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Vanuatu Sessional Legislation |
REPUBLIC OF VANUATU
CIVIL AVIATION ACT NO. 16 OF 1999
Arrangement of Sections
PART 1 – PRELIMINARY
1. Purpose
2. Interpretation
3. Application of Act
4. Aviation document holders outside Vanuatu
5. Civil Aviation Authority and Department
PART 2 – ENTRY INTO THE CIVIL AVIATION SYSTEM
6. Requirement to register aircraft
7. Requirement for aviation document
8. Application for aviation document
9. Grant or renewal of aviation document
10. Criteria for fit and proper person test
11. Rights of persons affected by proposed adverse decisions
PART 3 – FUNCTION, POWERS AND DUTIES OF PARTICIPANTS IN THE CIVIL AVIATION SYSTEM
Division 1 – Duties of participants
12. General requirements for participants in Civil Aviation System
13. Duties of pilot-in-command
14. Duties of pilot-in-command and operator during emergencies
Division 2 – Functions and duties of Minister and Director
15. Functions of Minister
16. Functions of Director
17. Director may require or carry out safety and security inspections and monitoring
18. Power of the Director to suspend aviation document or impose conditions
19. Power of Director to revoke aviation document
20. Criteria for action taken under section 18 or section 19
21. Power of Director to amend or revoke aviation document in other cases
22. Power of Director to detain aircraft, seize aeronautical products, and impose prohibitions and conditions
Division 3 - Delegation of functions and duties
23. Delegation of Minister’s functions or powers to Director
24. Delegation of Director’s functions or powers to employees of Department
25. Delegation of Director’s function or powers to a person outside Department
26. Effect of delegation
Division 4 – Powers of entry and notification of accidents
27. General power of entry
28. Obligation to notify all accidents and incidents
29. Duty of Director to notify accidents and incidents to the Minister
PART 4 - RULES
Division 1 – Ordinary rules and emergency rules
30. Power of Minister to make ordinary rules
31. Rules relating to safety and security
32. Rules relating to airspace
33. Rules for noise abatement purposes
34. Rules relating to general matters
35. Power of Director to make emergency rules
Division 2 – Procedures for making rules
36. Procedures relating to rules
37. Matters to be taken into account in making rules
38. Procedure for making ordinary rules
39. Procedure for making emergency rules
40. Incorporation by reference
41. Exemption power of Director
PART 5 – FEES AND OTHER CHARGES
Division 1 – Fees and charges
42. Fees and charges
43. Payment of fees and charges
44. Suspension or revocation of aviation document where prescribed fees or charges unpaid
45. Recovery of fees and charges for aviation related services
Division 2 - Levies
46. Minister may impose levies
47. Basis on which levies may be imposed
48. Other provisions relating to levies
Division 3 – Charges by airport operators
49. Airport operators may determine charges
50. Exemptions from charges
PART 6 – OFFENCES AND PENALTIES
Division 1 – Safety offences
51. Endangerment caused by holder of aviation document
52. Operating an aircraft in careless manner
53. Dangerous activity involving aircraft, aeronautical product, or aviation related service
54. Failure to comply with inspection or audit request
55. Court may disqualify holder of aviation document or impose conditions on holding of document
56. Acting without necessary aviation document
57. Additional penalty for offences involving commercial gain
Division 2 – General offences
58. Applying for aviation document while disqualified
59. Communicating false information or failing to disclose information relevant to granting or holding of aviation document
60. Carrying on scheduled international air service without licence or contrary to licence
61. Operating unauthorised non-scheduled international flight or carrying on non-scheduled international flight contrary to licence
62. Obstruction of persons duly authorised by Director
63. Failure or refusal to produce or surrender documents
64. Trespass
65. Failure to maintain accurate records
66. Failure to notify emergency breach of Act or regulations or rules
67. Failure to notify accident or incident
68. Contravention of emergency rule, prohibition or condition
69. Flight over foreign country without authority or for improper purpose
Division 3 – Security offences
70. Security area offences
71. Impersonating or obstruction of aviation security officer
72. Communicating false information affecting safety
Division 4 – Infringement offences
73. Infringement offences
74. Infringement notices
Division 5 – Disqualification
75. Effect of disqualification
76. Commencement of a period of disqualification
77. Retention and custody of document
78. Removal of disqualification
79. Particulars of disqualification orders, etc, to be sent to Director
80. Appeals against disqualification
Division 6 - Offences punishable on summary conviction
81. Offences to be punishable on summary conviction
PART 7 – RIGHTS OF APPEAL
82. Appeal to Supreme Court
83. Procedure
84. Decision of Director to continue in force pending appeal, etc
85. Question of Law to be determined by Supreme Court
86. Further appeal to Court of Appeal
87. Evidence and proof
88. Evidence of air traffic services provider
PART 8 – REGISTRIES AND INFORMATION SERVICES
89. Vanuatu Register of Aircraft
90. Civil Aviation Registry
91. Information Services
PART 9 – AVIATION SECURITY
92. Aviation security
93. The responsibility of the Minister
94. Authorised aviation security service providers
95. Further provisions relating to aviation security service
96. Functions and duties of aviation security services
97. Security designated airports and navigation installations
98. Right of access
99. Security areas
100. Powers of arrest
101. Powers of Police
PART 10 – INTERNATIONAL AIR SERVICES AND OPEN AVIATION MARKET LICENSING
Division 1 - Preliminary
102. Interpretation
Division 2 – Requirements for licence
103. Scheduled international air service not be carried on in Vanuatu except pursuant to licence
104. Director may designate countries or territories for open aviation market licences
Division 3 – Licensing procedure
105. Director to be licensing authority
106. Application for licence
107. Notice of application
108. Considering of application
109. Licence subject to Council of Ministers approval
110. Duration of licence
111. Renewal of licence
112. Variation of terms and conditions of licence
113. Transfer of licence
Division 4 – Requirement on licensees
114. Insurance cover against liability
115. Returns to be furnished
Division 5 – Suspension and revocation of licences
116. Suspension of licences
117. Revocation of licences
Division 6 – Non-scheduled international flights and other services
118. Commercial non-scheduled international flights not to be operated except as authorised by Minister
119. Provisions of this Part in addition to requirements of regulations and rules
PART 11 – INTERNATIONAL AIR CARRIAGE COMPETITION
120. Definitions
121. Authorisation of contracts, arrangements, and understanding relating to internationally carriage by air
122. Director may issue commission regimes
123. Authorisation of tariffs by Director
PART 12 – MISCELLANEOUS PROVISIONS
124. Sale of liquor at airports
125. Minister may prohibit smoking on air routes
126. Offences in respect of smoking on flights
127. Procedure for offence in respect of smoking on flights
128. Nuisance, trespass, and responsibility for damage
129. Regulations
130. Repeal of Civil Aviation Act and savings
131. Commencement
REPUBLIC
OF VANUATU
Assent 10/09/99
Commencement 17/09/99
CIVIL
AVIATION ACT NO. 16 of 1999
To provide for the civil aviation system in Vanuatu and to promote aviation safety, and for related purposes.
BE
IT ENACTED by the President
and Parliament of the Republic of Vanuatu as follows:
PART 1 - PRELIMINARY
PURPOSE
1. The purpose of this Act is to regulate all matters pertaining to civil aviation, including safety.
INTERPRETATION
2. In
this Act, unless the contrary intention appears:
“accident” means an occurrence that is associated with the operation of an aircraft and takes place between the time any person boards the aircraft with the intention of flight and such time as all such persons have disembarked and the engine or any propellers or rotors come to rest, being an occurrence in which:
(a) a person is fatally or seriously injured as a result of:
(i) being in the aircraft; or
(ii) direct contact with any part of the aircraft, including any part that has become detached from the aircraft; or
(iii) direct exposure to jet blast;
except when the injuries are self-inflicted or inflicted by other persons, or when the injuries are to stowaways hiding outside the areas normally available to passengers and crew; or
(b) 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 cowlings, or accessories, or damage limited to propellers, wing tips, rotors, antennas, tyres, brakes, fairings, small dents or puncture holes in the aircraft skin; or
(c) the
aircraft is missing or is completely inaccessible;
“airport” means an area of land or water intended for use either wholly or partly for the landing, departure or movement of aircraft, and includes any buildings, installations and equipment on or adjacent to the area used in connection with the airport or its administration;
“airport control service” means an air traffic control service provided for the control of airport traffic;
“airport flight information service” means a service provided for the purpose of giving advice and information useful for the safe and efficient conduct of flights in the vicinity of an airport;
“airport
traffic”
means:
(a) all
traffic in the manoeuvring area of an airport;
and
(b) all aircraft
flying in the vicinity of an airport;
“airport traffic circuit” means the pattern flown by aircraft operating in the vicinity of an airport;
“aeronautical product” means any thing that comprises or is intended to comprise any part of an aircraft or that is or is intended to be installed in or fitted or supplied to an aircraft, and includes fuel and other similar consumable items necessary for the operation of the aircraft;
“aircraft” means any machine or craft that can derive support in the atmosphere from the reactions of the air;
“aircraft flying in the vicinity of an airport” means any aircraft that is in, entering, or leaving an airport traffic circuit;
“air service” means an air transport service or an aerial work service, whether regular or casual;
”air traffic” means all aircraft in flight or operating on any manoeuvring area of an airport;
“air
traffic control
service” means a
service provided for the purposes of:
(a) preventing
collisions
(i) between aircraft; and
(ii) between aircraft and obstructions on any manoeuvring area; and
(b) expediting
and maintaining a safe and efficient flow of air traffic;
“air
traffic service”
includes:
any airport control service;
any area control service;
any approach control service;
any flight information service;
any airport flight information service;
any alerting service;
(g) any other air traffic service considered by the Director to be necessary for the safe and efficient operation of the civil aviation system;
“alerting service” means an air traffic service provided to notify appropriate organisations regarding aircraft in need of search and rescue aid, and to assist such organisations as required;
“approach control service” means an air traffic control service for arriving and departing controlled flights;
“area control service” means an air traffic control service provided for controlled flights in controlled airspace;
“aviation document” means any licence, permit, certificate or other document issued under this Act to or in respect of any person, aircraft, airport, aeronautical procedure, aeronautical product or aviation related service;
“aviation related service” means any equipment, facility or service, including any air traffic service operated in support or in conjunction with the civil aviation system, and includes the provision of aeronautical products;
“aviation security officer” means a person for the time being employed as such by the Department of Civil Aviation, the Civil Aviation Corporation, any other operator of an airport or an aviation security service;
“Civil Aviation Corporation” means the Civil Aviation Corporation Limited, a company incorporated under the Companies Act [CAP 191];
“Civil
Aviation Registry”
means the Registry established under section 90;
“commencement” means the commencement of this Act;
“controlled airspace” means an airspace of defined dimensions within which an air traffic control service is provided to controlled flights;
“controlled flight” means any flight that is provided with or required by rules made under this Act to make use of an air traffic control service;
“Convention” means the Convention on International Civil Aviation signed in Chicago on the 7th day of 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 the Republic of Vanuatu; and
(b) any Annex or amendment thereto accepted under Article 90 of the Convention; and
(c) the international standards and recommended practices from time to time accepted and amended by the International Civil Aviation Organisation pursuant to Article 37 of the Convention;
“court”
means a court of competent
jurisdiction;
“Department”
means the Department of
Civil
Aviation;
“Director”
means the Director of Civil Aviation;
“flight information service” means an air traffic service provided for the purpose of giving advice and information intended for the safe and efficient conduct of flights;
“holder”, in relation to any aviation document, includes any person lawfully entitled to exercise privileges in respect of that document;
“ICAO” means the International Civil Aviation Organisation established under the Convention; and includes any successor to the Organisation;
“incident” means any occurrence, other than an accident, that is associated with the operation of an aircraft and affects or could affect the safety of operation;
“international airport” means any airport designated as an airport of entry and departure for international air traffic where customs, immigration and quarantine procedures are carried out;
“judicial officer” means a magistrate or a judge of the Supreme Court;
“manoeuvring area” means that part of an airport to be used for the take-off and landing of aircraft and for the surface movement of aircraft associated with take-off and landing, but does not include areas set aside for loading, unloading or maintenance of aircraft;
“Minister”
means the Minister responsible for civil aviation;
“navigation installation” means any building, facility, work, apparatus, equipment or place (whether or not part of an airport) that is intended to assist in the control of air traffic or as an aid to air navigation, and includes any adjacent land, equipment or place used in connection with it;
“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 any place;
whether or not the person is present with the aircraft; and “operator” has a corresponding meaning;
“owner”, in relation to any aircraft, includes any person lawfully entitled to the possession of the aircraft for 28 days or longer;
“pilot-in-command”, in relation to any aircraft, means the pilot responsible for the operation and safety of the aircraft;
“prescribed” means prescribed by this Act, the regulations or the rules;
“regulations” means regulations made under this Act;
“rules” means ordinary rules and emergency rules made under Part 4;
“security area” means an area that is declared to be a security area under section 99;
“security designated airport” means an airport for the time being designated as a security airport under section 97;
“security designated navigation installation” means a navigation installation for the time being designated as a security navigation installation under section 97;
“this Act” includes the regulations and the rules;
“Vanuatu registered aircraft” means any aircraft that is for the time being registered by the Director under section 6(1)(a);
“Vanuatu Register of Aircraft” means the register established under section 89.
APPLICATION
OF ACT
3. (1) This Act applies to the following:
(a) a person, aircraft, airport, aeronautical product, air service and aviation related service in Vanuatu;
(b) a Vanuatu registered aircraft whether within or outside Vanuatu;
(c) the holder of an aviation document while outside Vanuatu and exercising or purporting to exercise privileges accorded by that document;
(d) a foreign registered aircraft operating in Vanuatu.
(2) Despite subsection (1), the Minister may by agreement with the appropriate foreign aeronautical authority:
(a) transfer to the aeronautical authority in the country of a foreign operator all or part of the responsibility for a Vanuatu registered aircraft operated by that foreign operator; or
(b) vest in the Director all or part of the responsibility for a foreign registered aircraft operated by a Vanuatu operator that arises under this Act.
(3) A Vanuatu registered aircraft must, while being operated over the high seas, be operated in a manner that complies with the Rules of the Air contained in Annex 2 of the Convention.
(4) Nothing in this Act is to be interpreted as limiting the privileges or immunities of:
(a) any foreign military aircraft; or
(b) the officers and crew of any foreign military aircraft.
AVIATION DOCUMENT HOLDERS OUTSIDE VANUATU
4. (1) If the holder of an aviation document:
(a) is outside Vanuatu and is exercising or purporting to exercise the privileges accorded by that document; and
(b) commits an act or omission that would constitute an offence if it were committed in the Republic of Vanuatu;
the holder is taken to have committed the offence.
(2) Subsection (1) does not apply if an act or omission is required in order to comply with the laws of any foreign state.
CIVIL
AVIATION AUTHORITY AND DEPARTMENT
5. (1) The Department of Civil Aviation that was in existence immediately before commencement continues in existence under the control of the Director on and after commencement.
(2) For the purposes of the international convention obligations of Vanuatu, the Minister is the Civil Aviation Authority for Vanuatu.
(3) For the purposes of the administration of this Act and any other matter relating to civil aviation, the Department of Civil Aviation is the Civil Aviation Authority.
(4) No company or other body is to be incorporated or registered under a name that contains the words “Civil Aviation Authority” or under any other name that so resembles such a name as to be likely to deceive the public.
(5) The person holding the office of Director of Civil Aviation immediately before commencement is to continue as the Director of Civil Aviation, on and after commencement, on the same terms and conditions of service.
(6) Any other person who holds an office or position in the Department immediately before commencement is to continue in that office or position, on and after commencement, on the same terms and conditions of service.
PART
2
ENTRY INTO THE CIVIL AVIATION SYSTEM
REQUIREMENT
TO REGISTER AIRCRAFT
6. (1) A person lawfully entitled to possession of an aircraft for a period of 28 days or longer which flies to, from, within or over the territory of Vanuatu must register that aircraft and hold a valid certificate of registration for that aircraft from:
(a) the Director; or
(b) the appropriate aeronautical authorities of a contracting state of ICAO; or
(c) the appropriate aeronautical authorities of another State that is party to an agreement with the government of Vanuatu or the Civil Aviation Authority for Vanuatu which provides for the acceptance of each other’s registrations.
(2) An aircraft is not to be registered in or remain registered in Vanuatu if it is registered in any other country.
(3) The Director may decline to register any aircraft in accordance with the rules.
(4) A person to whom a decision made under this section relates may appeal to the Supreme Court against the decision (see section 82).
REQUIREMENT
FOR AVIATION DOCUMENT
7. (1) The rules may require that an aviation document is needed for all or any of the following:
(a) Vanuatu registered aircraft;
(b) aircraft pilots;
(c) flight crew members;
(d) air traffic services personnel;
(e) aviation security service personnel;
(f) aircraft maintenance personnel;
(g) air services;
(h) air traffic services;
(i) airports and airport operators;
(j) navigation installation providers;
(k) aviation training organisations;
(l) aircraft design, manufacture, and maintenance organisations;
(m) aeronautical procedures;
(n) aviation security services;
(o) aviation meteorological services;
(p) aviation communications services;
(q) such other persons, aircraft, aeronautical products, aviation related services, facilities and equipment operated in support of the civil aviation system and as are required in the interests of safety or security;
(r) any class of such persons or things specified in paragraphs (a) to (q).
(2) The requirements, standards and application procedure for an aviation document and the maximum period for which the document may be issued is to prescribed by the rules.
(3) An aviation document may be issued by the Director for such specified period and subject to such condition as the Director considers appropriate in each particular case.
(4) A person to whom a decision made under this section relates may appeal to the Supreme Court against the decision (see section 82).
APPLICATION
FOR AVIATION DOCUMENT
8. (1) An application for the grant or renewal of an aviation document must be made to the Director in the prescribed form. If there is no prescribed form, it must be in such form as the Director may require.
(2) An application must include the applicant’s address for service in Vanuatu, including telephone and facsimile numbers, and email details.
(3) A record of the information provided under subsection (2) must be maintained in the Civil Aviation Registry.
(4) The holder of an aviation document must notify the Director of any changes to the information provided under subsection (2) within 7 days after the changes occur.
(5) Service of any notification under this Act on the holder of, or applicant for, an aviation document is taken to be effective service if the notice is served on the address for service last provided by that holder or applicant.
GRANT
OR RENEWAL OF AVIATION DOCUMENT
9. (1) After considering any application for the grant or renewal of an aviation document, the Director must, as soon as is practicable, grant the application if he or she 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) holds the relevant prescribed qualifications and has the prescribed experience or holds such foreign qualifications as are acceptable to the Director; 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.
Subject to the rules, the Director may accept such foreign qualifications or recognise such foreign certifications as he or she considers appropriate in each case.
(2) (3) It is a 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.
(4) An applicant may appeal to the Supreme Court against a decision made under this section (see section 82).
CRITERIA
FOR FIT AND PROPER PERSON TEST
10. (1) For the purpose of determining whether or not a person is a fit and proper person under section 9, the Director must consider the following:
(a) the person’s compliance history with transport safety regulatory requirements;
(b) the person’s related experience (if any) within the transport industry;
(c) the person’s knowledge of the applicable civil aviation system regulatory requirements;
(d) any history of mental health or serious behavioural problems;
(e) any conviction for any transport safety offence, whether or not:
(i) the conviction was in a court in Vanuatu; or
(ii) the offence was committed before the commencement;
(f) any evidence that the person has committed an offence relating to transport safety or has contravened or failed to comply with any of the rules;
(g) such other matters and evidence as may be relevant.
(2) Without limiting subsection (1), the Director may:
(a) obtain such information (including medical reports) as the Director thinks fit; and
(b) consider information obtained from any source.
(3) Subsection (1) applies to a body corporate with the following modifications:
(a) paragraphs (1)(a), (b), (c), (e) and (f) are to be read as if they refer to the body corporate and its officers; and
(b) paragraph (1)(d) to be read as if it refers only to the officers of the body corporate.
RIGHTS
OF PERSONS AFFECTED BY PROPOSED ADVERSE DECISIONS
11. (1) If the Director proposes to make a decision that a person is not a fit and proper person (in this section called “an adverse decision”), the Director must give written notice to the person directly affected by the proposed decision.
(2) The notice must:
(a) inform the person of the grounds for the proposed decision; and
(b) specify that the person may make submissions to the Director in respect of the proposed decision within 21 days after the date on which notice is given; and
(c) inform the person of the person’s right of appeal under section 82.
(3) The Director must give a copy of the notice to:
(a) any other person on the basis of whose character the adverse decision arises; and
(b) any document holder if the Director considers that the proposed decision is likely to have a significant impact on the operations of that document holder.
(4) The Director may give a copy of the notice to any other document holder.
(5) After considering any submissions made under paragraph (2)(b), the Director must:
(a) determine whether or not to make the proposed adverse decision; and
(b) as soon as practicable after doing so, notify in writing the person directly affected of:
(i) the Director’s decision and the grounds for the decision; and
(ii) the date on which the decision takes effect; and
(iii) the right of appeal under section 82.
PART 3
FUNCTIONS,
POWERS AND DUTIES OF
PARTICIPANTS
IN
THE CIVIL AVIATION SYSTEM
Division
1 – Duties of participants
GENERAL REQUIREMENTS FOR PARTICIPANTS IN CIVIL AVIATION SYSTEM
12. (1) A person who does anything for which an aviation document is required must hold the relevant aviation document and all other necessary qualifications and documents.
(2) The holder of an aviation document must comply with this Act and the conditions attached to the aviation document.
(3) The holder of an aviation document must ensure that the activities for which the aviation document has been granted are carried out safely and in accordance with the relevant prescribed safety standards and practices.
(4) The holder of an aviation document that authorises the provision of a service within the civil aviation system:
(a) must, if required by the rules, 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) must provide training and supervision to all employees 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) must provide sufficient resources to ensure compliance with the relevant prescribed safety standards and the conditions attached to the document.
DUTIES
OF PILOT-IN-COMMAND
13. The
pilot-in-command of an aircraft:
(a) is responsible for the safe operation of the aircraft in flight, the safety and well-being of all passengers and crew, and the safety of cargo; and
(b) has final authority to control the aircraft while in command and for the maintenance of discipline by all persons on board; and
(c) is responsible for compliance with all relevant prescribed requirements.
DUTIES
OF PILOT-IN-COMMAND AND OPERATOR DURING
EMERGENCIES
14. (1) Subject to subsection (3), the pilot-in-command of an aircraft may breach the provisions of this Act in an emergency that arises in flight.
(2) Subject to subsection (3), if an emergency (not being an emergency that arises in flight) necessitates the urgent transportation of persons or medical or other supplies for the protection of life or property, the pilot-in-command of an aircraft or the operator of the aircraft may breach the provisions of this Act.
(3) A breach is permitted only if:
(a) the emergency involves a danger to life or property; and
(b) the extent of the breach of the prescribed requirement goes only as far as is necessary to deal with the emergency; and
(c) there is no other reasonable means of alleviating, avoiding or assisting with the emergency; and
(d) the degree of danger involved in deviating from the prescribed requirement is clearly less than the degree of risk involved in failing to attend to the emergency.
(4) Nothing
in subsection (3) permits:
(a) the operation of an aircraft that is not registered in Vanuatu or elsewhere; or
(b) the breach of any prescribed requirement as to the airworthiness of an aircraft; or
(c) the operation of an aircraft by a person who is not lawfully entitled to operate that aircraft.
(5) If, in any emergency, a pilot-in-command or an operator breaches this Act in accordance with the provisions of this section, the pilot-in-command or the operator, as the case may be, must:
(a) immediately notify the relevant air traffic control service of the action; and
(b) as soon as practicable, notify the Director of the action and the circumstances that necessitated it, and, if requested by the Director, provide to the Director a written report of the action.
Division 2 – Functions and duties of Minister and Director
FUNCTIONS
OF MINISTER
15. The principal
functions of the Minister under this Act are:
to promote safety in civil aviation at a reasonable cost; and
(b) to ensure that Vanuatu’s obligations under international civil aviation agreements are implemented; and
(c) to administer Vanuatu’s participation in the Convention and any other international aviation convention, agreement or understanding to which the Government of Vanuatu is a party.
FUNCTIONS
OF DIRECTOR
16. (1) The Director has such functions and may exercise such powers as may be conferred or imposed by this Act or delegated to the Director under section 23.
(2) The principal function of the Director is to undertake activities which promote safety in civil aviation at a reasonable cost.
(3) In furtherance of the Director’s principal function, the Director has the following functions:
(a) to establish safety and security standards relating to entry into the civil aviation system;
(b) to monitor adherence to safety and security standards within the civil aviation system;
(c) to ensure regular reviews of the civil aviation system to promote the improvement and development of its safety and security;
(d) to exercise control over entry into the civil aviation system through the granting of aviation documents under this Act;
(e) to investigate and review civil aviation accidents and incidents in his or her capacity as the responsible safety and security authority;
(f) to maintain and preserve records and documents relating to activities within the civil aviation system, and in particular to maintain the Vanuatu Register of Aircraft and the Civil Aviation Registry;
(g) to provide to the Minister such information and advice as the Minister may from time to time require;
(h) to take such action as may be appropriate in the public interest to enforce the provisions of this Act, including the carrying out of inspections and monitoring;
(i) to promote safety and security in the civil aviation system by providing safety and security information and advice, and fostering safety and security information education programs.
(4) For the purpose of granting or renewing aviation documents in respect of flight crew or aircraft maintenance personnel, the Director may set, conduct and administer examinations and tests, conduct flight testing and carry out such other functions in relation to such examinations, tests and flight testing as may be necessary.
(5) The Director must act independently, and is not subject to the direction or control of any person or body, in performing or exercising any functions or powers in relation to:
(a) the granting, suspension or revocation of aviation documents; or
(b) the granting of exemptions under this Act; or
(c) the enforcement of the provisions of this Act.
DIRECTOR
MAY REQUIRE OR CARRY OUT SAFETY AND SECURITY INSPECTIONS AND MONITORING
17. (1) The Director may in writing require any person who:
(a) holds an aviation document; or
(b) operates, maintains or services, or does any other act in respect of, any aircraft, aeronautical product, aviation related service, air traffic service or aeronautical procedure;
to undergo or carry out such inspections and such monitoring as the Director considers necessary in the interests of civil aviation safety and security.
(2) The Director may, in respect of any person mentioned in subsection (1), carry out such inspections and monitoring as the Director considers necessary in the interests of civil aviation safety and security.
(3) For the purposes of any inspection or monitoring carried out in respect of any person under subsection (2), the Director may in writing require from that person such information as the Director considers relevant to the inspection or the monitoring.
(4) The cost of any inspection, monitoring or safety audit is to be borne by the person or organisation that is being inspected, monitored or audited.
POWER
OF THE DIRECTOR TO SUSPEND AVIATION DOCUMENT OR IMPOSE CONDITIONS
18. (1) The Director may suspend any aviation document issued under this Act or impose conditions in respect of any such document if he or she is satisfied that:
(a) such action is necessary to ensure compliance with this Act; or
(b) the holder has failed to comply with any conditions of the aviation document or with the requirements of section 12; or
(c) the holder has given false information for the purpose of obtaining that or any other aviation document; or
(d) the privileges or duties for which the document has been granted are being carried out by the holder in a careless or incompetent manner;
and considers such action is necessary in the interests of safety.
Without limiting subsection (1), the Director may:
suspend any aviation document relating to the use of any aircraft, aeronautical product or the provision of any service; or
impose conditions in respect of any such document;
if he or she considers that there is reasonable doubt as to the airworthiness of the aircraft or as to the quality or safety of the aeronautical product or service to which the document relates.
(3) The suspension of any aviation document or conditions imposed in respect of any such document remains in force for such period as the Director determines.
(4) However, the duration of any such suspension or imposition of conditions must not exceed 14 days unless the Director determines that a further period is necessary for the purposes of completing any investigation being undertaken by the Director.
(5) If, after investigation, the Director considers it is necessary, he or she may suspend for a further period the aviation document or impose further conditions.
(6) Any person whose aviation document has been suspended or made subject to conditions must immediately produce that document to the Director for the appropriate endorsement.
(7) The whole or any part of an aviation document may be suspended under this section.
(8) A person in respect of whom a decision is made under this section may appeal against that decision to the Supreme Court (see section 82)
POWER
OF DIRECTOR TO REVOKE AVIATION DOCUMENT
19. (1) The Director may revoke any relevant aviation document following an investigation under section 18.
(2) If the Director proposes to revoke an aviation document, the Director must notify the holder in writing of the proposed revocation and give the holder at least 21 days in which to make submissions on the proposed revocation.
(3) After considering any submissions, the Director must:
(a) decide whether or not to revoke the aviation document; and
(b) as soon as practicable after doing so, notify the person concerned in writing of:
(i) the Director’s decision and the grounds for the decision; and
(ii) the date on which the decision takes effect; and
(iii) the right of appeal under section 82.
(4) Any person whose aviation document has been revoked must immediately surrender that document to the Director.
(5) A person in respect of whom a decision is made under this section may appeal against that decision to the Supreme Court (see section 82).
CRITERIA
FOR ACTION TAKEN UNDER SECTION 18 OR SECTION
19
20. (1) The provisions of this section apply for the purpose of determining whether an aviation document should be suspended or made subject to conditions under section 18, or revoked under section 19.
(2) The Director must consider the following:
(a) a person’s compliance history with transport safety regulatory requirements;
(b) any conviction for any transport safety offence whether or not:
(i) the conviction was in a Vanuatu court; or
(ii) the offence was committed before commencement;
(c) any evidence that the person has committed a transport safety offence or has contravened or failed to comply with any of the rules;
(d) such other matters and evidence as may be relevant.
(3) Without limiting subsection (2), the Director may:
(a) obtain such information as the Director thinks fit; or
(b) consider information obtained from any source.
POWER
OF DIRECTOR TO AMEND OR REVOKE AVIATION
DOCUMENT
IN
OTHER CASES
21. (1) The Director may, if so requested in writing by the holder of any aviation document, amend that document or revoke that document in accordance with subsections (2) and (3).
(2) The Director may do any of the following:
(a) amend any aviation document to reflect the fact that any privilege or duty for which the document has been granted is no longer being carried out by the holder;
(b) revoke any aviation document if none of the privileges or duties for which the document has been granted are being carried out, or are able to be carried out, by the holder;
(c) amend any aviation document to impose further reasonable conditions;
(d) amend any aviation document to correct any clerical error or obvious mistake on the face of the document.
(3) Before taking any action under subsection (2), the Director must notify the holder in writing of the proposed action and give the holder a reasonable opportunity to comment or make submissions on the proposed action.
(4) When the holder of an aviation document is notified that specified action is proposed under this section, the holder must immediately produce the document to the Director.
POWER
OF DIRECTOR TO DETAIN AIRCRAFT, SEIZE AERONAUTICAL PRODUCTS, AND IMPOSE
PROHIBITIONS AND CONDITIONS
22. (1) If the Director believes on reasonable grounds that the operation or use of any aircraft or aeronautical product may endanger persons or property, the Director may do all or any of the following:
(a) detain the aircraft or any aircraft of that class;
(b) seize the aeronautical product or any aeronautical products of that class;
(c) prohibit the operation of the aircraft or aircraft of that class, or the use of any aeronautical product or any aeronautical products of that class.
However, the Director must not take action under this subsection unless the Director is authorised to do so by a warrant issued by a judicial officer.
(2) If the Director believes on reasonable grounds that the operation or use of any aircraft or any aeronautical product may endanger persons or property and that prompt action is necessary to prevent the danger, the Director may do all or any of the following:
(a) prohibit or impose conditions on the operation of the aircraft or all aircraft of that class;
(b) prohibit or impose conditions on the use of the aeronautical product or all aeronautical products of that class;
(c) detain particular aircraft or seize particular aeronautical products where necessary in order to prevent their operation or use.
(3) Subject to subsection (4), any detention or seizure under subsection (1) or (2) is to be maintained only for such time as is necessary in the interests of safety.
(4) If aircraft, aeronautical products or parts of such aircraft or products are required for the purpose of evidence in any prosecution under this Act, they may be retained by the Director for such period as the Director considers necessary for that purpose.
(5) The Director must, if requested by the owner or the person for the time being in charge of an aircraft detained or an aeronautical product seized under subsection (1), provide in writing to the owner or that person the reasons for the detention or seizure.
(6) A person in respect of whom a decision is made under this section may appeal against that decision to the Supreme Court (see section 82).
Division 3 – Delegation of functions and powers
DELEGATION
OF MINISTER’S FUNCTIONS OR POWERS TO
DIRECTOR
23. (1) Subject to subsection (2), the Minister may delegate to the Director all or any of the Minister’s functions and powers under this Act.
(2) The Minister must not delegate his or her power to make rules.
(3) A
delegation does not include the power to delegate.
(4) A delegation does not:
(a) affect or prevent the exercise of any function or power by the Minister; and
(b) affect the responsibility of the Minister for the actions of any person acting under the delegation.
DELEGATION
OF DIRECTOR’S FUNCTIONS OR POWERS TO EMPLOYEES OF
DEPARTMENT
24. (1) Subject to subsection (2), the Director may delegate to any employee of the Department all or any of his or her functions and powers under this Act, including functions or powers delegated to the Director under this Act.
(2) The Director must not delegate any function or power delegated to the Director by the Minister without the written consent of the Minister.
(3) An employee to whom a function or power has been delegated may, with the prior approval in writing of the Director, delegate to another employee of the Department such of those functions or powers as are so approved.
(4) A
delegation may be made to:
(a) a specified employee of the Department or to employees of a specified class; or
(b) the holder or holders for the time being of a specified office or specified class of offices of the Department.
(5) An employer purporting to act under a delegation must, when reasonably requested to do so, produce evidence of his or her authority to act.
DELEGATION
OF DIRECTOR’S FUNCTIONS OR POWERS TO A PERSON OUTSIDE
DEPARTMENT
25. (1) Subject to subsections (2) and (3), the Director may delegate to any person who is not an employee of the Department any of the Director’s functions or powers under this Act.
(2) The Director must not delegate the following:
(a) the power under this section to delegate functions and powers;
(b) the power under section 19 to revoke aviation documents;
(c) the power under section 44 to suspend or revoke aviation documents;
(d) the power under section 74 to issue infringement notices.
(3) The Director must not delegate any function or power to any person or any class of persons except with the consent in writing of the Minister.
(4) The
Director may delegate any power or function to:
(a) a specified person or class of persons; or
(a) (b) the holder or holders of a specified office or class of office.
(5) A delegation made by a Director who ceases to hold office continues to have effect as if it were made by the person for the time being holding office as the Director.
(6) A person purporting to act under a delegation must when reasonably requested to do so produce evidence of his or her authority to act.
EFFECT
OF DELEGATION
26. If a section confers power on a person (in this section called the “delegator”) to delegate a function or power:
(a) the delegation must be made by instrument in writing; and
(b) the delegation may be made either generally or as otherwise provided by the instrument of delegation; and
(c) a function or power so delegated, when performed or exercised by the delegate, is for the purposes of this Act, taken to have been performed or exercised by the delegator; and
(d) a delegation of a function or power by the delegator does not prevent the performance or exercise of the function or power by the delegator; and
(e) subject to any general or special directions given or conditions imposed by the delegator, the delegate may exercise a function or power so delegated in the same manner and with the same effect as if it had been conferred on the delegate by this Act and not by delegation; and
(f) in the absence of proof to the contrary, the delegate is presumed to be acting in accordance with the terms of the delegation when the delegate purportedly acts pursuant to the delegation; and