New Zealand Air Line Pilots' Association Inc. v Attorney-General

• Jurisdiction: New Zealand
• Judgment Date: 16 June 1997
• Date: 16 June 1997
• Court: Court of Appeal

New Zealand, Court of Appeal.

(Richardson P, Henry, Thomas, Keith and Blanchard JJ)

New Zealand Air Line Pilots' Association Inc.

and

Attorney-General1

Air — Air transport — Regulation — Chicago Convention on International Civil Aviation, 1944 — Annex 13 — Importance — Binding effect

Relationship of international law and municipal law — Treaties — Whether applicable in municipal law — Chicago Convention on International Civil Aviation, 1944 — Annex 13 — Whether Chicago Convention part of law of New Zealand — Whether Annex 13 to Convention part of law of New Zealand — Power of District Court Judge to issue search warrants under Section 198 of Summary Proceedings Act 1957 — Whether power limited by paragraph 5.12 of Annex 13 — Whether power limited by public interest immunity — Power of Transport Accident Investigation Commission (‘TAIC’) to prepare and publish report under TAIC Act 1990 — Whether power limited by paragraph 5.12 of Annex 13 — Whether TAIC acting within its statutory powers

Treaties — Binding force — Annex 13 to the Chicago Convention on International Civil Aviation, 1944 — Whether binding in international law — The law of New Zealand

Summary: The facts:—In June 1995 an aircraft crashed into a hillside in New Zealand killing three passengers and one crew member and seriously injuring fourteen others. In its judgment the High Court,2 dealing with two sets of proceedings, held that the police were entitled under Section 198 of Summary Proceedings Act 19573 to obtain by search warrant the cockpit voice recorder and its transcript to use in their investigation of the crash (‘the police proceedings’). Panckhurst J held that the judicial officer was obliged to have

regard to Annex 13 to the Convention on International Civil Aviation, 1944 (‘Chicago Convention’),4 and to public interest immunity, in deciding whether to issue a search warrant even though neither the Convention nor its Annex 13 were part of New Zealand law. The Court found that the Transport Accident Investigation Commission (‘TAIC’) was acting within the powers conferred upon it by the TAIC Act 1990 in including extracts of this transcript in its accident report and without any breach of the relevant part of the Annex (‘the Commission proceedings’).

The New Zealand Air Line Pilots' Association appealed against the ruling with respect to both sets of proceedings. The Attorney-General cross-appealed on behalf of the police in the police proceedings and intervened in the commission proceedings.

Held:—The appeals were dismissed. The Attorney-General's cross-appeal was allowed.

(1) It was evident from the relevant texts and their history that Annex 13 to the Chicago Convention, in particular its paragraph 5.12 on the disclosure of records, had no binding force in international law (pp. 554–63).

(2) The Chicago Convention, together with its annexes, required legislative action for it to have the force of law in New Zealand. As a whole, it did not form part of the law of New Zealand. Some provisions required to be given full effect in the law of New Zealand while others did not. If national effect was needed, the effect might be given more or less directly (pp. 563–9).

(3) Annex 13, in particular paragraph 5.12, to the Chicago Convention was not part of the law of New Zealand. Given the differences between paragraph 5.12 and the most immediately relevant statute, Parliament had failed to manifest such a purpose (pp. 569–72).

(4) Legislation was to be read in a way that was consistent with New Zealand's international obligations so far as its wording allowed. This presumption could apply whether or not the legislation was enacted with the purpose of implementing the relevant text but its application depended upon both the international text and the related national statute (pp. 572–3).

(5) Paragraph 5.12 of Annex 13 was relatively unimportant, indeterminate in character and recognized that police and related investigations could be running in parallel with the investigation regulated by the Annex and related national legislation. As paragraph 5.12 did not establish a clear limit on power or state relevant factors to be weighed in the exercise of statutory power, to give effect to it would have been more than a simple glossing of the statutory power or the stating of considerations relevant to the exercise of the power (pp. 573–4).

(6) With respect to Section 198 of the Summary Proceedings Act 1957, once the condition in Section 198(1) had been satisfied, the power to issue a search warrant was not qualified in any way. It was a summary power, exercised without notice to those whose premises or property were the subject of the application, but with safeguards against its arbitrary exercise. As such the power was not limited by paragraph 5.12 of Annex 13 to the Chicago Convention. Neither

was it limited by public interest immunity as a public interest assessment was not contemplated by Section 198 in terms either of substance or of process (pp. 574–7).

(7) With respect to the commission proceedings, the TAIC, in publishing its report and in including in its appendix extracts from the transcript, had acted within its statutory powers without breaching the relevant part of the Annex, assuming it to be binding on the TAIC (pp. 577–84).

The following is the text of the judgment of the Court, delivered by Keith J:

TABLE OF CONTENTS

The proceedings and the results.	272
The main issue.	273
The Chicago Convention and rulemaking under it.	273
Areas of rule making; the binding force of the rules.	274
The procedures for rule making.	275
Annex 13, aircraft accident and incident investigation.	276
Annex 13: a conclusion on its binding force in international law.	280
Is the Chicago Convention part of the law of New Zealand?.	280
Is annex 13, in particular para 5.12, part of the law of New Zealand?.	286
Is the power to issue search warrants limited by para 5.12?	289
Is the power to issue search warrants limited by public interest immunity?	292
The police proceedings: conclusion.	293
The commission proceedings: its power to issue reports.	293
The commission proceedings: conclusion.	300
Costs.	300

The proceedings and the results

These appeals arise from the crash of an Ansett de Havilland DHC-8 twin-engine aircraft into a hillside about 16 km east of Palmerston North airport on 9 June 1995. Three passengers and one crew member died in the crash and 14 others were seriously injured.

The appeals concern two sets of proceedings which were heard together and dealt with in a single judgment by Panckhurst J delivered on 18 December 1996 (High Court, Wellington, CP 164/96). In the first (the police proceedings), the police, through the Attorney-General, contend that they are entitled to obtain by search warrant the Cockpit Voice Recorder (CVR) recovered from the crash site and the transcript taken from the recorder. These proceedings also extend to the Digital Flight Data Recorder (DFDR). The police wish to take that material into account as part of their investigation of the circumstances of the crash to determine whether offences of manslaughter are disclosed. Panckhurst J held that a judicial officer had the power to issue a search warrant directed to those articles but could not exercise it without regard both to a particular annex to the Chicago Convention on International Civil Aviation 1944 and to public interest immunity. The New Zealand Airline Pilots' Association (ALPA) appealed and the Attorney-General cross-appealed.

For the reasons given in this judgment we agree with Panckhurst J that because the convention as a whole and the annex in particular are not part of the law of New Zealand there is no jurisdictional bar. We do not agree, however, with his ruling that nevertheless a judicial officer deciding whether to issue a search warrant must have regard to the convention and also to public interest immunity.

Accordingly ALPA's appeal fails and the cross-appeal by the Attorney-General on behalf of the police succeeds. There will be a declaration that the power to issue a search warrant is not confined by the convention or by public interest immunity.

In the second set of proceedings (the commission proceedings), ALPA challenges the use which the Transport Accident Investigation Commission (TAIC) is proposing to make of the transcript in the report which it has prepared following its investigation into the crash: it is proposing to include extracts in an appendix. That challenge failed in the High Court and ALPA appeals against that ruling. The Attorney-General intervened in these proceedings, giving appropriate undertakings to maintain the confidentiality of the recording and the transcript.

For the reasons given, we agree that TAIC has acted within the powers conferred on it by the Transport Accident Investigation Commission Act 1990 and without any breach of the relevant part of the annex-assuming it to be binding on TAIC.

Accordingly this appeal also fails.

In this Court the burden of the argument was carried by counsel for ALPA, the Attorney-General and TAIC. The other parties, the pilots in the High Court and Ansett in this Court, indicated that they abided the decisions to be given, although Ansett filed a memorandum in this Court.

The main issue

In broad terms, ALPA contends that the powers of a District Court Judge to issue a search warrant under s 198 of the Summary Proceedings Act 1957 and of TAIC to prepare and publish a report under the Transport Accident Investigation Commission Act 1990 are limited by the provisions of a paragraph of annex 13, titled ‘Aircraft Accident and Incident Investigation’ (8th ed, July 1994), to the Chicago Convention on International Civil Aviation. Its claims are also based on public interest immunity in the first set of proceedings and on the statutory...