Home | Databases | WorldLII | Search | Feedback Niue Consolidated Legislation

Civil Aviation Act 1999

NIUE LAWS
LEGISLATION AS AT DECEMBER 2006

CIVIL AVIATION ACT 1999

1999/250 – 15 August 1999

PART 1

PRELIMINARY

1 Short title
2 Interpretation
3 Act binds the Crown

PART 2

APPOINTMENTS, DUTIES AND FUNCTIONS

4 Duty of the Minister
5 Appointment of Director
6 Duty of the Director
7 Acting Director
8 Safety and security inspections and monitoring
9 Powers of Director
10 Airworthiness directions
11 Exemption power of Director
12 Director may suspend an aviation document
13 Director may revoke or amend an aviation document
14 Duties of pilot-in-command
15 Duties during emergencies
16 Obligation to notify aircraft accidents and incidents
17 Aviation security
18 Police to provide aviation security services
19 Security areas
20 General power of entry and arrest affecting safety
21 Powers of entry in respect of the airport

PART 3

ENTRY INTO THE AVIATION SYSTEM

22 Requirement to register aircraft
23 Regulations in respect of aviation documents
24 Duration of aviation documents
25 Application for aviation document
26 Grant or renewal of aviation document
27 Criteria for fit and proper person test
28 Applying for aviation document while disqualified
29 General requirements for participants in civil aviation system
30 Endangerment caused by holder of aviation document
31 Court may disqualify holder of aviation documents

PART 4

AIR SERVICE OPERATIONS

32 Scheduled air service operations
33 Non-scheduled flights
34 Cabinet is licensing authority
35 Application for an air service licence
36 Duration of air service licence
37 Terms of air service licence may be varied during currency
38 Renewal of air service licences
39 Inquiries as to air service licence
40 Revocation of air service licences
41 Transfer of licence
42 Licensee to provide information
43 Nuisance, trespass and responsibility for damage

PART 5

OFFENCES

44 Dangerous activity involving aircraft, aeronautical product, or aviation related service
45 Operating aircraft in careless manner
46 Communicating false information affecting safety
47 Failing to disclose information relevant to aviation document
48 Acting without necessary aviation document
49 Obstruction of authorised person
50 Trespass

PART 6

REGULATIONS AND RULES

51 Power to make regulations
52 New Zealand Civil Aviation Rules to apply
53-54 [Spent]

_________________________________

To regulate civil aviation and for related purposes

PART 1

PRELIMINARY

1 Short title

This is the Civil Aviation Act 1999.

2 Interpretation

(1) In this Act –

"accident" means an occurrence that –

(a) Is associated with the operation of an aircraft; and

(b) Takes place between the time a person boards the aircraft with the intention of flight and such time as each such person has disembarked form the aircraft and its engine and any propeller or rotor have come to rest,

being an occurrence –

(c) In which a person is fatally or seriously injured as a result of –

(i) being in the aircraft; or

(ii) direct contact with a part of the aircraft, including a part that has become detached from the aircraft; or

(iii) direct exposure to jet blast, except when the injury is self-inflicted or inflicted by another person, or when the injury is to a stowaway hiding outside the areas normally available to passengers and crew; or

(d) In which the aircraft sustains damage or structural failure that –

(i) adversely affects the structural strength, performance, or flight characteristics of the aircraft; and

(ii) would normally require major repair or replacement of the affected component,

except engine failure or damage that is limited to the engine, its cowling, or an accessory, or damage that is limited to a propeller, a wing tip, a rotor, an antenna, a tyre, a brake, a fairing, a small dent, or a puncture hole in the aircraft’s skin; or

(e) In which the aircraft is missing or is completely inaccessible’ "Acting Director" means a person appointed under section 7; "aeronautical product" means a thing that –

(a) comprises or is intended to comprise a part of an aircraft; or

(b) is or is intended to be installed in or fitted or supplied to an aircraft including fuel and similar consumable items necessary for the operation of an aircraft;

"aircraft" means a machine that can derive support in the atmosphere from the reactions of the air otherwise than by the reactions of the air against the surface of the earth;

"airport" means the Hanan International Airport and includes the buildings, installations, and equipment on or adjacent to the airport used in connection with the airport or its administration;

"aviation document" means a document issued under this Act to or in respect of a person, aircraft, aerodrome, aeronautical procedure, aeronautical product, or aviation related service;
Civil Aviation Act 1999

"aviation related service" means any –

(a) equipment; or

(b) facility; or

(c) service,

operated in support of or in conjunction with the civil aviation system
and includes the provision of aeronautical products;

"Convention" means the Convention on International Civil Aviation signed on behalf of the Government of Niue in Chicago on 7 December 1944 and includes –

(a) Any amendment to the Convention which has entered into force under article 94 (a) of the Convention and has been ratified by or on behalf of Niue; and

(b) Any Annex or amendment to the Convention accepted under article 90 of the Convention; and

(c) The international standards and recommended practices from time to time accepted and amended by the ICAO under article 37 of the Convention.

"Director" means the person appointed to be the Director of Civil Aviation under section 5 but if –

(a) The Director is unable to perform the functions and duties of his office; or

(b) The office of Director is vacant;

means the Acting Director;

"ICAO" means –

(a) The International Civil Aviation Organisation established under the Convention; but

(b) If that Organisation ceases to exist, the successor to that Organisation;

"incident" means an occurrence other than an aircraft accident that –

(a) Is associated with the operation of an aircraft; and

(b) Affects or could affect the safety of that operation; "Minister" means the Minister to whom responsibility for civil aviation has been assigned;

"navigation installation" means a building, facility, work, apparatus, equipment or place (whether or not part of the airport) intended –

(a) To assist in the control of air traffic; or

(b) As an aid to air navigation,and includes any land adjacent to and used in connection with anysuch building, facility, work, apparatus, equipment, or place;

"Niue aircraft" means an aircraft registered in Niue under this Act; "operate", in relation to an aircraft, means –

(a) to fly or use the aircraft, or
(b) to cause or permit the aircraft to fly, be used, or be in a place, whether or not the person is present with the aircraft, and "operator" has a corresponding meaning;

"owner", in relation to an aircraft, includes a person lawfully entitled to the possession of the aircraft for a period of 28 days or longer; "pilot-in-command", in relation to an aircraft, means the pilot responsible for the operation and safety of the aircraft; "this Act" includes regulations made under this Act.

(2) In this Act a reference to the Civil Aviation Act 1990 of New Zealand includes any Act of New Zealand that is to be read together with and deemed part of the Civil Aviation Act 1990 of New Zealand.

(3) If a penalty is set out at the foot of a section or subsection of this Act it means that a contravention of the section or subsection whether by act or omission is an offence punishable by a fine not exceeding the amount stated or by imprisonment not exceeding the period stated or both.

3 Act binds the Crown

This Act binds the Crown.

PART 2

APPOINTMENTS, DUTIES AND FUNCTIONS

4 Duty of the Minister

(1) It is the duty of the Minister –

(a) To promote safety in civil aviation; and

(b) To ensure that Niue’s obligations under international civil aviation agreements are implemented.

(2) In particular, the Minister must –

(a) Administer Niue’s participation in the Convention and any other international aviation convention, agreement, or understanding to which Niue is a party; and

(b) Ensure that aviation security services are provided at the airport.

5 Appointment of Director

(1) There is established the office of the Director.

(2) The Niue Public Service Commission must appoint a suitably qualified person to be the Director of Civil Aviation.

(3) The Cabinet may permit the Director to carry on his duties wile permanently resident outside Niue.

6 Duty of the Director

(1) It is the duty of the Director to administer this Act.

(2) In particular, the Director must –

(a) Monitor adherence to safety and security standards within the civil aviation system; and

(b) Ensure regular reviews of the civil aviation system to promote the improvement and development of its safety and security; and

(c) Investigate and review civil aviation accidents and incidents; and

(d) Prepare and maintain an aviation security programme for Niue and ensure its implementation; and

(e) Provide the Minister with any information and advice the Minister requires.

(3) The Minister does not have the power to direct the Director on the performance of his duties.

7 Acting Director

(1) There is established the office of Acting Director of Civil Aviation.

(2) The Niue Public Service Commission may appoint a suitably qualified public officer to be the Acting Director to carry out the duties and perform the functions of the Director if –

(a) The Director is unable to do so; or

(b) The office of Director is vacant.

8 Safety and security inspections and monitoring

(1) The Director may in writing require a person who –

(a) Holds an aviation document; or

(b) Operates, maintains, or services, or does any other act in respect of an aircraft, aeronautical product, aviation related service, air traffic service, or aeronautical procedure, to undergo or carry out inspections and monitoring the Director considers necessary in the interests of civil aviation safety and security.

(2) The Director may in respect of a person described in subsection (1)(a) or (b) carry out inspections and monitoring the Director considers necessary in the interests of civil aviation safety and security.

(3) In order to inspect or monitor a person in accordance with subsection (2) the Director may serve on the person a written notice requiring the person to produce to the Director such information as the Director considers relevant to the inspection or monitoring within any reasonable time specified in the notice.

(4) A person must comply with a requirement made under subsection (1) or (3).

9 Powers of Director

(1) If the Director is satisfied that –

(a) The operation of an aircraft or of a class or aircraft; or

(b) The use of an aeronautical product or a class of aeronautical products; may endanger a person or property, the Director may –

(i) detain the aircraft or aircraft of that class or

(ii) seize the aeronautical product or aeronautical products of that class; or

(iii) prohibit or impose conditions on –

(A) The operation of the aircraft or aircraft of that class; or

(B) The use of an aeronautical product or aeronautical products of that class.

(2) A detention or seizure under subsection (1) –

(a) Must not be maintained for longer than is necessary in the interest of safety; but

(b) If the aircraft, aeronautical product, or a part of an aircraft or aeronautical product is required as evidence in a prosecution – may be maintained for as long as is necessary for that purpose.

(3) The Director must as soon as practicable provide a written reason for a detention or seizure under this section.

10 Airworthiness directions

(1) The Director may issue an airworthiness directive in respect of –

(a) An aircraft; or

(b) Aeronautical product, of a specified design if the Director is satisfied –

(i) that an unsafe condition exists in an aircraft or aeronautical product of that design; and

(ii) that the condition is likely to exist in an or develop in any other aircraft or aeronautical product of the same design.

(2) An airworthiness directive comes into force on the date specified in it.

(3) A person must comply with an airworthiness direction. Penalty: (a) In the case of an individual, a fine not exceeding 10 penalty units;

(b) In the case of a body corporate, a fine not exceeding 50 penalty units.

11 Exemption power of Director

(1) The Director may exempt a person, aircraft, aeronautical product, or aviation related service from a requirement contained in regulations made under this Act if –

(a) The Director considers it appropriate to do so; and

(b) It is not specifically provided by the regulations that exemptions are not to be granted.

(2) Before granting an exemption the Director must satisfy himself –

(a) That –

(i) the requirement has been substantially complied with and that further compliance is unnecessary; or

(ii) the action taken or provision made in respect of the matter to which the requirement relates is as effective or more effective than actual compliance with the requirement; or

(iii) the requirement is clearly unreasonable or inappropriate in the particular case; or

(iv) an event has occurred that makes the requirement unnecessary or inappropriate in the particular case; and

(b) That the risk to safety will not be significantly increased if the exemption is granted.

(3) The Director may grant an exemption subject to compliance with any condition the Director considers appropriate.

12 Director may suspend an aviation document

(1) The Director may –

(a) Suspend an aviation document; or

(b) Impose a condition in respect of an aviation document, if the Director –

(c) Considers the action is necessary in the interests of safety; and

(d) Also –

(i) considers the action is necessary to ensure compliance with this Act; or

(ii) is satisfied that the holder has failed to comply with a condition of an aviation document or with a requirement of section 29; or

(iii) is satisfied the holder has contravened or failed to comply with section 47;

(iv) considers that the privileges or duties for which the document has been granted are being carried out by the holder in a careless or incompetent manner.

(2) Without limiting subsection (1) the Director may –

(a) Suspend an aviation document relating to the use of an aircraft, aeronautical product, or the provision of a service; or

(b) Impose a condition in respect of an aviation document; if the Director considers that there is a reasonable doubt as to –

(c) The airworthiness of the aircraft; or

(d) The quality or safety of the aeronautical product or service, to which the document relates.

(3) The –

(a) Suspension of an aviation document; or

(b) Imposition of a condition in respect of an aviation document, remains in force until the Director has determined, after due investigation, the action to be taken in respect of the causes requiring the suspension or imposition of the condition.

(4) Despite subsection (3) the –

(a) Duration of a suspension; or

(b) The period of imposition of a condition, cannot exceed 14 days unless the Director directs that a further specified period is necessary to complete the investigation.

(5) After an investigation the Director may –

(a) Suspend the aviation document for a further period; or

(b) Continue the imposition of the condition for a further period; or

(c) Revoke the aviation document.

(6) A person whose aviation document has been revoked, suspended, or made subject to a condition must forthwith produce the document to the Director. Penalty: (a) In the case of an individual, a fine not exceeding 10 penalty units;

(b) In the case of a body corporate, a fine not exceeding 50 penalty units.

(7) The whole or part of an aviation document may be suspended.

(8) A person in respect of whom a decision is taken under this section may appeal against that decision to the Minister.

13 Director may revoke or amend an aviation document

(1) The Director may if requested to do so by the holder of an aviation document –

(a) Amend the document in the manner requested; or

(b) Revoke it.

(2) Subject to subsection (3), the Director may –

(a) Amend an aviation document to reflect the fact that the holder of the document –

(i) is no longer carrying out a privilege or duty for which the document was granted; or

(ii) is no longer able to carry out that privilege or duty; or

(b) Revoke an aviation document if the holder of the document –

(i) is no longer able to carry out each of the privileges or duties for which the document was granted; or

(ii) is no longer able to carry out each of those privileges or duties; or

(c) Amend an aviation document to correct a clerical error or obvious mistake on the face of the document.

(3) The Director must notify the holder of the aviation document before taking action under subsection (2) and give the holder a reasonable opportunity to comment or make submissions on the proposed action.

(4) The power to amend an aviation document includes –

(a) The power to revoke the document and issue a new document in its place; and

(b) The power to impose reasonable conditions.

(5) If the Director notifies the holder of an aviation document that a specified action is proposed under this section the holder must forthwith produce the document to the Director. Penalty: (a) In the case of an individual, a fine not exceeding 10 penalty units;

(b) In the case of a body corporate, a fine not exceeding 50 penalty units.

14 Duties of pilot-in-command

The pilot-in-command of an aircraft –

(a) Is responsible for –

(i) the safe operation of the aircraft in flight; and

(ii) the safety and well-being of its passengers and crew; and

(iii) the safety of its cargo; and

(b) Has the final authority –

(i) to control the aircraft while in his command; and

(ii) for the maintenance of discipline by each person on board the aircraft; and

(c) Subject to section 15, is responsible for compliance with each requirement of this Act relating to the aircraft.

15 Duties during emergencies

(1) A pilot-in-command of an aircraft may in an emergency arising in flight breach this Act if the pilot is satisfied that –

(a) The emergency involves a danger to life or property; and

(b) The extent of the breach of the provision does not go further than is necessary to deal with the emergency; and

(c) There is no other reasonable means to alleviate, avoid, or assist with the emergency; and

(d) The degree of danger in complying with the provision is clearly greater than the degree of danger involved in deviating from the provision.

(2) If an emergency (not being an emergency arising in flight) necessitates the urgent transportation of a person or supplies for the protection of life or property the pilot-in-command of the aircraft or its operator may breach this Act if –

(a) The emergency involves a danger to life or property; and

(b) The extent of the breach of the provision does not go further than is necessary to deal with the emergency; and

(c) There is no other reasonable means to alleviate, avoid, or assist with the emergency; and

(d) The degree of danger involved in deviating from the provision is clearly less than the degree of risk in failing to attend to the emergency.

(3) Subsection (2) does not permit –

(a) The operation of an aircraft not registered in Niue or elsewhere; or

(b) The breach of this Act as to the airworthiness of an aircraft; or

(c) The operation of an aircraft by a person who is not lawfully entitled to do so.

(4) A pilot-in-command or an operator who breaches this Act under this section must –

(a) Immediately notify the relevant air traffic control service of the action; and

(b) As soon as practicable –

(i) notify the Director of the action and of the circumstances that necessitated it; and

(ii) if requested to do so by the Director, within any time specified by the Director provide the Director with a written report in respect of the action.

Penalty: (a) In the case of an individual, a fine not exceeding 10 penalty units;

(b) In the case of a body corporate, a fine not exceeding 50 penalty units.

16 Obligation to notify aircraft accidents and incidents

(1) The pilot-in-command of an aircraft involved in an aircraft accident must notify the Director of the accident as soon as practicable. Penalty: A fine not exceeding 10 penalty units.

(2) If a pilot-in-command of an aircraft is for any reason unable to give the notification required by subsection (1) its operator must do so.

Penalty:

(a) In the case of an individual, a fine not exceeding 10 penalty units;

or

(b) In the case of a body corporate, a fine not exceeding 50 penalty units.

(3) A person –

(a) Who does an act in respect of an aircraft, aeronautical product, or aviation related service; and

(b) Who when doing that act is involved in an aircraft incident, must notify the Director of the incident if it is a serious incident under the Convention.

Penalty:

(a) In the case of an individual, a fine not exceeding 10 penalty units;

(b) In the case of a body corporate, a fine not exceeding 50 penalty units.

(4) If the Director is given notification under this section the Director may require the person who gave the information to provide additional information.

(5) A person must comply with a requirement made under subsection (4) as soon as possible.

Penalty:

(a) In the case of an individual, a fine not exceeding 10 penalty units;

or

(b) In the case of a body corporate, a fine not exceeding 50 penalty units.

17 Aviation security

It is the duty of the police –

(a) To safeguard civil aviation operations against acts of unlawful interference; and

(b) To protect people and property from dangers arising from the commission or attempted commission of acts of unlawful interference in respect of civil aviation operations.

18 Police to provide aviation security services

It is the duty of the police in respect of aviation security services at the airport –

(a) To carry out passenger and baggage screening of aircraft passenger services and, if necessary, to undertake searches of passengers, baggage, cargo, aircraft, the airport and its navigation installations; and

(b) To carry out airport security patrols and patrols of the airport’s navigation installations; and

(c) To review, inquire into, and keep itself informed of security techniques, systems, devices, practices, and procedures related to the protection of civil aviation and people employed in or using civil aviation; and

(d) To undertake, or encourage or supervise, experimental or research work in aviation security; and

(e) To co-operate –

(i) with the authorities administering airport security services of other countries; and

(ii) with appropriate international organisations.

19 Security areas

(1) The Director may declare by a sign or signs fixed at the perimeter of an area within the airport that the area is a security area.

(2) Subject to subsection (3), a person other than –

(a) A constable; or

(b) A person authorised by the Director, must not enter a security area.

(3) For the purpose of this section a person referred to in subsection (2)(b) is not a person authorised by the Director to enter a security area unless –

(a) The person is wearing any identification device provided by the Director identifying that person as a person authorised by the Director to enter that security area; and

(b) The person is in the security area solely for the purpose of performing the duties or carrying out the functions for which the person was authorised by the Director to be in that security area.

(4) A person in a security area must if requested to do so by a constable –

(a) State to the constable –

(i) the person’s name and address; and

(ii) the person’s reason for being in the security area, and

(iii) the person’s authority (if any) to enter the area; and

(b) produce to the constable satisfactory evidence of the correctness of that name and address.

(5) A person must not fail to comply with a request made under subsection (4). Penalty: A fine not exceeding 10 penalty units.

(6) A constable may order a person to leave a security area if –

(a) The person fails or refuses to provide the constable with satisfactory evidence of the person’s name and address if requested to do so by the constable; or

(b) The person fails to satisfy the constable that the person is authorised to be in that security area.

(7) A person must not fail to comply with an order made under subsection (6). Penalty: A fine not exceeding 10 penalty units.

(8) A constable may arrest without warrant a person who fails to comply with a request made under subsection (4) or an order made under subsection (6).

(9) A constable, and any person whom the constable calls on for assistance, may use such force as is reasonably necessary –

(a) To remove from a security area a person who fails or refuses to leave the security area after having been ordered to do so under subsection (6); or

(b) To arrest a person under subsection (8).

(10) A passenger embarking or disembarking directly through a gateway or thoroughfare in the airport approved for that purpose by the Director is to be taken to be authorised by the Director to pass through any security area forming part of the gateway or thoroughfare.

20 General power of entry and arrest

(1) To implement this Act a constable or a person authorised for the purpose by the Director may –

(a) Enter an aircraft, a building, or place; or

(b) Require the owner, occupier, or operator of an aircraft, aeronautical product, or aviation related service –

(i) to produce a document the owner, occupier, or operator is required to keep by virtue of this Act; and

(ii) to surrender the document; or

(c) If the constable or authorised person has reasonable grounds to suspect that –

(i) a breach of this Act is being or is about to be committed; or

(ii) a situation exists within the civil aviation system or is about to exist within that system that constitutes a danger to a person or property, enter and inspect an aircraft, building, or place.

(2) An authorised person exercising the power of entry under subsection
(1) must produce the person’s authorisation from the Director if required to do so.

21 Powers of entry in respect of the airport

(1) A person authorised by the Director to do so may –

(a) Enter land to gain access to equipment used by the Government to carry out the Government’s functions in respect of the airport; and

(b) Perform operations necessary to inspect, maintain, replace or repair that equipment.

(2) A person who enters land in accordance with subsection (1) must produce the person’s authorisation from the Director if required to do so by the owner or occupier of the land.

PART 3

ENTRY INTO THE AVIATION SYSTEM

22 Requirement to register aircraft

(1) Except as otherwise provided in this Act, a person lawfully entitled to the possession of an aircraft for a period of 28 days or longer which flies to, from, within, or over Niue territory must register the aircraft and hold a valid certificate of registration for it from –

(a) The Director; or

(b) The appropriate aeronautical authority of a contracting State of ICAO; or

(c) The appropriate aeronautical authority of another State that is party to an agreement with Niue which provides for the acceptance of each other’s registrations.

Penalty:

(a) In the case of an individual, imprisonment for a term not exceeding 12 months or a fine not exceeding 1,000 penalty units;

(b) In the case of a body corporate, fine not exceeding 100 penalty units.

(2) An aircraft cannot be registered in or remain registered in Niue if it is registered in another country.

(3) The Director may decline to register an aircraft under regulations made under this Act.

(4) A person in respect of whom a decision is taken under this section may appeal against that decision to the Minister.

23 Regulations in respect of aviation documents

(1) Regulations or rules may require that aviation documents are required by –

(a) People, aircraft, aeronautical products, aviation related services, facilities, and equipment operated in support of the civil aviation system; or

(b) Classes of people, aircraft, aeronautical products, aviation related services, facilities, and equipment operated in support of the civil aviation system,

as may, in the interests of safety or security, be specified in the regulations, and may, in particular, provide that aviation documents are required in respect of all or any of the following –

(c) Niue registered aircraft;

(d) Aircraft pilots;

(e) Flight crew members;

(f) Air traffic service personnel;

(g) Aviation security service personnel;

(h) Aircraft maintenance personnel;

(i) Air services;

(j) Air traffic services;

(k) Aviation security services;

(l) Aviation meteorological services;

(m) Aviation communications services.

(2) The regulations may prescribe the requirements, standards, and application procedure for each aviation document, and the maximum period for which each document may be issued.

24 Duration of aviation documents

Subject to the regulations, an aviation document may be issued by the Director for such period and subject to such conditions as the Director considers appropriate in each particular case.

25 Application for aviation document

(1) An application for the grant or renewal of an aviation document must be made to the Director in the prescribed form or if there is no prescribed form in such form as the Director may approve.

(2) An applicant for an aviation document must include the applicant’s address for service in Niue including a telephone and facsimile number.

(3) The holder of an aviation document must promptly notify the Director of any change to the address, telephone number, or facsimile number of the holder.

Penalty:

(a) In the case of an individual, a fine not exceeding 10 penalty units;

(b) In the case of a body corporate, a fine not exceeding 50 penalty units.

(4) The Director must record all information provided under this section is a register maintained by the Director for the purpose.

(5) Service of a notification under this Act on a holder of, or applicant for, an aviation document is effective service if served on the address last provided by that holder or applicant under this section.

26 Grant or renewal of aviation document

(1) After considering an applicant for the grant or renewal of an aviation document the Director must grant the application if the Director is satisfied that –

(a) All things in respect of which the document is sought meet the relevant prescribed requirements; and

(b) The applicant and any person who is to have or is likely to have control over the exercise of the privileges under the document –

(i) either has the relevant prescribed qualifications and experience or has such foreign qualifications as are acceptable to the Director under subsection (2); and

(ii) is a fit and proper person to have such control or hold the document; and

(iii) meets all other relevant prescribed requirements; and

(c) It is not contrary to the interests of aviation safety for the document to be granted or renewed.

(2) For the purpose of granting or renewing an aviation document the Director may, subject to the regulations, accept such foreign qualifications or recognise such foreign certifications as the Director considers appropriate in each case.

(3) It is an implied condition of an aviation document that the holder and any person who has or is likely to have control over the exercise of the privileges under the document continue to satisfy the fit and proper person test specified in subsection (1)(b)(ii).

(4) If the Director declines to grant an application for the grant or renewal of an aviation document the applicant may appeal against that decision to the Minister.

27 Criteria for fit and proper person test

(1) For the purpose of determining whether a person is a fit and proper person for the purpose of section 26(1)(b)(ii) the Director must, having regard to the degree and nature of the person’s proposed involvement in the Niue civil aviation system, have regard to, and give such weight as the Director considers appropriate to –

(a) The person’s compliance history with transport safety regulatory requirement; and

(b) The person’s related experience (if any) within the transport industry; and

(c) The person’s knowledge of the applicable civil aviation system regulatory requirements; and

(d) Any history of physical or mental health or serious behavioural problems; and

(e) Any conviction for a transport safety offence whether or not –

(i) the conviction was in a Niue court; or

(ii) the offence was committed before the commencement of this Act; and

(f) Any evidence that the person has committed a transport safety offence or has contravened or failed to comply with regulations made under this Act.

(2) The Director is not confined to consideration of the matters specified in subsection (1) but may take into account other matters and evidence the Director considers relevant.

(3) To determine if a person is a fit and proper person the Director may –

(a) Seek and receive any information (including medical reports) the Director considers relevant; and

(b) Consider information obtained from any source.

(4) In its application to a body corporate subsection (1) has effect as if –

(a) Paragraphs (a), (b), (c), (e) and (f) refer to the body corporate and its officers; and

(b) Paragraph (d) refers only to the officers of the body corporate.

28 Applying for aviation document while disqualified

(1) A person must not apply for or obtain an aviation document while disqualified by an order of a court from obtaining an aviation document. Penalty: (a) In the case of an individual, a fine not exceeding 100 penalty units;

(b) In the case of a body corporate, a fine not exceeding 500 penalty units.

(2) A document obtained contrary to subsection (1) is of no effect.

29 General requirements for participants in civil aviation system

(1) A person who does anything for which an aviation document is required (in this section called an aviation participant) must ensure that the appropriate aviation document and all the necessary qualifications and other documents are held.

Penalty: (a) In the case of an individual, a fine not exceeding 100 penalty units;

(b) In the case of a body corporate, a fine not exceeding 500 penalty units.

(2) An aviation participant must comply with this Act and the conditions attached to the relevant aviation document.

Penalty: (a) In the case of an individual, a fine not exceeding 100 penalty units;

(b) In the case of a body corporate, a fine not exceeding 500 penalty units.

(3) An aviation participant must ensure that the activities or functions for which the aviation document has been granted are carried out –

(a) By the participant and by persons for whom the participant is responsible; and

(b) Under the relevant prescribed safety standards and practices.

Penalty:

(a) In the case of an individual, a fine not exceeding 100 penalty units;

(b) In the case of a body corporate, a fine not exceeding 500 penalty units.

(4) An aviation participant who holds an aviation document that authorises the provision of a service within the civil aviation system must –

(a) If required to do so by regulations made under this Act, establish and follow a management system that will ensure compliance with the relevant prescribed safety standards and the conditions attached to the document; and

(b) Provide training and supervision to employees of the participant who are engaged in doing anything to which the document relates, so as to maintain compliance with the relevant prescribed safety standards and the conditions attached to the document and to promote safety; and

(c) Provide sufficient resources to ensure compliance with the relevant prescribed safety standards and the conditions attached to the document.

Penalty:

(a) In the case of an individual, a fine not exceeding 100 penalty units;

(b) In the case of a body corporate, a fine not exceeding 500 penalty units.

30 Endangerment caused by holder of aviation document

(1) The holder of an aviation document must not, in respect of an activity or service to which the document relates, do or omit to do an act or cause or permit an act or omission, if the act or omission causes unnecessary danger to another person or to property.

Penalty:

(a) In the case of an individual, imprisonment for a term not exceeding

12 months or a fine not exceeding 100 penalty units;

(b) In the case of a body corporate, a fine not exceeding 1,000 penalty units.

(2) Subsection (1) is in addition to and not in derogation of any regulations made under this Act.

31 Court may disqualify holder of aviation documents

(1) If a court convicts a person of an offence under section 29, section 47 or section 48 it may in addition to any other penalty it imposes –

(a) Disqualify the person from holding or obtaining an aviation document or a particular aviation document; or

(b) Impose on an aviation document held by or issued to the person such restrictions or conditions or both as the court thinks fit having regard to the circumstances of the offence;

for a period not exceeding 12 months.

(2) Subsection (1) does not affect or prevent the exercise by the Director of his powers under section 26.

PART 4

AIR SERVICE OPERATIONS

32 Scheduled air service operations

A person must not engage in a scheduled air service operation between Niue and elsewhere except –

(a) Under the authority of and in conformity with the terms and conditions of an air service licence granted under this Act; or

(b) If stops are only made in Niue for non-traffic purposes.

Penalty:

(a) In the case of an individual, a fine not exceeding 100 penalty units;

(b) In the case of a body corporate, a fine not exceeding 500 penalty units.

33 Non-scheduled flights

(1) An aircraft of a state other than Niue that is not engaged in scheduled international air service operation may –

(a) Make a non-scheduled flight in transit non-stop across Niue territory; or

(b) Make a stop in Niue for a non-traffic purpose.

(2) The Director may require an aircraft referred to in subsection (1) –

(a) To land; or

(b) To obtain special permission for the flight.

(3) A person must not fail to comply with a requirement of the Director imposed under subsection (2). Penalty: (a) In the case of an individual, a fine not exceeding 100 penalty units;

(b) In the case of a body corporate, a fine not exceeding 500 penalty units.

(4) The pilot of an aircraft of a state other than Niue that is not engaged in a scheduled international air service operation must not make a non-scheduled flight across Niue territory with a stop in Niue for traffic purposes except –

(a) With the approval of the Director; and

(b) In compliance with any condition or limitation the Director imposes

on that approval.

Penalty:

(a) In the case of an individual, a fine not exceeding 100 penalty units;

(b) In the case of a body corporate, a fine not exceeding 500 penalty units.

34 Cabinet is licensing authority

(1) Cabinet may grant an air service licence.

(2) Cabinet may appoint a person to inquire into and report upon a matter in relation to –

(a) An air service licence; or

(b) An application for an air service licence.

35 Application for an air service licence

(1) An application for an air service licence must –

(a) Be made to the Cabinet; and

(b) Be accompanied by such information and documents in support of the application as Cabinet requires.

(2) Cabinet may –

(a) Refuse an application for an air service licence; or

(b) Grant it –

(i) in whole or in part; and

(ii) subject to any condition Cabinet considers necessary in the public interest.

(3) An air service licence is to be in a form approved by Cabinet.

36 Duration of air service licence

(1) An air service licence –

(a) Takes effect on the date stated in it; and

(b) Unless sooner revoked or expressed to expire earlier expires 2 years later.

(2) If –

(a) An application for the renewal of an air service licence has been made; but

(b) The application has not been disposed of before the date of expiry

of the licence, the licence continues in force until the application is disposed of unless Cabinet otherwise directs.

37 Terms of air service licence may be varied during currency

(1) Cabinet may if Cabinet considers it to be in the public interest to do so –

(a) Amend or revoke a term or condition of an air service licence; or

(b) Add a new term or condition in an air service licence.

(2) Before exercising a power under subsection (1) Cabinet must give –

(a) The licensee; and

(b) Any other person Cabinet believes is likely to be affected, at least 21 days notice of his intention to do so.

38 Renewal of air service licences

(1) An application for the renewal of an air service licence must –

(a) Be made to Cabinet; and

(b) Be accompanied by such information and documents in support of the application as Cabinet requires.

(2) Cabinet may –

(a) Refuse an application for the renewal of an air service licence; or

(b) Grant it –

(i) in whole or in part; and

(ii) subject to any condition Cabinet considers necessary in the public interest.

(3) The renewal of an air service licence –

(a) Unless sooner revoked or expressed to expire earlier expires 2 years after it takes effect; and

(b) May be granted in advance to take effect on the expiry date of the licence being renewed.

39 Inquiries as to air service licence

(1) Cabinet may appoint a person to hold a public inquiry to determine if an air service operation being carried on under the authority of an air service licence is being carried on in conformity with its terms and conditions.

(2) A person appointed under subsection (1) must give at least 21 days notice of his intention to hold the inquiry to –

(a) The licensee; and

(b) Any other person he or she believes has an interest in the air service licence.

(3) The notice must –

(a) State the day, time, and place fixed for the inquiry; and

(b) Contain details of the matter proposed to be inquired into.

40 Revocation of air service licences

Cabinet may revoke an air service licence or suspend it for any period the Cabinet considers appropriate –

(a) If the air service operation authorised by the licence is not started on the date specified in it for the start of the operation; or

(b) If the licensee abandons or curtails the air service operation authorised by the licence; or

(c) If after receiving the report of a person appointed to hold an inquiry Cabinet is satisfied that the licensee is not carrying on the air service operation in conformity with the licence; or

(d) If Cabinet is satisfied that the licensee has disposed of the air service operation authorised by the licence to another person without –

(i) transferring the licence to that person; or

(ii) obtaining Cabinet’s consent to the transfer.

41 Transfer of licence

(1) A licensee under an air service licence must not transfer the licence without Cabinet’s written consent.

(2) An application for Cabinet’s consent to transfer an air service licence must –

(a) Be made to Cabinet; and

(b) Be accompanied by such information and documents in support of the application as Cabinet requires.

(3) Cabinet may –

(a) Refuse consent for the transfer of an air service licence; or

(b) Give it –

(i) in whole or in part; and

(ii) subject to any condition Cabinet considers necessary in the public interest.

42 Licensee to provide information

It is an implied condition of an air service licence that the person authorised to carry on an air service operation by virtue of the licence must provide the Minister with any financial and statistical returns and statements the Minister requires.

43 Nuisance, trespass, and responsibility for damage

(1) An action for nuisance cannot be brought in respect of the noise or vibration caused by an aircraft or its engines while on, or taking off from, or landing at, the airport.

(2) An action for trespass or nuisance cannot be brought in respect of the flight of an aircraft over property at a height that is reasonable in the circumstances.

(3) If damage or loss is caused to property –

(a) By an aircraft while in flight, taking off or landing; or

(b) By a person or article in or falling from an aircraft; damages are recoverable from the owner of the aircraft without proof of cause of action as if the damage or loss was caused by the owner’s fault unless the damage or loss was caused by or contributed to by the fault of the person who suffered the damage or loss.

(4) If –

(a) Damage or loss is caused in the manner described in subsection (3); and

(b) Damages are recoverable from the owner of an aircraft solely by virtue of subsection (3); and

(c) Another person is liable to pay damages in respect of the damage or loss, the owner is entitled to be indemnified by that other person against any claim in respect of the damage or loss.

(5) If damage or loss is caused by a person descending from an aircraft by parachute –

(a) Damages are not recoverable by virtue of subsection (4) from the owner of the aircraft; but

(b) Unless the damage or loss is caused by a person descending from an aircraft by parachute to avoid injury or death – damages are recoverable from the person descending and this section applies as if the person descending were the owner of the aircraft.

(6) If –

(a) An aircraft is hired by its owner to a person for a period of 28 days or longer; and

(b) During that period no pilot, commander, navigator, or operative

member of the crew of the aircraft is an employee of the owner, this section applies during the period as if each reference in it to the owner were a reference to the person to whom the aircraft is hired.

(7) In this section "fault" means an act or omission which gives rise to a liability in tort.

PART 5

OFFENCES

44 Dangerous activity involving aircraft, aeronautical product or aviation related service

(1) A person must not –

(a) Operate, maintain, or service; or

(b) Do any other act,

in respect of an aircraft, aeronautical product, or aviation related service, in a manner which causes unnecessary danger to a person or to property.

Penalty:

(a) In the case of an individual, imprisonment for a term not exceeding

12 months or a fine not exceeding 25 penalty units;

(b) In the case of a body corporate, a fine not exceeding 250 penalty units.

(2) A person must not –

(a) Cause or permit an aircraft, aeronautical product, or aviation related service to be operated, maintained, or serviced; or

(b) Cause or permit an act to be done in respect of an aircraft, aeronautical product, or aviation related service,

in a manner which causes unnecessary danger to a person or property.

Penalty:

(a) In the case of an individual, imprisonment for a term not exceeding 12 months or a fine not exceeding 25 penalty units; or

(b) In the case of a body corporate, a fine not exceeding 250 penalty units.

45 Operating aircraft in careless manner

A person must not operate an aircraft in a careless manner. Penalty: (a) In the case of an individual, imprisonment for a term not exceeding 12 months or a fine not exceeding 25 penalty units;

(b) In the case of a body corporate, a fine not exceeding 250 penalty units.

46 Communicating false information affecting safety

A person must not provide to another person information relating to the safety of –

(a) An aircraft; or

(b) The airport; or

(c) An aeronautical product; or

(d) An aviation related service; or

(e) Any other facility or product used in or connected with aviation; or

(f) A person associated with aviation, knowing the information to be false or in a manner reckless as to whether it is false.

Penalty:

(a) In the case of an individual, a fine not exceeding 10 penalty units;

(b) In the case of a body corporate, a fine not exceeding 50 penalty units.

47 Failing to disclose information relevant to aviation document

A person must not –

(a) Provide to the Director information relevant to the Director ’s exercise of powers under this Act knowing it to be false; or

(b) Being an applicant for an aviation document, fail, without reasonable excuse, to provide the Director information known to the person which is relevant to the Director’s exercise of a power under this Act; or

(c) Being the holder of an aviation document, fail, without reasonable excuse, to provide the Director information known to the person which is relevant to the condition specified in section 26(3).

Penalty:

(a) In the case of an individual, imprisonment for a term not exceeding 12 months or a fine not exceeding 50 penalty units;

(b) In the case of a body corporate, fine not exceeding 300 penalty units.

48 Acting without necessary aviation document

A person must not –

(a) Operate, maintain, or service; or

(b) Do any other act in respect of, an aircraft, aeronautical product, or aviation related service –

(c) Without holding the appropriate current aviation document; or

(d) Knowing –

(i) that a current aviation document is required to be held in respect of that aircraft, product, or service before that act may lawfully be done; and

(ii) that the appropriate aviation document is not held.

Penalty:

(a) In the case of an individual, imprisonment for a term not exceeding 18 months or a fine not exceeding 100 penalty units;

(b) In the case of a body corporate, fine not exceeding 1,000 penalty units.

49 Obstruction of authorised person

(1) A person must not obstruct or impede a person who is authorised by the Director to perform a duty or exercise a power while performing that duty or exercising that power.

Penalty:

(a) In the case of an individual, imprisonment for a term not exceeding 3 months or a fine not exceeding 20 penalty units; or

(b) In the case of a body corporate, fine not exceeding 100 penalty units.

(2) Subsection (1) applies only if the person obstructed or impeded is in uniform or produces evidence of his authority.

50 Trespass

A person must not, without reasonable excuse, enter or remain within the airport or a building or area in which are operated technical facilities or services for civil aviation if directed not to enter or remain –

(a) By a person authorised by the Director for that purpose; or

(b) By a constable; or

(c) By a notice or notices displayed for the purpose by the Director.

Penalty: Imprisonment for a term not exceeding 3 months or a fine not exceeding 20 penalty units.

PART 6

REGULATIONS AND RULES

51 Power to make regulations

(1) The Cabinet may make regulations –

(a) To implement Niue’s obligations under the Convention; and

(b) In respect of any matter necessary or incidental to the implementation of this Act.

(2) The Cabinet may, in particular, make regulations to prescribe fees and charges payable generally for the purposes of civil aviation.

(3) The regulations may impose penalties for a breach of the regulations not exceeding a fine of 50 penalty units or 6 months imprisonment, or both in the case of an individual, or a fine not exceeding 250 penalty units in the case of a body corporate.

(4) There may be incorporated by reference into regulations made under this section all or any of the following –

(a) A standard, requirement, or recommended practice of an international aviation organisation;

(b) A standard, requirement, or rule prescribed under law by another contracting State of ICAO;

(c) A standard, requirement, or rule of an aviation sport or aviation recreational organisation;

(d) Any other written material or document that in the opinion of the Minister is too large or impractical to be printed as part of the regulations.

(5) Material incorporated in regulations in accordance with subsection (4) forms part of the regulations and unless otherwise provided in the regulations any amendment to the material subsequently made by the person or organisation that originated it also forms part of the regulations.

(6) A regulation is not invalid because –

(a) It confers a discretion upon or allows a matter to be determined or approved by a person; or

(b) It allows a person to impose a requirement as to the performance of an activity.

52 New Zealand Civil Aviation Rules to apply

(1) The New Zealand Civil Aviation Rules made under Part 3, Civil Aviation Act 1990 of New Zealand shall extend to and be in force in Niue as from time to time amended and in force in New Zealand.

(2) An amendment made to the New Zealand Civil Aviation Rules shall not extend to and be in force in Niue if the Cabinet so resolves.

(3) Any provision of the New Zealand Civil Aviation Rules as extended to and in force in Niue by virtue of this Act shall cease to extend to and be in force if the Cabinet so resolves.

53-54 [Spent]