The Bill seeks to replace the current legislation with “a single, modern statute that will provide a platform for safety, security, and economic regulation of civil aviation”. Nick Crang and Professor Jeremy Finn addressed the select committee on behalf of the Law Society and identified some aspects of the Bill which would benefit from further clarification.
The submission considered the ‘just culture’ provisions of the Bill which seek to ensure that people who self-report accidents and safety-related incidents are protected from law enforcement action. As drafted, the Bill would enable the Director of Civil Aviation to take enforcement action if they are satisfied that the public interest in taking action outweighs any adverse impact it will have on further notifications.
“The term ‘public interest’ can be construed very widely and is at the Director’s discretion,” says Mr Crang. “As a result, it is difficult for those people who notify incidents to predict whether the information will be used against them. More certainty could be provided by including a definition of the term ‘public interest’.”
The Bill also seeks to grant broad powers to the Minister to make rules relating to civil aviation. The Law Society submitted that the consultation on these draft rules should include the reasons for making the rules, so those who are being consulted are better informed about the impact of the rules.
The Law Society also raised issues with the search provisions of the Bill. A key point was that the Bill should clarify whether the Director has the power to issue search warrants.
“The heading of clause 289 refers to the Director authorising the making of applications for search warrants,” says Professor Finn. “However, subclause (1) states that the Director may authorise a person to enter and search a place, vehicle, or other thing.”
“This would effectively allow the Director to authorise warrantless searches” says Professor Finn. “The select committee will need to consider whether search warrants should instead be issued under the Search and Surveillance Act 2012 to ensure judicial oversight of the process”.
The Law Society also submitted that the Committee consider dated drafting which referred to the “sex” of searchers and of persons being searched.
Nick Crang is a member of the NZLS Public & Administrative Law Committee. Professor Jeremy Finn is a member of the NZLS Criminal Law Committee.