Civil Aviation Act 2014
Act 24 of 2014
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CIVIL AVIATION ACT 2014
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CIVIL AVIATION ACT 2014
Arrangement of Sections
Section
PART I – PRELIMINARY 11
1 Short title and commencement............................................................................. 11
2 Interpretation ........................................................................................................ 11
3 Act to bind the Crown .......................................................................................... 18
4 Application of Act ............................................................................................... 19
PART II – MINISTER AND DIRECTOR 20
5 Functions and objectives of Minister ................................................................... 20
6 Functions and Objectives of Director .................................................................. 21
7 Compliance with Government policy directions ................................................. 22
8 Facilitation of formalities ..................................................................................... 23
9 Appointment of officers and employees .............................................................. 23
10 Director to consider delegating or contracting out of functions and powers ....... 23
11 Annual Report ...................................................................................................... 23
12 Power to remove dangerous obstructions ............................................................ 23
13 Restrictions in the use of land .............................................................................. 24
14 Director of Civil Aviation .................................................................................... 25
15 Powers of Director in relation to examinations, and related matters ................... 27
16 Director may require or carry out safety and security inspections and
monitoring ............................................................................................................ 27
17 Power of Director to investigate holder of aviation document ............................ 27
18 Power of Director to suspend aviation document or impose conditions .............. 28
19 Power of Director to revoke aviation document or impose conditions ................ 29
20 Criteria for action taken under section 18 or 19................................................... 29
21 Power of Director to amend or revoke aviation document in other cases ........... 30
22 Powers of Director to detain aircraft, seize aeronautical products, and
impose prohibitions and conditions and powers in relation to dangerous
goods .................................................................................................................... 31
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23 General power of entry ......................................................................................... 32
24 Delegation of Minister's functions or powers to Director .................................... 34
25 Delegation of Director's functions or powers to employees of the Civil
Aviation Division ................................................................................................. 34
26 Delegation of Director's functions or powers to persons outside the Civil
Aviation Division ................................................................................................. 36
PART III – REGISTRIES AND INFORMATION SERVICES 37
27 The Tonga Register of Aircraft ............................................................................ 37
28 Civil Aviation Registry ........................................................................................ 37
29 Information services ............................................................................................. 38
PART IV - RULES 38
30 Interpretation ........................................................................................................ 38
31 Power of Minister to make ordinary Rules .......................................................... 38
32 Rules relating to safety and security..................................................................... 39
33 Rules relating to airspace ..................................................................................... 39
34 Rules for noise abatement purposes ..................................................................... 40
35 Rules relating to general matters .......................................................................... 40
36 Power of Director to make emergency Rules ....................................................... 41
37 Procedures relating to Rules ................................................................................. 41
38 Matters to be taken into account in making Rules ............................................... 42
39 Procedure for making ordinary Rules .................................................................. 43
40 Making of Ordinary Rules by Adoption............................................................... 43
41 No requirement for translation or sale of adopted Rules ...................................... 45
42 Amendments to adopted Rules ............................................................................. 45
43 Procedure for making emergency Rules .............................................................. 46
44 Incorporation by reference ................................................................................... 47
45 Exemption power of Director ............................................................................... 48
PART V – REGULATIONS 48
46 Regulations ........................................................................................................... 48
47 Fees, charges and levies ....................................................................................... 49
48 Rebates ................................................................................................................. 50
49 Payment of fees and charges ................................................................................ 50
50 Suspension or revocation of aviation document where prescribed fees,
charges or levies unpaid ....................................................................................... 51
51 Recovery of fees and charges ............................................................................... 51
PART VI - TONGA CIVIL AVIATION SYSTEM 52
52 General requirements for participants in the Tonga civil aviation system ........... 52
53 Requirement for aviation document ..................................................................... 52
54 Application for aviation document ....................................................................... 53
55 Grant or renewal of aviation document ................................................................ 54
56 Criteria for fit and proper person test ................................................................... 55
57 Rights of persons affected by proposed adverse decisions .................................. 56
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58 Requirement to register aircraft ........................................................................... 57
59 Responsibilities of pilot-in-command and operator ............................................. 58
60 Nuisance, trespass, and responsibility for damage .............................................. 59
PART VII - MEDICAL CERTIFICATION 61
61 Interpretation ........................................................................................................ 61
62 Power of Director to issue a medical certificate or to grant recognition to a
foreign medical certificate or assessment ............................................................ 62
63 Changes in medical condition of licence holder .................................................. 63
64 Medical disclosure ............................................................................................... 64
65 Extension from expiry of medical certificate ....................................................... 64
66 Investigation of medical condition of licence holder ........................................... 65
67 Revocation, suspension, amendment, and surrender of medical certificate ........ 65
68 Right of appeal to Supreme Court ....................................................................... 67
69 Savings ................................................................................................................. 67
PART VIII – ACCIDENT AND INCIDENT INVESTIGATION 67
70 Obligation to notify all accidents and incidents ................................................... 67
71 Director to further notify certain accidents and incidents .................................... 68
72 Director to take further action .............................................................................. 68
73 Appointment of Chief Investigator and referral of accident or incident .............. 69
74 Functions of Chief Investigator ........................................................................... 69
75 General powers of Chief Investigator .................................................................. 70
76 Powers of entry and investigation ........................................................................ 70
77 Conduct of investigation ...................................................................................... 72
78 Appointment of investigators or assessors ........................................................... 72
PART IX - DISCLOSURE AND ADMISSIBILITY OF ACCIDENT AND
INCIDENT INVESTIGATION INFORMATION 73
79 Interpretation ........................................................................................................ 73
80 Circumstances of disclosure, and admissibility, of certain investigation
records .................................................................................................................. 73
81 Circumstances of disclosure of cockpit recordings and certain investigation
records supplied to the Chief Investigator ........................................................... 74
82 Admissibility of cockpit recordings and certain investigation records
supplied to Chief Investigator .............................................................................. 75
83 Disclosure of record before civil proceedings commenced ................................. 75
84 Disclosure of record in civil proceedings ............................................................ 76
85 Provisions relating to application under section 83 or 84 .................................... 76
86 Court may order record to be produced ............................................................... 77
87 Restriction on publication of reports of proceedings ........................................... 77
88 Further provisions relating to disclosure of record .............................................. 77
89 Certain actions do not constitute disclosure ......................................................... 77
90 Admissibility of accident or incident findings, recommendations, or report ....... 78
91 Investigators not compellable to give opinion evidence in certain
proceedings .......................................................................................................... 78
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PART X - AVIATION SECURITY 78
92 Interpretation ........................................................................................................ 78
93 Provision of aviation security ............................................................................... 79
94 Responsibility of Minister to provide aviation security services ......................... 79
95 Authorised aviation security service providers .................................................... 79
96 Further provisions relating to Aviation Security Service ..................................... 79
97 Functions and duties of other aviation security service providers ....................... 80
98 Powers, functions and duties of aviation security services .................................. 80
99 Security areas and security enhanced areas .......................................................... 81
100 Security designated aerodromes and navigation installations .............................. 82
101 Right of access ..................................................................................................... 82
102 Powers and duties of Director to require screening, search and seizure .............. 83
103 Powers and duties of Director relating to security checks ................................... 85
104 Review procedures for security check determinations ......................................... 86
105 Offence to carry out activity while authorisation withdrawn or after
authorisation revoked ........................................................................................... 87
106 Offence to fail to comply with Director’s requirement to withdraw or
revoke authorisation ............................................................................................. 87
107 Powers and duties of aviation security officer relating to dangerous goods ........ 87
108 Power of aviation security officers to search for and seize certain items or
substances to be carried on aircraft or into sterile areas ....................................... 88
109 Further powers and duties of aviation security officers relating to security
enhanced areas...................................................................................................... 89
110 Consent to be screened or searched ...................................................................... 90
111 Persons who refuse to consent to be screened or searched .................................. 90
112 Searches of persons refusing consent to be searched ........................................... 91
113 Searches of persons .............................................................................................. 92
114 Protection of aviation security officers ................................................................ 93
115 Powers of arrest and seizure of items or substances ............................................ 93
116 Arrest of persons delivered to Police ................................................................... 94
117 Powers of Police ................................................................................................... 95
118 Search of passengers and baggage ....................................................................... 95
119 Proportional screening and search of other persons and things ........................... 97
120 Search of persons declining to allow screening or search .................................... 97
121 Screening and search of checked baggage, cargo and mail.................................. 98
122 Evidence of offences ............................................................................................ 98
123 Powers of aircraft commander ............................................................................. 99
124 Arrest of persons delivered to Police ................................................................. 100
125 Power to search persons on aircraft .................................................................... 101
126 Director may approve firearms, weapons, ammunition, and other
equipment for carriage and use by in-flight security officers ............................. 101
127 Foreign in-flight security officers ...................................................................... 101
128 Commissioner of Police may authorise members of police to be in-flight
security officers .................................................................................................. 102
129 In-flight security officers may possess, carry, and use firearms, weapons,
ammunition, and other equipment on board certain aircraft in certain
circumstances ..................................................................................................... 102
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130 In-flight security officers may take action or measures reasonably
necessary to restore or preserve control of aircraft ............................................ 102
131 In-flight security officers may arrest persons in certain circumstances ............. 102
132 In-flight security officers may restrain persons under arrest in certain
circumstances ..................................................................................................... 103
133 In-flight security officers may search certain persons and seize items or
substances in certain circumstances ................................................................... 103
134 Circumstances in which person assisting in-flight security officer may use
reasonable force ................................................................................................. 104
PART XI – INTERNATIONAL AND DOMESTIC AIR SERVICES 104
135 Interpretation ...................................................................................................... 104
136 Scheduled domestic and international air service not to be carried on
except pursuant to licence .................................................................................. 105
137 Application for licence ....................................................................................... 105
138 Minister to be licensing authority for Tongan domestic and international
airlines ................................................................................................................ 106
139 Notice of application .......................................................................................... 106
140 Consideration of application for scheduled international air service licence
by Tongan international airline .......................................................................... 106
141 Scheduled domestic and international air service licence may be granted
subject to conditions .......................................................................................... 107
142 Duration of domestic and scheduled international air service licences ............. 107
143 Renewal of scheduled international air service licence ..................................... 107
144 Variation of terms and conditions of scheduled international air service
licence ................................................................................................................ 108
145 Transfer of scheduled international air service licence ...................................... 108
146 Minister to be licensing authority for foreign international airlines .................. 109
147 Consideration of application for scheduled international air service licence
by foreign international airline........................................................................... 109
148 Scheduled international air service licence may be granted subject to
conditions ........................................................................................................... 109
149 Duration of scheduled international air service licence ..................................... 110
150 Renewal of scheduled international air service licence ..................................... 110
151 Variation of terms and conditions of scheduled international air service
licence ................................................................................................................ 111
152 Minister may designate countries or territories for open aviation market
licences............................................................................................................... 111
153 Minister to be licensing authority for open aviation market licences ................ 111
154 Consideration of application for open aviation market licence ......................... 112
155 Open aviation market licence may be granted subject to conditions ................. 112
156 Duration of open aviation market licence .......................................................... 112
157 Renewal of open aviation market licence .......................................................... 113
158 Variation of terms and conditions of open aviation market licence................... 113
159 Transfer of open aviation market licence ........................................................... 113
160 Holder of open aviation market licence may operate non-scheduled
international flights without authorisation under section 165 ............................ 114
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161 Insurance cover against liability ......................................................................... 114
162 Returns to be furnished ...................................................................................... 114
163 Suspension of licences ....................................................................................... 114
164 Revocation of licences ....................................................................................... 114
165 Commercial non-scheduled international flights not to be operated except
as authorised by Minister ................................................................................... 115
166 Provisions of this Part in addition to requirements of Regulations and
Rules ................................................................................................................... 115
167 Minister may prohibit smoking on international air routes ................................ 115
PART XII - GENERAL OFFENCES 116
168 Applying for aviation document while disqualified ........................................... 116
169 Communicating false information or failing to disclose information
relevant to granting or holding of aviation document ........................................ 117
170 Carrying on scheduled international air service without licence or contrary
to licence ............................................................................................................ 117
171 Operating unauthorised non-scheduled international flight or carrying on
non-scheduled international flight contrary to licence ....................................... 118
172 Obstruction of persons duly authorised by Director .......................................... 118
173 Failure or refusal to produce or surrender documents ........................................ 118
174 Trespass .............................................................................................................. 118
175 Failure to maintain accurate records .................................................................. 119
176 Failure to notify emergency breach of Act or Regulations or Rules .................. 119
177 Failure to notify accident or incident ................................................................. 119
178 Offences relating to disclosure of records .......................................................... 119
179 Offences relating to publication of reports of proceedings or publication of
records ................................................................................................................ 119
180 Failure to provide identifying information ......................................................... 120
181 Contravention of emergency Rule, prohibition, or condition ............................. 120
182 Flight over foreign country without authority or for improper purpose ............. 120
PART XIII – SAFETY OFFENCES 121
183 Endangerment caused by holder of aviation document ...................................... 121
184 Operating aircraft in careless manner ................................................................. 122
185 Dangerous activity involving aircraft, aeronautical product, or aviation
related service ..................................................................................................... 122
186 Failure to comply with inspection or monitoring requirement ........................... 123
187 Court may disqualify holder of aviation document or impose conditions on
holding of document in respect of certain offences ........................................... 123
188 Acting without necessary aviation document ..................................................... 123
189 Acting without required medical certificate ....................................................... 124
190 Fraudulent, misleading, or intentionally false statements to obtain medical
certificate ............................................................................................................ 124
191 Failure to disclose information required by Director ......................................... 125
192 Additional penalty for offences involving commercial gain .............................. 125
193 Effect of disqualification .................................................................................... 125
194 Commencement of period of disqualification .................................................... 125
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195 Retention and custody of document ................................................................... 125
196 Removal of disqualification ............................................................................... 126
197 Particulars of disqualification orders, and related matters, to be sent to
Director .............................................................................................................. 126
PART XIV – SECURITY OFFENCES 126
198 Application......................................................................................................... 126
199 Offences relating to international airports ......................................................... 127
200 Offences relating to airports not being international airports ............................ 127
201 Offences against section 199 and 208 deemed to be included in extradition
treaties ................................................................................................................ 128
202 Acts endangering the public at an airport .......................................................... 129
203 Disruptive or alarming conduct at an airport ..................................................... 129
204 Security area offences ........................................................................................ 129
205 Offence of impersonation or obstruction of authorised persons ........................ 130
206 Communicating false information affecting safety ............................................ 130
207 Taking firearms, explosives, and related matters, on to aircraft or into a
security area ....................................................................................................... 130
208 Hijacking ............................................................................................................ 131
209 Offences in connection with hijacking .............................................................. 132
210 Other offences relating to aircraft ...................................................................... 132
211 Offences deemed to be included in extradition treaties ..................................... 133
212 Application of sections 208, 209, and 210 ......................................................... 134
213 Application of certain provisions relating to jurisdiction in respect of
offences on aircraft beyond the Kingdom .......................................................... 135
PART XV - UNRULY PASSENGER OFFENCES 135
214 Application of this Part ...................................................................................... 135
215 Liability for unruly passenger offences despite extraterritoriality ..................... 136
216 Liability for other offences despite extraterritoriality ........................................ 136
217 Certified consent of Attorney-General ............................................................... 136
218 Strict liability for acts endangering safety ......................................................... 136
219 Disruptive conduct towards crew member......................................................... 136
220 Interference with aircraft.................................................................................... 137
221 Intoxicated persons on aircraft ........................................................................... 137
222 Non-compliance with commands given by pilot-in command .......................... 138
223 Offensive behaviour or words ............................................................................ 138
224 Portable electronic devices not to be operated ................................................... 138
225 Non-compliance with seating and seatbelt instructions ..................................... 138
226 No smoking ........................................................................................................ 138
227 Dangerous goods ................................................................................................ 139
228 Procedure for certain unruly passenger offences ............................................... 139
PART XVI – RIGHTS OF APPEAL 140
229 Appeals against disqualification ........................................................................ 140
230 Appeal to Supreme Court................................................................................... 140
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PART XVII - MISCELLANEOUS PROVISIONS 141
231 Evidence and proof............................................................................................. 141
232 Evidence of air traffic services provider ............................................................ 142
233 Obligation to identify pilot-in-command ........................................................... 142
234 Exemption of aircraft from seizure on patent claims ......................................... 143
235 Right of access over private lands to wrecked or damaged aircraft ................... 143
236 Penalties ............................................................................................................. 144
237 Repeals, revocation, amendments, and savings ................................................. 144
SCHEDULE 1 145
ENACTMENTS REPEALED 145
SCHEDULE 2 146
FORM OF ADOPTION STATEMENT AND INTERPRETATION
STATEMENT 146
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CIVIL AVIATION ACT 2014
Act 24 of 2014
AN ACT TO MAKE FURTHER AND FRESH PROVISION FOR CIVIL
AVIATION
I assent,
TUPOU VI,
16
th
December 2014.
BE IT ENACTED by the King and Legislative Assembly of Tonga in the
Legislature of the Kingdom as follows:
PART I – PRELIMINARY
1 Short title and commencement
(1) This Act may be cited as the Civil Aviation Act 2014.
(2) Except for Part XI this Act shall come into force thirty days after its
enactment.
(3) Part XI shall come into force on a date appointed by the Minister with the
approval of Cabinet and notified in the Gazette.
2 Interpretation
In this Act, unless the context otherwise requires —
“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
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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;
(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;
(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,
antennas, tyres, brakes, fairings, small dents, or puncture holes in the
aircraft skin; or
(c) the aircraft is missing or is completely inaccessible;
“act of violence” means an act which, if committed in the Kingdom, would
constitute —
(a) culpable homicide as defined in sections 86 and 87 of the Criminal
Offences Act;
(b) any of the offences specified in sections 78, 109, 110, 112 and 113 of
the Criminal Offences Act;
(c) an offence against section 11 of the Counter Terrorism and
Transnational Organised Crime Act; or
(d) any of the offences specified in sections 22, 24, 44, and 45 of the Arms
and Ammunition Act;
―aerodrome‖ —
(a) means any defined area of land or water intended or designed to be
used either wholly or partly for the landing, departure, and surface
movement of aircraft; and
(b) includes any buildings, installations, and equipment on or adjacent to
any such area used in connection with the aerodrome or its
administration;
“aerodrome control service” means an air traffic control service provided
for the control of aerodrome traffic;
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“aerodrome 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 aerodrome;
―aerodrome traffic‖ means —
(a) all traffic in the maneuvering area of an aerodrome; and
(b) all aircraft flying in the vicinity of an aerodrome;
“aerodrome traffic circuit” means the pattern flown by aircraft operating in
the vicinity of an aerodrome;
“aeronautical product” means anything 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 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;
“aircraft flying in the vicinity of an aerodrome” means any aircraft that is
in, entering, or leaving an aerodrome traffic circuit;
“air navigation facility” means premises used for the handling of cargo,
baggage or mail, an aircraft hangar, a fuel storage area, an on board services
preparation facility and any other premises, building, structure or place to
which the public has no right of access and in which a service is rendered for
the operation of a designated airport or aircraft or for the public at a
designated airport or on board an aircraft, whether or not such premises,
building, structure or place are situated within the boundaries of a
designated airport;
“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 maneuvering area
of an aerodrome;
“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 maneuvering area; and
(b) expediting and maintaining a safe and efficient flow of air traffic;
―air traffic service‖ includes —
(a) any aerodrome control service;
(b) any area control service;
(c) any approach control service;
(d) any flight information service;
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(e) any aerodrome flight information service;
(f) any alerting service;
(g) any other air traffic service considered by the Director to be necessary
or desirable 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
or departing controlled flights;
―approved organisation‖ means —
(a) an aeronautical authority of a contracting state of ICAO; or
(b) an organisation or body declared to be an approved organisation by the
Minister under section 5(1)(d);
“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,
aerodrome, aeronautical procedure, aeronautical product, or aviation
related service;
“aviation related service” means any equipment, facility, or service
including any air traffic service (but excluding any accident or incident
investigation service performed under Part VIII) operated in support of 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 an aviation security service organisation pursuant to this Act and the
Civil Aviation Rules made under this Act;
“baggage” in relation to any contract of carriage means checked baggage or
baggage, personal effects, or other articles, not being checked baggage, in the
possession of the passenger, or in the possession of another person (being a
person accompanying the passenger or a servant or agent of the carrier)
whether the contract of carriage is for international carriage or
domestic carriage;
“cargo” in relation to any contract of carriage means all kinds of movable
property, including animals; but does not include baggage and mails or postal
articles whether the contract of carriage is for international carriage or
domestic carriage;
“carrier” in relation to any contract of carriage includes a contracting carrier
and an actual carrier whether the contract of carriage is for international
carriage or domestic carriage;
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“Civil Aviation Division” means the Civil Aviation Division of the Ministry
responsible for transport;
“Civil Aviation Registry” means the Registry established under section 28;
“CEO” means the person who is for the time being appointed as the Chief
Executive Officer in charge of the administration of the Ministry responsible
for transport;
“commander”, in relation to an aircraft, or “commander of an aircraft”
means the pilot for the time being in lawful command of the aircraft;
“contract” in relation to any contract of carriage includes an arrangement
made without consideration whether the contract of carriage is for
international carriage or domestic carriage;
“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 7
th
day of September 1944 and includes —
(a) any amendment to the Convention that has entered into force under
Article 94(a) of the Convention and which has been ratified by the
Kingdom;
(b) any Annex or amendment to any Annex accepted under Article 90 of
the Convention, to the extent adopted by the Kingdom; and
(c) the international standards and recommended practices from time to
time accepted and amended by the International Civil Aviation
Organisation under Article 37 of the Convention to the extent adopted
by the Kingdom;
―customs officer‖ means any person employed and functioning as a customs
officer within the meaning of the Customs Act;
“dangerous goods” means articles or substances that are capable of posing
risk to health, safety, property, or the environment and —
(a) are listed in, or classified in accordance with the ICAO’s Technical
Instructions for the Safe Transportation of Dangerous Goods by Air; or
(b) while not so listed or classified, nevertheless have features or properties
that in the opinion of the Director might reasonably qualify them for
listing or classification as dangerous goods under the ICAO’s Technical
Instructions for the Safe Transportation of Dangerous Goods by Air;
“Directive” means a written instruction issued under section 40(7);
―Director‖ means the person who is for the time being the Director of Civil
Aviation appointed under section 14(1);
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“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;
―foreign in-flight security officer‖ means an enforcement officer or person
with authorisation from a country other than the Kingdom who is —
(a) authorised to act on an aircraft that is in flight by the State that has
issued the air operating certificate (or its equivalent) under which the
air operation is conducted; and
(b) subject to an in-flight security officer arrangement or agreement
between the Kingdom and the State that has issued the air operating
certificate (or its equivalent) under which the air operation
is conducted;
“foreign licence” or “foreign medical assessment” or “foreign medical
certificate” means respectively a licence, medical assessment or medical
certificate validly issued by the appropriate authority of an ICAO member
state other than the Kingdom;
“Hague Convention” means the Convention for the Suppression of Unlawful
Seizure of Aircraft, done at the Hague on 16 December 1970;
“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;
“in-flight security officer” means a member of Tonga Police authorised by
the Commissioner of Police pursuant to section 128 to be an in-flight
security officer;
“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 the formalities incident to
customs, immigration, public health, animal and plant quarantine, and similar
procedures are carried out;
“judicial officer” means a Supreme Court Judge or a Magistrate;
“Kingdom” includes all waters within the outer limits of the territorial sea of
the Kingdom;
―maneuvering area‖ —
(a) means that part of an aerodrome to be used for the take-off and landing
of aircraft and for the surface movement of aircraft associated with
take-off and landing;
(b) but does not include areas set aside for loading, unloading, or
maintenance of aircraft;
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“Minister” means the Minister who is for the time being responsible for
civil aviation;
“Ministry” means the department of Government that is for the time being
responsible for the administration of this Act;
“Montreal Convention” means the Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23
September 1971;
“Montreal Protocol” means the Protocol for the Suppression of Unlawful
Acts of Violence at Airports Serving International Civil Aviation, done at
Montreal on 24 February 1988;
―navigation installation‖ —
(a) means any building, facility, work, apparatus, equipment, or place,
(whether or not part of an aerodrome) that is intended to assist in the
control of air traffic or as an aid to air navigation; and
(b) includes any land adjacent to any such building, facility, work,
apparatus, equipment, or place, and used in connection therewith;
“operate”, in relation to an aircraft, means to fly or use the aircraft, or 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;
“passenger” in relation to any contract of carriage means a person carried
pursuant to a contract of carriage of that person whether the contract of
carriage is for international carriage or domestic carriage and includes a
person who has reported to an employee or agent of the carrier for the purpose
of going on board an aircraft pursuant to a contract to carry him as
a passenger;
“PASO” means the Pacific Aviation Safety Office established pursuant to the
Pacific Islands Civil Aviation Safety and Security Treaty (PICASST);
“PICASST” means the Pacific Islands Civil Aviation Safety and Security
Treaty opened for signature at Apia, Samoa on 7 August 2004 and ratified by
the Kingdom on 24 August 2006;
“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 or by Regulations or Rules made
under this Act;
“prohibited item” includes, in addition to the items described in section
207(1)(a) - (e), any blunt, pointed or bladed item capable of being used to
cause injury; any chemical, toxic, explosive or highly combustible substance
posing a risk to the health of passengers or crew or the security or safety of
Section 3 Civil Aviation Act 2014
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aircraft; or any property or object capable, or appearing capable, of
discharging a projectile or causing injury and further includes any items
that —
(a) are listed in, or classified in accordance with, the ICAO’s Security
Manual for Safeguarding International Civil Aviation Against Acts of
Unlawful Interference; or
(b) while not so listed or classified, nevertheless have features or properties
that in the opinion of the Director might reasonably qualify them for
listing or classification as prohibited items under the ICAO’s Security
Manual for Safeguarding International Civil Aviation Against Acts of
Unlawful Interference or other document issued by ICAO after the
commencement of this Act in replacement or substitution of the
Security Manual for Safeguarding International Civil Aviation Against
Acts of Unlawful Interference;
“Rules” means ordinary Rules made by the Minister and emergency Rules
made by the Director under Part IV;
“security area” means an area that the Director has declared to be a security
area under section 99;
“security designated aerodrome” means an aerodrome for the time being
designated as a security aerodrome under section 100;
“security designated navigation installation” means a navigation
installation for the time being designated as a security navigation installation
under section 100;
“security enhanced area” means an area that the Director has declared to be
a security enhanced area under section 99;
“Tokyo Convention” means the Convention on Offences and Certain Other
Acts Committed on Board Aircraft, done at Tokyo on 14 September 1963;
“Tonga Register of Aircraft” means the register of that name that is
established under section 27; and
“Tongan registered aircraft” means any aircraft that is for the time being
registered by the Director under section 58(1)(a) or required to be registered
in the Kingdom under this Act.
3 Act to bind the Crown
(1) Subject to subsection (2), this Act shall bind the Crown.
(2) Subject to subsection (3) and except as otherwise expressly provided in this
Act or any other Act, or in the Regulations or Rules concerned, nothing in this
Act or in any Regulations or Rules made under this Act shall apply to His
Majesty’s Armed Forces.
Civil Aviation Act 2014 Section 4
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(3) This Act and Regulations and Rules made hereunder shall apply to aviation
operations of His Majesty’s Armed Forces which —
(a) are of a civilian character; and
(b) are not performed on operational service as defined in His Majesty’s
Armed Forces Act,
as if persons performing such aviation operations were not members of His
Majesty’s Armed Forces.
(4) For the purposes of subsection (3), a certificate by the Commander of His
Majesty’s Armed Forces regarding the use or non use of any aircraft on
operational service in any particular case shall be conclusive evidence of the
fact certified.
4 Application of Act
(1) Except as provided in section 167, 182 and Part XV this Act and all
Regulations and Rules made under this Act shall apply to the following —
(a) every person, aircraft, aerodrome, aeronautical product, air service, and
aviation related service in the Kingdom;
(b) every Tongan registered aircraft whether within or outside the
Kingdom;
(c) every holder of an aviation document while outside the Kingdom and
exercising or purporting to exercise privileges accorded by that
document;
(d) every foreign registered aircraft operating in the Kingdom.
(2) Notwithstanding subsection (1), the Minister, acting on the recommendation
of the Director, 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 Tongan registered aircraft operated
by that foreign operator that the Minister or the Director has under this
Act or Regulations or Rules made under this Act;
(b) vest in the Minister or the Director, as the case may require, all or part
of the responsibility for foreign registered aircraft operated by a Tongan
operator that arises under this Act or Regulations or Rules made under
this Act;
(c) grant exemptions from this Act, and from Regulations and Rules
made under this Act, relevant to any exercise of the Minister's
powers under this subsection.
(3) Every Tongan registered aircraft shall, 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.
Section 5 Civil Aviation Act 2014
Page 20 Act 24 of 2014
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(4) Except where an act or omission is required in order to comply with the laws
of any foreign state, every holder of an aviation document who, while outside
the Kingdom and exercising or purporting to exercise the privileges accorded
by that document, commits an act or omission that would constitute an
offence if it were committed in the Kingdom, shall be deemed to have
committed an offence under this Act and may be proceeded against in the
Kingdom as if the act or omission had occurred within the Kingdom.
(5) Nothing in this section shall be interpreted as requiring a person or aircraft to
contravene or be operated in contravention of a law of a foreign state that
applies to or in respect of the person or aircraft.
(6) Nothing in this Act shall 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.
(7) 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;
(b) twenty-four hours after the aircraft, having commenced the flight,
lands;
(c) the aircraft, having commenced the flight, makes a forced landing and
any competent authorities referred to in subsection (2) 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.
PART II – MINISTER AND DIRECTOR
5 Functions and objectives of Minister
(1) The functions of the Minister under this Act are to —
(a) promote safety and security in civil aviation;
(b) administer the participation of the Kingdom in the Convention and any
other international aviation convention, agreement, or understanding to
which the Government of the Kingdom is a party;
(c) make ordinary Rules under this Act;
(d) declare an organisation or body to be an approved organisation;
Civil Aviation Act 2014 Section 6
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Act 24 of 2014 Page 21
(e) contract, in consultation with the Director, with one or more approved
organisations for the provision of advice and recommendations to the
Director in relation to the granting and renewal of aviation documents;
(f) contract, in consultation with the Director, with one or more approved
regional or national institutions outside the Kingdom, for the provision
of safety and security oversight services on behalf of the Kingdom;
(g) ensure that aviation security services are provided at all security
designated aerodromes and security designated navigation installations.
(h) appoint where required a Chief Investigator to investigate and review
civil aviation accidents and incidents in accordance with Part VIII;
(i) maintain and preserve, in association with the Director, records and
documents relating to activities within the civil aviation system, and in
particular to maintain the Tonga Register of Aircraft and the Civil
Aviation Registry;
(j) provide to the Director or a Chief Investigator such information, advice,
services and resource as may be required from time to time and which
may assist in the implementation of this Act and Regulations and Rules
made under this Act;
(k) enter into technical or operational arrangements, or both, with civil
aviation authorities of other countries;
(l) carry out such other functions as may be conferred or imposed on the
Ministry by this Act, Regulations or Rules made under this Act or any
other enactment or as have been delegated to the Minister under this
Act.
(2) The Minister shall carry out any other civil aviation functions and duties that
are conferred on the Minister by this Act.
(3) Without limiting subsections (1) and (2), the Minister shall also have the
following objectives —
(a) to undertake the Minister’s functions in a way that contributes to the
aim of achieving an integrated, safe, responsive and sustainable
transport system; and
(b) to ensure that the obligations of the Kingdom under international civil
aviation agreements are implemented.
6 Functions and Objectives of Director
(1) Without prejudice to the functions and powers contained in section 14, the
Director has the following functions —
(a) to promote civil aviation safety and security in the Kingdom;
(b) to promote civil aviation safety and security beyond the Kingdom in
accordance with the Kingdom’s international obligations;
Section 7 Civil Aviation Act 2014
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(c) to monitor adherence, within the civil aviation system, to any
regulatory requirements relating to —
(i) safety and security, including but not limited to personal security;
(ii) access and mobility;
(iii) public health;
(iv) environmental sustainability;
(v) any other related matter;
(d) to ensure regular reviews of the civil aviation system to promote the
improvement and development of its safety and security;
(e) to notify and advise the Minister in accordance with section 71,
accidents and incidents notified to the Director, and to take such further
actions as are specified under section 71;
(f) to maintain and preserve, in association with the Minister, records and
documents relating to activities within the civil aviation system, and in
particular to maintain the Tonga Register of Aircraft and the Civil
Aviation Registry;
(g) to ensure the collection, publication, and provision of charts and
aeronautical information, and to enter into arrangements with any other
person or organisation to collect, publish, and distribute such charts and
information;
(h) to co-operate with, or to provide advice and assistance to any
Government agency when requested to do so by the Minister but only if
the Minister and the Director are satisfied that the performance of the
functions and duties of the Director will not be compromised;
(i) to provide information and advice with respect to civil aviation, and to
foster appropriate information education programmes with respect to
civil aviation that promote its objective;
(j) to carry out such other civil aviation functions, and such civil aviation
duties, as the Minister may from time to time prescribe by notice in the
Gazette;
(k) to carry out such other functions as may be conferred or imposed on the
Ministry by this Act, Regulations or Rules made under this Act or any
other enactment or as have been delegated to the Minister under this
Act.
(2) Without limiting subsection (1), the Director shall also have the objective of
undertaking the Director’s functions in a way that contributes to the aim of
achieving an integrated, safe, responsive and sustainable transport system.
7 Compliance with Government policy directions
(1) In the exercise of its functions and powers under this Act, the Director shall
have regard to the policy of the Government in relation to civil aviation, and
Civil Aviation Act 2014 Section 8
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shall comply with any directions relating to that policy given to him in writing
and signed by the Minister.
(2) The Minister shall not give any direction under subsection (1) which requires
the Director to do, or refrain from doing, a particular act, or bring about a
particular result, in respect of any particular person or persons.
8 Facilitation of formalities
The Minister shall, in accordance with Article 22 of the Chicago Convention, adopt
all practicable measures to facilitate and expedite navigation by aircraft between the
Kingdom and the territories of other States and to prevent unnecessary delays in the
clearance of aircraft, crews, passengers and cargo, especially in the administration of
the laws relating to immigration, quarantine, and customs.
9 Appointment of officers and employees
There may from time to time be appointed to assist the Minister and the Director in
the performance of their functions such officer or officers or employee or employees
of the Civil Aviation Division as may be necessary.
10 Director to consider delegating or contracting out of functions and
powers
Subject to this Act, the Director shall, in the course of performing his functions and
powers, consider whether he could most efficiently and effectively perform those
functions and powers by means of his own operations or by delegating or
contracting out those operations to appropriate persons selected after an appropriate
competitive process.
11 Annual Report
The Minister shall, as soon as practicable after the end of each year, cause to be
prepared a report on the exercise of his functions in relation to civil aviation in the
Kingdom during that year.
12 Power to remove dangerous obstructions
(1) The Minister may, by order, require the removal of any building, structure,
erection, tree or other thing whatsoever on any land or water which may, in
the opinion of the Minister on advice from the Director, constitute a danger to
aircraft flying in accordance with normal aviation practice.
(2) The Minister may, by order, authorise such persons as he may deem
appropriate to remove or to alter to such extent as may be specified in the
Section 13 Civil Aviation Act 2014
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order, such building, structure, erection, tree or thing which is in
contravention of an order made under subsection (1).
(3) A copy of every order made under subsection (1) shall be served upon the
owners or occupiers of all land affected by such order.
(4) Any person suffering loss or damage in consequence of an order made under
subsection (1) may apply for the payment of compensation therefore and, in
default of agreement, the amount of such compensation shall be fixed by the
Supreme Court.
(5) Where any order is issued in relation to an airport owned by the government
the compensation shall be paid by the government and where the order is
issued in relation to any other airport the compensation shall be paid by the
owner of that airport.
(6) Notwithstanding the other provisions of this section, no compensation shall be
payable for any loss or damage suffered in consequence of an order made
under this section where the building, structure, erection, tree or thing has
been erected or planted in contravention of any Rule or Regulation made
under this Act.
13 Restrictions in the use of land
(1) For the purpose of ensuring the safety of aircraft flying in accordance with
normal aviation practice the Minister may make regulations restricting the use
of land in the vicinity of airports and such regulations may provide for the
prohibition and restriction of —
(a) the erection of buildings, structures or other things in any area
specified;
(b) the planting of, or the limitation of the height of, any trees in any area
specified;
(c) the sowing or growing of any plant or crop in any area specified;
(d) the bringing of vessels or vehicles into any area specified, or the
anchoring or mooring of any vessel or vehicle therein.
(2) Any owner or occupier of land who suffers loss or damage in consequence of
any regulations made under subsection (1) shall be eligible for compensation
if he submits a claim to the Minister in respect of an airport owned by the
government, or to the owner in the case of any other airport, within a period
of six months after publication of such regulations:
Provided that —
(a) such loss or damage shall be assessed having regard only to
circumstances in existence at the time of the publication of such
regulations; and
Civil Aviation Act 2014 Section 14
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Act 24 of 2014 Page 25
(b) the maximum amount of compensation payable under this subsection
shall not exceed the amount by which the market value of such land is
reduced as a result of making such Regulations.
(3) In the event of disagreement as to the amount of compensation which shall be
paid in respect of a claim under the provisions of subsection (2), the amount
shall be fixed by the Supreme Court.
14 Director of Civil Aviation
(1) The Minister, acting on advice from the CEO, shall appoint a person who
shall be known as the Director of Civil Aviation.
(2) The Director shall have and may exercise such functions and powers as may
be conferred or imposed on the Director by this Act, or Regulations or Rules
made under this Act, and such functions and powers as may be delegated to
the Director by the Minister under section 24.
(3) Without limiting subsection (2), the Director shall—
(a) exercise control over entry into the civil aviation system through the
granting of aviation documents (including the validation of foreign
aviation documents) and the issue of medical certificates or the granting
of recognition to foreign medical certificates under this Act; and
(b) take such action as may be appropriate in the public interest to enforce
the provisions of this Act and of Regulations and Rules made under this
Act, including the carrying out or requiring of inspections and
monitoring.
(4) In performing or exercising any functions or powers in relation to—
(a) the granting of aviation documents;
(b) the suspension of aviation documents;
(c) the revocation of aviation documents;
(d) the issue, suspension, or revocation of medical certificates;
(e) the issue of a validation permit for a foreign licence;
(f) the grant of recognition of a foreign medical assessment or certificate;
or
(g) the granting of exemptions; or
(h) the enforcement of the provisions of this Act or any other Act, or of
Rules or Regulations made under any such Act,
in respect of any particular case, the Director shall act independently and shall
not be responsible to the Minister or the CEO for the performance or exercise
of such functions or powers.
(5) Without limiting subsection (2), where the Director believes on reasonable
grounds —
Section 14 Civil Aviation Act 2014
Page 26 Act 24 of 2014
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(a) that an unsafe condition exists in any aircraft or aeronautical product;
and
(b) that condition is likely to exist or develop in any other aircraft or
aeronautical products of the same design —
the Director may, by notice in writing, issue an airworthiness directive in
respect of the aircraft or aeronautical products, as the case may be, of that
design.
(6) Notice of an airworthiness directive issued under subsection (5) shall be
published in the Gazette.
(7) An airworthiness directive issued under subsection (5) comes into force on the
date specified in the directive, which may be a date earlier than the date of
notification of the issuing of the directive in the Gazette under subsection
(6), if —
(a) the Director considers that urgent action is required;
(b) the Director notifies the affected parties before the directive comes into
force; and
(c) notification of the issuing of the directive is published in the Gazette
not later than 28 days after the directive comes into force.
(8) In the case of absence from duty of the Director (from whatever cause arising)
or on the occurrence from any cause of a vacancy in that position (whether by
reason of death, resignation, or otherwise) and from time to time while the
absence or vacancy continues, all or any of the powers and duties of the
Director or pertaining to the position may be exercised and performed by —
(a) any other employee for the time being directed by the Minister to
exercise and perform them; or
(b) any other person for the time being appointed by the Minister to
exercise and perform them,
whether the direction has been given or the appointment has been made before
the absence or vacancy occurs or while the absence or vacancy continues.
(9) No direction or appointment pursuant to subsection (8), and no acts done by
any employee or other person acting pursuant to any such direction or
appointment, shall in any proceedings be questioned on the ground that the
occasion for the direction or appointment had not arisen or had ceased, or on
the ground that the employee or other person has not been appointed to any
position to which the direction or appointment relates.
(10) Except as provided in this Act, the Director shall have —
(a) the rights, powers, and privileges of a natural person; and
(b) the power to do anything he is authorised to do by or under —
(i) this Act;
(ii) any other enactment; or
Civil Aviation Act 2014 Section 15
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(iii) any Rule of law.
(11) The Director shall not exercise any of his rights, powers, or privileges except
for the purpose of performing his functions.
15 Powers of Director in relation to examinations, and related matters
For the purposes of granting or renewing aviation documents under this Act, 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.
16 Director may require or carry out safety and security inspections and
monitoring
(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 described in subsection (1)(a) –
(b), 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.
17 Power of Director to investigate holder of aviation document
(1) The Director may, in writing, require any holder of an aviation document to
undergo an investigation conducted by the Director if the Director believes,
on reasonable grounds, that it is necessary in the interests of civil aviation
safety and security, and if the Director —
(a) has reasonable grounds to believe that the holder has failed to comply
with any conditions of an aviation document or with the requirements
of section 54; or
(b) 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.
Section 18 Civil Aviation Act 2014
Page 28 Act 24 of 2014
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(2) If the Director requires a holder to undergo an investigation, the
Director shall —
(a) conclude the investigation as soon as practicable; and
(b) inform the holder, in writing, of —
(i) the date on which the investigation will begin; and
(ii) the results of the investigation, including any recommendations
arising out of the investigation; and the grounds for those
recommendations.
18 Power of Director to suspend aviation document or impose conditions
(1) The Director may suspend any aviation document issued under this Act or
Rules made under this Act or impose conditions in respect of any such
document, if he considers such action necessary in the interests of safety, and
if he —
(a) considers such action necessary to ensure compliance with this Act or
Rules made under this Act;
(b) is satisfied that the holder has failed to comply with any conditions of
an aviation document or with the requirements of section 52;
(c) is satisfied the holder has contravened or failed to comply with section
169; or
(d) 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 the general provisions of 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 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 and any conditions imposed under
subsections (1) or (2) shall remain in force until the Director determines what
action, if any, referred to in subsection (4) is to be taken; but any such
suspension or conditions expire 10 working days after the date that the
suspension or conditions are imposed unless, before the expiry of that 10
working day period, the Director extends the suspension or conditions for a
further specified period.
(4) The Director may take one or more of the following actions —
(a) impose conditions for a specified period;
(b) withdraw any conditions;
(c) suspend any aviation document for a specified period;
(d) revoke or partially revoke any aviation document under section 19.
Civil Aviation Act 2014 Section 19
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(5) If notice of a proposed revocation of an aviation document is given in
accordance with section 57, either at the same time as the suspension of the
document under this section is imposed or while the suspension is in force, the
document to which the notice relates remains suspended until the Director
finally decides whether to revoke the document under section 19.
(6) Any person whose aviation document has been suspended or made subject to
conditions under subsection (4) shall forthwith produce that document to the
Director for appropriate endorsement.
(7) The whole or any part of an aviation document may be suspended under this
section.
(8) Any person in respect of whom any decision is taken under this section may
appeal against that decision to the Supreme Court under section 230.
19 Power of Director to revoke aviation document or impose conditions
(1) The Director may, if he considers it necessary in the interests of aviation
safety after an inspection, monitoring, or investigation carried out under this
Act, revoke an aviation document or impose permanent conditions on an
aviation document.
(2) Revocation under this section may be in respect of the whole or any part of an
aviation document.
(3) If the Director proposes to take action under this section, he shall give notice
in accordance with section 57, which applies as if the proposed action were a
proposed adverse decision under this Act.
(4) A person whose aviation document is revoked or made subject to permanent
conditions under this section shall —
(a) if the document is made subject to permanent conditions or revoked in
part, immediately produce the document to the Director for appropriate
endorsement;
(b) if the whole document is revoked, immediately surrender the document
to the Director.
(5) Any person in respect of whom any decision is taken under this section may
appeal against that decision to the Supreme Court under section 230.
20 Criteria for action taken under section 18 or 19
(1) The provisions of this section shall apply for the purpose of determining
whether an aviation document should be suspended or made subject to
conditions under section 18, or revoked or made subject to conditions under
section 19.
(2) Where this section applies, the Director may have regard to, and give such
weight as the Director considers appropriate to, the following matters —
Section 21 Civil Aviation Act 2014
Page 30 Act 24 of 2014
to
(a) the 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 Tongan court; or
(ii) the offence was committed before the commencement of this
Act; or
(c) any evidence that the person has committed a transport safety offence
or has contravened or failed to comply with any Rule made under this
Act.
(3) The Director shall not be confined to consideration of the matters specified in
subsection (2) and may take into account such other matters and evidence as
may be relevant.
(4) The Director may —
(a) seek and receive such information as the Director thinks fit; or
(b) consider information obtained from any source.
(5) If the Director proposes to take into account any information that is or may be
prejudicial to a person, the Director shall, subject to subsection (6), as soon as
is practicable, but, in the case of the suspension of an aviation document or
the imposition of conditions under section 18, no later than 5 working days
after suspending the aviation document or imposing conditions, disclose that
information to that person and give that person a reasonable opportunity to
refute or comment on it.
(6) Nothing in subsection (5) requires the Director to disclose —
(a) any information, the disclosure of which would endanger the safety of
any person; or
(b) any information or the fact of non-disclosure of that information, before
suspending an aviation document or imposing conditions in respect of
an aviation document under section 18.
21 Power of Director to amend or revoke aviation document in other cases
(1) The Director may, if so requested in writing by the holder of any aviation
document, amend that document in the manner requested or revoke that
document.
(2) Subject to subsection (3), 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, or is no longer able to be 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;
Civil Aviation Act 2014 Section 22
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(c) 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 shall 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) The power to amend an aviation document under this section includes —
(a) power to revoke the document and issue a new document in its place;
and
(b) power to impose reasonable conditions.
(5) When the holder of an aviation document is notified that specified action is
proposed under this section, the holder shall forthwith produce the document
to the Director.
22 Powers of Director to detain aircraft, seize aeronautical products, and
impose prohibitions and conditions and powers in relation to
dangerous goods
(1) Where the Director believes on reasonable grounds that the operation or use
of any aircraft or aeronautical product or any class of aircraft or aeronautical
products may endanger persons or property, the Director may, if authorised by
a warrant given by a judicial officer on written application on oath, 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 or impose conditions on the operation of the aircraft or aircraft
of that class, or the use of any aeronautical product or any aeronautical
products of that class.
(2) Where the Director believes on reasonable grounds that the operation or use
of any aircraft or aeronautical product or any class of aircraft or aeronautical
products 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
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) Any detention or seizure under subsections (1) or (2) shall be maintained for
only such time as is necessary in the interest of safety; but, if aircraft,
aeronautical products, or parts thereof are required for the purpose of evidence
in any prosecution under this Act those aircraft, products, or parts thereof may
Section 23 Civil Aviation Act 2014
Page 32 Act 24 of 2014
to
be retained by the Director for such period as the Director considers necessary
for that purpose.
(4) The Director shall, 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.
(5) Any person in respect of whom any decision is taken under this section may
appeal against that decision to the Supreme Court under section 230.
(6) For the purpose of subsections (1) and (2), the Director shall notify any
prohibitions or conditions to such persons as he considers necessary by such
means of communication, whether or not of a permanent nature, as the
Director considers appropriate in the circumstances.
(7) The Director may search any receptacle, container, package or goods, offered
for carriage by air where the Director believes on reasonable grounds that the
receptacle, container, package or goods, may contain dangerous goods that
are —
(a) forbidden for carriage under the ICAO Technical Instructions for the
Safe Transportation of Dangerous Goods by Air;
(b) not classified, documented, certificated, described, packaged, marked
or labeled in accordance with the ICAO Technical Instructions for the
Safe Transportation of Dangerous Goods by Air; or
(c) not in the condition for shipment prescribed by the ICAO Technical
Instructions for the Safe Transportation of Dangerous Goods by Air.
(8) The Director may seize and detain any dangerous goods offered for carriage
by air that are of a nature described in subsection (7)(a), (b) or (c) for the
purpose of —
(a) preventing the carriage by air of such dangerous goods;
(b) use as evidence in any prosecution under this Act or any other act; or
(c) the safe disposal of such dangerous goods, if authorised by this or any
other Act.
(9) Any seizure or detention under subsection (8) may be maintained only for
such time as is necessary to achieve the relevant purpose or purposes in
subsection (8).
23 General power of entry
(1) For the purpose of carrying out his functions, duties, or powers under this Act
or Regulations or Rules made under this Act, every person duly authorised by
the Director shall have right of access at any reasonable time to the
following —
(a) any aircraft, aerodrome, building, or place;
Civil Aviation Act 2014 Section 23
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Act 24 of 2014 Page 33
(b) any document or record concerning any aircraft, aeronautical product,
or aviation related service.
(2) Without limiting the power conferred by subsection (1), every person duly
authorised by the Director who has reasonable grounds to believe that —
(a) any breach of this Act or of Regulations or Rules made under this Act
is being or about to be committed;
(b) a condition imposed under any civil aviation document is not being
complied with; or
(c) a situation exists within the civil aviation system or is about to exist that
constitutes a danger to persons or property,
may at any reasonable time enter any aircraft, aerodrome, building, or place,
and carry out an inspection to determine whether or not a matter referred to in
paragraphs (a) to (c) exists.
(3) Every person who is authorised to enter any aircraft, aerodrome, building, or
place under subsections (1) or (2) —
(a) may require any person who is in possession of an aviation document,
or of any certificate, book, manual, record, list, notice, or other
document that is required to be kept under this Act, to produce or
surrender it; and
(b) shall, if a document is surrendered under paragraph (a), inform the
relevant aviation document holders orally, as soon as practicable, and in
writing that the document has been surrendered.
(4) Nothing in subsections (1) or (2) shall confer on any person the power to enter
any dwelling house, or any meeting hall or building associated with meetings
unless the entry is authorised by a warrant given by a judicial officer on
written application on oath, which shall not be granted unless the judicial
officer is satisfied that the entry is essential to enable the inspection to be
carried out.
(5) Every warrant issued under subsection (4) shall be directed to a named person
and shall be valid for a period of 1 month from the date of its issue or such
lesser period as the judicial officer considers appropriate; and the period of
validity shall be shown in the warrant.
(6) Every person exercising the power of entry conferred by subsections (1) or (2)
shall carry a warrant of authority issued by the Director specifying —
(a) the name and the office or offices held by the person; and
(b) that the person is authorised by the Director to exercise the power
conferred by subsections (1) and (2) to enter aircraft, aerodromes,
buildings, and places, and to carry out such inspection.
(7) Every person exercising the power of entry conferred by subsections (1) and
(2) shall produce the warrant of authority and evidence of identity —
Section 24 Civil Aviation Act 2014
Page 34 Act 24 of 2014
to
(a) if practicable on first entering the aircraft, aerodrome, building, or
place; and
(b) whenever subsequently reasonably required to do so.
(8) Every sworn police officer shall have and may exercise all or any of the
powers conferred on a person who has been duly authorised by the Director
under this section.
24 Delegation of Minister's functions or powers to Director
(1) The Minister may from time to time, either generally or particularly, delegate
to the Director all or any of the Minister's functions and powers under this
Act.
(2) Every delegation under this section shall be in writing.
(3) No delegation under this section shall include the power to delegate under this
section.
(4) The power of the Minister to delegate under this section —
(a) is subject to section 31(8) and to any prohibitions, restrictions, or
conditions contained in any other Act in relation to the delegation of the
Minister's functions or powers;
(b) but does not limit any power of delegation conferred on the Minister by
any other Act.
(5) Subject to any general or special directions given or conditions imposed by
the Minister, the Director may exercise any functions or powers so delegated
to the Director in the same manner and with the same effect as if they had
been conferred on the Director directly by this section and not by delegation.
(6) Where the Director purports to act pursuant to any delegation under this
section, the Director shall, in the absence of proof to the contrary, be
presumed to be acting in accordance with the terms of the delegation.
(7) No such delegation shall affect or prevent the exercise of any function or
power by the Minister, nor shall any such delegation affect the responsibility
of the appropriate Minister for the actions of any person acting under the
delegation.
25 Delegation of Director's functions or powers to employees of the Civil
Aviation Division
(1) The Director may from time to time, either generally or particularly, delegate
to any employee of the Civil Aviation Division any of the Director's functions
and powers under this Act or any other Act, or under any Regulations or
Rules made under this Act, including functions or powers delegated to the
Director under this Act.
(2) Every delegation under this section shall be in writing.
Civil Aviation Act 2014 Section 26
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Act 24 of 2014 Page 35
(3) No delegation under this section shall include the power to delegate under this
section.
(4) Notwithstanding subsection (1), the Director shall not delegate —
(a) any functions or powers delegated to the Director by the Minister
without the written consent of the Minister; or
(b) the power under section 19 to revoke an aviation document.
(5) In any case where the Director has delegated any functions or powers to any
employee of the Civil Aviation Division under this section, that employee
may, with the prior approval in writing of the Director, delegate to any other
employee of the Civil Aviation Division such of those functions or powers as
are so approved.
(6) No delegation of any functions and powers delegated to any employee of the
Civil Aviation Division under this section shall be delegated by such
employee under subsection (5) without the written consent of the Director.
(7) Subject to any general or special directions given or conditions imposed by
the Director, any employee of the Civil Aviation Division to whom any
functions or powers are delegated under this section may perform those
functions and exercise those powers in the same manner and with the same
effect as if they had been conferred or imposed on that employee directly by
this Act and not by delegation.
(8) Every employee of the Civil Aviation Division purporting to act pursuant to
any delegation under this section shall, in the absence of proof to the contrary,
be presumed to be acting in accordance with the terms of the delegation.
(9) Any delegation under this section may be made to a specified employee of the
Civil Aviation Division or to employees of a specified class or to the holder or
holders for the time being of a specified office or specified class of office.
(10) No delegation under this section shall affect or prevent the performance of
any function or the exercise of any power by the Director nor shall any such
delegation affect the responsibility of the Director for the actions of any
employee of the Civil Aviation Division acting under the delegation.
(11) Every delegation under this section shall, until it is revoked, continue in force
according to its tenor, notwithstanding the fact that the employee of the Civil
Aviation Division by whom it was made may cease to hold office, and shall
continue to have effect as if it was made by the employee for the time being
holding that office.
(12) Every employee of the Civil Aviation Division purporting to act under any
delegation under this section shall when reasonably requested to do so
produce evidence of his authority to so act.
Section 26 Civil Aviation Act 2014
Page 36 Act 24 of 2014
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26 Delegation of Director's functions or powers to persons outside the
Civil Aviation Division
(1) Subject to this section, the Director may from time to time, either generally or
particularly, delegate to any person who is not an employee of the Civil
Aviation Division any of the Director’s functions and powers under this Act,
or under any Regulations or Rules made under this Act.
(2) Subject to this section, the Director may from time to time either generally or
particularly delegate to any person who is not an employee of the Civil
Aviation Division any of the Director's functions and powers under this Act,
or under any Regulations or Rules made under this Act, other than —
(a) the power under section 19 to revoke aviation documents; or
(b) the power under section 50 to suspend or revoke aviation documents.
(3) Every delegation under this section shall be in writing.
(4) No delegation shall be made under this section without the written consent of
the Minister.
(5) In any case where the Director has delegated any functions or powers to any
person under this section, that person may, with the prior approval in writing
of the Minister, delegate to any other person such of those functions or powers
as are so approved.
(6) Subject to any general or special directions given or conditions imposed by
the Director any person to whom any functions or powers are delegated under
this section may perform those functions and exercise those powers in the
same manner and with the same effect as if they had been conferred or
imposed on that person directly by this Act and not by delegation.
(7) Any delegation under this section may be made to a specified person or
persons of a specified class or to the holder or holders for the time being of a
specified office or specified class of office.
(8) Every delegation under this section shall be given for a specified period but in
any event shall be revocable at will.
(9) No delegation under this section shall affect or prevent the performance of
any function or the exercise of any power by the Minister or by the Director,
as the case may be, nor shall any such delegation affect the responsibility of
the Minister or the Director, as the case may be, for the actions of any person
acting under the delegation.
(10) Every delegation under this section shall, until it is revoked or it expires,
continue in force according to its tenor, notwithstanding the fact that the
person by whom it was made may cease to hold office, and shall continue to
have effect as if it was made by the person for the time being holding that
office.
Civil Aviation Act 2014 Section 27
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Act 24 of 2014 Page 37
(11) Every person purporting to act under any delegation under this section shall
when reasonably requested to do so produce evidence of his authority to
so act.
(12) Any person who exercises any function or power under a delegation made
under this section may charge the person in respect of whom the function or
power is exercised a reasonable fee in respect of the exercise of that function
or power.
PART III – REGISTRIES AND INFORMATION SERVICES
27 The Tonga Register of Aircraft
(1) The Director shall establish a register to be called the Tonga Register of
Aircraft.
(2) The Director shall enter in the Register such particulars as may be prescribed
of every aircraft registered under section 58(1)(a).
28 Civil Aviation Registry
(1) The Director shall establish a Civil Aviation Registry.
(2) Copies or appropriate evidence of the following shall be recorded and
maintained at the Registry —
(a) every current aviation document;
(b) the Tonga Register of Aircraft;
(c) every Regulation made under this Act, and every Rule notified in the
Gazette and for the time being in force;
(d) any material incorporated into a Rule by reference under section 44;
(e) every accident and incident notification given under Part VIII;
(f) every airworthiness directive issued by the Director under
section 14(5);
(g) every delegation, authorisation, and exemption granted in writing under
this Act;
(h) the address for service of every current applicant for an aviation
document and of every current aviation document holder;
(i) all information published under section 29.
(3) Documents kept at the Registry shall be made available by the Director for
inspection by the public free of charge.
Section 29 Civil Aviation Act 2014
Page 38 Act 24 of 2014
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29 Information services
(1) The Ministry shall ensure that an information service is provided which shall
comprise the collection and dissemination of aeronautical information and
instructions relating to the safety, regularity, and efficiency of air navigation.
(2) The Ministry shall ensure that such information and instructions are readily
available to any person upon payment of a reasonable charge fixed by
the Ministry.
PART IV - RULES
30 Interpretation
In relation to any of the Minister’s powers to make ordinary Rules in this Part
―make” shall be deemed to include the power of the Minister to adopt by reference
any civil aviation Rule part or Rule parts of a foreign jurisdiction pursuant to section
40 and “make”, “making” and “made” shall, in the context of ordinary Rules, have
a corresponding meaning throughout this Act.
31 Power of Minister to make ordinary Rules
(1) The Minister may from time to time make Rules (in this Act called ordinary
Rules) for all or any of the following purposes —
(a) the implementation of the obligations of the Kingdom under the
Convention;
(b) the provision of aviation meteorological services, search and rescue
services, and civil aviation security programs and services;
(c) any matter related or reasonably incidental to any of the following —
(i) the Minister's functions under section 5;
(ii) the Director's functions under section 6;
(d) any other matter contemplated by any provision of this Act.
(2) Any ordinary Rule may apply generally or with respect to different classes of
aircraft, aerodromes, aeronautical products, aeronautical procedures, or
aviation related services, or with respect to the same class of aircraft,
aerodrome, aeronautical product, aeronautical procedure, or aviation related
service in different circumstances.
(3) Any ordinary Rule may apply generally throughout the Kingdom or within
any specified part or parts of the Kingdom.
(4) The commencement of any ordinary Rule may be wholly suspended until it is
applied by the Minister by notice in the Gazette.
(5) No ordinary Rule shall be invalid because it confers any discretion upon or
allows any matter to be determined or approved by the Minister or the
Civil Aviation Act 2014 Section 32
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Act 24 of 2014 Page 39
Director or any other person, or allows the Minister or the Director or any
other person to impose requirements as to the performance of any activities.
(6) No breach of any ordinary Rule shall constitute an offence against this Act
unless that offence is prescribed in Regulations made under this Act.
(7) So far as the bylaws of any legally constituted organisation are inconsistent
with or repugnant to any ordinary Rule made under this Act, the bylaws shall
be construed subject to the Rules.
(8) The Minister shall not delegate his power to make ordinary Rules under this
Act.
32 Rules relating to safety and security
Without limiting the power conferred by section 31, in the interests of safety or
security within the civil aviation system the Minister may make all or any of the
following ordinary Rules —
(a) Rules providing for the use of aerodromes and other aviation related facilities,
including but not limited to the following —
(i) the provision of identification procedures for persons, aircraft, and any
other aviation related things;
(ii) the prevention of interference with aerodromes and other aviation
related facilities;
(b) general operating Rules, air traffic Rules, and flight Rules, including but not
limited to the following —
(i) the conditions under which aircraft may be used or operated, or under
which any act may be performed in or from an aircraft;
(ii) the prevention of aircraft endangering persons or property;
(c) Rules providing for the control of things likely to be hazardous to aviation
safety, including but not limited to the following —
(i) the safe carriage of firearms and other dangerous or hazardous goods or
substances by air;
(ii) the construction, use, or operation of anything likely to be hazardous to
aviation safety.
33 Rules relating to airspace
Without limiting the power conferred by section 31 —
(a) in the interests of safety or security within the civil aviation system; or
(b) in the interests of national security; or
(c) for any other reason in the public interest,
Section 34 Civil Aviation Act 2014
Page 40 Act 24 of 2014
to
the Minister may make ordinary Rules providing for the classification, designation,
special use, prohibition, and the restriction of airspace and things affecting navigable
airspace, including airspace used by aircraft used by any Tongan disciplined force or
a visiting force.
34 Rules for noise abatement purposes
Without limiting the power conferred by section 31, the Minister may make ordinary
Rules prescribing flight Rules, flight paths, altitude restrictions, and operating
procedures for the purposes of noise abatement in the vicinity of aerodromes.
35 Rules relating to general matters
Without limiting the power conferred by section 31, the Minister may make ordinary
Rules for all or any of the following purposes —
(a) the designation, classification, and certification of all or any of the following:
(i) aircraft;
(ii) aircraft pilots;
(iii) flight crew members;
(iv) air traffic service personnel;
(v) aviation security service personnel;
(vi) aircraft maintenance personnel;
(vii) air services;
(viii) air traffic services;
(ix) aerodromes and aerodrome operators;
(x) navigation installation providers;
(xi) aviation training organisations;
(xii) aircraft design, manufacture, and maintenance organisations;
(xiii) aeronautical procedures;
(xiv) aviation security services;
(xv) aviation meteorological services;
(xvi) aviation communications services;
(xvii) any other person who provides services in the civil aviation system, and
any aircraft, aeronautical products, aviation related services, facilities,
and equipment operated in support of the civil aviation system, or
classes of such persons, aircraft, aeronautical products, aviation related
services, facilities, and equipment operated in support of the civil
aviation system;
Civil Aviation Act 2014 Section 36
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Act 24 of 2014 Page 41
(b) the setting of standards, specifications, restrictions, and licensing
requirements for all or any of those persons or things specified in paragraph
(a), including but not limited to the following —
(i) the specification of the privileges, limitations, and ratings associated
with licences or other forms of approval;
(ii) the setting of standards for training systems and techniques, including
recurrent training requirements;
(iii) the setting of medical standards for personnel;
(iv) the requirement for proof of access to appropriate weather services;
(v) the specification of standards of design, construction, manufacture,
maintenance, processing, testing, supply, approval, and identification of
aircraft and aeronautical products;
(vi) the requirements for notification of insurance coverage for air services;
(vii) the format of aviation documents, forms, and applications, including
the specification of information required on all application forms for
aviation documents;
(viii) the provision of information to the Director by applicants for or holders
of aviation documents;
(c) the conditions of operation of foreign aircraft and international flights to,
from, or within the Kingdom;
(d) the definitions, abbreviations, and units of measurement to apply within the
civil aviation system;
(e) prescribing the design and colours of the Civil Air Ensign of the Kingdom,
and where and by whom it may be flown.
36 Power of Director to make emergency Rules
(1) Subject to subsection (2), the Director may from time to time, in accordance
with section 43, make such emergency Rules as may be necessary to alleviate
or minimise any risk of the death of or a serious injury to any person, or of
damage to any property.
(2) The Director shall not make emergency Rules unless it is impracticable in the
circumstances of the particular case for the Minister to make ordinary Rules to
effectively alleviate or minimise the risk concerned.
(3) The Minister may revoke any emergency Rule made under subsection (1), and
the revocation shall be notified as if it were an emergency Rule.
37 Procedures relating to Rules
(1) Every ordinary Rule (other than an ordinary Rule made by adoption pursuant
to the provisions of section 40) shall —
Section 38 Civil Aviation Act 2014
Page 42 Act 24 of 2014
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(a) be signed by the Minister;
(b) contain a statement specifying the objective of the Rule and the extent
of any consultation under section 39; and
(c) set out fully the requirements of the Rule, except where by reason of
size or length certain information is incorporated in the Rule by
reference under section 44.
(2) Every emergency Rule shall —
(a) be signed by the Director;
(b) contain a statement specifying the objective of the Rule and the extent
of the consultation under section 43 that took place before the making
of the Rule; and
(c) set out fully the requirements of the Rule, except where by reason of
size or length certain information is incorporated in the Rule by
reference under section 44.
38 Matters to be taken into account in making Rules
(1) The ordinary Rules made by the Minister and the emergency Rules made by
the Director shall not be inconsistent with the following —
(a) the standards of ICAO relating to aviation safety and security, to the
extent adopted by the Kingdom:
(b) the international obligations of the Kingdom relating to aviation safety
and security.
(2) In making any Rule the Minister or the Director, as the case may be, shall
have regard to, and shall give such weight as he considers appropriate in each
case to, the following —
(a) the standards and recommended practices made under the Chicago
Convention;
(b) the level of risk existing to aviation safety in each proposed activity or
service;
(c) the nature of the particular activity or service for which the Rule is
being established;
(d) the level of risk existing to aviation safety and security in the Kingdom
in general;
(e) the need to maintain aviation safety and security;
(f) the costs of implementing aviation safety and security measures;
(g) the international circumstances in respect of aviation safety and
security;
(h) such other matters as the Minister or the Director considers appropriate
in the circumstances.
Civil Aviation Act 2014 Section 39
to
Act 24 of 2014 Page 43
39 Procedure for making ordinary Rules
(1) Before making any ordinary Rule, the Minister shall —
(a) publish a notice of his intention to make the Rule in the Gazette;
(b) give interested persons a reasonable time, which shall be specified in
the notice published under paragraph (a), to make submissions on the
proposed ordinary Rule; and
(c) consult with such persons, representative groups within the aviation
industry or elsewhere, or Government departments as the Minister in
each case considers appropriate.
(2) Subject to subsection (3), every ordinary Rule shall be notified in the Gazette
and be made available by the Ministry for purchase by members of the public
at a reasonable price, and the notification shall specify a place where the Rule
is available for inspection free of charge and for purchase.
(3) Where for reasons of security it is inappropriate to notify a Rule under
subsection (2), the Minister shall notify such persons as he considers
appropriate or necessary in the circumstances and service of notification may
be effected in such other manner as the Minister considers appropriate or
necessary in the circumstances, and the Rule shall apply only to the persons so
notified.
(4) Every ordinary Rule shall come into force 28 days after the date of its
notification in the Gazette or on such later day as may be specified in the Rule
or under section 31(4) or, where notified by service on any person under
subsection (3), immediately upon service of the Rule upon that person and in
respect of that person only.
(5) The requirements of subsections (1) to (3) shall not apply to the making of
ordinary Rules by adoption under section 40.
40 Making of Ordinary Rules by Adoption
(1) Notwithstanding any other procedure by which the Minister may make
ordinary Rules in accordance with the provisions of this Act the Minister may
when he deems it appropriate make an ordinary Rule or Rules by adopting,
with or without modification, a civil aviation Rule part or parts of a foreign
jurisdiction pursuant to the provisions of this section. Any such adopted
Rule part or parts shall be incorporated by reference as an ordinary Rule part
or parts of the Kingdom and shall have full force and effect in the Kingdom
notwithstanding that the foreign Rule part from which the Tonga Rule part is
derived may at any time have ceased to be in force within the jurisdiction of
its origin.
(2) For the purposes of this section “a civil aviation Rule part of a foreign
jurisdiction” shall mean any ordinary civil aviation Rule part which has been
duly promulgated and published by any member state of ICAO other than the
Section 40 Civil Aviation Act 2014
Page 44 Act 24 of 2014
to
Kingdom and which may be readily accessed by the public in the Kingdom in
electronic form or otherwise.
(3) Any Rule part made by adoption under this section need not be reproduced in
either electronic or printed form in the Kingdom but after determining to
make any Rule pursuant to this section the Minister shall publish in the
Gazette a notice of the making of a Rule by adoption which shall contain —
(a) a Rule Adoption Statement in accordance with Schedule 2 identifying
by country of origin and part number in the country of origin the Rule
part which has been adopted by reference and the part number by which
it will be known in the civil aviation system of the Kingdom and
specifying the date on which it shall become effective as a Rule in
the Kingdom;
(b) a Rule Interpretation Statement in accordance with Schedule 2
containing any modifications, directions and information as the
Minister may deem appropriate for the application of the adopted Rule
in the context of the Tongan civil aviation system including but not
limited to —
(i) any words (including place names) and numbers (including
section numbers of the Tongan Acts to be substituted;
(ii) any part or parts of the adopted Rule which shall not apply in the
Kingdom;
(iii) any general exemptions which will apply in the Kingdom;
(iv) any forms to be used in the Kingdom;
(v) any equivalent documents to be substituted for documents
referred to in the adopted Rule part;
(vi) any direction as to the application or non-application to the
Kingdom of any amendment or repeal of an adopted Rule part in
its country of origin;
(vii) any standards, requirements, recommended practices, Rules or
other written material or document incorporated by reference
under section 44;
(viii) any other matter to assist in the practical, clear and unambiguous
interpretation of the adopted Rule in the Kingdom.
(4) Any Rule Adoption Statement or Rule Interpretation Statement made under
this section may, in consultation with the Director, be amended by the
Minister after the Rule part has been brought into force pursuant to the
provisions of section 42.
(5) Where a Rule is adopted under this Act, all departments of government,
judicial officers of the courts of the Kingdom, officials, participants in the
Tongan civil aviation system, government officials or any other person before
whom such Rule comes for consideration shall, in their interpretation of such
Rule or decision or action to be taken under it, give effect to the adopted Rule
according to its purpose and intent to the fullest extent practicable.
Civil Aviation Act 2014 Section 41
to
Act 24 of 2014 Page 45
(6) No adopted Rule, or part thereof, shall be rendered invalid, inoperative or
unenforceable only because it contains a reference to any law, agency,
authority, document, procedure, person or thing that is not in existence in, or
is not applicable to the laws of the Kingdom, and any such reference —
(a) shall be deemed to be a reference to the corresponding law, agency,
authority, document, procedure, person or thing within the Kingdom or
under the laws of the Kingdom; and
(b) where there is no corresponding law, agency, authority, document,
procedure, person or thing within the Kingdom or under the laws of the
Kingdom shall be deemed to refer to the closest equivalent law, agency,
authority, document, procedure, person or things within the Kingdom
or under the laws of the Kingdom and in any such case regard shall be
had to any Directive issued by the Minister under subsection (7).
(7) For the purpose of the clarification and effective implementation of any
adopted Rule the Minister may from time to time issue a Directive and shall
forthwith publish, distribute or otherwise make the Directive available to
participants within the Tongan civil aviation system.
(8) Where any of the persons referred to in subsection (5), whether individual or
an incorporated body, identifies any matter within an adopted Rule upon
which uncertainty has arisen or might reasonably arise with regard to its
meaning, interpretation or application, and in respect of which no Directive
has been issued, shall forthwith make written notification to the Director who
shall consider the same and within 30 days of his receipt of notification make
a recommendation to the Minister with regard to the issue of a Directive under
subsection (7) or other appropriate action.
41 No requirement for translation or sale of adopted Rules
(1) Notwithstanding anything to the contrary in this Act or any other Act there
shall be no requirement that any adopted Rule be printed in the Tongan
language or that it be made available for sale.
(2) A copy of each adopted Rule and its Rule adoption statement and Rule
interpretation statement and any Directive made under section 40(7) shall be
kept at places determined by the Minister or the Director and shall be
available for inspection.
(3) Copies of individual Rules or provisions may be obtained if photocopying
facilities are available and at a cost to be determined by the Director if copies
are held under his control.
42 Amendments to adopted Rules
(1) Where an adopted Rule is amended in its country of origin the amendment
shall in the first instance be deemed to apply in the Kingdom from the date of
Section 43 Civil Aviation Act 2014
Page 46 Act 24 of 2014
to
its coming into force in the country of origin unless the Minister determines
otherwise.
(2) Where the Minister forms an opinion, on advice from the Director —
(a) that an amendment referred to in subsection (1) should not apply in the
Kingdom;
(b) that such amendment should apply only in part or with modification or
should come into to force in its entirety or in part on a date other than
that applicable in the country of origin; or
(c) that any Rule previously adopted pursuant to the provisions of section
40 should be amended or modified,
the Minister shall comply with the procedures set out in section 39(1) as if the
Minister’s intention to make an amendment or to decline to adopt an
amendment was an intention to make an ordinary Rule and after giving due
regard to any written submissions from persons notified or entitled to
notification, shall, if appropriate, issue and notify a revised Rule Adoption
Statement and Rule Interpretation Statement. Upon such issue and
notification the Minister’s determination shall take effect accordingly.
43 Procedure for making emergency Rules
(1) Before making an emergency Rule, the Director shall consult with such
persons, representative groups within the aviation industry or elsewhere,
Government departments, and others as the Director in each case considers
appropriate.
(2) Subject to subsection (4), every emergency Rule shall be notified in the
Gazette and given further notification as the Director may consider
appropriate in each case and the notification shall specify a place where the
Rule is available for inspection free of charge and for purchase.
(3) Every emergency Rule shall come into force immediately upon its being
notified in the Gazette, or, where notified by service on any person under
subsection (4), immediately upon service of notification upon that person and
in respect of that person only.
(4) Where for reasons of safety or security it is impracticable or inappropriate to
notify an emergency Rule under subsection (2), the Director shall notify such
persons as he considers appropriate or necessary in the circumstances and
service of such notification may be effected by facsimile, telephone, or such
other manner as the Director considers appropriate or necessary in the
circumstances.
(5) An emergency Rule may be in force for a period not exceeding 90 days, and
may be renewed by the Director once only for a further period not exceeding
90 days.
(6) The Minister may, at any time while an emergency Rule is in force in
accordance with subsection (5), by notice in the Gazette, renew the Rule in
Civil Aviation Act 2014 Section 44
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Act 24 of 2014 Page 47
accordance with subsection (7) for a further period not exceeding 180 days
from the date of the notification.
(7) Before renewing an emergency Rule under subsection (6), the Minister shall
consult with such persons, representative groups within the aviation industry
or elsewhere, Government departments, and others as the Minister thinks
appropriate.
(8) So far as any emergency Rule is inconsistent or repugnant to any ordinary
Rule made under this Act, the emergency Rule shall prevail.
44 Incorporation by reference
(1) The following may be incorporated by reference into a Rule made by the
Minister or the Director —
(a) standards, requirements, or recommended practices of international
aviation organisations;
(b) standards, requirements, or Rules prescribed under law by any other
Contracting State of ICAO;
(c) standards, requirements, or Rules of any aviation sport or aviation
recreational organisation;
(d) any other written material or document that, in the opinion of the
Minister or the Director, as the case may be, is too large or impractical
to be printed as part of the Rule.
(2) Any material incorporated in a Rule by reference under subsection (1) shall be
deemed for all purposes to form part of the Rule; and, unless otherwise
provided in the Rules, every amendment to any material so incorporated by
reference that is made by the person or organisation originating the material
shall, subject to subsections (3) and (4), be deemed to be part of the Rule.
(3) The Director shall, by notice in the Gazette, specify the date on which any
amendment to material incorporated by reference under subsection (1) shall
take effect.
(4) All material incorporated by reference under subsections (1) or (2) shall be
made available at the Civil Aviation Registry for inspection by the public free
of charge.
(5) Where material is incorporated by reference in an adopted Rule the material
shall in the first instance be deemed to form part of the adopted Rule in the
Kingdom from the date of its incorporation in the country of origin unless the
Minister determines otherwise.
(6) Where the Minister determines that the material shall not apply in the
Kingdom or apply only in part or with modification or shall be incorporated in
its entirety or in part on a date other than that applicable in the country of
origin the Minister shall issue and notify a revised Rule Adoption Statement
Section 45 Civil Aviation Act 2014
Page 48 Act 24 of 2014
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and Rule Interpretation Statement and that determination shall take effect
accordingly.
45 Exemption power of Director
(1) The Director may, if he considers it appropriate and upon such conditions as
he considers appropriate, exempt any person, aircraft, aeronautical product,
aerodrome, or aviation related service from any specified requirement in any
Rule made under sections 31, 32, 35 or 40.
(2) Before granting an exemption under subsection (1), the Director shall be
satisfied in the circumstances of each case that —
(a) the requirement has been substantially complied with and that further
compliance is unnecessary;
(b) 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;
(c) the prescribed requirements are clearly unreasonable or inappropriate in
the particular case; or
(d) events have occurred that make the prescribed requirements
unnecessary or inappropriate in the particular case,
and that the risk to safety will not be significantly increased by the granting of
the exemption.
(3) The number and nature of exemptions granted under subsection (1) shall be
notified as soon as practicable in the Gazette.
(4) Nothing in this section shall apply in any case where any Rule specifically
provides that no exemptions are to be granted.
PART V – REGULATIONS
46 Regulations
(1) The Minister may, from time to time, make Regulations for all or any of the
following purposes —
(a) prescribing, or providing for the fixing of, fees, charges and levies
payable under this Act;
(b) prescribing those breaches of Rules made under this Act that constitute
offences against this Act;
(c) prescribing the penalty for each offence prescribed under paragraph (b),
which —
(i) in the case of an individual, shall be a fine not exceeding $5,000;
or
Civil Aviation Act 2014 Section 47
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Act 24 of 2014 Page 49
(ii) in the case of a body corporate, shall be a fine not exceeding
$30,000;
(d) prescribing the matters in respect of which fees or charges are to be
payable under Part XI, the amount of the fees or charges, and the
persons liable to pay them;
(e) providing for the refund or waiver of any fee or charge payable under
Part XI, in whole or in part, in any specified case or class of cases;
(f) prescribing the information and documents that may be required to be
supplied by applicants for scheduled international air services licences
under Part XI, and the time within which such information or
documents shall be supplied;
(g) such other matters as are contemplated by or necessary for giving full
effect to the provisions of this Act and for its due administration.
(2) Any Regulations made under this Act may be so made that different
Regulations shall apply with respect to different classes of persons,
aerodromes, aircraft, aeronautical products, aviation related services, or
aeronautical procedures, or with respect to the same class of person,
aerodrome, aircraft, aeronautical product, aviation related service, or
aeronautical procedure in different circumstances.
47 Fees, charges and levies
(1) Without limiting the power to make Regulations conferred by section 46, but
subject to the provisions of this Act, the Minister may, from time to time
make Regulations prescribing, or providing for the fixing of, fees, charges and
levies payable for all or any of the following purposes —
(a) to provide funds for the establishment, maintenance, and operation of
works, facilities, and services under this Act;
(b) to defray the costs and expenses incurred by the Ministry or the
Director or any of their employees in the exercise of functions, powers,
and duties, and in providing services, under this Act;
(c) generally for the purposes of civil aviation.
(2) Different rates of fees, charges and levies may be so prescribed or fixed in
respect of different classes of persons, aerodromes, aircraft, aeronautical
products, aviation related services, air traffic services, or aeronautical
procedures, or on the basis of different times of use, or on any other
differential basis.
(3) Any such Regulations may —
(a) specify the persons by whom and to whom any fees, charges or levies
are payable;
(b) prescribe penal or overtime or additional fees or charges or rates for
work or services carried out outside normal working hours or at
weekends or on statutory holidays;
Section 48 Civil Aviation Act 2014
Page 50 Act 24 of 2014
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(c) prescribe additional charges for reimbursement of traveling time,
accommodation, and other expenses;
(d) require returns to be made by persons by whom any fees or charges are
payable, and prescribe conditions relating to the making of such
returns;
(e) provide for the refund or waiver of any fee or charge in whole or in
part, in any specified case or class of cases.
(4) Fees and charges in respect of the use of any aerodrome shall not be
prescribed, except on the advice of the Minister given after consultation with
the operator of that aerodrome.
(5) The power to prescribe, or provide for the fixing of, fees, charges and levies
in respect of any matter under this Act includes the power to prescribe, or
provide for the fixing of, fees, charges or levies, or all of them, in respect of
any matter.
48 Rebates
(1) The department, authority, organisation or person to whom any fees, charges
or levies are payable under Regulations made under this Act may grant a
rebate of such fees, charges or levies to any person who is liable to pay them.
(2) Every rebate of fees, charges or levies granted under subsection (1) shall —
(a) be based on the quantity of services used by the person liable to pay the
fees, charges or levies;
(b) be offered on an equal percentage basis to any other person using a
similar quantity of such services; and
(c) be granted in accordance with Regulations made under this Act.
49 Payment of fees and charges
(1) Except as otherwise provided in Regulations made under this Act, every
application under this Act shall be accompanied by payment of all relevant
prescribed fees and charges.
(2) Any Regulations made under this Act may —
(a) prescribe a date by which any such fee or charge is payable or authorise
the Minister to fix the date by which the fee or charge is payable;
(b) provide for a discount for early payment of any such fee or charge or a
penalty for late payment, or both, on an equal basis to persons liable to
pay the fee or charge.
Civil Aviation Act 2014 Section 50
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Act 24 of 2014 Page 51
50 Suspension or revocation of aviation document where prescribed fees,
charges or levies unpaid
(1) Where any fee, charge or levy payable under this Act is not paid by the date
prescribed or fixed for payment of that fee or charge, the Director may
suspend the aviation document to which the unpaid fee, charge or levy relates.
(2) Where any fee, charge or levy payable under this Act is not paid within 6
months after the date prescribed or fixed for payment of that fee, charge or
levy, the Director may revoke the aviation document to which the fee, charge
or levy relates.
(3) Before suspending an aviation document under subsection (1), or revoking an
aviation document under subsection (2), the Director shall notify the holder of
that document of —
(a) the Director's intention to suspend or revoke the document; and
(b) the right of appeal available to the holder of that document in the event
of the document being suspended or revoked.
(4) Where a fee or a charge is payable in respect of an application under this Act
or the provision of a service under this Act, the Minister or the Director or
other person asked to process the application or provide the service, as the
case may be, may, unless the safety of any person would be put at risk,
decline to process that application or provide that service until the appropriate
fee or charge has been paid, or arrangements acceptable to the Ministry or the
Director, as the case may be, for payment of the fee or charge have been
made.
(5) The holder of an aviation document that is suspended under subsection (1) or
revoked under subsection (2) may appeal against that decision to the Supreme
Court under section 230.
51 Recovery of fees and charges
(1) Subject to subsection (2), where a fee or charge is payable under this Act in
respect of any function, power, duty, or service carried out or provided by the
Ministry or the Director in respect of any aircraft, the person whose name
appears on the register of aircraft in respect of that aircraft shall be deemed to
be liable to pay that fee or charge.
(2) Any person who would otherwise be liable to pay a fee or charge in relation to
any aircraft in terms of subsection (1) shall not be so liable if that person —
(a) proves that during any relevant period of use of the aircraft that person
was not entitled, whether alone or together with some other person, to
possession of the aircraft or that another person was unlawfully in
possession of it; and
(b) has taken all reasonable steps to supply the Director with such
information as would identify the actual user.
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PART VI - TONGA CIVIL AVIATION SYSTEM
52 General requirements for participants in the Tonga civil aviation
system
(1) Every person who does anything for which an aviation document is required
(in the succeeding provisions of this section called a participant) shall ensure
that the appropriate aviation documents and all the necessary qualifications
and other documents are held by that person.
(2) Every participant shall comply with this Act, the relevant Rules made under
this Act, and the conditions attached to the relevant aviation documents.
(3) Every participant shall ensure that the activities or functions for which the
aviation document has been granted are carried out by the participant, and by
all persons for whom the participant is responsible, safely and in accordance
with the relevant prescribed safety standards and practices.
(4) Every participant who holds an aviation document that authorises the
provision of a service within the civil aviation system —
(a) shall, if so required by Rules 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;
(b) shall provide training and supervision to all 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) shall provide sufficient resources to ensure compliance with the
relevant prescribed safety standards and the conditions attached to
the document.
53 Requirement for aviation document
(1) Rules made under this Act may require that an aviation document shall be
required by or in respect of all or any of the following:
(a) Tonga registered aircraft;
(b) aircraft pilots;
(c) flight crew members;
(d) air traffic service personnel;
(e) aviation security service personnel;
(f) aircraft maintenance personnel;
(g) air services;
Civil Aviation Act 2014 Section 54
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Act 24 of 2014 Page 53
(h) air traffic services;
(i) aerodromes and aerodrome 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) any persons, services, or things within any of the classes specified in
paragraphs (a) to (p);
(r) such other persons, aircraft, aeronautical products, aviation related
services, facilities, and equipment operated in support of the civil
aviation system, or classes of such persons, 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 Rules;
(s) any person who is an aviation examiner or medical examiner.
(2) The requirements, standards, and application procedure for each aviation
document, and the maximum period for which each document may be issued,
shall be prescribed by Rules made under this Act.
(3) Subject to any Rules made under this Act, an aviation document may be
issued by the Director for such specified period and subject to such conditions
as the Director considers appropriate in each particular case.
(4) Rules made under this Act may require that a validation permit shall be
required in respect of foreign licenses in respect of all or any of the
following —
(a) aircraft pilots;
(b) flight crew members;
(c) aircraft maintenance personnel.
(5) Any person in respect of whom any decision is taken under this section may
appeal against that decision to the Supreme Court under section 230.
54 Application for aviation document
(1) Every application for the grant or renewal of an aviation document shall be
made to the Director in the prescribed form or, if there is no prescribed form,
in such form as the Director may require.
Section 55 Civil Aviation Act 2014
Page 54 Act 24 of 2014
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(2) Every applicant for an aviation document shall include in the application the
applicant's address for service in the Kingdom including, where applicable,
telephone and facsimile numbers.
(3) It shall be the duty of every holder of an aviation document to maintain the
currency of the information provided under subsection (2) by promptly
notifying the Director of any changes to the address, telephone number, or
facsimile number.
(4) The Director shall ensure that a record of all information provided under this
section is maintained at the Civil Aviation Registry.
(5) Service of any notification under this Act on a holder of, or applicant for, an
aviation document shall be effective service if served on the address last
provided by that holder or applicant under this section.
55 Grant or renewal of aviation document
(1) After considering any application for the grant or renewal of an aviation
document, the Director shall, as soon as is practicable, grant the application if
he is satisfied that —
(a) all things in respect of which the document is sought meet the relevant
prescribed requirements;
(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 holds the relevant prescribed qualifications and experience
or holds such foreign qualifications as are acceptable to the
Director under subsection (2);
(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 any provisions in the Rules, accept such foreign qualifications
or recognise such foreign certifications as he considers appropriate in
each case.
(3) It shall be a condition of every current 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) Where the Director declines to grant an application for the grant or renewal of
an aviation document under this section, the applicant may appeal against that
decision to the Supreme Court under section 230.
Civil Aviation Act 2014 Section 56
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Act 24 of 2014 Page 55
56 Criteria for fit and proper person test
(1) For the purpose of determining whether or not a person is a fit and proper
person for any purpose under this Act, the Director shall, having regard to the
degree and nature of the person's proposed involvement in the Tonga civil
aviation system, have regard to, and give such weight as the Director
considers appropriate to, the following matters —
(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 physical or 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 the Kingdom; or
(ii) the offence was committed before the commencement of this
Act;
(f) any evidence that the person has committed a transport safety offence
or has contravened or failed to comply with any Rule made under this
Act.
(2) The Director shall not be confined to consideration of the matters specified in
subsection (1) and may take into account such other matters and evidence as
may be relevant.
(3) The Director may, for the purpose of determining whether or not a person is a
fit and proper person for any purpose under this Act —
(a) seek and receive such information (including medical reports) as the
Director thinks fit;
(b) consider information obtained from any source;
(c) have regard to, and give such weight as the Director thinks appropriate
to, any advice and recommendations provided by approved
organisations contracted by the Minister under section 5(1)(e).
(4) Subsection (1) applies to a body corporate with the following
modifications —
(a) subsection (1)(a), (b), (c), (e), and (f) shall be read as if they refer to the
body corporate and its officers;
(b) subsection (1)(d) shall be read as if it refers only to the officers of the
body corporate.
(5) If the Director proposes to take into account any information that is or may be
prejudicial to a person, the Director shall, subject to subsection (6), disclose
that information to that person and, in accordance with section 57, give that
person a reasonable opportunity to refute or comment on it.
Section 57 Civil Aviation Act 2014
Page 56 Act 24 of 2014
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(6) Nothing in subsection (5) shall require the Director to disclose any
information the disclosure of which would be likely to endanger the safety of
any person.
57 Rights of persons affected by proposed adverse decisions
(1) In this section, unless the context otherwise requires —
“adverse decision” means a decision of the Director to the effect that a
person is not a fit and proper person for any purpose under this Act;
“affected document holder”, in relation to a person directly affected by an
adverse decision, means the holder of or the applicant for the aviation
document;
“person directly affected”, in relation to any adverse decision, means the
person who would be entitled under section 230 to appeal against that adverse
decision; and
“person on the basis of whose character the adverse decision arises”, in
relation to any adverse decision made or proposed to be made on the grounds
referred to in section 56, means the person whom the Director assesses as not
being a fit and proper person.
(2) Where the Director proposes to make an adverse decision under this Act in
respect of any person, the Director, by notice in writing, shall —
(a) notify the person directly affected by the proposed decision;
(b) subject to subsection (4), inform that person of the grounds for the
proposed decision;
(c) specify a date by which submissions may be made to the Director in
respect of the proposed decision, which date shall not be less than 21
days after the date on which the notice is given;
(d) where appropriate, specify the date on which the proposed decision
will, unless the Director otherwise determines, take effect, being a date
not less than 28 days after the date on which the notice is given;
(e) notify the person of the person's right of appeal under section 230, in
the event of the Director proceeding with the proposed decision; and
(f) specify such other matters as in any particular case may be required by
any provision of this or any other Act.
(3) Where the Director gives a notice under subsection (2), the Director —
(a) shall also supply a copy of the notice to —
(i) any person on the basis of whose character the adverse decision
arises, where that person is not the person directly affected by the
proposed decision; and
Civil Aviation Act 2014 Section 58
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Act 24 of 2014 Page 57
(ii) any affected document holder, where the Director considers that
the proposed decision is likely to have a significant impact on the
operations of the document holder; and
(b) may supply a copy of the notice to any other affected document holder.
(4) No notice or copy of a notice given under this section shall include or be
accompanied by any information referred to in section 56(1), except to the
extent that —
(a) the notice or copy is supplied to the person to whom the information
relates; or
(b) that person consents to the supply of that information to any other
person.
(5) Where any notice or copy of a notice is given to any person under this section,
the following provisions shall apply —
(a) it shall be the responsibility of that person to ensure that all information
that that person wishes to have considered by the Director in relation to
the proposed decision is received by the Director within the period
specified in the notice under subsection (2)(c), or within such further
period as the Director may allow;
(b) the Director may consider any information supplied by that person after
the expiry of the period referred to in paragraph (a), other than
information requested by the Director and supplied by that person
within such reasonable time as the Director may specify;
(c) the Director shall consider any submissions made in accordance with
paragraph (a), other than information requested by the Director and
supplied pursuant to a request referred to in paragraph (b).
(6) After considering the matters referred to in subsection (5), the Director
shall —
(a) finally determine whether or not to make the proposed adverse
decision; and
(b) as soon as practicable thereafter, notify in writing the person directly
affected, and any other person of a kind referred to in subsection (3)(a),
of —
(i) the Director's decision and the grounds for the decision;
(ii) the date on which the decision will take effect; and
(iii) in the case of an adverse decision, the consequences of that
decision and any applicable right of appeal (being a right of
appeal specified in sections 55(4), 18(8) or 19(5)).
58 Requirement to register aircraft
(1) Except as otherwise provided in this Act or Rules made under this Act, every
person lawfully entitled to the possession of an aircraft for a period of 28 days
Section 59 Civil Aviation Act 2014
Page 58 Act 24 of 2014
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or longer which flies to, from, within, or over the Tongan territory shall
register that aircraft and hold a valid certificate of registration for that aircraft
from —
(a) the Director;
(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 Kingdom which provides for the acceptance of
each other's registrations.
(2) No aircraft shall be registered in or remain registered in the Kingdom if it is
registered in any other country.
(3) The Director may decline to register any aircraft in accordance with the
provisions of Rules made under this Act.
(4) Any person in respect of whom any decision is taken under this section may
appeal against that decision to the Supreme Court under section 230.
59 Responsibilities of pilot-in-command and operator
(1) The pilot-in-command of an aircraft shall —
(a) be responsible for the safe operation of the aircraft in flight, the safety
and wellbeing of all passengers and crew, and the safety of cargo
carried;
(b) have final authority to control the aircraft while in command and for the
maintenance of discipline by all persons on board; and
(c) subject to subsections (2) to (7), be responsible for compliance with all
relevant requirements of this Act and Regulations and Rules made
under this Act.
(2) Subject to subsections (3) and (7), in an emergency that arises in flight, the
pilot-in-command may breach the provisions of this Act or of Regulations or
Rules made under this Act.
(3) For the purposes of subsection (2), a breach of any prescribed requirement is
permitted only if the pilot-in-command is satisfied that —
(a) the emergency involves a danger to life or property;
(b) the extent of the breach of the prescribed requirement goes only as far
as is necessary to deal with the emergency;
(c) there is no other reasonable means of alleviating, avoiding, or assisting
with the emergency; and
(d) the degree of danger involved in complying with the prescribed
requirement is clearly greater than the degree of danger involved in
deviating from it.
Civil Aviation Act 2014 Section 60
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(4) Subject to subsections (5) to (7), where 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 the aircraft or the operator of the aircraft may breach the
provisions of this Act or of Regulations or Rules made under this Act.
(5) For the purposes of subsection (4), a breach of any prescribed requirement is
permitted only if —
(a) the emergency involves a danger to life or property;
(b) the extent of the breach of the prescribed requirement goes only as far
as is necessary to deal with the emergency;
(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 in failing to attend to
the emergency.
(6) Nothing in subsection (4) permits —
(a) the operation of an aircraft that is not registered in the Kingdom or
elsewhere;
(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.
(7) Where, in any emergency described in this section, a pilot-in-command or an
operator breaches this Act or Regulations or Rules made under this Act in
accordance with the provisions of this section, the pilot-in-command or the
operator, as the case may be, shall —
(a) immediately after the emergency has abated 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 in respect of the action.
60 Nuisance, trespass, and responsibility for damage
(1) No action for nuisance may be brought in respect of the noise or vibration
caused by aircraft or aircraft engines on an aerodrome, if the noise or
vibration is of a kind specified in any Rules made under sections 31, 32 or 35,
so long as the provisions of the Rules are duly complied with.
(2) No action shall lie in respect of trespass, or in respect of nuisance, by reason
only of the flight of aircraft over any property at a height above the ground
which having regard to wind, weather, and all the circumstances of the case is
Section 61 Civil Aviation Act 2014
Page 60 Act 24 of 2014
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reasonable, so long as the provisions of this Act and of any Rules made under
this Act are duly complied with.
(3) Where material damage or loss is caused to property on land or water by an
aircraft in flight, taking off, landing, or alighting, or by any person or article in
or falling from any such aircraft, damages shall be recoverable from the
owner of the aircraft, without proof of negligence or intention or other cause
of action, as if the damage or loss was caused by his fault, except where the
damage or loss was caused by or contributed to by the fault of the person by
whom the same was suffered.
(4) Where damage or loss is caused in the manner described in subsection (3) and
in circumstances in which —
(a) damages are recoverable from the owner of the aircraft in respect of the
damage or loss by virtue only of the provisions of subsection (3); and
(b) some person other than the owner is liable to pay damages in respect of
the damage or loss,
the owner shall be entitled to be indemnified by that other person against any
claim in respect of the damage or loss.
(5) Where damage or loss is contributed to by the fault of the person by whom the
same was suffered, the law relating to apportionment in respect of
contributory negligence shall apply.
(6) Damages shall not be recoverable under subsection (4) from the owner of an
aircraft in respect of damage or loss caused by a person descending from the
aircraft by parachute. Damages shall be recoverable from the person
descending and the provisions of subsection (4) shall, with the necessary
modifications, apply as if the person descending were the owner of the
aircraft. This subsection shall not apply in respect of damage or loss caused by
a person descending from an aircraft by parachute where the descent is
required to avoid injury or death.
(7) Where an aircraft has been hired out to any other person by the owner thereof,
for a period greater than 28 days and no pilot, commander, navigator, or
operative member of the crew of the aircraft is in the employment of the
owner, this section shall apply as though every reference to the owner were a
reference to the person to whom the aircraft has been so hired out.
(8) For the purposes of this section, the term ―fault” means negligence, breach of
statutory duty, or other act or omission which gives rise to a liability in tort or
would, apart from any statutory provision in respect of contributory
negligence, give rise to the defence of contributory negligence.
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PART VII - MEDICAL CERTIFICATION
61 Interpretation
(1) In this Part, unless the context otherwise requires —
―accredited medical conclusion‖ means the conclusion reached by one or
more medical experts acceptable to the Director for the purposes of the case
concerned, in consultation with flight operations or any other experts that may
be necessary;
―applicant” means a person who has applied for recognition of a foreign
medical certificate; and includes a licence holder who has reapplied for
recognition of a foreign medical certificate;
“foreign medical certificate‖ means a medical certificate validly issued by or
on behalf of the aviation authority of any member state of ICAO other than
the Kingdom;
―licence holder‖ means a person who —
(a) holds an aviation document or is a pilot; and
(b) holds, or is required under the Rules to hold, a medical certificate;
―medical certificate‖ means —
(a) a medical certificate issued by the Director under this Part to the
applicant or licence holder; or
(b) a foreign medical assessment or certificate granted recognition by the
Director under this Part;
“operator” includes an air traffic service provider;
―registered medical practitioner‖ means a medical practitioner entitled,
licensed or registered to practice medicine in the Kingdom; and
―specified examination‖ means —
(a) an examination of visual and colour perception;
(b) an examination of hearing;
(c) a psychological examination; or
(d) any other class of examination prescribed in the applicable Rules.
(2) A medical certificate is not an aviation document.
(3) The phrase ―privileges to which a medical certificate relates”, and its
variations, means those privileges under this Act that may be exercised by a
person who —
(a) holds a current aviation document; or
(b) is permitted under the Rules to operate an aircraft solo as a pilot.
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62 Power of Director to issue a medical certificate or to grant recognition
to a foreign medical certificate or assessment
(1) The Director may designate, by issuing an aviation document under section
55, one or more registered medical practitioners to conduct specified
examinations for the issue of medical certificates as may be required by the
Director for the purposes of prescribed services in the civil aviation system
provided within the Kingdom.
(2) Before the Director issues a medical certificate in accordance with subsection
(1) an applicant shall have a medical examination by a designated registered
medical practitioner who shall forward his medical report to the Director.
(3) After consideration of an application for a medical certificate and receipt of a
report in accordance with the provisions of subsection (2), the Director shall,
as soon as practicable issue a medical certificate where he is satisfied that the
applicant meets the standards prescribed in the Rules unless the Director has
reasonable grounds to believe that the applicant has any characteristic that
may interfere with the safe exercise of the privileges to which the medical
certificate relates.
(4) Despite subsection (3), the Director may, relying on flexibility, issue a
medical certificate to the applicant.
(5) In subsection (4), “flexibility” means the use of medical judgment to issue a
medical certificate if the following conditions are fulfilled —
(a) an accredited medical conclusion indicates that in special circumstances
the applicant's failure to meet any medical standard prescribed in the
Rules is such that the exercise of the privileges to which a medical
certificate relates is not likely to jeopardise aviation safety;
(b) the relevant ability, skill, and experiences of the applicant and
operational conditions have been given due consideration; and
(c) the medical certificate is endorsed with any conditions, restrictions, or
endorsements when the safe performance of the applicant's duties is
dependent on compliance with those conditions, restrictions, or
endorsements.
(6) For the purpose of issuing a validation permit in respect of foreign licenses for
pilots, flight crews and aircraft maintenance personnel in the Kingdom, and
subject to the provisions of this Act, the Director —
(a) shall grant recognition to, and treat as a valid medical certificate for the
purposes of this Act and Rules made under it, any current and validly
issued medical assessment or certificate of Australia, New Zealand, the
United States of America and the United Kingdom; or
(b) may at his sole discretion grant recognition to, and treat as a valid
medical certificate for the purposes of this Act and Rules made under it,
a current and validly issued medical assessment or certificate of any
member state of ICAO other than those referred to in paragraph (a)
upon being satisfied (at the cost of the applicant) that the relevant
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standards of that issuing authority are comparable to those of Australia,
New Zealand, the United States of America or the United Kingdom and
substantially meet the medical requirements or standards in Rules made
under this Act,
unless, regardless of whether paragraph (a) or (b) is applicable, the Director
has reasonable grounds to believe that the applicant has any characteristic that
may interfere with the safe exercise of the privileges to which the medical
assessment or certificate relates.
(7) The Director may impose any conditions, restrictions, or endorsements on a
medical assessment or certificate either issued or granted recognition under
this section.
(8) Before issuing a medical certificate or granting recognition to a foreign
medical assessment or certificate, the Director may require the applicant, at
the applicant's expense, to undertake any other tests, examinations, or re-
examinations conducted by any suitably qualified and experienced person, or
to provide any medical information, as the Director reasonably considers
necessary to assess the applicant.
(9) The Director shall maintain a register of current medical assessments or
certificates either issued by him or to which he has granted recognition under
this section.
(10) Any decision made under this section by the Director in relation to a medical
assessment or certificate other than a decision under subsection (8) is subject
to right of appeal to the Supreme Court under section 230.
63 Changes in medical condition of licence holder
(1) If a licence holder is aware of, or has reasonable grounds to suspect, any
change in his medical condition or the existence of any previously undetected
medical condition that may interfere with the safe exercise of the privileges to
which his medical assessment or certificate relates, the licence holder —
(a) shall advise the Director of the change as soon as is practicable; and
(b) may not exercise the privileges to which the licence holder's medical
assessment or certificate relates.
(2) If a registered medical practitioner has reasonable grounds to believe that a
person is a licence holder and is aware, or has reasonable grounds to suspect,
that the licence holder has a medical condition that may interfere with the safe
exercise of the privileges to which the licence holder's medical assessment or
certificate relates, the registered medical practitioner shall, as soon as
practicable —
(a) inform the licence holder that the Director will be advised of the
condition; and
(b) advise the Director of the condition.
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(3) A registered medical practitioner is not subject to any civil or criminal
liability for —
(a) doing an indemnified act in good faith in the course of carrying out his
functions under this Part; or
(b) doing an indemnified act in good faith in the course of answering any
questions put to him by the Director that —
(i) concern a licence holder; and
(ii) are relevant to any action the Director may take under this Part.
(4) In this section, ―indemnified act” means any of the following acts —
(a) advising the Director, whether in writing or otherwise, that a licence
holder —
(i) may not meet the medical standards prescribed in the Rules; or
(ii) may be unable to exercise safely the privileges to which the
licence holder's medical assessment or certificate relates;
(b) expressing to the Director, whether in writing or otherwise, an opinion
that the licence holder who has been examined or treated may be unable
to exercise safely the privileges to which the licence holder's medical
certificate relates because of —
(i) illness or any bodily or mental infirmity, defect, incapacity, or
risk of incapacity suffered by the licence holder; or
(ii) the effect on the licence holder of treatment for any illness,
infirmity, defect, incapacity, or risk of incapacity;
(c) stating to the Director, whether in writing or otherwise —
(i) the nature of a licence holder's illness, infirmity, defect,
incapacity, or risk of incapacity; or
(ii) the effect on a licence holder of treatment for any illness,
infirmity, defect, incapacity, or risk of incapacity.
64 Medical disclosure
The Director may, by written notice, require any applicant to disclose, or authorise
the disclosure of, any information relevant to the applicant’s medical condition or
history for the purpose of determining whether or not the applicant is eligible for
recognition of, or the continued holding of, a foreign medical assessment or
certificate.
65 Extension from expiry of medical certificate
The Director may, upon receiving an application from a licence holder before the
expiry of his existing medical assessment or certificate, grant an extension of no
more than 60 days from the expiry date of the licence holder's existing medical
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certificate with any additional conditions, restrictions, or endorsements as the
Director considers necessary.
66 Investigation of medical condition of licence holder
(1) The Director may, by written notice, require any licence holder, at the licence
holder's expense, to undertake any tests, examinations, or re-examinations
conducted by any suitably qualified and experienced person, or to provide any
medical information, at any time before the expiry of the licence holder’s
medical certificate, if the Director has reasonable grounds to believe that the
licence holder —
(a) may be unable to exercise safely the privileges to which the medical
certificate relates; or
(b) has obtained his medical certificate fraudulently.
(2) The Director may, by written notice, require any licence holder, at the licence
holder's expense, to undertake any tests, examinations, or re-examinations
conducted by any suitably qualified and experienced person, or to provide any
medical information, at any time before the expiry of his medical certificate if
the Director has reasonable grounds to believe that the licence holder's
medical assessment or certificate was issued in error.
(3) The Director may, by written notice, require any licence holder to disclose, or
authorise the disclosure of, any relevant information for the purpose of
determining whether or not the licence holder —
(a) meets the medical standards prescribed in the Rules; or
(b) is able to exercise safely the privileges to which the medical assessment
or certificate relates.
67 Revocation, suspension, amendment, and surrender of medical
certificate
(1) If the Director has reasonable grounds to believe that a licence holder may be
unable to exercise safely the privileges to which the licence holder's medical
assessment or certificate relates, the Director may, by written notice to the
licence holder —
(a) suspend any medical assessment or certificate issued to the licence
holder; or
(b) impose or amend any conditions, restrictions, or endorsements on any
medical assessment or certificate issued to the licence holder.
(2) If the Director has reasonable grounds to believe that a licence holder is
unable to exercise safely the privileges to which the licence holder's medical
assessment or certificate relates, the Director shall, by written notice to the
licence holder —
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(a) suspend any medical assessment or certificate issued to the licence
holder;
(b) revoke any medical assessment or certificate issued to the licence
holder; or
(c) impose or amend any conditions, restrictions, or endorsements on any
medical assessment or certificate issued to the licence holder.
(3) Any notice issued under this section shall state the grounds for the Director's
decision.
(4) A notice of suspension issued under subsections (1)(a) or (2)(a) remains in
force until the Director determines what action, if any, referred to in
subsection (7) is to be taken, but any such suspension expires 10 working days
after the date that the suspension is imposed unless, before the expiry of that
10-working-day period, the Director extends the suspension for a further
specified period not exceeding 10 working days (the aggregate suspension
period may not exceed 20 working days after the date on which the
suspension is imposed).
(5) Any conditions, restrictions, or endorsements that are imposed or made under
subsections (1)(b) or (2)(c) remain in force until the Director determines what
action, if any, referred to in subsection (7) is to be taken, but any of those
conditions, restrictions, or endorsements expire 10 working days after the date
that they are imposed unless, before the expiry of that 10-working-day period,
the Director extends the conditions, restrictions, or endorsements for a further
specified period not exceeding 10 working days (the aggregate period may not
exceed 20 working days after the date on which the conditions, restrictions, or
endorsements are imposed).
(6) If a notice is issued under subsections (1) or (2), the Director may, by written
notice, take one or more of the following actions —
(a) impose or amend conditions, restrictions, or endorsements for a
specified period;
(b) withdraw any conditions, restrictions, or endorsements;
(c) disqualify the licence holder from holding the medical assessment or
certificate for a specified period;
(d) revoke the medical certificate;
(e) cancel the suspension.
(7) A person who has had his medical assessment or certificate revoked,
withdrawn, or suspended or who is disqualified from holding the medical
assessment or certificate for a specified period shall surrender the medical
assessment or certificate to the Director, a person authorised by the Director,
or to a police officer.
(8) If the Director issues a notice under this section, the Director —
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(a) shall also, if practicable, notify any aviation document holder affected
by the notice, other than the licence holder, if the Director reasonably
considers it necessary for reasons of aviation safety; and
(b) may notify any other affected aviation document holder.
(9) The Director may, by written notice, revoke a medical assessment or
certificate if a licence holder fails, without reasonable excuse, to comply with
a demand under section 66 within a reasonable period of time.
(10) Any licence holder may return his medical assessment or certificate to the
Director and ask the Director, in writing, to cancel the medical assessment or
certificate.
(11) If a licence holder asks the Director to cancel his medical certificate, the
Director shall —
(a) cancel the medical certificate; and
(b) update the register of current medical certificates.
68 Right of appeal to Supreme Court
Any person affected by a decision of the Director under sections 62 (other than a
decision made under section 62(3)), 62(6), and 62(9) has a right of appeal to the
Supreme Court under section 230 of this Act.
69 Savings
Any medical certificate validly issued or granted recognition under the laws of the
Kingdom before the commencement of this Act is deemed to be a medical certificate
granted recognition under this Act.
PART VIII – ACCIDENT AND INCIDENT INVESTIGATION
70 Obligation to notify all accidents and incidents
(1) The pilot-in-command of any aircraft that is involved in an accident shall
notify the accident to the Director as soon as practicable.
(2) Every person who —
(a) operates, maintains, or services, or does any other act in respect of any
aircraft, aeronautical product, or aviation related service; and
(b) is involved in an incident,
shall, where required to do so under Rules made under this Act, notify the
incident to the Director.
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(3) If, due to injuries or death, the pilot-in-command is unable to give the
necessary notice under subsection (1), the operator shall provide the necessary
notice.
(4) The coordinator of any search and rescue operation for any aircraft shall
notify the Director of the operation as soon as practicable.
(5) The Director may, on being notified under any of subsections (1) to (4),
request such additional information, in such form as it considers appropriate
in each specific case, and the pilot-in-command, operator, or other person of
whom the request is made shall provide the additional information forthwith.
71 Director to further notify certain accidents and incidents
(1) The Director shall as soon as practicable notify the Minister of every
notification received by the Director relating to —
(a) an accident involving aircraft; or
(b) a serious incident in accordance with the provisions of the Convention.
(2) Without limiting subsection (1), the Director shall advise the Minister to
appoint a Chief Investigator to investigate an accident or incident where it
appears to the Director that the accident or incident —
(a) is required by the Convention to be investigated; or
(b) involves circumstances —
(i) which have, or are likely to have, significant implications for
civil aviation safety; or
(ii) which may allow a Chief Investigator to establish findings or
make recommendations that increase civil aviation safety.
(3) If an aircraft to which an accident has occurred is registered in a State other
than the Kingdom the Minister shall forward to the State of registry a copy of
the relevant notification received by the Ministry and a copy of all relevant
information held by the Ministry, together with advice as to the nature of the
inquiry being conducted in respect of the accident.
72 Director to take further action
(1) Where an accident or incident is notified to the Director under section 70, the
Director shall —
(a) consider what action, if any, to take under this Act or Regulations or
Rules made under this Act;
(b) investigate and review the accident or incident; and
(c) take any other action appropriate in the circumstances.
(2) If the accident or incident is referred to a Chief Investigator under section
73(3), subsection (1)(b) is subject to the limitations set out in section 77.
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73 Appointment of Chief Investigator and referral of accident or incident
(1) The Minister shall appoint a Chief Investigator recommended by the Director
where —
(a) the Director advises the Minister to do so under section 71(2); or
(b) the Minister considers that an accident or incident notified to the
Minister under section 71(1) should be referred to and investigated by a
Chief Investigator.
(2) The Minister shall employ or engage the Chief Investigator —
(a) for the duration that the Ministry considers necessary for the Chief
Investigator to properly discharge his functions under section 74 in
relation to the accident or incident referred to him; and
(b) on terms and conditions determined by the Ministry, subject to this Act.
(3) The Director shall refer the relevant accident or incident to the Chief
Investigator by forwarding to the Chief Investigator the notification received
and all relevant information held by the Minister.
74 Functions of Chief Investigator
(1) The principal function of the Chief Investigator is to investigate the accident
or incident referred to him under section 73(3) to determine the circumstances
and causes of that accident or incident, with a view to avoiding similar
occurrences in the future, rather than to ascribe blame to any person.
(2) Without limiting subsection (1), the Chief Investigator also has and may
exercise the following functions —
(a) to make such inquiries and conduct such investigation as he considers
appropriate in order to ascertain the cause or causes of the accident or
incident;
(b) to co-ordinate and direct the investigation and to determine which other
parties, if any, should be involved in the investigation;
(c) to make available to the Minister any preliminary report or preliminary
recommendation that has major consequences for civil aviation safety
or security;
(d) to deliver a written report to the Minister following the investigation,
setting out findings and any recommendations for changes and
improvements that the Chief Investigator considers will ensure the
avoidance, or minimise the risk, of such an accident or incident
occurring in the future;
(e) to co-operate and co-ordinate with accident investigation organisations
overseas, including taking evidence on their behalf;
(f) to perform any other function or duty conferred on him by this Act.
Section 75 Civil Aviation Act 2014
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(3) As soon as practicable after the expiry of 21 days from the date that the report
referred to in subsection (2)(d) is delivered to the Minister, the Chief
Investigator shall do the following in respect of that report —
(a) publish it;
(b) make it available for inspection by the public free of charge; and
(c) issue it to any person who asks for it on payment of a reasonable charge
fixed by the Chief Investigator.
75 General powers of Chief Investigator
(1) For the purposes of carrying out his functions and duties under this Act, the
Chief Investigator has the powers of a royal commission under the Royal
Commissions Act and subject to the provisions of this Act, the Royal
Commissions Act shall apply with the necessary modifications.
(2) The Chief Investigator also has and may exercise all such powers as may
be —
(a) conferred on him by this Act; or
(b) reasonably necessary or expedient to enable him to carry out his
functions.
(3) For the avoidance of doubt, the Chief Investigator may investigate an accident
or incident that involves any combination of military and non-military persons
or things.
76 Powers of entry and investigation
(1) Without limiting the powers conferred by section 75, for the purposes of
carrying out the Chief Investigator’s functions, duties, or powers under this
Act, an authorised investigator may —
(a) enter any aircraft, aerodrome, building, or place, and inspect anything
where the authorised investigator believes on reasonable grounds that it
is necessary to do so for the purposes of investigating an accident or
incident;
(b) require the owner, operator, or occupier, of the aircraft, aerodrome,
building, or place, to state, and produce satisfactory evidence of, his
name and address;
(c) inspect, make copies of, or take extracts from, or retain any document
or record that the authorised investigator believes on reasonable
grounds is relevant to the investigation of an accident or incident;
(d) where the authorised investigator believes on reasonable grounds that it
is necessary to preserve or record evidence, or to prevent the tampering
with or alteration, mutilation, or destruction of any place or thing
involved in any manner in an accident or incident, prohibit or restrict
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access of persons or classes of persons to the site of any accident or
incident or to any thing involved in the accident or incident;
(e) where the authorised investigator believes on reasonable grounds that
anything is or contains evidence relevant to the investigation of any
accident or incident, direct that the thing be taken to a place nominated
by the authorised investigator;
(f) without limiting paragraphs (a) to (e), seize, detail, remove, preserve,
protect, or test any place or thing that the authorised investigator
believes on reasonable grounds will assist in establishing the cause of
an accident or incident.
(2) Nothing in this section confers on any person the power to enter any dwelling
house unless the entry is authorised by a warrant given by a judicial officer
on written application on oath; and such warrant shall not be granted unless
the judicial officer is satisfied that the entry is essential to enable the
inspection to be carried out.
(3) Every warrant issued under subsection (2) shall be directed to a named person
and is valid for a period of one month from the date of its issue or such lesser
period as the judicial officer considers appropriate; and the period of validity
shall be shown in the warrant.
(4) Every person exercising the power of entry conferred by subsection (1) shall
carry, in the case of —
(a) the Chief Investigator, documentary evidence of his appointment as
Chief Investigator;
(b) any other person, a warrant of authority issued by the Chief Investigator
specifying —
(i) the name and the office or offices held by the person; and
(ii) that the person is authorised by the Chief Investigator to exercise
the power conferred by this section to enter aircraft, aerodromes,
buildings and places, and to carry out inspections.
(5) Every person exercising the power of entry conferred by subsection (1) shall
produce the document required to be carried, and where applicable the
warrant issued under subsection (2) —
(a) if practicable on first entering the aircraft, aerodrome, building, or
place; and
(b) whenever subsequently reasonably required to do so.
(6) In this section, “authorised investigator” means —
(a) the Chief Investigator;
(b) any person appointed under section 78(1) and authorised in terms of
subsection (4)(b) by the Chief Investigator.
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77 Conduct of investigation
(1) When an accident or incident is under investigation by the Chief Investigator,
the Chief Investigator is in charge of that investigation.
(2) The Chief Investigator shall permit the participation or representation of such
foreign organisations in any investigation as is provided for in the
Convention.
(3) Except with the consent of the Chief Investigator, which consent shall not be
unreasonably withheld, no other person (including the Minister or the
Director) may —
(a) participate in any investigation being undertaken by the Chief
Investigator;
(b) undertake any independent investigation at the site of any accident or
incident being investigated by the Chief Investigator; or
(c) examine or cause to be examined any material removed from the site of
any accident or incident being investigated by the Chief Investigator.
(4) Where the Chief Investigator refuses consent under subsection (3), he shall
give the person refused consent a written statement of the reasons for his
refusal.
(5) Where any preliminary report issued by the Chief Investigator states or infers
that the conduct of any person has contributed to the cause of an accident or
incident being investigated by the Chief Investigator, the Chief Investigator
shall, before issuing a final report on the matter —
(a) give that person an opportunity to comment on or refute that statement
or inference, either in a written statement or at a hearing, or both; and
(b) have regard to that person’s statement or other evidence.
78 Appointment of investigators or assessors
(1) The Chief Investigator may, with the approval of the Director, appoint any
suitably qualified person that he considers necessary to assist the Chief
Investigator with any investigation under this Act.
(2) With the approval of the Director, the Chief Investigator may, either generally
or particularly, delegate to any person appointed under subsection (1) any
function or power of the Chief Investigator under this Act, and —
(a) section 26(3), (6), (7),(8) and (11) with the necessary modifications
shall apply to such a delegation;
(b) no such delegation shall affect or prevent the performance of any
function or the exercise of any power by the person making that
delegation; nor shall any such delegation affect the responsibility of the
person making the delegation for the actions of the delegate.
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(3) The Director may, if the Director considers appropriate, employ or engage
any person appointed under subsection (1) on terms and conditions
determined by the Director, subject to this Act.
PART IX - DISCLOSURE AND ADMISSIBILITY OF ACCIDENT
AND INCIDENT INVESTIGATION INFORMATION
79 Interpretation
For the purposes of this Part, unless the context otherwise requires —
―Chief Investigator‖ —
(a) means the Chief Investigator appointed under section 73; and
(b) includes any person appointed by the Chief Investigator under section
78;
―disclose‖, in relation to a record referred to in this Part, includes —
(a) relating the whole or part of the contents of the record orally; and
(b) producing the record, or a copy of the record, in whole or in part in any
form; and “disclosed” and “disclosure” have corresponding meanings;
―proceedings‖ means —
(a) proceedings before a court or tribunal, including a court of, or inquiry
established in respect of, a disciplined force;
(b) an arbitration under the laws relating to arbitration in the Kingdom;
(c) proceedings before —
(i) a royal commission of inquiry; or
(ii) a body, other than the Chief Investigator, having the powers or
any of the powers of a royal commission of inquiry;
(d) an inquiry or investigation by any person other than the Chief
Investigator.
80 Circumstances of disclosure, and admissibility, of certain investigation
records
(1) A record specified in subsection (2) —
(a) may only be disclosed by the Chief Investigator, or another person with
the written consent of the Chief Investigator, for the purposes of an
investigation by the Chief Investigator into an accident or incident to
which the record relates; and
(b) is not admissible in any proceeding.
(2) A record referred to in subsection (1) is —
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(a) a statement or submission made to the Chief Investigator in the course
of an investigation;
(b) a recording of an interview by a person engaged in an investigation by
the Chief Investigator that is generated in the course of an investigation,
or a transcript of such a recording;
(c) a note or opinion of a person engaged in an investigation by the Chief
Investigator that is generated in the course of an investigation; or
(d) information relating to an investigation that is provided in confidence
by the Chief Investigator to any other person (unless that information is
a record specified in section 81(2)).
(3) Notwithstanding subsection (1), a person who made a statement or submission
referred to in subsection (2)(a), or who supplied any statement contained in a
record referred to in subsection (2)(b) or (c), may disclose the information
contained in the statement or submission to any person.
(4) No judicial officer or registrar may issue a search warrant in respect of a
record specified in subsection (2).
81 Circumstances of disclosure of cockpit recordings and certain
investigation records supplied to the Chief Investigator
(1) A record specified in subsection (2) may only be disclosed —
(a) by the Chief Investigator, or another person with the written consent of
the Chief Investigator, for the purposes of an investigation by the Chief
Investigator into an accident or incident to which the record relates; or
(b) by order of the Supreme Court under sections 83 or 84.
(2) A record referred to in subsection (1) is —
(a) a cockpit voice recording from a non-military aircraft or a transcript of
a cockpit voice recording from a non-military aircraft;
(b) a cockpit video recording from a non-military aircraft or a transcript of
a cockpit video recording from a non-military aircraft; or
(c) a document or other record held by the Chief Investigator that contains
information about an identifiable natural person that was supplied to the
Chief Investigator in the course of an investigation (not being
information included in any statement, submission, recording,
transcript, or note referred to in section 80(2)(a), (b), or (c)).
(3) Nothing in subsection (1) prevents a person who is recorded on a record
referred to in subsection (2)(a) or (b), or who supplied information contained
in a record referred to in subsection (2)(c), from making a statement to any
person about the accident or incident.
(4) No judicial officer or registrar may issue a search warrant in respect of a
record specified in subsection (2).
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82 Admissibility of cockpit recordings and certain investigation records
supplied to Chief Investigator
(1) A record specified in section 81(2) is not admissible in —
(a) civil proceedings other than proceedings of a kind to which section 86
applies;
(b) proceedings before a court of inquiry, or inquiry established in respect
of, a disciplined force.
(2) A record specified in section 81(2) is not admissible against a member of the
flight crew of a military or a non-military aircraft in any proceedings.
(3) Nothing in subsection (2) affects the admissibility of a record specified in
section 81(2) against a person other than a member of the flight crew of a
military or a non-military aircraft.
(4) A record specified in section 81(2) is only admissible in particular civil
proceedings of a kind to which section 84 applies if it was disclosed in
relation to those proceedings in accordance with an order made under section
83 or 84.
(5) Nothing in this section renders admissible any record that is inadmissible
under any other enactment or rule of law.
83 Disclosure of record before civil proceedings commenced
(1) This section applies to civil proceedings if the amount of the damages claimed
exceeds $200,000.
(2) A person who is or may be intending to commence civil proceedings of the
kind specified in subsection (1) may apply to the Supreme Court for the
disclosure of a record specified in section 81(2).
(3) The Court may order the disclosure of a record to a person who applies under
subsection (2) if —
(a) it appears to the Court that —
(i) the person is or may be entitled to claim relief in the proceedings;
and
(ii) it is impossible or impracticable for the person to formulate the
person’s claim without reference to the record sought; and
(b) the Court determines, on the balance of probabilities, that the interests
of justice in the disclosure of the record outweigh the adverse domestic
and international impact the disclosure may have on the investigation to
which the record relates or any future investigation into an accident or
incident.
Section 84 Civil Aviation Act 2014
Page 76 Act 24 of 2014
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84 Disclosure of record in civil proceedings
(1) This section applies to civil proceedings if the amount of the damages claimed
exceeds $200,000.
(2) A party to any civil proceedings may apply to the Supreme Court for the
disclosure of a record specified in section 81(2).
(3) The Court may order the disclosure of a record under this section if the Court
determines, on the balance of probabilities, that the interests of justice in the
disclosure of the record outweigh the adverse domestic and international
impact the disclosure may have on the investigation to which the record
relates or any future investigation into an accident or incident.
85 Provisions relating to application under section 83 or 84
(1) Subject to this section, an application under section 83 or 84 shall be made
and dealt with in accordance with the rules of court applicable to interlocutory
applications.
(2) The applicant shall notify the following persons of the making of the
application —
(a) the person who has possession of the record;
(b) any natural person who is the subject of the record or, if that person is
deceased, that person’s next of kin; and
(c) the owner of the record.
(3) A person who is served with a notice of an application, and any other person
who satisfies the Court that he has a legitimate interest in the application, may
appear before the Court and be heard in respect of the application.
(4) Only the following persons are permitted to be present at the hearing of an
application under this section —
(a) the presiding Judge;
(b) officers of the Court;
(c) the applicant and the applicant’s counsel;
(d) other parties to the proceedings to which the application relates (or
intended parties in the case of an application under section 83) and their
counsel;
(e) witnesses; and
(f) any person referred to in subsection (3).
(5) The Court may exclude any witness, or any person referred to in subsection
(3), from any part of the hearing of the application.
(6) The Court may adjourn the hearing of an application under section 83 or 84 at
any time if it appears to the Court, on the application of any person or on the
Court’s own motion, that the making of a disclosure order will prejudice any
Civil Aviation Act 2014 Section 86
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Act 24 of 2014 Page 77
investigation into an accident or incident that is being undertaken by the Chief
Investigator.
(7) Subsection (6) does not limit any other power of the Court to adjourn
proceedings.
86 Court may order record to be produced
(1) For the purpose of determining whether a record should be disclosed under
section 83 or 84, the Court may order any person who has possession of the
record to produce it to the Court.
(2) Subject to section 88, the Court may deal with the record as it thinks fit.
87 Restriction on publication of reports of proceedings
(1) No person may publish any report of an application under section 83 or 84
without the leave of the Court.
(2) Despite subsection (1), a person may publish —
(a) the names and addresses of the parties;
(b) the name of the presiding Judge; and
(c) the order made by the Court.
88 Further provisions relating to disclosure of record
(1) If the Supreme Court makes a disclosure order under section 83 or 84, the
order relates only to the parts of the record that are relevant to the purpose for
which the disclosure was ordered, and any part of the record that is not
relevant shall not be disclosed.
(2) The record may be used only for the purpose for which the disclosure was
ordered, and no person is permitted to copy the record or make notes from the
record without the leave of the Court.
(3) The record shall be returned to the person who produced the record to the
Court when the record is no longer needed for the purpose for which the
disclosure was ordered.
(4) No record that is ordered to be disclosed under section 83 or 84 may be
broadcast or published in the media.
89 Certain actions do not constitute disclosure
The following actions do not constitute disclosure of a record referred to in section
80 or 81 —
Section 90 Civil Aviation Act 2014
Page 78 Act 24 of 2014
to
(a) the inclusion of the whole or part of a record in any finding, recommendation,
or report, whether preliminary or otherwise, made, issued, or published by the
Chief Investigator in the course of or following an investigation;
(b) the return of a recording to its owner with the consent of all the individuals
recorded on it;
(c) the broadcast or publication in the media of any information disclosed to any
person under section 80(3) or any statement made under section 81(3).
90 Admissibility of accident or incident findings, recommendations, or
report
No finding, recommendation, or report, whether preliminary or otherwise, made, issued, or
published by the Chief Investigator following an investigation is admissible as evidence in
any proceedings except an application for judicial review of a decision of the Chief
Investigator.
91 Investigators not compellable to give opinion evidence in certain
proceedings
No person engaged in an investigation by the Chief Investigator is compellable to
give evidence in any proceedings to which the Chief Investigator is not a party as
to —
(a) that person’s opinion concerning any aspect of an investigation; or
(b) any matter included in any analysis, findings, or recommendations made in
the course of or following an investigation.
PART X - AVIATION SECURITY
92 Interpretation
For the purposes of this Part 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.
Civil Aviation Act 2014 Section 93
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Act 24 of 2014 Page 79
93 Provision of aviation security
The prevention of the commission of offences against this Act at any security
designated aerodrome or security designated navigation installation, and the
protection of persons and property from dangers arising from the commission or
attempted commission of such offences, shall be the joint responsibility of Tonga
Police and any authorised provider of aviation security services at that aerodrome or
installation.
94 Responsibility of Minister to provide aviation security services
(1) The Minister shall ensure that aviation security services are provided at all
security designated aerodromes and security designated navigation
installations.
(2) In order to provide the said aviation security services the Minister may
establish and continue a service to be called the Aviation Security Service.
95 Authorised aviation security service providers
(1) Subject to subsection (2), aviation security services at any security designated
aerodrome or security designated navigation installation may be provided
by —
(a) an Aviation Security Service established under section 94(2); or
(b) the operator of that aerodrome or navigation installation.
(2) No operator of an aerodrome or navigation installation, and no person
employed by any such operator to provide aviation security services, shall
provide aviation security services at that aerodrome or installation, except
pursuant to a current aviation document issued by the Director under this Act.
(3) The holder of every such document shall comply with the relevant prescribed
requirements and standards.
96 Further provisions relating to Aviation Security Service
(1) Notwithstanding section 55 and 95, but subject to subsection (2), where an
Aviation Security Service has been established pursuant to section 94(b), the
Minister may from time to time by notice in the Gazette specify that only the
Aviation Security Service may be granted an aviation document to provide
aviation security services at any security designated aerodrome or security
designated navigation installation. Any such notice may be amended or
revoked by the Minister by notice in the Gazette.
(2) Where any person already holds an aviation document entitling that person to
provide aviation security services at a security designated aerodrome or
security designated navigation installation, the Minister shall not give a notice
Section 97 Civil Aviation Act 2014
Page 80 Act 24 of 2014
to
under subsection (1) in respect of that aerodrome or navigation installation
without the consent of that person.
(3) Notwithstanding anything in section 95, the Minister may at any time, in the
event of an emergency or other crisis, appoint the Aviation Security Service to
provide aviation security services at any designated aerodrome or security
designated navigation installation, notwithstanding that the operator of that
aerodrome or navigation installation is providing aviation security services.
(4) Any appointment made by the Minister under subsection (3) shall have effect
for a period specified by the Minister, being not more than 10 days.
97 Functions and duties of other aviation security service providers
(1) Aviation security service providers (other than the Aviation Security Service)
shall have such functions and duties as may be prescribed by Rules made
under this Act.
(2) Such aviation security service providers shall designate employees to be
aviation security officers; and every such officer shall have and may exercise,
in relation to the aerodrome or navigation installation at which he is
employed, all the powers of an aviation security officer under this Act.
98 Powers, functions and duties of aviation security services
Without limiting the powers, functions, duties, or responsibilities of Tonga Police
under this Act or any other enactment, and without limiting the generality of section
94(1), aviation security services shall have the following powers, functions and
duties —
(a) to carry out —
(i) crew, passenger, and baggage screening of all international aircraft
passenger services; and
(ii) the screening, reasonable searches, or seizures specified in section
102(1);
(b) to undertake, if necessary, reasonable searches of crew, passengers, baggage,
cargo, aircraft, aerodromes and navigation installations;
(c) to carry out aerodrome security patrols and patrols of navigation installations;
(d) to review, inquire into, and keep itself informed on security techniques,
systems, devices, practices, and procedures related to the protection of civil
aviation and persons employed in or using it;
(e) to prepare for every designated airport, with the concurrence and approval of
the Director and the Commissioner of Police, an airport security program
complying with the requirements of the national Airport Security Program
(ASP) for the purpose of protecting the safety, regularity and efficiency of the
airport and the safety of persons using the airport;
Civil Aviation Act 2014 Section 99
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Act 24 of 2014 Page 81
(f) to undertake, or encourage or supervise such experimental or research work in
respect of any aspect of aviation security as the Director may specify;
(g) for the purpose of better carrying out any of its functions under this Act, to co-
operate with Tonga Police, Government departments, airport authorities,
operators, and authorities administering the airport security services of other
countries, and with any appropriate international organisation.
99 Security areas and security enhanced areas
(1) The Director may declare, by a sign or signs affixed at the perimeter of the
area, that an area within any security designated aerodrome or security
designated navigation installation is a security area.
(2) The Director may declare, by appropriate notification, that an area within a
security area is a security enhanced area.
(3) No person other than a member of the police on official duties or an aviation
security officer on official duties may enter or remain in any security area or
security enhanced area unless the person is —
(a) wearing an airport identity card issued under the Rules (or other
identity document approved by the Director under the Rules) and worn
in accordance with the Rules; and
(b) authorised by the Director or the airport manager or other person
having control of the area.
(4) Every person in a security area or security enhanced area shall, on the request
of an aviation security officer, state his name, address, the purpose of his
presence in the security area or security enhanced area, and his authority to
enter it, and shall produce satisfactory evidence of the correctness of his stated
name and address.
(5) Where a person who fails or refuses to provide an aviation security officer
with satisfactory evidence of his name and address when requested by the
aviation security officer, or where a person fails to satisfy the aviation security
officer that he is authorised to be there, the aviation security officer may order
that person to leave the security area or security enhanced area.
(6) An aviation security officer, and any person whom he calls to his assistance,
may use such force as may be reasonably necessary to remove from any
security area any person who fails or refuses forthwith to leave the security
area after having been ordered by an aviation security officer to do so under
subsection (5).
(7) Any person who refuses to comply with subsections (4) or (5) and, after
having been warned that he commits an offence, persists in its commission,
may be detained by an aviation security officer and in that case he shall as
soon as may be practicable be delivered to a Police officer.
Section 100 Civil Aviation Act 2014
Page 82 Act 24 of 2014
to
(8) An aviation security officer who is in uniform, or wearing a distinctive cap,
hat, or helmet, with a badge of authority affixed to it, may signal or request
the driver of a vehicle in a security enhanced area to stop the vehicle as soon
as is practicable for the purpose of screening or searching the vehicle, and any
item, substance, or person in the vehicle.
(9) The driver of a vehicle that is stopped by an aviation security officer shall
remain stopped for as long as is reasonably necessary for the aviation security
officer to screen or search the vehicle, and any item, substance, or person in
the vehicle.
(10) Every person commits an offence and shall be liable upon summary
conviction to a fine not exceeding $1,000, who, without lawful authority or
reasonable excuse, fails to —
(a) stop a vehicle in a security enhanced area as soon as is practicable when
required to do so by an aviation security officer; or
(b) remain stopped for as long as is reasonably necessary for the aviation
security officer to screen or search the vehicle, and any item,
substance, or person in the vehicle.
(11) Notwithstanding subsection (3) —
(a) a passenger embarking or disembarking directly through a gateway or
thoroughfare in an airport approved for that purpose by the airport
manager may pass through a security area or security enhanced area
forming part of the gateway or thoroughfare without an airport identity
card;
(b) a person allowed under the Rules may pass through a security area or
security enhanced area without an airport identity card.
100 Security designated aerodromes and navigation installations
(1) The Minister may, by notice in the Gazette, designate any aerodrome or
navigation installation as a security designated aerodrome or security
designated navigation installation.
(2) Any designation under subsection (1) may at any time be revoked, in whole or
in part, or amended by the Minister by notice in the Gazette.
101 Right of access
(1) Subject to subsections (2) and (3), an aviation security officer while on duty
may at any time enter any security designated aerodrome or a security
designated navigation installation, or any aircraft, vehicle, building, or place
in any part of a security designated aerodrome or security designated
navigation installation, for the purpose of exercising and carrying out his
powers, functions, and duties under this Act.
Civil Aviation Act 2014 Section 102
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Act 24 of 2014 Page 83
(2) Unless the aviation security officer is accompanied by a Police officer, the
power of entry conferred by subsection (1) shall be limited to peaceful and
non-forced entry.
(3) Where Tonga Police has taken command of any situation at an aerodrome or
navigation installation, the rights of aviation security officers to enter any part
thereof or any aircraft, vehicle, building, or place shall be subject to such
limitations as the senior Police officer present at the aerodrome or navigation
installation specifies.
(4) Where an aircraft or vehicle is not being used for commercial purposes,
subsection (1) shall not apply unless the aviation security officer believes on
reasonable grounds that there is in that vehicle or aircraft a person or thing
likely to endanger the aerodrome or installation or any of its facilities or any
person.
102 Powers and duties of Director to require screening, search and seizure
(1) The Director may, if the Minister considers it necessary to improve or
enhance aviation security to enable the Kingdom to be part of a concerted
international response to a threat to aviation security, or if the Minister
considers it is in the public interest or national interest to do so, or if the
Director believes on reasonable grounds that a security risk exists, direct an
aviation security service provider, by notice in the Gazette —
(a) to screen —
(i) any person boarding an aircraft;
(ii) anything to be carried on an aircraft;
(iii) any person, item, or substance —
(aa) before the person, item, or substance enters a sterile area;
(bb) present in a sterile area;
(iv) any person, item, substance, or vehicle —
(aa) before the person, item, substance, or vehicle enters a
security enhanced area;
(bb) present in a security enhanced area;
(v) any unattended item, substance or vehicle in a security enhanced
area; or
(vi) at random, and on a proportional basis determined by risk
assessment, any person who either has access to or, in the
opinion of the Director, the potential to access any aircraft or any
security area, security enhanced area or sterile area at any airport
or navigation installation or air navigation facility; or
(b) if necessary, to undertake reasonable searches of —
(i) any person boarding an aircraft;
Section 102 Civil Aviation Act 2014
Page 84 Act 24 of 2014
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(ii) anything to be carried by an aircraft;
(iii) any (as specified in the Gazette notice) —
(aa) aircraft or class of aircraft;
(bb) aerodrome or class of aerodrome;
(cc) navigation installation or class of navigation installation;
(iv) any person, item, substance, or vehicle —
(aa) before the person, item, substance, or vehicle enters a
sterile area;
(bb) present in a sterile area;
(v) any person, item, substance, or vehicle —
(aa) before the person, item, substance, or vehicle enters a
security enhanced area;
(bb) present in a security enhanced area;
(vi) any unattended item, substance or vehicle in a security enhanced
area;
(vii) at random, and on a proportional basis determined by risk
assessment, any vehicle within any security area, security
enhanced area or sterile area or in any defined area adjacent to
any such area; or
(viii) at random, and on a proportional basis determined by risk
assessment, any person, vehicle, facility or installation, having
access to, or where, in the opinion of the Director, there exists
with regard to such person, vehicle, facility or installation a
potential to access any aircraft or any security area, security
enhanced area or sterile area at any airport or navigation
installation or air navigation facility; or
(c) to seize any item or substance specified in the Gazette notice if the
aviation security officer has reasonable grounds to believe that there is
no lawful authority or reasonable excuse for the item or substance to be
carried on an aircraft.
(2) An aviation security service provider directed under subsection (1) shall
screen and search for any item or substance specified in the Gazette notice.
(3) Before directing an aviation security provider under subsection (1), the
Director shall, to determine whether or not the direction is necessary to meet
the security risk, consult, as the Director in each case considers appropriate
and practical, representative groups in the aviation industry, and any
government department.
(4) The Director may rescind a direction made under subsection (1).
(5) A direction remains in effect until it is rescinded.
Civil Aviation Act 2014 Section 103
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Act 24 of 2014 Page 85
(6) For the purpose of subsection (1)(b)(viii), “access” includes that which is
attained or, in the opinion of the Director, is attainable —
(a) directly by way of personal entry into or proximate approach to the said
aircraft, security area, security enhanced area or sterile area at any
airport or navigation installation or navigation facility;
(b) indirectly by way of the delivery, placement or concealment of any
item, thing, matter or substance, into, on, within, or in proximity to the
said aircraft, security area, security enhanced area or sterile area at any
airport or navigation installation or navigation facility.
103 Powers and duties of Director relating to security checks
(1) The Director may carry out a security check of a person who falls within a
category of persons specified in the Rules as requiring a security check if —
(a) the security check is for the purpose of determining whether the person
poses a threat to aviation security; and
(b) the person consents.
(2) If a person refuses consent to a security check under sub-section (1), the
person may not be granted any authorisation under the Rules if the Rules
require a favourable security check determination.
(3) The Director may grant a favourable security check determination if the
Director decides that the person has undergone an alternative security check
that is acceptable to the Director.
(4) For the purpose of determining whether a person poses a threat to aviation
security, the Director may —
(a) seek and receive any information that the Director considers relevant;
(b) give weight to any component of the information as the Director
considers appropriate in the circumstances.
(5) If the Director determines that a person does not pose a threat to aviation
security, the Director shall advise the person of the favourable security check
determination.
(6) The Director may reconsider any previous security check determination that
the Director has made if —
(a) new information is made available; or
(b) the Director has reason to believe that the person may pose a threat to
aviation security.
(7) If the Director proposes to reconsider any previous security check
determination, the Director shall —
(a) advise the person to whom the security check determination relates that
the Director is reconsidering that determination;
Section 104 Civil Aviation Act 2014
Page 86 Act 24 of 2014
to
(b) complete the reconsideration of that determination within 20 working
days of advising the person under paragraph (a);
(c) if the reconsideration results in an adverse security check determination
or a proposed adverse security check determination, initiate the review
process set out in section 104;
(d) if a favourable security check determination is required for any
previous authorisation granted to the person under the Rules, withdraw
that authorisation for —
(i) the period of the reconsideration;
(ii) any subsequent review period under section 104; and
(e) if a favourable security check determination is required for any
previous authorisation granted to the person by any other entity, require
that entity to withdraw the authorisation for —
(i) the period of the reconsideration; and
(ii) any subsequent review period under section 104.
(8) Nothing in this section limits the power of the Director to grant an exemption
under section 45.
104 Review procedures for security check determinations
(1) If the Director proposes to make an adverse security check determination with
respect to a person the Director shall —
(a) advise the person of the proposed determination and the reasons for the
proposed determination;
(b) give the person written notice that, within 20 working days of the date
of the notice, the person may —
(i) seek legal advice or assistance with respect to the proposed
determination;
(ii) respond to, comment on, or make submissions on the proposed
determination;
(iii) provide new information relevant to the proposed determination;
(c) give the person notice of the date on which the proposed determination
will, unless the Director decides otherwise, be made (which shall be a
date that is as soon as practicable after the expiry of the 20 working day
period referred to in paragraph (b));
(d) consider any response, comment, submission, or new information that
the person provides along with the information on which the proposed
determination was made; and
(e) make a final determination and inform the person and any other
affected party of —
Civil Aviation Act 2014 Section 105
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Act 24 of 2014 Page 87
(i) in the case of the person, the final determination and the reasons
for the final determination; and
(ii) in the case of any other affected party, the final determination
but not the reasons for the final determination.
(2) If the Director makes a final adverse security check determination, the
Director shall —
(a) revoke any authorisation granted to the person by the Director under the
Rules, if a favourable security check determination is required under
the Rules for the authorisation; and
(b) require any other entity to revoke any authorisation granted to the
person, if a favourable security check determination is required under
the Rules for the authorisation.
105 Offence to carry out activity while authorisation withdrawn or after
authorisation revoked
(1) Every person commits an offence who carries out an activity that requires an
authorisation —
(a) during a period when that authorisation has been withdrawn under
section 103(7)(d) or (e); or
(b) if that authorisation has been revoked under section 104(2).
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction to a fine not exceeding $5,000.
106 Offence to fail to comply with Director’s requirement to withdraw or
revoke authorisation
(1) Every person commits an offence who fails, without reasonable excuse, to
comply with the Director’s requirement to —
(a) withdraw an authorisation under section 103(7)(e); or
(b) revoke an authorisation under section 104(2)(b).
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction to a fine not exceeding $10,000.
107 Powers and duties of aviation security officer relating to dangerous
goods
(1) Without limiting sections 98(a) and (b), an aviation security officer may
screen any person boarding an aircraft or anything to be carried by an aircraft
for the purpose of detecting dangerous goods.
(2) If dangerous goods are detected and the aviation security officer has
reasonable grounds to believe that they may not be lawfully carried on an
Section 108 Civil Aviation Act 2014
Page 88 Act 24 of 2014
to
aircraft, the aviation security officer may seize and detain the dangerous
goods for the purpose of determining whether or not they may be lawfully
carried on an aircraft.
(3) If the aviation security officer determines that the dangerous goods may not
be lawfully carried on an aircraft, the aviation security officer shall notify the
relevant operator or delivery service as soon as practicable and —
(a) may detain the dangerous good until they are dealt with in accordance
with paragraphs (b) or (c);
(b) may deliver the dangerous goods to the operator or delivery service; or
(c) may, if the Director agrees, destroy or otherwise dispose of the
dangerous goods.
(4) If the aviation security officer determines that the dangerous goods may be
lawfully carried on an aircraft, the aviation security officer shall, as far as
practicable, return the dangerous goods to the owner of the dangerous goods.
(5) Despite anything in this section, if the aviation security officer has reasonable
grounds to believe that the dangerous goods pose an imminent risk to safety,
the aviation security officer may destroy or otherwise dispose of the
dangerous goods.
(6) The aviation security officer shall report the detection of dangerous goods in
accordance with the Rules, or in the absence of Rules, as the Director may
direct.
108 Power of aviation security officers to search for and seize certain items
or substances to be carried on aircraft or into sterile areas
(1) Without limiting sections 98 or 118, an aviation security officer may, for the
purpose of detecting any item or substance specified in a direction given
under section 102, screen or search any person, item, substance, or vehicle —
(a) before the person, item, substance, or vehicle enters a sterile area;
(b) present in a sterile area.
(2) A search undertaken under subsection (1) shall be carried out in accordance
with the requirements for searches specified in section 118(4)(b) to (7).
(3) If an item or substance specified in section 207(1) or in a direction under
section 102(1) is detected in a search undertaken under subsection (1) or
sections 98 or 118, and an aviation security officer has reasonable grounds to
believe that there is no lawful authority or reasonable excuse for the item or
substance to be carried on an aircraft or into a sterile area, the aviation
security officer may seize and detain the item or substance for the purpose of
determining whether there is lawful authority or reasonable excuse for the
item or substance to be carried on an aircraft or into a sterile area.
Civil Aviation Act 2014 Section 109
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Act 24 of 2014 Page 89
(4) If the aviation security officer determines that the item or substance may be
lawfully carried into, or remain in, an aircraft or a sterile area, the aviation
security officer shall —
(a) if practicable, return the item or substance to the person from whom it
was seized; or
(b) if impracticable to return the item or substance to the person from
whom it was seized, deliver the item or substance to the carrier of the
aircraft that the person boarded or intended to board when the item or
substance was seized.
(5) If the aviation security officer determines that there is no lawful authority or
reasonable excuse for the item or substance to be carried on an aircraft or into
a sterile area, the aviation security officer may —
(a) detain the item or substance until it is dealt with in accordance with
paragraphs (b) or (c);
(b) dispose of or destroy the item or substance; or
(c) deliver the item or substance to a member of the police.
(6) If an aviation security officer delivers an item or substance to a member of the
police under subsection (5)(c), the aviation security officer shall record the
delivery and the relevant details of the seizure.
(7) Despite anything in this section, if the aviation security officer has reasonable
grounds to believe that an item or substance poses an imminent risk to safety,
the aviation security officer may destroy or otherwise dispose of the item or
substance.
109 Further powers and duties of aviation security officers relating to
security enhanced areas
(1) Without limiting section 98, an aviation security officer may, for the purpose
of detecting any item or substance specified in section 207(1) or in a direction
given under section 102(1), screen or search any person, item, substance, or
vehicle —
(a) before the person, item, substance, or vehicle enters a security enhanced
area; or
(b) present in a security enhanced area.
(2) A search undertaken under subsection (1) shall be carried out in accordance
with the requirements for searches specified in section 118(4)(b) to (7).
(3) If any item or substance specified in section 207(1) or in a direction under
section 102(1) is detected in a search undertaken under subsection (1) or
section 98 and the aviation security officer has reasonable grounds to believe
that there is no lawful authority or reasonable excuse for the item or substance
to be carried into or remain in the security enhanced area, the aviation security
officer may seize and detain the item or substance for the purpose of
Section 110 Civil Aviation Act 2014
Page 90 Act 24 of 2014
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determining whether there is lawful authority or reasonable excuse for the
item or substance to be carried into or remain in the security enhanced area.
(4) If the aviation security officer determines that there is no lawful authority or
reasonable excuse for the item or substance to be carried into or remain in the
security enhanced area, the aviation security officer —
(a) shall —
(i) detain the item or substance until it is delivered to a member of
the police, or, if the Director agrees, destroyed or otherwise
disposed of;
(ii) deny entry into the security enhanced area to any person in
possession of the item or substance; or
(iii) direct the person in possession of the item to leave the security
enhanced area, with or without —
(aa) the item or substance;
(bb) any vehicle used to transport the item or substance; and
(b) shall make a record of the item or substance and the person from whom
the item or substance was seized (if any).
(5) If the aviation security officer determines that the item or substance may be
lawfully carried into or remain in the security enhanced area, the aviation
security officer shall, if practicable, return the item or substance to the person
from whom the item or substance was seized.
(6) Despite anything in this section, if the aviation security officer has reasonable
grounds to believe that the item or substance poses an imminent risk to safety,
the aviation security officer may destroy or otherwise dispose of the item or
substance.
110 Consent to be screened or searched
(1) The powers specified in section 109(1) may only be exercised with respect
to —
(a) a person to be screened or searched with the consent of the person;
(b) an item, substance, or vehicle to be screened or searched with the
consent of the person in possession of the item, substance, or vehicle.
(2) To avoid doubt, an item, substance, or vehicle may be screened or searched
without consent if it is unattended.
111 Persons who refuse to consent to be screened or searched
(1) If a person refuses to consent to the screening or searching under section
109(1), an aviation security officer may —
(a) deny that person entry into the security enhanced area;
Civil Aviation Act 2014 Section 112
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(b) require that person to —
(i) leave the security enhanced area;
(ii) remove any item, substance, or vehicle in that person’s
possession from the security enhanced area.
(2) An aviation security officer may —
(a) prevent a person from entering a security enhanced area if the person is
denied entry;
(b) remove a person from a security enhanced area if the person is required
to leave.
(3) An aviation security officer may detain a person who —
(a) refuses to leave when required to leave (or attempts to enter when
denied entry) and persists in his refusal (or attempt) after being warned
that he commits an offence by not complying;
(b) refuses to be screened or searched if the aviation security officer has
reasonable grounds to suspect that —
(i) an offence against sections 199, 200, 207, 208, 209 or 210 has
been, is being, or is likely to be committed, whether by that
person or by any other person; or
(ii) a search of the person refusing to consent is likely to disclose
evidence that an offence against this Act has been, is being, or is
likely to be, committed, whether by that person or any other
person.
(4) A person detained under subsection (3) shall be delivered to a member of the
Police as soon as practicable.
(5) An aviation security officer, or any person assisting an aviation security
officer, may use reasonable force, or any assistance that is reasonably
necessary in the circumstances, to —
(a) prevent a person from entering a security enhanced area under
subsection (2)(a);
(b) remove a person from a security enhanced area under subsection (2)(b);
(c) detain a person under subsection (3).
112 Searches of persons refusing consent to be searched
(1) If a person refuses to consent to the screening or searching under section
109(1), a Police officer may, without a warrant, search the person and any
item, substance, or vehicle in the person’s possession, and may detain the
person for the purposes of the search, and may take possession of any item or
substance found in the course of the search that is specified in section 207(1),
if the member of the police has reasonable grounds to suspect that —
Section 113 Civil Aviation Act 2014
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(a) an offence against sections 199, 200, 207, 208, 209 or 210 has been, is
being, or is likely to be committed, whether by that person or by any
other person; and
(b) a search of the person refusing to consent, or any item, substance or
vehicle in the person’s possession, is likely to disclose evidence that an
offence against sections 199, 200, 207, 208, 209 or 210 has been, is
being, or is likely to be, committed, whether by that person or any other
person.
(2) The refusal of a person to consent to the searching of his person, or any item,
substance, or vehicle in the person’s possession, does not of itself constitute
reasonable grounds for suspecting that an offence against sections 199, 200,
207, 208, 209 or 210 has been, is being, or is likely to be, committed.
(3) A Police officer exercising the power of search under subsection (1) shall,
before the search is conducted, and on any subsequent request —
(a) provide evidence of his identity to the person to be searched;
(b) inform the person to be searched that the search is authorised under this
section; and
(c) if not in uniform, provide evidence, if asked, that he is a member of the
police to the person to be searched.
(4) If a Police officer exercises the power of search under subsection (1), he shall,
within 3 days after the day on which he exercises the power, furnish to the
Commissioner of Police a written report on the exercise of the power and the
circumstances in which it came to be exercised.
113 Searches of persons
(1) With respect to a search made under section 109(1) —
(a) a person shall, if directed to do so by an aviation security officer —
(i) remove, raise, lower, or open any outer clothing, including (but
not limited to) any tao’vala, coat, jacket, jumper, cardigan, or
similar article that the person is wearing to enable the search to
be carried out, except where the person has no other clothing, or
only underclothing, under the outer clothing;
(ii) remove any gloves, footwear (including socks or stockings),
head coverings, belts, jewellery, or other accessories;
(iii) allow an aviation security officer to carry out a pat down search;
(b) a female may only be searched by a female unless the search is made
by means of a mechanical or electrical or electronic or other similar
device.
(2) For the purposes of this section, ―pat down search” —
(a) means a search of a clothed person in which the person conducting the
search may do all or any of the following —
Civil Aviation Act 2014 Section 114
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Act 24 of 2014 Page 93
(i) run or pat his hand over the body of the person being searched,
whether outside or inside the clothing (other than any
underclothing) of that person;
(ii) insert his hand inside any pocket or pouch in the clothing (other
than any underclothing) of the person being searched;
(iii) for the purpose of permitting a visual inspection, require the
person being searched to do all or any of the following,
namely —
(aa) open his mouth;
(bb) display the palms of his hands;
(cc) display the soles of his feet;
(d) lift or rub his hair; and
(b) includes the authority to search —
(i) any item or substance carried by, or in the possession of the
person;
(ii) any outer clothing removed, raised, lowered, or opened for the
purposes of the search; and
(iii) any head covering, gloves, or footwear (including socks or
stockings) removed for the purposes of the search.
114 Protection of aviation security officers
Nothing done by an aviation security officer under sections 108, 109, 118, 119 and
121 may subject the aviation security officer to personal liability if done in —
(a) good faith; and
(b) the exercise of powers or the performance of duties under this Act.
115 Powers of arrest and seizure of items or substances
(1) Every aviation security officer is justified in arresting without warrant any
person on or in the vicinity of any security designated aerodrome or security
designated navigation installation if he has reasonable grounds to believe that
an offence has been or is being committed by that person against any of the
following enactments —
(a) sections 199, 200, 207, 208, 209, or 210;
(b) sections 4, 22, or 24, of the Arms and Ammunition Act, section 11 of
the Counter Terrorism and Transnational Organised Crimes Act, and
sections 109 or 110 of the Criminal Offences Act.
(2) An aviation security officer may —
(a) search a person arrested under subsection (1);
Section 116 Civil Aviation Act 2014
Page 94 Act 24 of 2014
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(b) seize any item or substance that may be evidence of an offence against
an enactment specified in subsection (1), if the officer has reasonable
grounds to believe that —
(i) the person has an item or substance hidden or in clear view on or
about his person that is evidence of an offence against an
enactment specified in subsection (1);
(ii) the item or substance poses a threat to the safety of the officer or
any other person; and
(iii) immediate action is necessary to address the threat.
(3) An aviation security officer may use reasonable force, or any assistance that is
reasonably necessary in the circumstances, to —
(a) arrest a person under subsection (1);
(b) search a person under subsection (2);
(c) seize an item or substance under subsection (2).
(4) To avoid doubt, an aviation security officer may search a person under this
section whether or not an aviation security officer has previously searched the
person under any other section of this Act
(5) An aviation security officer who undertakes a search under this section shall,
within 3 working days of the search, give the Director a written report of the
search, the circumstances in which it was conducted, and the matters that gave
rise to the reasonable grounds to believe required by subsection (2)(b).
(6) Any person called upon to do so by an aviation security officer is justified in
assisting him in good faith to arrest any person.
(7) An aviation security officer shall as soon as may be practicable deliver any
person he arrests, and any item or substance he seizes to a member of the
Police.
(8) An aviation security officer may seize an item or substance in the possession
of a person that the aviation security officer arrests if the aviation security
officer has reasonable grounds to believe that the item or substance is
evidence of an offence against an enactment specified in subsection (1).
116 Arrest of persons delivered to Police
(1) A Police officer shall accept delivery of a person whom an aviation security
officer seeks to deliver to him under this Act if he has reasonable grounds to
suspect that person of having done or omitted to do anything if that act or
omission is an offence against section 204 or any enactment specified in
section 115(1).
(2) A Police officer who accepts delivery of a person under subsection (1) may
forthwith arrest that person.
Civil Aviation Act 2014 Section 117
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(3) An aviation security officer who detains any person in accordance with the
provisions of section 99(7) and delivers him to a member of the Police, and
any person who at his request and in good faith assists an aviation security
officer in doing so, is justified in so detaining and delivering that person and
in using such force as may be reasonably necessary in doing so.
117 Powers of Police
Every sworn Police officer shall have and may exercise all or any of the powers
conferred on an aviation security officer under this Act or Regulations or Rules
made under this Act.
118 Search of passengers and baggage
(1) Any Police officer, any aviation security officer, or any Customs officer or
any employee or agent of the carrier authorised by the carrier for the purpose,
may, with the consent of the passenger, search a passenger and the
passenger’s baggage, personal effects, or other articles in the possession of the
passenger, or in the possession of another person (being a person
accompanying the passenger) before the passenger boards any aircraft in the
Kingdom pursuant to any contract providing for the carriage of the passenger
by air from any place in the Kingdom to any other place (whether in the
Kingdom or elsewhere).
(2) If the passenger declines to allow himself or his baggage to be searched the
carrier shall refuse to carry —
(a) the passenger;
(b) his baggage;
(c) the passenger, where embarkation is refused under the preceding
subparagraph, may be directed in writing by an aviation security officer
to leave the airport for a period of up to 24 hours;
(d) the passenger may be placed under surveillance at the airport by an
aviation security officer.
(3) A carrier shall not be liable to any civil proceeding, other than a proceeding in
respect of any right that the passenger may have for the recovery of the fare or
any part thereof, by reason of the fact that the carrier has refused to carry
(a) a passenger who has declined to allow himself or his baggage to be
screened or searched;
(b) the baggage of a passenger who has declined to allow himself or his
baggage to be screened or searched.
(4) With respect to any search made pursuant to subsection (1) —
(a) by an employee or agent of the carrier authorised by the carrier for the
purpose, the passenger shall not be required to remove any article of
Section 118 Civil Aviation Act 2014
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clothing (other than a coat or similar article) for the purpose of being
searched;
(b) by a Police officer, an aviation security officer, or a Customs officer,
the passenger shall, if directed to do so —
(i) remove, raise, lower, or open any outer clothing, including (but
not limited to) any tao’vala, coat, jacket, jumper, cardigan, or
similar article that the passenger is wearing to enable the search
to be carried out, except where the passenger has no other
clothing, or only underclothing, under the outer clothing;
(ii) remove any gloves, footwear (including socks or stockings), head
coverings, belts, jewellery, or other accessories;
(iii) allow a member of the Police, an aviation security office, or a
Customs officer to carry out a pat down search;
(c) by a Police officer, an aviation security officer, a Customs officer, or an
employee or agent of the carrier authorised for the purpose, a female
may only be searched by a female unless the search s made by means of
a mechanical or electrical or electronic or other similar device.
(5) Subject to subsection (6) with respect to a search made under subsection (1), a
Police officer, an aviation security officer, or a Customs officer, may use any
aid or device that is reasonably necessary to facilitate the search, including
(but not limited to) a dog, chemical substance, or x-ray or imaging equipment,
or some other mechanical or electrical or electronic device.
(6) Notwithstanding subsection (5), with respect to a person searched under
subsection (1), a Police officer, an aviation security officer, a Customs officer,
or an agent of the carrier authorised for the purpose may not, unless prior
written authorisation has been obtained from the Minister on advice from the
Director, use an aid or device that produces an unclothed image of the person.
(7) For the purposes of this section, ―pat down search” —
(a) means a search of a clothed person in which the person conducting the
search may do all or any of the following —
(i) run or pat his hand over the body of the person being searched,
whether outside or inside the clothing (other than any
underclothing) of that person;
(ii) insert his hand inside any pocket or pouch in the clothing (other
than any underclothing) of the person being searched;
(iii) for the purpose of permitting a visual inspection, require the
person being searched to do all or any of the following,
namely —
(aa) open his mouth;
(bb) display the palms of his hands;
(cc) display the soles of his feet;
(dd) lift or rub his hair; and
Civil Aviation Act 2014 Section 119
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(b) includes the authority to search —
(i) any item or substance carried by, or in the possession of the
person;
(ii) any outer clothing removed, raised, lowered, or opened for the
purposes of the search; and
(iii) any head covering, gloves, or footwear (including socks or
stockings) removed for the purposes of the search.
119 Proportional screening and search of other persons and things
(1) Any aviation security officer may, at random and at minimum on a
proportional basis determined by risk assessment screen and search any
person who, in the opinion of the Director, has access to or the potential to
access any aircraft or any security area, security enhanced area or sterile area
at any airport or navigation installation or air navigation facility.
(2) For the purpose of this section “access” includes that which is attainable —
(a) directly by way of personal entry into or proximate approach to an
aircraft, area, installation or facility in subsection (1);
(b) indirectly by way of the placement, concealment or delivery of any
item, thing, matter or substance, into, on, within, or in proximity to an
aircraft, area, installation or facility referred to in subsection (1).
(3) Any aviation security officer may, at random and at minimum on a
proportional basis determined by risk assessment, search any place of work or
installation whose personnel have in the opinion of the Director, access to any
aircraft or any security area, security enhanced area or sterile area at any
airport or navigation installation or air navigation facility.
(4) Any search of a person made pursuant to subsection (1) shall be carried out in
accordance with the requirements for searches specified in section 118(4)(b)
to (7).
120 Search of persons declining to allow screening or search
(1) Where —
(a) pursuant to section 118(2) a carrier refuses to carry a person who has
declined to allow himself or his baggage to be screened or searched; or
(b) a Police officer has reasonable grounds to suspect that an offence
against this Act has been, is being, or is likely to be, committed,
whether by that person or by any other person —
the Police officer may, without warrant, search that first-mentioned person
and his baggage and any articles in his possession, and may detain him for the
purposes of that search, and may take possession of any article referred to in
section 207(1)(a),(b),(c),(d),(e) or (f) found in the course of that search.
Section 121 Civil Aviation Act 2014
Page 98 Act 24 of 2014
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(2) Every Police officer exercising the power of search conferred by subsection
(1) shall identify himself to the person searched, and shall also tell him that
the search is being made pursuant to that subsection. He shall also, if not in
uniform and if so required, produce evidence that he is a Police officer.
(3) With respect to a search made under subsection (1) a Police officer may use
any aid or device that is reasonably necessary to facilitate the search,
including (but not limited to) a dog, chemical substance, or x-ray or imaging
equipment, or some other mechanical or electrical or electronic device.
121 Screening and search of checked baggage, cargo and mail
(1) Any aviation security officer, or any employee or agent of the carrier
authorised by the carrier for the purpose, may screen, search or examine any
checked baggage, cargo or mail before it is loaded on to any aircraft in the
Kingdom pursuant to a contract providing for the carriage of the checked
baggage, cargo and mail by air from a place in the Kingdom to any other
place (whether in the Kingdom or elsewhere).
(2) With respect to a search made under subsection (1) a Police officer, an
aviation security officer or a Customs officer may use any aid or device that is
reasonably necessary to facilitate the search, including (but not limited to) a
dog, chemical substance, or x-ray or imaging equipment, or some other
mechanical or electrical or electronic device.
(3) Where any aviation security officer, upon screening or examination of any
checked baggage, cargo or mail, has reasonable grounds to suspect that an
offence against this Act or breach of any Rules made or adopted under this
Act in relation to the aircraft on which that checked baggage, cargo or mail
was to be carried has been, is being, or is likely to be, committed, whether by
a passenger, consignor of cargo or by any other person, the aviation security
officer may take possession of any article referred to in section
207(1)(a),(b),(c), (d), or (e) found in the course of that search.
122 Evidence of offences
Nothing found in the course of a screening, search or examination made pursuant to
sections 98, 108, 109, 118, 119, 120, or 121 shall be admissible as evidence in any
criminal proceedings against the person who, or whose baggage, has been screened,
searched or examined, or, as the case may be, the consignor of any cargo that has
been screened, searched or examined, other than proceedings in respect of an
offence against this Act or the criminal offence of treason or any offence punishable
by imprisonment for life or for a term of 3 years or more, or in respect of an offence
against sections 4, 22, or 24 of the Arms and Ammunition Act, an offence against
section 11 of the Counter Terrorism and Transnational Organised Crime Act,
offence against sections 109 or 110 of the Criminal Offences Act or in respect of an
offence against the Illicit Drugs Control Act.
Civil Aviation Act 2014 Section 123
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123 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 the country in which the
aircraft is registered (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 —
(aa) to protect the safety of the aircraft or of persons or
property on board the aircraft;
(bb) to maintain good order and discipline on board the aircraft;
or
(cc) to enable the commander to disembark or deliver that
person in accordance with subsections (4) or (5).
(2) 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. 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 subsections (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 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 subsections (4) or
(5); or
(b) if the person under restraint agrees to continue his journey under
restraint on board that aircraft.
Section 124 Civil Aviation Act 2014
Page 100 Act 24 of 2014
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(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 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, he may deliver that person —
(a) in the Kingdom, to any Police officer; or
(b) in any other country which is a party to the Tokyo Convention, to any
person exercising functions corresponding to those of an officer of
Tonga Police.
(6) If the commander of an aircraft disembarks any person pursuant to subsection
(4), or to enable an in-flight security officer to deliver a person under section
131(4) in the case of a Tongan registered aircraft, in any country, or, in the
case of any other aircraft, in the Kingdom, he shall report the fact of, and the
reasons for, that disembarkation to an appropriate authority in the country of
disembarkation (being, in the Kingdom, a Police officer).
(7) If the commander of an aircraft intends to deliver any person in accordance
with subsection (5) or intends to enable an in-flight security officer to deliver
a person under section 131(4) in the Kingdom or, in the case of a Tongan
registered aircraft, in any other 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 (being, in the Kingdom, a Police officer).
(8) Any commander of an aircraft who without reasonable cause fails to comply
with the requirements of subsections (6) or (7) commits an offence and shall
be liable upon conviction to a fine not exceeding $4,000.
(9) A person who in good faith imposes reasonable measures, including restraint,
on another person in accordance with the provisions of this section is not
guilty of an offence and is not liable to any civil proceeding in respect of
those measures.
124 Arrest of persons delivered to Police
(1) Any Police officer shall accept delivery of a person whom the commander of
an aircraft seeks to deliver to him in accordance with section 123(5) if he has
reasonable grounds to suspect that person of having done or omitted on board
Civil Aviation Act 2014 Section 125
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Act 24 of 2014 Page 101
that aircraft anything that is a crime against sections 199, 200, 207, 208, 209,
or 210 or a crime against any other Act.
(2) Where any Police officer accepts delivery of a person under subsection (1), he
shall forthwith arrest that person.
125 Power to search persons on aircraft
If the commander of an aircraft in flight has reasonable grounds to suspect that a
offence against this Act has been, is being, or is likely to be, committed on board or
in relation to that aircraft, he, or any member of the crew of the aircraft or any other
person on board the aircraft authorised by him to do so, may search any person or
baggage on board the aircraft, and may take possession of any article found which
has been used or could be used to effect or facilitate the commission of a crime
against sections 199, 200, 207, 208, 209, or 210.
126 Director may approve firearms, weapons, ammunition, and other
equipment for carriage and use by in-flight security officers
The Director may approve firearms, weapons, ammunition, and other equipment for
carriage and use on board an aircraft by an in-flight security officer.
127 Foreign in-flight security officers
(1) Despite section 207 the Director may, in consultation with the Commissioner
of Police and other affected parties that the Director considers appropriate,
and in accordance with any Rules made under this Act, authorise a foreign in-
flight security officer who is, or a class of foreign in-flight security officers
who are, accompanied by a Police officer and is or are carrying an item, being
a firearm, weapon, ammunition, or any other equipment, to —
(a) disembark from an aircraft;
(b) board an aircraft;
(c) pass through a —
(i) security area;
(ii) security enhanced area;
(iii) sterile area.
(2) To avoid doubt, the authorisation of a foreign in-flight security officer
by the —
(a) Director is not an aviation document;
(b) State that has issued the air operating certificate (or its equivalent) for
the aircraft operator only applies while the aircraft is in flight.
Section 128 Civil Aviation Act 2014
Page 102 Act 24 of 2014
to
128 Commissioner of Police may authorise members of police to be in-
flight security officers
(1) The Commissioner of Police may authorise any Police officer to be an in-
flight security officer.
(2) When providing authorisation under subsection (1), the Commissioner of
Police shall have regard to the views of the Director.
(3) When forming his views, the Director shall, as he considers appropriate and
practical, have regard to the views of representative groups in the aviation
industry.
129 In-flight security officers may possess, carry, and use firearms,
weapons, ammunition, and other equipment on board certain aircraft in
certain circumstances
Notwithstanding section 207, an in-flight security officer may, on board an aircraft
operated by an operator certified under the applicable Civil Aviation Rules, possess,
carry, and use a firearm, weapon, ammunition, or other equipment that the Director
has approved under section 126 if —
(a) the officer is on duty; and
(b) the aircraft is in flight.
130 In-flight security officers may take action or measures reasonably
necessary to restore or preserve control of aircraft
Without limiting the powers of the commander of an aircraft (or a person authorised
by the commander) under section 123, an in-flight security officer may take all
measures reasonably necessary to restore control of an aircraft to the commander or
to preserve the commander's control of the aircraft, including, but not limited to, the
use of —
(a) reasonable force; or
(b) assistance that is reasonably necessary in the circumstances.
131 In-flight security officers may arrest persons in certain circumstances
(1) If an in-flight security officer reasonably suspects that a person on board an
aircraft has committed or is committing an offence under this Act, the in-
flight security officer may arrest the person —
(a) without a warrant;
(b) with the use of —
(i) reasonable force; or
(ii) assistance that is reasonably necessary in the circumstances.
Civil Aviation Act 2014 Section 132
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(2) Despite subsection (1), an in-flight security officer may not arrest a person
without the prior approval of the commander of an aircraft unless seeking
prior approval is not practicable.
(3) If an in-flight security officer arrests a person without the prior approval of
the commander of an aircraft, the in-flight security officer shall —
(a) inform the commander of the arrest as soon as practicable; and
(b) seek the commander's approval to keep the person under arrest.
(4) An in-flight security officer who arrests a person under this section shall, as
soon as practicable, deliver the person to a —
(a) Police officer, if the arrested person is in the Kingdom; or
(b) person exercising the functions corresponding to those of a Police
officer, if the arrested person is in a country, other than the Kingdom,
that is a party to the Tokyo Convention.
(5) To avoid doubt, nothing in this section limits the justifications for the use of
force under the Criminal Offences Act or the Tonga Police Act.
132 In-flight security officers may restrain persons under arrest in certain
circumstances
(1) An in-flight security officer may, with the use of reasonable force, or
assistance that is reasonably necessary in the circumstances, restrain a person
arrested under section 131 until the person is delivered as required under
section 131(4).
(2) Despite subsection (1), an in-flight security officer may not restrain a person
without the prior approval of the commander of an aircraft unless —
(a) seeking prior approval is not practicable; or
(b) the in-flight security officer has reasonable grounds to believe that the
person shall be restrained immediately to protect the safety of the
aircraft or persons or property on the aircraft.
(3) If an in-flight security officer restrains a person without the prior approval of
the commander of an aircraft, the in-flight security officer shall —
(a) inform the commander of the restraint as soon as practicable; and
(b) seek the commander's approval to keep the person under restraint.
133 In-flight security officers may search certain persons and seize items
or substances in certain circumstances
(1) If an in-flight security officer reasonably suspects that a person on board an
aircraft has committed, is committing, or is likely to commit an offence under
this Act, the in-flight security officer may, with the use of reasonable force,
or assistance that is reasonably necessary in the circumstances —
Section 134 Civil Aviation Act 2014
Page 104 Act 24 of 2014
to
(a) search —
(i) the person for any item or substance that has been, is being, or
may be used to commit an offence under this Act;
(ii) any property on board the aircraft for any item or substance that
has been, is being, or may be used to commit an offence under
sections 199, 200, 207, 208, 209, or 210; and
(b) seize that item or substance.
(2) Despite subsection (1), an in-flight security officer may not search a person
without the prior approval of the commander of an aircraft unless seeking
prior approval is not practicable.
(3) If an in-flight security officer searches a person without the prior approval of
the commander of an aircraft, the in-flight security officer shall inform the
commander of the search as soon as practicable.
(4) With respect to a search made under subsection (1), an in-flight security
officer, may use any aid or device that is reasonably necessary to facilitate the
search, including (but not limited to) a dog, chemical substance, or x-ray or
imaging equipment, or some other mechanical, electrical, or electronic device.
134 Circumstances in which person assisting in-flight security officer may
use reasonable force
A person assisting an in-flight security officer under section 131, 132 or 133 is
justified in using force if —
(a) the person acts in good faith; and
(b) the force is reasonable.
PART XI – INTERNATIONAL AND DOMESTIC AIR SERVICES
135 Interpretation
In this Part of this Act —
―capacity‖, in relation to a scheduled international air service, means —
(a) with respect to the transport of passengers, the number of seats
provided per week on each route followed (expressed either as a
number of seats or in terms of aircraft equivalents); and
(b) with respect to the transport of cargo, the amount of cargo space
provided per week on each route followed (expressed in terms of cargo
aircraft equivalents);
Civil Aviation Act 2014 Section 136
to
Act 24 of 2014 Page 105
“foreign international airline” means an air transport enterprise of a country
or territory other than the Kingdom that is offering or operating a scheduled
international air service or intends to offer or operate such a service;
“licensee” means the holder for the time being of a licence issued under this
Part;
“Tongan international airline” means a Tongan air transport enterprise that
is offering or operating a scheduled international air service or intends to offer
or operate such a service;
“scheduled domestic air service” means a series of flights performed by
aircraft for the transport of passengers, cargo, or mail within the Kingdom,
where the flights are so regular or frequent as to constitute a systematic
service, whether or not in accordance with a published timetable, and which
are operated in such a manner that each flight is open to use by members of
the public;
“scheduled international air service” means a series of flights performed by
aircraft for the transport of passengers, cargo, or mail between the Kingdom
and one or more points in any other country or territory, where the flights are
so regular or frequent as to constitute a systematic service, whether or not in
accordance with a published timetable, and which are operated in such a
manner that each flight is open to use by members of the public; and, in
relation to a Tongan international airline, includes a seventh freedom service;
“seventh freedom service” means a series of flights between one or more
points in one country or territory other than the Kingdom and one or more
points in another country or territory other than the Kingdom, if —
(a) the airline is designated by the Kingdom under the air services
agreement (or similar arrangement) between the Kingdom and each
country or territory in which the service is being performed;
(b) the service is performed according to the traffic rights allocated to the
airline under those agreements (or arrangements); and
(c) the service is a scheduled service.
136 Scheduled domestic and international air service not to be carried on
except pursuant to licence
No person shall carry on in the Kingdom any scheduled international or domestic air
service otherwise than pursuant to and in conformity with the terms of a scheduled
international air service licence or a scheduled domestic air service licence, or, as the
case may be, an open aviation market licence.
137 Application for licence
(1) Every application for a licence under this Part shall be lodged with the
Minister.
Section 138 Civil Aviation Act 2014
Page 106 Act 24 of 2014
to
(2) Every applicant for a licence shall, when making the application —
(a) supply such information and documents as may be required by
Regulations made under this Act or as may be specified by the
Minister; and
(b) pay the prescribed fees and charges (if any).
138 Minister to be licensing authority for Tongan domestic and
international airlines
The Minister shall be the licensing authority to grant scheduled domestic and
international air service licences to Tongan airlines and to exercise jurisdiction in
respect of those licences in accordance with this Part.
139 Notice of application
(1) Where an application for a scheduled international air service licence is
lodged by a Tongan international airline in accordance with section 137, the
Minister shall give notice in the Gazette that the application has been
received.
(2) Every notice under this section shall specify a time, being not less than 21
clear days from the date of the notice, within which the Minister will receive
written representations from any person relating to the application.
140 Consideration of application for scheduled international air service
licence by Tongan international airline
(1) In considering any application for a scheduled international air service licence
made by a Tongan international airline the Minister shall take into account the
following matters —
(a) any relevant international agreement, convention, or arrangement to
which the Kingdom is a party;
(b) the safety and security requirements of the Director;
(c) the financial ability of the applicant to carry on the proposed service;
(d) the likelihood of the applicant carrying on the proposed service
satisfactorily;
(e) any written representations received by the Minister in relation to the
application;
(f) such other matters as the Minister thinks fit.
(2) If the granting of the licence would be contrary to any agreement, convention,
or arrangement referred to in subsection (1)(a), the Minister shall refuse to
grant the licence.
Civil Aviation Act 2014 Section 141
to
Act 24 of 2014 Page 107
141 Scheduled domestic and international air service licence may be
granted subject to conditions
(1) The Minister, after giving consideration to the application in accordance with
section 137, may refuse it, or may grant it wholly or partly, and subject to
such conditions as the Minister thinks fit.
(2) The scheduled domestic or international air service licence shall be in such
form as the Minister thinks fit.
(3) Without prejudice to the generality of subsection (1), the Minister, in granting
any scheduled international air service licence, may prescribe, in respect of
the scheduled international air service —
(a) the countries or territories, or points within those countries or
territories, that may be served and the route or routes that may be
followed;
(b) the maximum capacity that may be provided;
(c) a date not later than which the service shall be commenced.
142 Duration of domestic and scheduled international air service licences
(1) Every scheduled domestic or international air service licence granted under
section 141 shall take effect from the date stated in the licence, and may be
granted for such term as the Minister considers appropriate in the particular
case.
(2) Where an application is made under section 143 for the renewal of a
scheduled domestic or international air service licence, the licence shall,
where the application is not disposed of before the date of expiry of the
licence, continue in force until the application is disposed of, unless the
Minister otherwise directs.
143 Renewal of scheduled international air service licence
(1) The Minister may, from time to time, renew a domestic or scheduled
international air service licence granted under section 141.
(2) Every application for the renewal of a scheduled international air service
licence granted under section 141 shall be lodged with the Minister not less
than 3 months before the date on which the licence expires.
(3) Section 137(2) shall apply to every application for the renewal of the licence
as if it were an application for a new licence.
(4) The Minister shall give notice in the Gazette of the Minister's intention to
consider exercising the power conferred on the Minister by subsection (1).
(5) The notice given under subsection (4) shall specify a time, being not less than
21 clear days from the date of the notice, within which the Minister will
receive written representations from any person relating to the application.
Section 144 Civil Aviation Act 2014
Page 108 Act 24 of 2014
to
(6) No person shall be entitled as of right to a renewal of a scheduled
international air service licence, and in considering any application for a
renewal the Minister shall take into account all the matters referred to in
section 140 as if the application were an application for a new licence.
(7) The renewal of the licence shall take effect from the date of the expiry of the
licence for which the renewal is granted, and may be for such term as the
Minister considers appropriate in the particular case.
144 Variation of terms and conditions of scheduled international air service
licence
(1) The Minister, while a scheduled international air service licence granted under
section 141 is in force, may, of the Minister's own motion or on the
application of the licensee, amend or revoke any of the terms and conditions
of the licence or add any new terms or conditions that in the Minister's
opinion are necessary or desirable in the public interest.
(2) Where the Minister, on the Minister's own motion, proposes to exercise the
power conferred on the Minister by subsection (1), the Minister shall give the
licensee not less than 21 clear days' notice in writing of the Minister's
intention to exercise that power.
(3) Where any proposed variation involves —
(a) a change or addition to the route or routes to be operated; or
(b) an increase in the capacity of the service to be provided,
pursuant to the licence, the Minister shall, by notice in the Gazette, give not
less than 21 clear days' notice of the Minister's intention to consider
exercising the power conferred on the Minister by this section.
(4) The notice given under subsection (3) shall specify a time, being not less than
21 clear days from the date of the notice, within which the Minister will
receive written representations regarding the proposed variation.
(5) In considering any application referred to in subsection (3), the Minister shall
take into account all the matters referred to in section 140 as if the application
were an application for a new licence.
(6) Where the Minister has varied the terms or conditions of any scheduled
international air service licence under this section, the Minister shall give
notice in the Gazette of the fact of, and the terms of, that variation.
145 Transfer of scheduled international air service licence
(1) Any scheduled international air service licence granted under section 141
may, subject to the provisions of this section, be transferred to any person.
Civil Aviation Act 2014 Section 146
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Act 24 of 2014 Page 109
(2) Every application for the transfer of a scheduled international air service
licence shall be lodged with the Minister not less than 3 months before the
date of the proposed transfer.
(3) The Minister shall give notice in the Gazette of the Minister's intention to
consider the application for the transfer of the licence.
(4) The notice given under subsection (3) shall specify a time, being not less than
21 clear days from the date of the notice, within which the Minister will
receive written representations from any person relating to the application.
(5) In considering the application for the transfer of the licence the Minister shall
take into account all the matters referred to in section 140 as if the application
were an application for a new licence.
146 Minister to be licensing authority for foreign international airlines
The Minister shall be the licensing authority to grant scheduled international air
service licences to foreign international airlines and to exercise jurisdiction in
respect of those licences in accordance with this Part.
147 Consideration of application for scheduled international air service
licence by foreign international airline
(1) In considering any application for a scheduled international air service licence
made by a foreign international airline the Minister shall take into account the
following matters —
(a) any relevant air services agreement and associated arrangements, and
any other international agreement, convention, or arrangement to which
the Kingdom is a party;
(b) the safety and security requirements of the Director;
(c) such other matters as the Minister thinks fit and has determined in
writing should be taken into account.
(2) If the granting of the licence would be contrary to any agreement,
arrangement, or convention referred to in subsection (1)(a), the Minister shall
refuse to grant the licence.
148 Scheduled international air service licence may be granted subject to
conditions
(1) The Minister, after giving consideration to the application in accordance with
section 147, may refuse it, or may grant it wholly or partly, and subject to
such conditions as the Minister thinks fit.
(2) The scheduled international air service licence shall be in such form as the
Minister thinks fit.
Section 149 Civil Aviation Act 2014
Page 110 Act 24 of 2014
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(3) Without prejudice to the generality of subsection (1), the Minister, in granting
any scheduled international air service licence, may prescribe, in respect of
the scheduled international air service —
(a) the countries or territories, or points within those countries or territories
that may be served and the route or routes that may be followed;
(b) the maximum capacity that may be provided;
(c) the date not later than which the service shall be commenced.
(4) Where the Minister grants a licence in accordance with this section, the
Minister shall give notice in the Gazette that the licence has been granted.
149 Duration of scheduled international air service licence
(1) Every scheduled international air service licence granted under section 148
shall take effect from the date stated in the licence, and may be granted for
such term as the Minister considers appropriate in the particular case or, if the
Minister thinks fit, for an indefinite term.
(2) Where an application is made under section 150 for the renewal of a
scheduled international air service licence, the licence shall, where the
application is not disposed of before the date of expiry of the licence, continue
in force until the application is disposed of, unless the Minister otherwise
directs.
150 Renewal of scheduled international air service licence
(1) The Minister may, from time to time, renew a scheduled international air
service licence granted under section 148.
(2) Every application for the renewal of a scheduled international air service
licence granted under section 148 shall be lodged with the Minister not less
than 1 month before the date on which the licence expires.
(3) Section 137(2) shall apply to every application for the renewal of the licence
as if it were an application for a new licence.
(4) No person shall be entitled as of right to a renewal of a scheduled
international air service licence, and in considering any application for a
renewal the Minister shall take into account all the matters referred to in
section 147 as if the application were an application for a new licence.
(5) The renewal of the licence shall take effect from the date of the expiry of the
licence for which the renewal is granted and may be for such term as the
Minister considers appropriate in the particular case or, if the Minister thinks
fit, for an indefinite term.
Civil Aviation Act 2014 Section 151
to
Act 24 of 2014 Page 111
151 Variation of terms and conditions of scheduled international air service
licence
(1) The Minister, while a scheduled international air service licence granted under
section 148 is in force, may, of the Minister's own motion or on the
application of the licensee, amend or revoke any of the terms and conditions
of the licence or add any new terms or conditions that in the Minister's
opinion are necessary or desirable in the public interest.
(2) Where the Minister, on the Minister's own motion, proposes to exercise the
power conferred on the Minister by subsection (1), the Minister shall give the
licensee not less than 21 clear days' notice in writing of the Minister's
intention to exercise that power.
(3) Where any application under subsection (1) seeks approval for —
(a) a change or addition to the route or routes to be operated; or
(b) an increase in the capacity of the service to be provided,
pursuant to the licence, the Minister shall take into account all the matters
referred to in section 147 as if the application were an application for a new
licence.
(4) Where the Minister has varied the terms or conditions of any licence under
this section, the Minister shall give notice in the Gazette of the fact of, and the
terms of, that variation.
152 Minister may designate countries or territories for open aviation market
licences
The Minister may from time to time, by notice in the Gazette, designate any one or
more countries or territories in respect of which —
(a) scheduled international air services; and
(b) non-scheduled international flights engaged in the carriage of passengers,
cargo, or mail for remuneration or hire,
may be carried on pursuant to and in conformity with an open aviation market
licence.
153 Minister to be licensing authority for open aviation market licences
The Minister shall be the licensing authority to grant open aviation market licences
to the Tongan international airlines and foreign international airlines and to exercise
jurisdiction in respect of those licences in accordance with this Part.
Section 154 Civil Aviation Act 2014
Page 112 Act 24 of 2014
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154 Consideration of application for open aviation market licence
(1) In considering an application for an open aviation market licence made by a
Tongan international airline or a foreign international airline the Minister shall
take into account the following matters —
(a) any relevant air services agreement and associated arrangements, and
any other international agreement, convention, or arrangement to which
the Kingdom is a party;
(b) the safety and security requirements of the Director;
(c) such other matters as the Minister thinks fit and has determined in
writing should be taken into account.
(2) If the granting of the open aviation market licence would be contrary to any
agreement, convention, or arrangement referred to in subsection (1)(a), the
Minister shall refuse to grant the licence.
155 Open aviation market licence may be granted subject to conditions
(1) The Minister, after giving consideration to the application in accordance with
section 154, may refuse it, or may grant it wholly or partly, and subject to
such conditions as the Minister thinks fit.
(2) Without prejudice to the generality of subsection (1), the Minister, in granting
any open aviation market licence, shall prescribe, in respect of any scheduled
international air service and non-scheduled international flight carried on
pursuant to the licence, the countries or territories that may be served.
(3) The open aviation market licence shall be in such form as the Minister thinks
fit.
(4) Where the Minister grants an open aviation market licence under this section,
the Minister shall give notice in the Gazette that the licence has been granted.
156 Duration of open aviation market licence
(1) Every open aviation market licence granted under section 155 shall take effect
from the date stated in the licence, and may be granted for such term as the
Minister considers appropriate in the particular case or, in respect of a foreign
international airline, if the Minister thinks fit, for an indefinite term.
(2) Where an application is made under section 157 for the renewal of an open
aviation market licence, the licence shall, where the application is not
disposed of before the date of expiry of the licence, continue in force until the
application is disposed of, unless the Minister otherwise directs.
Civil Aviation Act 2014 Section 157
to
Act 24 of 2014 Page 113
157 Renewal of open aviation market licence
(1) The Minister may, from time to time, renew an open aviation market licence
granted under section 155.
(2) Every application for the renewal of an open aviation market licence granted
under section 155 shall be lodged with the Minister not less than 3 months
before the date on which the licence expires.
(3) Section 137(2) shall apply to every application for the renewal of an open
aviation market licence as if it were an application for a new licence.
(4) No person shall be entitled as of right to a renewal of an open aviation market
licence, and in considering any application for a renewal the Minister shall
take into account all the matters referred to in section 154 as if the application
were an application for a new licence.
(5) The renewal of the open aviation market licence shall take effect from the
date of expiry of the licence for which the renewal is granted and may be for
such term as the Minister considers appropriate in the particular case or, in
respect of a foreign international airline, if the Minister thinks fit, for an
indefinite term.
158 Variation of terms and conditions of open aviation market licence
(1) The Minister, while an open aviation market licence granted under section
155 is in force, may, of the Minister's own motion or on the application of the
licensee, amend or revoke any of the terms and conditions of the licence or
add any new terms or conditions that in the Minister's opinion are necessary
or desirable in the public interest.
(2) Where the Minister, on the Minister's own motion, proposes to exercise the
power conferred on the Minister by subsection (1), the Minister shall give the
licensee not less than 21 clear days' notice in writing of the Minister's
intention to exercise that power.
(3) Where any application under subsection (1) seeks approval for a change or
addition to the country or countries, or territory or territories, to be served
pursuant to the open market aviation licence, the Minister shall take into
account all the matters referred to in section 154 as if the application were an
application for a new licence.
(4) Where the Minister has varied the terms or conditions of an open aviation
market licence under this section, the Minister shall give notice in the Gazette
of the fact of, and the terms of, that variation.
159 Transfer of open aviation market licence
(1) Any open aviation market licence granted to a Tongan international airline
under section 155 may, subject to the provisions of this section, be transferred
to any other Tongan international airline.
Section 160 Civil Aviation Act 2014
Page 114 Act 24 of 2014
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(2) Every application for the transfer of an open aviation market licence shall be
lodged with the Minister not less than 3 months before the date of the
proposed transfer.
(3) In considering the application for the transfer of the licence the Minister shall
take into account all the matters referred to in section 154 as if the application
were an application for a new licence.
(4) Where the Minister transfers any open aviation market licence under this
section, the Minister shall give notice in the Gazette that the licence has been
transferred.
160 Holder of open aviation market licence may operate non-scheduled
international flights without authorisation under section 165
The holder of an open aviation market licence under this Part shall be entitled to
carry on, to or from the countries or territories that may be served pursuant to the
licence as prescribed under section 155(2), non-scheduled international flights
engaged in the carriage of passengers, cargo, or mail for remuneration or hire
without authorisation under section 165.
161 Insurance cover against liability
The Minister may, before granting or renewing any licence under this Part, or at any
other time while the licence is in force, call upon the applicant or the licensee, as the
case may be, to furnish to the satisfaction of the Minister, proof that the liability of
the applicant or the licensee which may arise out of or in connection with the
operation of the service in respect of the death of or bodily injury to any person and
in respect of loss of or damage to any property is covered by insurance.
162 Returns to be furnished
Every person carrying on a scheduled international air service or non-scheduled
international flight pursuant to a licence under this Part shall furnish to the Minister
such financial and statistical returns and statements as the Minister may from time to
time require by notice in writing addressed to that person.
163 Suspension of licences
Where the Minister is satisfied that a licensee has wilfully committed a breach of
any of the conditions of a licence granted under this Part, the Minister may suspend
the licence for such period as the Minister thinks fit.
164 Revocation of licences
The Minister may revoke a licence granted under this Part if —
Civil Aviation Act 2014 Section 165
to
Act 24 of 2014 Page 115
(a) the service authorised by the licence is not commenced on the date specified
in the licence;
(b) the Minister is satisfied that the service authorised by the licence is not being
carried on in conformity with the terms and conditions of the licence;
(c) the service authorised by the licence has been terminated;
(d) the licence has been granted under or in accordance with any convention,
agreement, or arrangement between the Kingdom and the Government of any
other country (whether or not any other Government is also a party thereof)
and that convention, agreement, or arrangement has been terminated or has
ceased to bind the Kingdom or the Government of that other country; or
(e) the licence has been granted under or in accordance with any such convention,
agreement, or arrangement referred to in paragraph (d) and circumstances
have occurred or any condition has been fulfilled whereby the Minister, or the
Government of the Kingdom, has become entitled under or in accordance with
the convention, agreement, or arrangement, to revoke the licence.
165 Commercial non-scheduled international flights not to be operated
except as authorised by Minister
(1) Subject to section 160, no person shall operate a non-scheduled international
flight engaged in the carriage of passengers, cargo, or mail for remuneration
or hire between the Kingdom and one or more points in any other country or
territory, except as authorised by the Minister and in accordance with such
conditions as the Minister may impose in accordance with guidelines
specified by the Minister in accordance with subsection (2).
(2) For the purposes of this section, the Minister may issue guidelines for the
regulation of flights described in subsection (1).
(3) The Minister may from time to time review and amend the guidelines referred
to in subsection (2).
(4) The Minister shall, when requested by any person, make a copy of the
guidelines issued in accordance with subsection (2) available to that person.
166 Provisions of this Part in addition to requirements of Regulations and
Rules
No aircraft being used in connection with any scheduled international air service
pursuant to a licence granted under this Part or a non-scheduled international flight
shall, by virtue of its being used in connection with that service or flight, be exempt
from the operation of any Regulation or Rules made or adopted under this Act.
167 Minister may prohibit smoking on international air routes
(1) For the purposes of this section and section 226 —
Section 168 Civil Aviation Act 2014
Page 116 Act 24 of 2014
to
“Tongan international airline” means a Tongan air transport enterprise that
is offering or operating a scheduled international air service or a non-
scheduled international flight; and
“to smoke” means to smoke, hold, or otherwise have control over an ignited
tobacco product, weed, or plant; and ―smoked” and ―smoking” have
corresponding meanings.
(2) The Minister may from time to time, by notice in the Gazette —
(a) designate any one or more international air routes, or class or classes of
international air routes, or all international air routes generally, as non-
smoking routes; and
(b) exempt any specified route or part of a route from any designation
imposed by the Minister in accordance with paragraph (a), subject to
any conditions that the Minister thinks fit.
(3) The Minister shall, before giving any notice under subsection (2), consult with
Tongan international airlines.
(4) A Tongan international airline that is operating an aircraft carrying passengers
on any route designated as a non-smoking route pursuant to this section shall
ensure that —
(a) there are prominent notices displayed in the aircraft indicating that
smoking is not permitted; and
(b) an announcement is made to passengers on the aircraft at the
commencement of each journey on the route advising that smoking is
not permitted.
(5) No Tongan international airline that is operating an aircraft carrying
passengers on any route designated as a non-smoking route pursuant to this
section shall permit any person to smoke on that aircraft.
(6) No person shall smoke while on any aircraft operated by a Tongan
international airline carrying passengers on any route designated as a non-
smoking route pursuant to this section.
PART XII - GENERAL OFFENCES
168 Applying for aviation document while disqualified
(1) Every person commits an offence who applies for or obtains an aviation
document while disqualified by an order of the Court from obtaining such a
document and any such document so obtained shall be of no effect.
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction —
(a) in the case of an individual, to imprisonment for a term not exceeding 6
months or a fine not exceeding $2,000; or
Civil Aviation Act 2014 Section 169
to
Act 24 of 2014 Page 117
(b) in the case of a body corporate, to a fine not exceeding $20,000,
and the Court may order the person to be disqualified from holding or
obtaining an aviation document for such period not exceeding 12 months as
the Court thinks fit.
169 Communicating false information or failing to disclose information
relevant to granting or holding of aviation document
(1) Every person commits an offence who —
(a) by any means, provides to the Director information relevant to the
Director's exercise of powers under this Act, or under Regulations or
Rules made under this Act, knowing the information to be false;
(b) being an applicant for an aviation document, fails, without reasonable
excuse, to provide to the Director information known to that person
which is relevant to the Director's exercise of powers under this Act, or
under Regulations or Rules made under this Act; or
(c) being the holder of an aviation document, fails, without reasonable
excuse, to provide to the Director information known to that person
which is relevant to the condition specified in section 55(3).
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction —
(a) in the case of an individual, to imprisonment for a term not exceeding
12 months or a fine not exceeding $5,000; or
(b) in the case of a body corporate, to a fine not exceeding $30,000.
170 Carrying on scheduled international air service without licence or
contrary to licence
(1) Every person commits an offence who —
(a) carries on a scheduled international air service in the Kingdom without
a licence granted under Part XI; or
(b) being the holder of a licence granted under Part XI, carries on a
scheduled international air service in the Kingdom in a manner contrary
to the terms and conditions of the licence.
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction —
(a) in the case of an individual, to a fine not exceeding $5,000; or
(b) in the case of a body corporate, to a fine not exceeding $30,000.
Section 171 Civil Aviation Act 2014
Page 118 Act 24 of 2014
to
171 Operating unauthorised non-scheduled international flight or carrying
on non-scheduled international flight contrary to licence
(1) Every person commits an offence who—
(a) operates a non-scheduled international flight to which section 165
applies contrary to the provisions of that section; or
(b) being the holder of an open aviation market licence, carries on a non-
scheduled international flight in a manner contrary to the terms and
conditions of the licence.
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction —
(a) in the case of an individual, to a fine not exceeding $3,000; or
(b) in the case of a body corporate, to a fine not exceeding $15,000.
172 Obstruction of persons duly authorised by Director
(1) Every person commits an offence who obstructs or impedes any person who is
duly authorised by the Director and acting in the performance or exercise of
any functions, duties, or powers conferred on him by this Act, or by any Rules
made under this Act, and shall be liable upon conviction —
(a) in the case of an individual, to imprisonment for a term not exceeding 3
months or a fine not exceeding $2,000; or
(b) in the case of a body corporate, to a fine not exceeding $10,000.
(2) Subsection (1) shall apply only where the person obstructed or impeded is in
uniform or produces evidence of his authority.
173 Failure or refusal to produce or surrender documents
(1) Every person commits an offence who, without reasonable excuse, fails or
refuses to comply with a requirement made in accordance with section 23(3).
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction to a fine not exceeding $1,000.
174 Trespass
Every person commits an offence and shall be liable upon conviction to
imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000
who, without reasonable excuse, enters or remains within any aerodrome or any
building or area in which are operated technical facilities or services for civil
aviation, when directed not to enter or not to remain by a person duly authorised by
the Director in writing for that purpose, a Police officer, or an aviation security
officer, or by notice posted by one of those persons.
Civil Aviation Act 2014 Section 175
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175 Failure to maintain accurate records
(1) Every person commits an offence who contravenes any provision of this Act
or any Rule made under this Act that requires that person —
(a) to make accurate entries in a record;
(b) to maintain an accurate record; or
(c) to produce to the Minister or the Director an accurate record.
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction —
(a) in the case of an individual, to a fine not exceeding $5,000; or
(b) in the case of a body corporate, to a fine not exceeding $30,000.
176 Failure to notify emergency breach of Act or Regulations or Rules
Every pilot-in-command commits an offence and shall be liable upon conviction to a
fine not exceeding $5,000 who, without reasonable excuse, fails to comply with
section 59(7).
177 Failure to notify accident or incident
(1) Every pilot-in-command or operator commits an offence who, without
reasonable excuse, fails to comply with section 70(1), (2) or (3).
(2) Every pilot-in-command or operator who commits an offence against
subsection (1) shall be liable upon conviction —
(a) in the case of an individual, to a fine not exceeding $5,000; or
(b) in the case of a body corporate, to a fine not exceeding $30,000.
178 Offences relating to disclosure of records
(1) Every person commits an offence who discloses a record specified in sections
80(2) or 81(2) in breach of sections 80 or 81.
(2) Every person commits an offence who contravenes section 88(2).
(3) Every person who commits an offence against this section shall be liable upon
conviction —
(a) in the case of an individual, to a fine not exceeding $10,000; or
(b) in the case of a body corporate, to a fine not exceeding $25,000.
179 Offences relating to publication of reports of proceedings or
publication of records
(1) Every person commits an offence who contravenes sections 87 or 88(4).
Section 180 Civil Aviation Act 2014
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(2) Every person who commits an offence against this section shall be liable upon
conviction —
(a) in the case of an individual, to a fine not exceeding $10,000; or
(b) in the case of a body corporate, to a fine not exceeding $25,000.
180 Failure to provide identifying information
(1) Every operator of an aircraft or holder of a certificate of registration commits
an offence who, without reasonable excuse, fails to comply with section 233.
(2) Every operator or holder of a certificate of registration who commits an
offence against subsection (1) shall be liable upon conviction —
(a) in the case of an individual, to a fine not exceeding $5,000; or
(b) in the case of a body corporate, to a fine not exceeding $30,000.
181 Contravention of emergency Rule, prohibition, or condition
Every person who, without reasonable excuse, acts in contravention of or fails to
comply with any emergency Rule made under section 36 or any prohibition or
condition notified under section 22 commits an offence and shall be liable upon
conviction —
(a) in the case of an individual, to a fine not exceeding $5,000; or
(b) in the case of a body corporate, to a fine not exceeding $30,000.
182 Flight over foreign country without authority or for improper purpose
(1) This section applies to —
(a) any aircraft that is registered or required to be registered in the
Kingdom under this Act;
(b) any other aircraft operated by a person who is a permanent resident of
the Kingdom or whose principal place of business is in the Kingdom.
(2) Every person commits an offence who, being the operator or pilot-in-
command of an aircraft to which this section applies that is being flown over a
foreign country or territory, knowingly allows that aircraft to be used for a
purpose that is prejudicial to the security of, public order or public health of,
or the safety of air navigation in relation to, that country or territory.
(3) In any prosecution for an offence against subsection (2), where it is proved by
the prosecution that the aircraft was used for a purpose that is prejudicial to
the security of, public order or public health of, or the safety of air navigation
in relation to, the foreign country or territory, in the absence of evidence to the
contrary it shall be presumed that the defendant knew that the aircraft was
being so used.
Civil Aviation Act 2014 Section 183
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(4) Every person commits an offence who, being the operator or pilot-in-
command of an aircraft to which this section applies that is being flown over
any foreign country or territory, knowingly fails to comply with any direction
that is given in respect of the aircraft by the appropriate aeronautical authority
of that country or territory where —
(a) the flight is not duly authorised; or
(b) there are reasonable grounds for the appropriate aeronautical authority
to believe that the aircraft is being or will be used for a purpose that is
prejudicial to the security of, public order or public health of, or the
safety of air navigation in relation to, that country or territory,
unless the lives of persons on board the aircraft or the safety of the aircraft
would be endangered by complying with the direction.
(5) In any prosecution for an offence against subsection (4), where it is proved by
the prosecution that the defendant failed to comply with a direction that was
given in respect of that aircraft by the appropriate aeronautical authority, in
the absence of evidence to the contrary it shall be presumed that the defendant
knew that the direction had been given.
(6) The requirement in subsection (4) is without prejudice to any other
requirement to comply with directions given by an aeronautical authority.
(7) For the purposes of this section, “appropriate aeronautical authority”
includes any person, whether a member of the military authorities or the civil
authorities of the foreign country or territory, who is authorised under the law
of the foreign country or territory to issue directions to aircraft flying over that
country or territory.
(8) Every person who commits an offence against subsections (2) or (4) shall be
liable upon conviction —
(a) in the case of an individual, to imprisonment for a term not exceeding
12 months or a fine not exceeding $10,000; or
(b) in the case of a body corporate, to a fine not exceeding $100,000.
PART XIII – SAFETY OFFENCES
183 Endangerment caused by holder of aviation document
(1) Every holder of an aviation document commits an offence who, in respect of
any activity or service to which the document relates, does or omits to do any
act or causes or permits any act or omission, if the act or omission causes
unnecessary danger to any other person or to any property.
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction —
Section 184 Civil Aviation Act 2014
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(a) in the case of an individual, to imprisonment for a term not exceeding
12 months or a fine not exceeding $10,000; or
(b) in the case of a body corporate, to a fine not exceeding $100,000.
(3) The provisions of this section shall be in addition to and not in derogation of
any Regulations or Rules made under this Act.
(4) When any question arises as to whether or not the offence in subsection (1) is
committed it shall be a relevant consideration that any ordinary rule or
emergency rule made under this Act was not complied with by the person
charged with the offence.
184 Operating aircraft in careless manner
(1) Every person commits an offence who operates any aircraft in a careless
manner.
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction —
(a) in the case of an individual, to a fine not exceeding $7,000; or
(b) in the case of a body corporate, to a fine not exceeding $35,000.
(3) The provisions of this section shall be in addition to and not in derogation of
any Regulations or Rules made under this Act.
185 Dangerous activity involving aircraft, aeronautical product, or aviation
related service
(1) Every person commits an offence who —
(a) operates, maintains, or services; or
(b) does any other act in respect of,
any aircraft, aeronautical product, or aviation related service, in a manner
which causes unnecessary danger to any other person or to any property.
(2) Every person commits an offence who —
(a) causes or permits any aircraft, aeronautical product, or aviation related
service to be operated, maintained, or serviced; or
(b) causes or permits any other act to be done in respect of any aircraft,
aeronautical product, or aviation related service,
in a manner which causes unnecessary danger to any other person or to any
property.
(3) Every person who commits an offence against subsections (1) or (2) shall be
liable upon conviction —
(a) in the case of an individual, to imprisonment for a term not exceeding
12 months or a fine not exceeding $10,000; or
Civil Aviation Act 2014 Section 186
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(b) in the case of a body corporate, to a fine not exceeding $100,000.
(4) The provisions of this section shall be in addition to and not in derogation of
any Regulations or Rules made under this Act.
186 Failure to comply with inspection or monitoring requirement
(1) Every person commits an offence who, without reasonable excuse, fails to
comply with any requirement of the Director under section 16(1) or (3).
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction —
(a) in the case of an individual, to a fine not exceeding $10,000 and, if the
offence is a continuing one, to a further fine not exceeding $2,000 for
every day or part of a day during which the offence is continued; or
(b) in the case of a body corporate, to a fine not exceeding $100,000 and, if
the offence is a continuing one, to a further fine not exceeding $20,000
for every day or part of a day during which the offence is continued.
187 Court may disqualify holder of aviation document or impose conditions
on holding of document in respect of certain offences
(1) In addition to any penalty the Court may impose under sections 183, 184, 185
or 186, the Court may, on convicting any person of an offence against either
of those sections —
(a) disqualify the person convicted from holding or obtaining an aviation
document or a particular aviation document; or
(b) impose on any aviation document held by or issued to the person
convicted such restrictions or conditions or both as the Court, having
regard to the circumstances of the offence, thinks fit,
for such period not exceeding 12 months as the Court thinks fit.
(2) Nothing in subsection (1) shall affect or prevent the exercise by the Director
of his powers under section 55.
188 Acting without necessary aviation document
(1) Every person commits an offence who —
(a) operates, maintains, or services; or
(b) does any other act in respect of,
any aircraft, aeronautical product, or aviation related service, either without
holding the appropriate current aviation document or knowing 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 knowing that the appropriate
aviation document is not held.
Section 189 Civil Aviation Act 2014
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(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction —
(a) in the case of an individual, to imprisonment for a term not exceeding
12 months or a fine not exceeding $10,000; or
(b) in the case of a body corporate, to a fine not exceeding $100,000.
189 Acting without required medical certificate
(1) Every person who exercises the privileges of any aviation document or
operates an aircraft solo commits an offence if that person —
(a) does not hold an appropriate current medical certificate issued or
granted recognition by the Director under Part VII;
(b) knows or has reasonable grounds to suspect that he can no longer
exercise safely the privileges to which his medical certificate relates; or
(c) fails to comply with any conditions, restrictions, or endorsements
specified by the Director under sections 62(2) or section 67(1)(b), (2)(c)
or (6).
(2) Every person who commits an offence under subsection (1) shall be liable
upon conviction to imprisonment for a term not exceeding 12 months or to a
fine not exceeding $10,000.
190 Fraudulent, misleading, or intentionally false statements to obtain
medical certificate
(1) Every person commits an offence who makes or causes to be made —
(a) any fraudulent, misleading, or intentionally false statement for the
purpose of obtaining a medical certificate under Part VII;
(b) any fraudulent, misleading, or intentionally false entry in any logbook,
record, form, or report that is required to be kept, made, or used to
show compliance with any conditions, restrictions, or endorsements
placed on any medical certificate under Part VII;
(c) any reproduction or alteration for fraudulent purposes of any medical
certificate issued under Part VII; or
(d) any fraudulent, misleading, or intentionally false statement during an
investigation under section 66.
(2) Every person who commits an offence under subsection (1) shall be liable
upon conviction to imprisonment for a term not exceeding 12 months or to a
fine not exceeding $10,000.
Civil Aviation Act 2014 Section 191
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191 Failure to disclose information required by Director
(1) Every person commits an offence who fails to disclose, without reasonable
excuse, information required by the Director under sections 63(1) or 66.
(2) Every person who commits an offence under subsection (1) shall be liable
upon conviction to imprisonment for a term not exceeding 12 months or to a
fine not exceeding $5,000.
192 Additional penalty for offences involving commercial gain
(1) In addition to any penalty the Court may impose under sections 183, 185, 186
or 188, the Court may, on convicting any person of an offence specified in
any of those sections, order that person to pay an amount not exceeding 3
times the value of any commercial gain resulting from the commission of that
offence if the Court is satisfied that the offence was committed in the course
of producing a commercial gain.
(2) For the purpose of subsection (1), the value of any gain shall be assessed by
the Court, and shall be recoverable in the same manner as a fine.
193 Effect of disqualification
(1) Where the holder of an aviation document is disqualified by an order of a
Court from holding or obtaining an aviation document, the document shall be
deemed to be suspended while the disqualification continues in force, and
during the period of suspension shall be of no effect.
(2) If the holder of an aviation document is disqualified from holding or obtaining
a document, and the disqualification will expire before the expiration of the
term of the document, the document shall, on the expiration of the
disqualification, continue to be of no effect until the holder of it undergoes
and passes such tests and fulfils such requirements as the Director may from
time to time specify.
194 Commencement of period of disqualification
Where an order is made disqualifying any person from holding or obtaining an
aviation document, the period of disqualification shall commence on the date of the
making of the order unless the Court making the order directs that the period of
disqualification shall commence on a later date.
195 Retention and custody of document
(1) Where by an order of a Court the holder of an aviation document is
disqualified from holding or obtaining a document, the person in respect of
whom the order is made shall forthwith, and whether or not demand is made,
surrender the document to the Director.
Section 196 Civil Aviation Act 2014
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(2) Where an aviation document is so surrendered, the Director shall endorse the
terms of the disqualification on the document and retain it until the
disqualification has expired or been removed and the person entitled to the
document has made a request in writing for its return.
(3) If the person entitled to the document is a person to whom section 193(2)
applies, the document shall not be returned to that person until that person has
passed the tests and fulfilled the requirements referred to in that provision.
196 Removal of disqualification
(1) Subject to this section, any person who by order of a Court is disqualified for
a period exceeding 6 months from holding or obtaining an aviation document
may, after the expiration of 6 months after the date on which the order of
disqualification became effective, apply to the Court by which that order was
made to remove the disqualification.
(2) On an application under this section the Court may, having regard to the
character of the applicant and the applicant's conduct subsequent to the order,
the nature of the offence, and any other circumstances of the case, remove the
disqualification as from such date as may be specified in the order or refuse
the application.
(3) Where the disqualification was ordered by a Court, every application under
this section shall be made to a Judge exercising jurisdiction in the Court by
which the order was made.
(4) Notice of every application under this section shall be served on the Director
who shall have a right to appear and be heard in respect of the matter.
197 Particulars of disqualification orders, and related matters, to be sent to
Director
Where a Court makes an order disqualifying a person from holding or obtaining an
aviation document or imposes restrictions or conditions (or both) on any aviation
document held by or issued to any person or makes an order under section 196
removing any disqualification, particulars of the order shall be sent by the Registrar
of the Court to the Director.
PART XIV – SECURITY OFFENCES
198 Application
For the purposes of this Part “airport” has the meaning given to “aerodrome” in
section 2 and further includes all areas comprising, and any defined area adjacent to,
any airport in the Kingdom, and “at an airport” and “in an airport” have
corresponding meanings.
Civil Aviation Act 2014 Section 199
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199 Offences relating to international airports
(1) A person commits an offence who, whether in or outside the Kingdom, using
any device, substance, or weapon, intentionally does any of the following acts
that endangers or is likely to endanger the safety of an international airport —
(a) at the international airport, commits an act of violence that causes or is
likely to cause serious injury or death;
(b) destroys or seriously damages the facilities of the international airport;
(c) destroys or seriously damages an aircraft that is not in service and is
located at the international airport; or
(d) disrupts the services of the international airport.
(2) Subject to subsection (3), a person who commits an offence against this
section shall be liable upon conviction to imprisonment for a term not
exceeding 14 years.
(3) A person who commits an offence against subsection (1)(a) —
(a) in circumstances where the conduct concerned is the same as conduct
described as murder under section 87 of the Criminal Offences Act,
shall be liable upon conviction to imprisonment for life; and
(b) in circumstances where the conduct concerned is the same as conduct
described as manslaughter under section 88 of the Criminal Offences
Act, shall be liable upon conviction to imprisonment for life.
(4) No proceedings for the trial and punishment of any person charged with an
offence against this section shall be instituted in any Court except with the
consent of the Attorney General:
Provided that 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 Attorney General
to the institution of the prosecution for the offence has not been obtained, but
no further proceedings shall be taken until that consent has been obtained.
200 Offences relating to airports not being international airports
(1) A person commits a criminal offence who, whether in or outside the
Kingdom, using any device, substance, or weapon, intentionally does any of
the following acts that endangers or is likely to endanger the safety of any
airport not being an international airport —
(a) at the airport, commits an act of violence that causes or is likely to
cause serious injury or death;
(b) destroys or seriously damages the facilities of the airport;
(c) destroys or seriously damages an aircraft that is not in service and is
located at the airport; or
(d) disrupts the services of the airport.
Section 201 Civil Aviation Act 2014
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(2) Subject to subsection (3), a person who commits an offence against this
section shall be liable upon conviction to imprisonment for a term not
exceeding 7 years.
(3) A person who commits an offence against subsection (1)(a) —
(a) in circumstances where the conduct concerned is the same as conduct
described as culpable homicide under the Criminal Offences Act shall
be liable upon conviction to imprisonment for life; and
(b) in circumstances where the conduct concerned is the same as conduct
described as grievous bodily harm resulting in permanent damage or
death under the Criminal Offences Act shall be liable upon conviction
to imprisonment for life.
201 Offences against section 199 and 208 deemed to be included in
extradition treaties
(1) For the purposes of the Extradition Act each offence described in sections 199
and 208 is deemed to be an offence described in any extradition treaty
concluded before the commencement of this section and for the time being in
force between the Kingdom and any foreign country which is a party to the
Montreal Protocol.
(2) When subsection (1) deems an offence to be an offence described in an
extradition treaty, a person whose surrender is sought under the Extradition
Act in respect of an act or omission which amounts to that offence is liable to
be surrendered in accordance with the provisions of that Act, whether the act
or omission occurred before or after the date on which the offence was
deemed to be an offence described in the extradition treaty.
(3) This section does not apply in respect of an act or omission that, had it
occurred within the jurisdiction of the Kingdom, would not at that time have
constituted an offence under Tongan law.
(4) A certificate given under the hand of the Minister that any foreign country is a
party to the Montreal Protocol is sufficient evidence of that fact.
(5) For the purposes of this section —
“offence” includes —
(a) an attempt to commit that offence;
(b) aiding, abetting, inciting, counselling, or procuring a person to commit
that offence;
(c) inciting, counselling, or attempting to procure a person to commit that
offence when it is not in fact committed;
(d) being an accessory after the fact to that offence; and
“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 Montreal Protocol extends.
Civil Aviation Act 2014 Section 202
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202 Acts endangering the public at an airport
(1) A person commits an offence who acts in a manner that endangers any
member or members of the public at an airport.
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction to imprisonment for a term not exceeding 2 years or a fine
not exceeding $5,000.
203 Disruptive or alarming conduct at an airport
(1) Every person commits an offence who, while in an airport, and in a manner
contrary to public order or safety at the airport —
(a) uses any threatening, offensive or insulting words or gestures;
(b) behaves in a threatening, offensive or insulting manner;
(c) without justification makes an alarming statement or uses alarming
words or behaves in an alarming manner;
(d) behaves in a manner that interferes with the performance by aircrew,
airline officials or airport workers of their duties; or
(e) behaves in a manner that interferes with or is likely to interfere with the
performance by aviation security officers of their duties.
(2) Every person who commits an offence against subsection (1)(a), (b),(c) or (d)
shall be liable upon conviction to a fine not exceeding $5,000.
(3) Every person who commits an offence against subsection (1)(e) shall be liable
upon conviction to imprisonment for a term not exceeding 2 years or a fine
not exceeding $5000.
204 Security area offences
(1) Every person commits an offence who, on being found in a security area —
(a) refuses to state his name, address, and authority to enter the security
area after —
(i) having been informed that he is in a security area; and
(ii) having been requested by an aviation security officer to state
those particulars; or
(b) refuses forthwith to leave the security area after having been ordered by
an aviation security officer to do so.
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction to imprisonment for a term not exceeding 3 months or a fine
not exceeding $2,000.
Section 205 Civil Aviation Act 2014
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205 Offence of impersonation or obstruction of authorised persons
(1) Every person commits an offence who, not being an authorised person —
(a) by words, conduct, demeanour, or the assumption of the dress, name,
designation, or description of an authorised person, holds himself out as
being an authorised person; or
(b) wilfully obstructs, or incites or encourages any person to obstruct an
authorised person in the execute of his duty.
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction to imprisonment for a term not exceeding 3 months or a fine
not exceeding $2,000.
206 Communicating false information affecting safety
(1) Every person commits an offence who by any means provides to another
person information relating to the safety of an aircraft, aerodrome,
aeronautical product, aviation related service, or any other facility or product
used in or connected with aviation, or any person associated therewith,
knowing the information to be false or in a manner reckless as to whether it is
false.
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction —
(a) in the case of an individual, to imprisonment for a term not exceeding
12 months or a fine not exceeding $10,000; or
(b) in the case of a body corporate, to a fine not exceeding $100,000.
(3) Where the commission of an offence against subsection (1) causes financial
loss to any person and where the Court imposes a fine under subsection (2) in
respect of that offence, the Court may order that such part of the fine as it
thinks fit, but in any event not more than one-half of the fine, be awarded to
that person.
207 Taking firearms, explosives, and related matters, on to aircraft or into a
security area
(1) Everyone commits a criminal offence and shall be liable upon conviction to
imprisonment for a term not exceeding 5 years, who, without lawful authority
or reasonable excuse, or without the permission of the owner or operator of
the aircraft or of a person duly authorised by either of them to give such
permission, takes or attempts to take on board any aircraft or into any sterile
area or security enhanced area —
(a) any firearm;
(b) any other dangerous or offensive weapon or instrument of any kind
whatsoever;
Civil Aviation Act 2014 Section 208
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(c) any ammunition;
(d) any explosive substance or device, or any other injurious substance or
device of any kind whatsoever which could be used to endanger the
safety of the aircraft or of persons on board the aircraft;
(e) an imitation of an item or substance specified in paragraphs (a) to (d);
or
(f) any other prohibited item.
(2) For the purposes of this section, the term “firearm” means any gun, rifle, or
pistol, whether acting by force of explosives or not; and includes any such
gun, rifle, or pistol which for the time being is not capable of discharging any
shot, bullet, or other missile, but which by its completion or the replacement
of any component part or parts or the correction or repair of any defect or
defects, would be so capable; and also includes any such gun, rifle, or pistol
which is for the time being dismantled.
(3) For the purposes of this section the term ―prohibited item” has the meaning
given to it in section 2.
(4) For the purposes of subsection (1) ―lawful authority”, ―reasonable excuse”
and ―permission” is deemed to have been established in respect of any person
who —
(a) is a person, or a member of a class of persons, duly designated,
authorised and approved in writing by the Director to act on board any
aircraft as an in-flight security officer; and
(b) takes any of the items in subsection (1)(a), (b), (c), (d), (e) or (f) on
board any aircraft or into any security area for the purposes of his or her
duties as an in-flight security officer.
(5) No proceedings for the trial and punishment of any person charged with an
offence against this section shall be instituted in any Court except with the
consent of the Attorney General:
Provided that 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 Attorney General
to the institution of the prosecution for the offence has not been obtained, but
no further proceedings shall be taken until that consent has been obtained.
208 Hijacking
(1) Everyone commits the offence of hijacking and is liable on conviction to
imprisonment for life, who, while on board an aircraft in flight, whether in or
outside the Kingdom, unlawfully, by force or threat of force or by any form of
intimidation, seizes or exercises control, or attempts to seize or exercise
control, of that aircraft.
Section 209 Civil Aviation Act 2014
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(2) No proceedings for the trial and punishment of any person charged with an
offence against this section shall be instituted in any Court except with the
consent of the Attorney General:
Provided that 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 Attorney General
to the institution of the prosecution for the offence has not been obtained, but
no further proceedings shall be taken until that consent has been obtained.
209 Offences in connection with hijacking
(1) Everyone who, while on board an aircraft in flight outside the Kingdom, does
or omits anything which, if done or omitted by that person in the Kingdom,
would be a criminal 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;
(b) to avoid the detection of himself or of any other person in the
commission of the offence of 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 hijacking.
(3) No proceedings for the trial and punishment of any person charged with an
offence against this section shall be instituted in any Court except with the
consent of the Attorney General:
Provided that 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 Attorney General
to the institution of the prosecution for the offence has not been obtained, but
no further proceedings shall be taken until that consent has been obtained.
210 Other offences relating to aircraft
(1) Everyone commits a criminal offence, and shall be liable upon conviction to
imprisonment for a term not exceeding 14 years, who, whether in or outside
the Kingdom —
(a) on board an aircraft in flight, commits an act of violence which is likely
to endanger the safety of the aircraft;
(b) destroys an aircraft in service;
(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;
Civil Aviation Act 2014 Section 211
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Act 24 of 2014 Page 133
(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;
(e) destroys, damages, or interferes with the operation of any air-navigation
facility used in international air navigation, 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 person supplying the
information knows to be false.
(2) No proceedings for the trial and punishment of any person charged with an
offence against this section shall be instituted in any Court except with the
consent of the Attorney General:
Provided that 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 Attorney General
to the institution of the prosecution for the offence has not been obtained, but
no further proceedings shall be taken until that consent has been obtained.
211 Offences deemed to be included in extradition treaties
(1) For the purposes of the Extradition Act and any Order published in the
Gazette under that Act, the offence of hijacking, if not already described in an
extradition treaty is deemed to be a relevant offence for the purposes of
section 5(1) of the Extradition Act and shall further be deemed to be an
offence described in any extradition treaty for the time being in force between
the Kingdom and any country that is a party to the Hague Convention.
(2) For the purposes of the Extradition Act and any Order published in the
Gazette under that Act, each offence in section 210 if not already described in
an extradition treaty is deemed to be a relevant offence for the purposes of
section 5(1) of the Extradition Act and shall further be deemed to be an
offence described in any extradition treaty for the time being in force between
the Kingdom and any country that is a party to the Montreal Convention.
(3) If, under subsections (1) or (2), an offence is deemed to be an offence
described in an extradition treaty or deemed to be a relevant offence for the
purposes of section 5(1) of the Extradition Act, a person may be surrendered
for that offence in accordance with the provisions of the Extradition Act even
if the act or omission occurred before the date on which the crime was
deemed to be an offence described in the extradition treaty.
(4) Subsection (3) does not apply in respect of an act or omission that, had it
occurred within the jurisdiction of the Kingdom, would not at that time have
constituted an offence under the law of the Kingdom.
Section 212 Civil Aviation Act 2014
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(5) 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
and the Hague Convention or, as the case may be, the Montreal Convention,
extends; and
“Offence” includes —
(a) aiding, abetting, inciting, counselling, or procuring any person to
commit that offence;
(b) inciting, counselling, or attempting to procure any person to commit
that offence when it is not in fact committed; and
(c) being an accessory after the fact to that offence.
(6) A certificate given by the Minister that a country is a party to the Hague
Convention or the Montreal Convention, as the case may be, is sufficient
evidence of that fact.
212 Application of sections 208, 209, and 210
(1) Nothing in section 208, or 209 or 210 shall apply if both the place of take-off
and the place of actual landing of the aircraft (not being a Tongan registered
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 Tongan subject or a person ordinarily resident
in the Kingdom;
(b) the act or omission occurred in the Kingdom;
(c) the alleged offender is present in the Kingdom; or
(d) the aircraft is leased without crew to a lessee —
(i) whose principal place of business is in the Kingdom; or
(ii) in any other case, who is a Tongan subject or a person ordinarily
resident in the Kingdom.
(2) Nothing in section 210(1)(a),(b),(c),(d), (e) 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 Tongan registered 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 Tongan subject or a person ordinarily resident
in the Kingdom;
(b) the act or omission occurred in the Kingdom;
(c) the alleged offender is present in the Kingdom; or
Civil Aviation Act 2014 Section 213
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Act 24 of 2014 Page 135
(d) the aircraft is leased without crew to a lessee —
(i) whose principal place of business is in the Kingdom; or
(ii) in any other case, who is a subject of the Kingdom or a person
ordinarily resident in the Kingdom.
(3) Nothing in section 208, 209 or 210(1)(a),(b),(c),(d), (e) or (f) shall apply to
aircraft used in military, customs, or police service unless —
(a) the alleged offender is a subject of the Kingdom or a person ordinarily
resident in the Kingdom; or
(b) the act or omission occurred in the Kingdom.
213 Application of certain provisions relating to jurisdiction in respect of
offences on aircraft beyond the Kingdom
Nothing in this Act or any other Act of the Kingdom relating to jurisdiction in
respect of offences on ships or aircraft beyond the Kingdom shall apply to limit the
application of the provisions of this Act or the application of the criminal law of the
Kingdom with respect to the offence of hijacking or to any of the offences described
in section 210 or to any offence referred to in section 209 committed in connection
with the offence of hijacking.
PART XV - UNRULY PASSENGER OFFENCES
214 Application of this Part
(1) This Part applies to any unruly passenger offence committed —
(a) on an aircraft in the Kingdom, regardless of the nationality of the
aircraft; or
(b) outside the Kingdom on an aircraft in flight, regardless of the
nationality of the aircraft, if the next landing of the aircraft is in the
Kingdom.
(2) For the purposes of this Part, 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.
(3) Notwithstanding subsection (2), 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.
Section 215 Civil Aviation Act 2014
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215 Liability for unruly passenger offences despite extraterritoriality
Any person who commits an act or omission on an aircraft in flight outside the
Kingdom that would be an offence against this Part if it occurred within the
Kingdom is, subject to this Act, liable as if the act or omission had occurred in the
Kingdom.
216 Liability for other offences despite extraterritoriality
(1) Any person who commits an act or omission on an aircraft in flight outside
the Kingdom that would, if it occurred in the Kingdom, be an offence of
disorderly behaviour or fighting in a public place or common assault or wilful
damage or indecent exposure is liable as if the act or omission had occurred in
the Kingdom.
(2) For the purposes of any of the provisions referred to in subsection (1), any
reference to public place includes an aircraft.
217 Certified consent of Attorney-General
(1) No proceedings for an unruly passenger offence may be commenced without
the certified consent of the Attorney-General if —
(a) the offence has been committed on a foreign aircraft outside the
Kingdom; and
(b) the offence carries a maximum sentence of more than 3 months
imprisonment.
(2) To avoid doubt, a person may, in respect of an unruly passenger offence, be
arrested, charged, remanded in custody, or released on bail before the
Attorney-General decides whether or not to consent to proceedings.
218 Strict liability for acts endangering safety
(1) A person commits an offence who acts in a manner that endangers an aircraft
or any person in an aircraft.
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction to imprisonment for a term not exceeding 2 years or a fine
not exceeding $10,000.
219 Disruptive conduct towards crew member
(1) Every person commits an offence who, while in an aircraft —
(a) uses any threatening, offensive, or insulting words towards a crew
member;
(b) behaves in a threatening, offensive, insulting, or disorderly manner
towards a crew member;
Civil Aviation Act 2014 Section 220
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Act 24 of 2014 Page 137
(c) behaves in a manner that interferes with the performance by a crew
member of his duties; or
(d) intentionally interferes with the performance by a crew member of his
duties.
(2) Every person who commits an offence against subsection (1)(a), (b) or (c)
shall be liable upon conviction to a fine not exceeding $5,000.
(3) Every person who commits an offence against subsection (1)(d) shall be liable
upon conviction to imprisonment for a term not exceeding 2 years or a fine
not exceeding $10,000.
220 Interference with aircraft
(1) Every person commits an offence who tampers or interferes with any aircraft,
any component of an aircraft, or its equipment, including, but not limited to,
smoke detectors.
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction to a fine not exceeding $10,000.
221 Intoxicated persons on aircraft
(1) Every person (except a person under medical care) commits an offence
who —
(a) is intoxicated and boards an aircraft; or
(b) becomes intoxicated on an aircraft.
(2) Every person who commits an offence against —
(a) subsection (1)(a) shall be liable upon conviction to a fine not exceeding
$5,000.
(b) subsection (1)(b) shall be liable upon conviction to a fine not exceeding
$3,000.
(3) For the purposes of this section, a person is intoxicated if the pilot-in-
command (or senior flight attendant authorised by the pilot-in-command for
this purpose) has reasonable grounds to believe that the person is under the
influence of an intoxicating liquor, or substance to such an extent as to —
(a) be incapable of properly conducting himself;
(b) present a hazard or potential hazard to the aircraft or to persons on the
aircraft; or
(c) offend against the good order and discipline required on an aircraft.
(4) For the purposes of this section, ―person under medical care” means a
person who —
(a) is under the supervision of an attendant; and
Section 222 Civil Aviation Act 2014
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(b) has become intoxicated as a result of taking prescription medication in
accordance with a medical authorisation.
222 Non-compliance with commands given by pilot-in command
(1) Every person commits an offence who fails to comply with any commands
given to the person directly by the pilot-in command, or indirectly by the
pilot-in-command through a crew member, in accordance with his duties
under section 59, or Rules made under this Act.
(2) Notwithstanding section 31(6), every person who commits an offence against
subsection (1) shall be liable upon conviction to a fine not exceeding $5,000.
223 Offensive behaviour or words
(1) Every person commits an offence who, on any aircraft —
(a) behaves in a threatening, offensive, insulting, or disorderly manner; or
(b) uses threatening, offensive, or insulting words.
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction to a fine not exceeding $2,500.
224 Portable electronic devices not to be operated
(1) Every person commits an offence who operates a portable electronic device
on board an aircraft in breach of the Rules made under this Act.
(2) Notwithstanding section 31(6), every person who commits an offence against
subsection (1) shall be liable upon conviction to a fine not exceeding $2,500.
225 Non-compliance with seating and seatbelt instructions
(1) Every person commits an offence who fails to comply with an instruction
given by a crew member, passenger information signs, or placards to —
(a) occupy a seat or berth; and
(b) fasten and keep fastened about the person any installed safety belt or
safety harness.
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction to a fine not exceeding $2,500.
226 No smoking
(1) Every person commits an offence who smokes —
(a) when instructed not to smoke by a crew member, passenger information
signs, or placards;
Civil Aviation Act 2014 Section 227
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Act 24 of 2014 Page 139
(b) while on any aircraft that is carrying passengers for hire and reward on
any internal flight; or
(c) in contravention of section 167.
(2) Every person who commits an offence against subsection (1) shall be liable
upon conviction to a fine not exceeding $2,500.
(3) In this section “to smoke” has the meaning set out in section 167(1).
227 Dangerous goods
(1) Every person commits an offence who, in breach of the Rules, carries or
causes to be carried on an aircraft any dangerous goods.
(2) Notwithstanding section 31(6), every person who commits an offence against
subsection (1) shall be liable upon conviction to a fine not exceeding $2,500.
228 Procedure for certain unruly passenger offences
(1) If any offence specified in sections 218 to 227 is alleged to have been
committed by any person (in this section, the ―defendant‖), the pilot-in-
command of the aircraft at the time of the alleged offence may, by any
available means, notify, or cause to be notified —
(a) an aviation security officer; or
(b) a Police officer.
(2) If an aviation security officer or a member of the police has reasonable cause
to suspect that a person has committed any offence specified in sections 218
to 227, he may require the person to give his full name, address, and date of
birth.
(3) If the aviation security officer or the Police officer has reasonable grounds to
suppose that any details provided under subsection (2) are false or misleading,
he may require the person to give such verification of those details as it is
reasonable in the circumstances to require that person to provide.
(4) If the person, without reasonable excuse, refuses or fails to comply with a
request under subsections (2) or (3), and persists in that refusal or failure after
being warned by the aviation security officer or member of the police that he
may be arrested for committing an offence by that refusal or failure, a Police
officer may arrest that person without warrant.
(5) Every person commits an offence and shall be liable upon conviction to a fine
not exceeding $1,000 who, without reasonable excuse —
(a) refuses or fails to comply with a request under sub-sections (2) or (3);
or
(b) gives details that are false or misleading in a material respect to an
aviation security officer or Police officer in response to such a request.
Section 229 Civil Aviation Act 2014
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(6) Evidence produced by the defendant to the aviation security officer or
member of the police under subsection (3) shall be inspected without delay
and returned to the defendant as soon as practicable after the inspection has
concluded.
PART XVI – RIGHTS OF APPEAL
229 Appeals against disqualification
(1) An order of a Court by which any person is disqualified from holding or
obtaining an aviation document shall be deemed to be a sentence or part of a
sentence, as the case may be. If a notice of appeal against any such order is
filed, the Court may, if it thinks fit, defer the operation of the order pending
the appeal, but otherwise the order shall have immediate effect.
(2) Where application is made to the Court of Appeal for leave to appeal to that
Court against a sentence of the Supreme Court that is or includes an order of
disqualification, the Supreme Court may, if it thinks fit, defer the operation of
the order pending the application for leave to appeal and, if leave is granted,
pending the appeal.
(3) Where an appeal to the Court of Appeal is allowed under this section, whether
in whole or in part, the Registrar of the Supreme Court shall send notice
thereof to the Director who shall have a right to appear and be heard in respect
of the matter.
(4) In determining the expiration of the period for which a person is disqualified
from holding or obtaining an aviation document, any time during which the
operation of the disqualification order is deferred under this section shall be
disregarded.
230 Appeal to Supreme Court
(1) A person may appeal to the Supreme Court against a decision made under this
Act by the Director if another section of this Act gives that person a right of
appeal under this section, and —
(a) the person —
(i) is a person in respect of whom the decision was made; and
(ii) is dissatisfied with the decision; or
(b) the person is the owner, operator, or person for the time being in charge
of the aircraft or aeronautical product that is the subject of the decision.
(2) The Supreme Court may confirm, reverse, or modify the decision appealed
against.
(3) Every decision of the Director appealed against under this section continues in
force pending the determination of the appeal, and no person is excused from
Civil Aviation Act 2014 Section 231
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Act 24 of 2014 Page 141
complying with any of the provisions of this Act on the ground that any
appeal is pending.
(4) Even though an appeal under this section may have been determined in favour
of the appellant, the Director may, subject to the like right of appeal, refuse to
grant, revoke, suspend, disqualify, or otherwise deal with, in accordance with
the provisions of this Act, any aviation document, any person to which or to
whom the appeal related, or any aviation document or approval granted or
restored in compliance with the decision of the Supreme Court on the appeal,
on any sufficient grounds supported by facts or evidence discovered since the
hearing of the appeal.
PART XVII - MISCELLANEOUS PROVISIONS
231 Evidence and proof
(1) In any proceedings for an offence against this Act, the following provisions
shall apply —
(a) a copy of any aviation document which is certified correct by the
Minister or the Director shall be sufficient, in the absence of proof to
the contrary, to prove that document;
(b) evidence of the contents of the Tonga Register of Aircraft maintained
under section 27 may be given by a certificate signed by the Director
and every such certificate shall be sufficient evidence of the matters
stated in it, until the contrary is proved;
(c) the production of a certificate signed by the Director to the effect that
on a specified date a person or organisation was or was not the holder
of any aviation document or any specified type of aviation document
shall be sufficient evidence of the matter certified, until the contrary is
proved;
(d) the production of a written statement signed by the Director to the
effect that on a specified date a person was or was not the holder of a
current medical certificate issued or granted recognition under Part VII,
or otherwise validated or issued or recognized before the
commencement of this Act, is sufficient evidence of the matter stated,
until the contrary is proved;
(e) until the contrary is proved, it shall be presumed that every certificate
purporting to have been certified or given under this section has been
certified or given by the Director;
(f) any licence granted under Part XI may be proved by the production of a
copy of that licence certified to be correct by the Minister.
(2) Without limiting any other method of proof, the production in any
proceedings of a copy of —
Section 232 Civil Aviation Act 2014
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(a) any ordinary Rule purporting to have been made by the Minister under
Part IV; or
(b) any emergency Rule purporting to have been made by the Director
under section 43,
shall, in the absence of proof to the contrary, be sufficient evidence of the
Rule and of the fact that it has been made in accordance with the provisions of
that Part.
232 Evidence of air traffic services provider
(1) Any document used in recording services in relation to the movement of any
aircraft and purporting to have been initiated at the time of the movement by
an employee of a person providing air traffic services shall be admissible in
every Court and in every judicial examination or proceeding as prima facie
evidence that the air traffic services described in such document were
provided on the date and for the aircraft referred to in the document.
(2) A document certified by an employee of a person providing air traffic services
purporting to be a computer record of the provision of air traffic services, the
particulars of which have been recorded or stored in the usual and ordinary
course of the business of such person, shall be admissible as if it were a
document to which subsection (1) applies.
(3) For the purposes of this section, the expression “computer record” includes
a microfiche, a microfiche printout, a computer printout, or any other
document produced by a device by means of which information is recorded or
stored.
233 Obligation to identify pilot-in-command
(1) If a pilot in command of an aircraft is alleged to have committed an offence
under this Act or the Rules, the Director or a Police officer may —
(a) inform the operator of the aircraft or the holder of the certificate of
registration for the aircraft of the alleged offence; and
(b) require that person to give all information in that person's possession or
reasonably obtainable by that person that may lead to the identification
of the pilot.
(2) A request under subsection (1) may be made orally or in writing, and the
operator or holder of the certificate of registration (as the case may be) shall
comply with the request within 10 working days.
(3) Subsection (1) does not apply if the operator or holder of the certificate of
registration has been arrested or detained in relation to the suspected offence.
Civil Aviation Act 2014 Section 234
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Act 24 of 2014 Page 143
234 Exemption of aircraft from seizure on patent claims
(1) Any lawful entry into the Kingdom, any lawful transit across the Kingdom,
with or without landings, of an aircraft to which this section applies shall not
entail any seizure or detention of the aircraft or any proceedings being brought
against the owner or operator thereof or any other interference therewith by or
on behalf of any person in the Kingdom on the ground that the construction,
mechanism, parts, accessories or operation of the aircraft is or are an
infringement of any patent, design or model.
(2) Subject to sub-section (3), the importation into, and storage in, the Kingdom
of spare parts and spare equipment for an aircraft to which this section applies
and the use and installation thereof in the repair of such an aircraft shall not
entail any seizure or detention of the aircraft or of the spare parts or spare
equipment or any proceedings being brought against the owner or operator of
the aircraft or the owner of the spare parts or spare equipment or any other
interference with the aircraft by or on behalf of any person in the Kingdom on
the ground that the spare parts or spare equipment or their installation are or is
an infringement of any patent, design or model.
(3) Sub-section (2) shall not apply in relation to any spare parts or spare
equipment which are sold or distributed in the Kingdom or are exported from
the Kingdom for sale or distribution.
(4) This section applies —
(a) to an aircraft registered in a contracting state other than an aircraft used
in military, customs or police services; and
(b) to such other aircraft as the Minister may with the consent of Cabinet
specify.
235 Right of access over private lands to wrecked or damaged aircraft
(1) Where an aircraft is wrecked or damaged at any place in the Kingdom all
persons may, for the purpose of rendering assistance to the aircraft or its
occupants, or of saving the lives of the occupants of the aircraft, or of saving
the aircraft or its contents, unless there is some public road equally
convenient, pass and re-pass, either with or without vehicles, over and land
without being subject to interruption by the owner or occupier, so that they do
as little damage as possible, and also, on the like conditions, deposit on those
lands any goods or other article recovered from the aircraft.
(2) Any owner or occupier who suffers direct injury or loss in consequence of the
exercise of the rights given by sub-section (1) shall be entitled to receive
compensation therefore, the amount of the compensation to be fixed by
agreement with the Minister with the concurrence of the Minister of Lands, or
in default of agreement by the Supreme Court.
Section 236 Civil Aviation Act 2014
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236 Penalties
Any person who commits an offence against this Act for which no penalty is
specifically provided shall be liable upon conviction to either a fine not exceeding
$5,000 or to imprisonment for a term not exceeding one year, or both.
237 Repeals, revocation, amendments, and savings
(1) The enactments and regulations specified in Schedule 1 are hereby repealed
and revoked but otherwise any regulations or notices made under the Civil
Aviation Act 1990 shall continue in force until amended or revoked by the
Minister with the approval of Cabinet under this Act.
(2) Every licence, rating, certificate, permit, authorisation, approval, or other
document validly issued by an authorised senior officer of the Ministry prior
to the commencement of this Act in accordance with the Civil Aviation Act
1990 and the Civil Aviation Regulations 1992 and that is in force immediately
before the commencement of this Act, shall be deemed to be an aviation
document issued under this Act, and shall have effect and be subject to the
provisions of this Act accordingly.
(3) Every aviation document, licence, rating, certificate, permit, authorisation,
approval, or other document issued by an authorised senior officer of the
Ministry prior to the commencement of this Act and which is in accordance
with the intents, purposes and procedures of the New Zealand Civil Aviation
Rules is hereby validated, shall be deemed to be an aviation document issued
under this Act, and shall have effect and be subject to the provisions of this
Act accordingly.
(4) For the purposes of subsection (3) “New Zealand Civil Aviation Rules”
means the ordinary Rules promulgated from time to time pursuant to the
provisions of the New Zealand Civil Aviation Act 1990 as amended.
(5) Notwithstanding the repeal of the Civil Aviation Act 1990 by this Act,
sections 9, 10, 11 and 12 of the Civil Aviation Act 1990 relating to airports
shall continue in full force and effect as if part of this Act and any powers
exercised by the Minister including any instruments of delegation shall
continue in force and be valid and effective.
Passed by the Legislative Assembly on this 28
th
day of August 2014.
Civil Aviation Act 2014 SCHEDULE 1
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Act 24 of 2014 Page 145
SCHEDULE 1
ENACTMENTS REPEALED
Civil Aviation Act 1990
Aircraft Offences Act
Civil Aviation Regulations 1992
Civil Aviation (Passenger Service Charge) Regulations 1996
SCHEDULE 2 Civil Aviation Act 2014
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SCHEDULE 2
FORM OF ADOPTION STATEMENT AND INTERPRETATION STATEMENT
NOTICE OF MAKING OF ORDINARY RULES BY ADOPTION PURSUANT
TO SECTION [ ] OF THE CIVIL AVIATION ACT 2013
Pursuant to the Civil Aviation Act 2013 section [ ] I, Honourable [full name],
Minister responsible for civil aviation, hereby give notice of the making of
Ordinary Civil Aviation Rules by adoption.
Tonga Civil Aviation Rule Part [ ]
[name]
Adoption Statement
The Rule Part, which shall be cited as Tonga Civil Aviation Rule Part [ ],
comprises an adoption of the Rules contained in New Zealand Civil
Aviation Rule Part [ ] as modified hereunder and shall be read subject to the
following Interpretation Statement.
Interpretation Statement
(i) Words and numbers to be substituted:
Throughout
[list of words or phrases that may appear in several Rules]
Rule [ ] [name]
[sections or sub-sections that are to be deleted from the stated Rule]
followed by
[sections or sub-sections that are to be inserted into the stated Rule]
(ii) Any subpart, Rule or appendix of the adopted Rule Part which shall
not apply in Tonga
[text]
(iii) Any general exemptions which will apply in Tonga
[text]
(iv) Any additional provisions or requirements not found in the New
Zealand Rule Part but which will apply in Tonga
[text]
Civil Aviation Act 2014 SCHEDULE 2
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Act 24 of 2014 Page 147
(v) Any direction as to the application or non application to Tonga of any
amendment or repeal of an adopted Rule Part by its country of origin
[text to include:
―This Rule Part shall adopt all New Zealand amendments unless otherwise
stated.‖]
(vi) Any other matter which would assist in the practical, clear and
unambiguous interpretation and application of the adopted Rule Part
in Tonga.
[text to include:
―Unless the Director issues specific acceptable means of compliance for this
Tonga Rule Part, the standards, practices and procedures that the Director
has found to be acceptable are those published in the associated Advisory
Circulars issued by the Civil Aviation Authority of New Zealand.
Interpretative or explanatory material for this Rule Part may also be found
in the New Zealand Advisory Circulars.‖
or, where Advisory Circulars are not published by CAA NZ in respect of the
Rule:
―If further guidance regarding acceptable means of compliance for this
Tonga Rule Part is required, the Director may issue such guidance as
required.‖
―This Rule Part, as modified above, comes into force on [date]‖]
Dated this [ ] day of [month] [year]
