirements of a rule is not available if the rule provides that no exemptions from its requirements may be granted. The power to exempt from requirements of a regulation is available only if the regulations specify that the exemption power under this clause is available.

Clauses 326 to 332 are modelled on sections 123 to 129 of the Health and Safety at Work Act 2015. Clause 326 enables a person to give a written enforceable undertaking to the regulator in respect of a contravention or alleged contravention of civil aviation legislation. The giving of an undertaking is not an admission of guilt (clause 326(3)). An enforceable undertaking is voluntarily given, and provides the Director with a discretion whether to accept or reject the undertaking see clause 327. Clauses 331 and 332 deal with the withdrawal or variation of an undertaking and the enforcement of an undertaking.

Clause 333 to 338 provide for the Director to appoint inspectors and response officers.

Clauses 339 and 340 replace section 25 of the current Act relating to a power of entry for Airways. Airways is authorised to enter onto any land to access, inspect, repair, and maintain equipment installed before January 1988.

Clauses 341 to 343 are new.

Clause 342 provides protections on the admissibility of accident and incident notifications as follows:

• an accident notification under clause 49(1) or (4) is not admissible in a criminal proceeding against the individual who provided the notification:

• an accident notification under clause 49(3) is not admissible in a criminal proceeding against the individual who directly or indirectly (see clause 342(2)(b)) provided it.

However, neither protection applies if the criminal proceeding concerns the falsity of the information.

Clause 343 confers qualified protection from offence proceedings (see the definition of law enforcement action in clause 341) for a person who directly or indirectly (see clause 341(2)(a)(ii)) provides an incident notification under clause 49(3). The Director may take law enforcement action against the person in relation to the incident only if the Director is satisfied that the public interest in taking action in the circumstances outweighs any adverse impact that the proceeding will have on further accident or incident notifications. Clause 343(2) provides that certain matters (eg, recklessly causing unnecessary danger or repeated behaviour causing unnecessary danger) will justify prosecution under the public interest test.

Clauses 344 to 346 are new and have no counterpart in the current Act. The provisions are modelled on the protection provided for cockpit voice and video recordings under Part 3 of the Transport Accident Investigation Commission Act 1990 (which implemented paragraph 5.12 of Annex 13 of the Convention relating to the protection of accident and incident investigation records).

Clause 344 defines flight data recorder and flight data recording.

Clause 345 provides that a flight data recording from an aircraft is not admissible against a member of the flight crew of the aircraft in any criminal proceedings under the Bill or under any other Act. This is subject to an order of a court that the evidence is admissible, applying the test in clause 345(3). Unlike the regime for cockpit voice and video recordings, the jurisdiction to order that a flight data recording be admitted as evidence is not confined to the High Court.

The ability to obtain cockpit voice recordings and cockpit video recordings is restricted (see clause 291 and sections 14C and 14P of the Transport Accident Investigation Commission Act 1990). These limits do not apply to the flight data recordings to which clauses 344 and 345 apply.

Clause 346 provides that subpart 10 does not limit or affect the application of Part 3 of the Transport Accident Investigation Commission Act 1990 in relation to a cockpit voice recording or cockpit video recording.

Clauses 347 to 352 are substantially similar to sections 59 to 64 of the current Act. These clauses—

• provide machinery provisions dealing with the situation where the holder of an aviation document is disqualified by a court from holding or obtaining an aviation document:

• deal with appeals against disqualification.

Clauses 353 to 356 are new. They provide for a court to grant an injunction—

• restraining a person from engaging in conduct that constitutes or would constitute a breach of civil aviation legislation:

• requiring a person to do an act or thing if—

  • the person has refused or failed, or is refusing or failing, or is proposing to refuse or fail to do that act or thing; and

  • the refusal or failure was, is, or would be a breach of civil aviation legislation.

The injunction may be on an application made by the Director, the Secretary, or any other person.

Clauses 357 to 363 are new. Clause 357 provides that the Minister, on the grounds of national security, may—

• direct that an application for an aviation document specified in the rules as requiring a national security assessment not be granted (see clause 74); or

• direct that restrictions or conditions be imposed on an aviation document issued to a person under this Act; or

• disqualify a person from holding or obtaining an aviation document or a particular aviation document; or

• prohibit a person from operating, maintaining, servicing, or doing any other act in respect of any aircraft, aerodrome, aeronautical product, or aviation-related service.

Clause 358 requires reasons to be given for the Minister’s decision. Clause 359 provides that a person about whom a notice is given may make a complaint in accordance with section 171 of the Intelligence and Security Act 2017 about any advice given by an intelligence and security agency to the Minister. If the notice relates to a matter on which there is also a right of appeal (eg, where it relates to the granting of an aviation document), the review mechanism in this clause applies in respect of the notice by the Minister under clause 357. There is no right of appeal to a court in respect of the advice given to the Minister.

Clauses 360 to 362 provide for the effects of an order by the Minister under clause 357 disqualifying a person from holding or obtaining an aviation document.

Clause 363 is an offence provision relating to compliance with a notice given by the Minister under clause 357.

Clause 364 creates an offence relating to communicating false or misleading information to the Secretary, the CAA, or the Director. It replaces the offence in section 49(1)(a) of the current Act. This offence now also applies to information given to the Secretary.

Clause 365 makes it an offence to obstruct or impede an inspector or other person authorised by the Director or the Secretary. This offence replaces section 50 of the current Act but differs in that the new offence applies only if the person intended to obstruct or impede. It now also applies to obstructing or impeding a person appointed by the Secretary.

Clause 366 is an offence relating to disobeying a direction not to enter an area in which technical facilities for civil aviation are operated. It replaces section 51 of the current Act.

Clause 367 creates an offence for contravening any requirement in or under the Bill to maintain (or provide) accurate records. It replaces section 52 of the current Act.

Clause 368 creates an offence for failure to obey an emergency rule or a prohibition or condition imposed by the Director under clause 315 or 316. It replaces section 53 of the current Act.

Clause 369 makes it an offence for a person to operate a New Zealand registered aircraft, or a New Zealand person to operate any aircraft, in a flight over a foreign country or territory without authority or for an improper purpose. It replaces section 53A of the current Act.

Clause 370 provides a court with power to order an additional penalty when convicting a person for certain offences (listed in clause 370(1)) where the offence was committed in the course of producing a commercial gain. It replaces section 47 of the current Act.

Clauses 371 to 379 prescribe the grounds for issuing an infringement notice for an infringement offence (see clause 375) and set out other provisions relating to the infringement offences under the Act. Generally, the Director or a person authorised by the Director will issue infringement notices. However, provision is also made for a person authorised by an airport operator to issue infringement notices for any infringement offences against airport bylaws (see clauses 234, 370, and 408(1)(d)).

Clauses 380 and 381 provide time limitation rules for the bringing of prosecutions under the Bill by the Director. They replace section 65 of the current Act but are modelled on sections 146 and 147 of the Health and Safety at Work Act 2015 and contain a number of changes. The limitation period under section 65 of the current Act (for any prosecution, not just one by the Director) is 12 months after the date on which the offence was committed. The limitation period in the Bill applies only to proceedings brought by the Director and is 12 months from after the date on which the incident, situation, or set of circumstances to which the offence relates first became known, or ought reasonably to have become known, to the Director. Clause 380 also provides a specific limitation period for the bringing of a prosecution where an enforceable undertaking has been given in relation to the offence. Clause 381 allows the Director to apply to the District Court for an extension of the 12-month limitation period. The test the court must apply is in clause 381(3).

For a prosecution brought by a person other than the Director, section 25 of the Criminal Procedure 2011 would apply.

Clause 382 applies to certain specified offences (including the large number of offences created by regulations made under clause 408). It provides that any exception, exemption, proviso, excuse, or qualification the defendant may seek to invoke in respect of those offences must be proved by the defendant. This clause replaces sections 65AA and 100A of the current Act.

Clauses 383 to 385 relate to matters of evidence and proof in offence-related proceedings and the proof of rules. They replace section 71 of the current Act.

Clauses 386 and 387 are modelled on sections 160 and 161 of the Health and Safety at Work Act 2015. They relate to the attribution to an individual or other legal person of the state of mind, or conduct, of their employees or agents.

Clauses 388 to 407 carry over the provisions in the current Act relating to prohibited conduct of passengers on aircraft. The offences themselves (see clauses 393 to 402) are substantially similar to the existing offences in Part 5A of the current Act except—

• requirements as to the state of mind of the person have been changed in the offence relating to interference with an aircraft (see clause 397):

• the offence of smoking on board an aircraft is extended to prohibit vaping.

The penalties for, and procedure for dealing with, unruly passenger offences are substantially the same as in the current Act.

Subpart 1 contains regulation-making powers relating to—

• creating offences for breaches of rules and airport bylaws and prescribing other miscellaneous matters:

• the carbon offsetting and reduction scheme for international aviation (CORSIA):

• requiring information from aviation participants:

• requiring disclosure of information by specified aviation participants:

• international carriage by air and the Montreal Convention:

• fees, charges, and levies:

• the control of the sale of alcohol at international airports:

• transitional matters relating to the coming into force of the Bill.

Some of these regulation-making powers are new and others replace existing regulation-making powers.

There is power to impose levies in sections 42A to 42D of the current Act, but there are some changes in the Bill relating to levies, including the following:

• the purposes for which levies may be imposed now include the purpose of enabling the carrying out of the Secretary’s functions under the Bill (as well as the existing purpose of enabling funding of the Authority’s functions):

• levies may be imposed not just on those who are required to hold an aviation document but on any category of persons:

• levy orders are not confirmable instruments:

• there is a new power for the Director to audit levy returns:

• the offences in clause 423 (relating to failure to make returns about levies or making false or misleading returns) are new.

Clauses 424 to 426 replace sections 41(4) and 42 of the current Act relating to the recovery of fees, charges, and levies and the ability of the Director to decline to process an application or provide a service in the case of unpaid fees, charges, or levies.

Clause 429 provides that material may be incorporated by reference in secondary legislation made under the Bill. This clause replaces section 36 of the current Act, which provides for incorporation by reference in rules. This clause carries over the provision in the current Act for amendments to material incorporated by reference to be treated also as incorporated by reference without the need to specifically amend the secondary legislation. This aspect is different to the standard provisions for incorporation by reference that would apply under Part 2 of the Legislation Act 2019.

Clause 430 provides for the Director to issue airworthiness directives. It is substantially the same as the existing power in section 72I of the current Act.

Clauses 431 to 433 are new. They are modelled on similar provisions in the Land Transport Act 1998 and the Maritime Transport Act 1994. They provide for any matter that could be included in a regulation or rule to be dealt with in a transport instrument if the criteria in clause 431(1) are met. A transport instrument may be made by the Secretary or the Director (as specified in the regulation or rule providing for that transport instrument). Clause 433 specifies consultation requirements.

Clauses 434 to 443 carry forward sections 104 to 113 of the current Act relating to the Convention on International Interests in Mobile Equipment (the Cape Town Convention) and the protocol to that Convention specifically on aircraft equipment (the Aircraft Protocol). The Cape Town Convention and the Aircraft Protocol provide for a system of registration of interests held in aircraft and aircraft equipment, for example, lenders’ security interests and the interests of lessors of the property. The system is designed to facilitate the financing of the acquisition and use of aircraft and equipment by protecting the interests of those financing it. The registration system is administered in New Zealand by the Director.

Copies of New Zealand’s declarations under the Cape Town Convention and the Aircraft Protocol may, under clause 437, be issued by Order in Council. An order under that clause is exempt from the disallowance under the Legislation Act 2019 (see Schedule 3 of that Act as amended by Schedule 9 of the Bill). An existing order, the Civil Aviation (Cape Town Convention and Aircraft Protocol Declarations) Order 2010, is carried over by the Bill (see clause 46 of Schedule 1).

Clauses 444 to 448 carry forward sections 66 to 70 of the current Act relating to appeals. A person may appeal to the District Court against a specified decision (see clause 444(3)) if another clause in the Bill gives the person a right of appeal.

Clauses 449 to 455 relate to powers of delegation. They replace sections 22 to 23C of the current Act.

Clauses 456 and 457 are new. They are modelled on sections 109A and 109B of the Land Transport Management Act 2003. Clause 456 allows the CAA, in the circumstances set out in the clause, to publish or disclose information it obtains or a document it gains access to in performing or exercising any function, duty, or power under civil aviation legislation. Clause 457 allows the CAA to share information with a designated agency or an overseas agency (see clause 457(6)) if the CAA thinks the information may assist the agency in the performance or exercise of the designated agency’s functions, duties, or powers.