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Civil Aviation Amendment Bill (Consistent) (Section 27(1)) [2003] NZBORARp 28 (20 June 2003)
Last Updated: 27 March 2021
Civil Aviation Amendment Bill
20 June 2003
Attorney-General
Legal Advice
Civil Aviation Amendment Bill:
Consistency With The New
Zealand Bill Of Rights Act 1990
Introduction
- We
have considered whether the Civil Aviation Amendment Bill (the Bill) (PCO
5160/10) is consistent with the New Zealand Bill of Rights
Act 1990 ("Bill of
Rights Act"). We understand that this Bill will be considered by the Cabinet
Legislation Committee at its meeting
on Thursday 26 June
2003.
Conclusion on consistency of the Bill with the Bill of
Rights Act
- We
have concluded that the Bill does not appear to be inconsistent with the rights
and freedoms affirmed by the Bill of Rights Act.
However, the Bill does raises
certain issues that we wish to draw to your attention.
Overview
of the Bill
- This
Bill seeks to make a number of unrelated amendments to the Civil Aviation Act
1990. The first part of the Bill puts in place
an agreement between the New
Zealand and Australian Governments to allow Australian airlines to operate in
New Zealand under Australia's
domestic aviation certification and safety
oversight arrangements. The Australian Government will enact legislation to
enable New
Zealand airlines to operate in Australia on a similar basis. The
agreement is intended to reduce regulatory barriers to participation
in aviation
activity. The safety regulatory regimes in both countries are similar. The
second part of the Bill inserts a new range
of offence provisions designed to
address the problem of unruly passengers on domestic and international flights.
The Bill also re-enacts
provisions of the Carriage by Air Act 1967 relating to
liability for delay in a domestic air service.
ISSUES OF
CONSISTENCY WITH THE BILL OF RIGHTS ACT
Section 27(1) Observance of the principles of natural justice
- Clause
7 of the Bill inserts a new Part into the Civil Aviation Act relating to the
mutual recognition agreement. New section 11C
of the Act would enable the New
Zealand Director of Civil Aviation to issue a temporary stop notice to an
Australian air operator
operating in New Zealand if the Director considers that
that operator poses a serious risk to civil aviation safety in New Zealand.
The
operator must immediately cease operations for the period specified in that
notice, otherwise the operator commits an offence
(new section 46E) punishable
by a fine. The Director must also advise the Australian aviation authority of
the fact that it has imposed
the notice (section 11E).
- We
consider that section 11C appears to give rise to issues under section 27(1) of
the Bill of Rights Act. Section 27(1) provides
that every person whose interests
are affected by a decision by a public authority has the right to the observance
of the principles
of natural justice. One of the fundamental principles of
natural justice is the right to be heard. As the Director of Civil Aviation
may
temporarily stop an air operator from working in this country without prior
notification, we consider that section 11C raises
issues of consistency with
section 27(1) of the Bill of Rights Act.
- The
Court of Appeal has stated that observance of the principles of natural justice
is a flexible concept and is very much fact
specific.[1] We have
therefore taken note of the fact that the notice can only be imposed for a
limited specific reason, and even then for a limited
period (7 days). We
understand that the purpose of the notice is to enable the New Zealand Director
of Civil Aviation to alert the
Australian Civil Aviation Safety Authority to a
safety issue while taking interim steps to address an immediate safety concerns.
The Director must provide the operator with reasons for his or her decision -
although a failure to do so will not invalidate the
decision (new section 11D).
And while the Australian Director for Civil Aviation may decide to take further
steps under the powers
of the Australian regulatory framework as a result of the
notice, we understand that this framework does provide the operator with
an
opportunity to be heard.
- We
have concluded that new section 11C does not appear to be prima facie
inconsistent with section 27(1). Despite this, we have gone
on to consider
whether section 11C places reasonable limits on section 27(1) in Bill of Rights
terms. We are of the opinion that
it does for the reasons set out above.
- We
therefore consider that new section 11C appears to be consistent with section
27(1) of the Bill of Rights Act.
CONCLUSION
- On
balance, we have concluded that the Bill does not appear to be inconsistent with
the Bill of Rights Act. In accordance with your
instructions, we attach a copy
of this opinion for referral to the Minister of Justice. A copy is also attached
for referral to the
Associate Minister of Transport, if you
agree.
Boris van Beusekom Legal Adviser Bill of Rights/Human Rights
Team
|
Val Sim Chief Legal Counsel Office of Legal Counsel
|
cc Minister of Justice
Associate Minister of Transport
Disclaimer
In addition to the general disclaimer for all documents on this website,
please note the following: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the Civil
Aviation Amendment Bill 2003. It should not be used or acted upon for any other
purpose. The advice does
no more than assess whether the Bill complies with the
minimum guarantees contained in the New Zealand Bill of Rights Act. The release
of this advice should not be taken to indicate that the Attorney-General agrees
with all aspects of it, nor does its release constitute
a general waiver of
legal professional privilege in respect of this or any other matter. Whilst care
has been taken to ensure that
this document is an accurate reproduction of the
advice provided to the Attorney-General, neither the Ministry of Justice nor the
Crown Law Office accepts any liability for any errors or omissions.
[1] Drew v
Attorney-General [2001] NZCA 207; [2002] 1 NZLR 58
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