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Aviation Crimes Act 1973

NIUE LAWS
LEGISLATION AS AT DECEMBER 2006

AVIATION CRIMES ACT 1973

1973/82 – 24 September 1973

1. Short title and commencement

2. Interpretation

3. Hijacking

4. Offences in connection with hijacking

5. Other offences relating to aircraft

5A. Offences relating to airports

6. [Spent]

7. Offences deemed to be included in extradition treaties

8. Surrender of offenders

9. Application of sections 3, 4 and 5

10. Powers of aircraft commander

11. Arrest of persons delivered to Police

12. Cabinet’s consent required for prosecution

13. Aircraft in military, customs, or police service

14. Joint registration of aircraft

15. Other Acts not affected

__________________________

To give effect to the provisions of the Hague Convention for the Convention for the Suppression of Unlawful Seizure of Aircraft, the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, and the Tokyo Convention on Offence and Certain Other Acts Committed on Board Aircraft, and for matters incidental thereto

1 Short title and commencement

(1) This is the Aviation Crimes Act 1973.

(2) Sections 7, 8, 10 and 11 shall come into force on a date to be fixed by the Cabinet by notice in the Gazette. Different dates may be so fixed in respect of different sections.

(3) Except as provided in subsection (2), this Act shall come into force on the date of its passing.

2 Interpretation

(1) In this Act –

"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;

"commander", in relation to an aircraft, means the pilot for the time being in lawful command of the aircraft;

"military service" includes naval and air force service; and a certificate by the Minister that any aircraft is or is not used in military service for the purposes of this Act shall be conclusive evidence of the fact certified;

"Niue" includes the territorial sea of Niue; "Niue aircraft" means an aircraft registered in Niue under the Civil Aviation Act 1999; "The Hague Convention" means the Convention for the Suppression of Unlawful Seizure of Aircraft, done at the Hague on 16 December 1970 "The Montreal Convention" means the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23 September 1971;

"The Tokyo Convention" means the Convention on Offences and Certain Other Acts Committed on Board Aircraft, done at Tokyo on 14 September 1973.

(2) For the purposes of this Act, a person shall be deemed ordinarily resident in Niue of –

(a) His home is in Niue; or

(b) He is residing in Niue with the intention of establishing his home in it, or with the intention of residing in Niue indefinitely, he is outside Niue but has an intention to return to establish his home in it or to reside in Niue indefinitely.

(3) For the purposes of this Act, an aircraft is in flight from the time when all its external doors are closed after embarkation until the time when any external door is opened for disembarkation:

Provided that in the case of a forced landing an aircraft is in flight until the time when the competent authorities of the country in which the forced landing takes place, or, in the case of a forced landing in a place that is not within the territorial limits of any country, the competent authorities of any country, assume responsibility for the aircraft and for persons and property on board the aircraft.

(4) For the purposes of this Act, an aircraft is in service from the time when pre-flight preparation of the aircraft by ground personnel or by the aircraft’s crew begins for a specific flight until either –

(a) The flight is cancelled; or

(b) 24 hours after the aircraft, having commenced the flight, lands; or

(c) The aircraft, having commenced the flight, makes a forced landing and any competent authorities referred to in subsection (3) assume responsibility for the aircraft and for persons and property on board the aircraft; or

(d) The aircraft, having commenced the flight, ceases to be in flight – whichever is the latest.

3 Hijacking

Everyone commits the crime of hijacking and is liable on conviction to imprisonment for life, who, while on board an aircraft in flight, whether in or outside Niue, unlawfully, by force or by threat of force or by any form of intimidation, seizes or exercises control, or attempts to seize or exercise control, of that aircraft.

4 Offences in connection with hijacking

(1) Everyone who, while on board an aircraft in flight outside Niue, does or omits anything which, if done or omitted by that person in Niue, would be an offence, commits that offence if the act or omission occurred in connection with the offence of hijacking.

(2) Without limiting the generality of subsection (1) an act or omission by any person shall be deemed to occur in connection with the offence of hijacking if it was done or omitted with intent –

(a) To commit or facilitate the commission of the offence of hijacking; or

(b) To avoid the detection of himself or of any other person in the commission of the offence or hijacking; or

(c) To avoid the arrest or facilitate the flight of himself or of any other person upon the commission of the offence of hijack.

5 Other offences relating to aircraft

Everyone commits an offence and is liable on conviction to imprisonment for a term not exceeding 14 years, who, whether in or outside Niue –

(a) On board on aircraft in flight, commits an assault which is likely to endanger the safety of the aircraft; or

(b) Destroys an aircraft in service; or

(c) Causes damage to an aircraft in service which renders the aircraft incapable of flight or which is likely to endanger the safety of the aircraft in flight; or

(d) Places or causes to be placed on an aircraft in service anything which is likely to destroy the aircraft, or to cause damage to the aircraft which will render it incapable of flight, or which is likely to endanger the safety of the aircraft in flight; or

(e) Destroys, damages, or interference with the operation of any air-navigation facility used in international air navigation, or in air navigation between Niue and any place outside Niue, where the destruction, damage, or interference is likely to endanger the safety of an aircraft in flight; or

(f) Endangers the safety of an aircraft in flight by communicating to any other person any information which the persons supplying the information knows to be false.

5A Offences relating to airports

Every person commits an offence, and shall be liable on conviction to a term of imprisonment not exceeding 14 years who, using any device, substance or weapon –

(a) Performs any act of violence against a person at an airport serving international civil aviation which causes or is likely to cause serious injury or death; or

(b) Destroys or seriously damages the facilities of an airport serving international civil aviation, or any aircraft not in service located at such airport, or disrupts the services of the airport;

if such act endangers or is likely to endanger safety at that airport.

6 [Spent]

7 Offences deemed to be included in extradition treaties

(1) (a) For the purposes of the Extradition Act, the offence of hijacking (including aiding, abetting, inciting, counselling, or procuring any person to commit that offence, inciting, counselling, or attempting to procure any person to commit that offence when it is not in fact committed, and being an accessory after the fact to that offence) shall, if not already described in the treaty, be deemed to be an offence described in any extradition treaty extending to Niue concluded before the commencement of this section and for the time being in force between Niue and any foreign country which is a party to the Hague Convention.

(b) A certificate given under the hand of the Minister that any foreign country is a party as aforesaid shall be sufficient evidence of that fact.

(2) (a) For the purposes of the Extradition Act 1965 of the New Zealand Parliament and any Order in Council made under section 3 of that Act or referred to in section 21 of that Act, each offence described in section 5 of this Act (including attempting to commit that offence, aiding, abetting, inciting, counselling, or procuring any person to commit that offence, inciting, counselling or attempting to procure any person to commit that offence when it is not in fact committed, and being an accessory after the fact to that offence) shall be deemed to be an offence described in any extradition treaty extending to Niue, concluded before the commencement of this section and for the time being in force between Niue and any foreign country which is a party to the Montreal Convention.

(b) A certificate given under the hand of the Minister that any foreign country is a party as aforesaid shall be sufficient evidence of that fact.

(3) Where, under subsection (1) or under (2), any offence is deemed to be an offence described in an extradition treaty extending to Niue, a person whose surrender is sought under the Extradition Act 1965 of the New Zealand Parliament in respect of an act or omission which amounts to that offence shall be liable to be surrendered in accordance with that Act, whether the act or omission occurred before or after the date on which the crime was deemed to be an offence described in the extradition treaty.

(4) For the purposes of this section, "foreign country" includes any territory for whose international relations the Government of a foreign country is responsible and to which the extradition treaty and the Hague Convention or, as the case may be, the Montreal Convention extends.

8. Surrender of offenders

(1) (a) Where the surrender of a person is sought under either the Extradition Act 1965 of the New Zealand Parliament or the Fugitive Offenders Act 1881 of the United Kingdom Parliament in respect of any act or omission which amounts to the offence of hijacking or to any offence described in section 5 or section 5A (including attempting to commit any of the offences so described, siding, abetting, inciting, counselling, or procuring any person to commit the offence of hijacking or any of the offences so described, inciting, counselling, or attempting to procure any person to commit the offence of hijacking or any of the offences so described when it is not in fact committed, and being an accessory after the fact to the offences of hijacking or any of the offences so described), and for which the person whose surrender is sought could be tried and punished in the country seeking surrender, being a country which is a party to the Hague Convention or the Montreal Convention, as the case may require, that act or omission shall be deemed to have been committed within the jurisdiction of that country notwithstanding that it was committed outside the territory of that country.

(b) A certificate given under the hand of the Minister that a country is party to either Convention shall be sufficient evidence of that fact.

(2) For the purposes of this section, "country" includes any territory for whose international relations the Government of a country is responsible and to which the extradition treaty (if any) and the Hague Convention or, as the case may be, the Montreal Convention, extends.

9 Application of sections 3, 4 and 5

(1) Nothing in section 3 or 4 shall apply if both the place of take-off and the place of actual landing of the aircraft (not being a Niuean aircraft) are in the territory of the country in which the aircraft is registered, or, in the case of an aircraft that is subject to joint or international registration, in the territory of one of the countries having an interest in the aircraft, unless –

(a) The alleged offender is a person ordinarily resident in Niue;

(b) The act or omission occurred in Niue; or

(c) The alleged offender is present in Niue.

(2) Nothing in section 5(a), (b), (c), (d) or (f) shall apply if both the place of take-off and the place of actual or intended landing of the aircraft (not being a Niuean aircraft) are in the territory of a country in which the aircraft is registered, or, in the case of an aircraft that is subject to joint or international registration, in the territory of one of the countries having an interest in the aircraft, unless –

(a) The alleged offender is a person ordinarily resident in Niue;

(b) The act or omission occurred in Niue; or

(c) The alleged offender is present in Niue.

(3) Nothing in section 3 or section 4 or section 5 (a)-(d) shall apply to aircraft used in military, customs, or police service (not being aircraft used for the purposes of any of the Armed Forces of New Zealand operating in Niue or of the Niue Customs or of the Niue Police), unless –

(a) The alleged offender is a person ordinarily resident in Niue;

(b) The set or omission occurred in Niue.

10 Powers of aircraft commander

(1) If the commander of an aircraft in flight, wherever that aircraft may be, has reasonable grounds to believe that any person on board the aircraft has done or is about to do on board the aircraft –

(a) Anything which is an offence under the law of this country in which the aircraft is registered or under the law of Niue (not being a law of a political nature or a law based on racial or religious discrimination); or

(b) Anything (whether an offence or not) which jeopardises or may jeopardise –

(i) the safety of the aircraft or of persons or property on board the aircraft; or

(ii) good order and discipline on board the aircraft – the commander may take with respect to that person such reasonable measures, including restraint, as may be necessary –

(c) To protect the safety of the aircraft or of persons or property on board the aircraft; or

(d) To maintain good order and discipline on board the aircraft;

(e) To enable the commander to disembark or deliver that person under subsection (4) or (5).

(2) (a) Any member of the crew of an aircraft and any other person on board the aircraft may, at the request or with the authority of the commander of the aircraft and any member of the crew shall if so required by the commander, assist in restraining any person whom the commander is entitled under subsection (1) to restrain.

(b) Any member of the crew and any other person on board the aircraft may, without the commander’s authority take with respect to any person on board the aircraft such reasonable measures, including restraint, as he has reasonable grounds to believe are immediately necessary to protect the safety of the aircraft or of persons or property on board the aircraft.

(3) Any restraint imposed on any person on board an aircraft under the powers conferred by subsection (1) or (2) shall not be continued after the aircraft ceases to be in flight, unless the commander of the aircraft notifies the appropriate authorities of the country or territory in which the aircraft ceases to be in flight, either before or as soon as reasonably practicable after that time, that a person on board is under restraint and of the reasons for such restraint, but, provided that notification has been given, restraint may be continued –

(a) For any period (including the period of any further flight) between that time and the first occasion thereafter on which the commander is able with the requisite consent of the appropriate authorities to disembark or deliver the person under restraint in accordance with subsection (4) or (5); or

(b) If the person under restraint agrees to continue his journey under restraint on board that aircraft.

(4) If the commander of an aircraft has reasonable grounds to believe that a person on board the aircraft has done or is about to do on board the aircraft anything (whether an offence or not) which jeopardises or may jeopardise –

(a) The safety of the aircraft or of persons or property on board the aircraft; or

(b) Good order and discipline on board the aircraft – he may, if he considers it necessary to do so in order to protect the safety of the aircraft, disembark that person in any country or territory in which the aircraft may be.

(5) If the commander of an aircraft has reasonable grounds to believe that any person on board the aircraft has done on board the aircraft anything which in the commander’s opinion is a serious offence under the law of the country in which the aircraft is registered or under the law of Niue, he may deliver that person –

(a) In Niue, to any member of the Niue Police; or

(b) In any country which is a party to the Tokyo Convention, to any person exercising functions corresponding to those of a member of the Niue Police.

(6) If the commander of an aircraft disembarks any person under subsection (4) in the case of a Niuean aircraft, in any country, or, in the case of any other aircraft, in Niue, he shall report the fact of, and the reasons for, that disembarkation to an appropriate authority in the country or territory of disembarkation (being, in Niue, a member of the Niue Police).

(7) If the commander of an aircraft intends to deliver any person under subsection (5) in Niue, or, in the case of a Niuean aircraft, in any country which is a party to the Tokyo Convention, he shall, before or as soon as practicable after landing, give notification of his intention and of the reasons for his intention to an appropriate authority in that country, or, in the case of a person to be delivered in Niue, to a member of the Niue Police.

(8) Any commander of an aircraft who without reasonable cause fails to comply with the requirements of subsection (6) or (7) is liable on conviction to a fine not exceeding 4 penalty units.

(9) A person who in good faith imposes reasonable measures, including restraint, on another person under this section is not guilty of an offence and is not liable to any civil proceedings in respect of those measures.

11 Arrest of persons delivered to Police

(1) Any constable shall accept delivery of a person whom the commander of an aircraft seeks to deliver to him under section 10 (5) if he has reasonable grounds to support that person of having done or omitted on board that aircraft anything that is an offence against this Act, or any other Act, or any enactment in force in Niue.

(2) Where any constable accepts delivery of a person under subsection (1), he shall forthwith arrest that person.

12 Cabinet’s consent required for prosecution

(1) No proceedings for the trial and punishment or any person charged with a crime against sections 3-5 shall be instituted in the High Court except with the consent of the Cabinet.

(2) A person charged with any such offence may be arrested, or a warrant for his arrest may be issued and executed, and he may be remanded in custody or on bail, notwithstanding that the consent of the Cabinet to the institution of a prosecution for the offence has not been obtained, but no further proceedings shall be taken until that consent has been obtained.

13 Aircraft in military, customs, or police service

Nothing in sections 10 and 11 shall apply to aircraft used in the military, customs or police service of any country, or of Niue, or of any territory for whose international relations the Government of a country is responsible.

14 Joint registration of aircraft

Where an aircraft is subject to joint international registration, it shall be deemed for the purposes of this Act to be registered in the country which, according to the records of the International Civil Aviation Organisation, is the country of registration.

15 Other Acts not affected

Nothing in this Act shall be construed to limit or affect the operation of the Entry, Residence and Departure Act 1985 or of Parts 5, 6 or 8 of the Niue Act 1996.