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Civil Aviation Amendment Bill 2000

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1998

 

 

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

CIVIL AVIATION AMENDMENT BILL 1998

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of the Minister for Transport and

Regional Development Services , the Hon. Mark Vaile John Anderson MP)

 



 

table of contents

table of contents.............................................................................................. i

outline....................................................................................................................... 1

financial impact statement..................................................................... 1

notes on clauses................................................................................................. 2

schedule 1 - amendment of the civil aviation act 1988 .......... 3

Do you think we need this given its so short??

 

Outline………………………………………… ………………………… 1

 

Financial Impact Statement……………………………………………… 1

 

Notes on Clauses…………………………………………………………. 2

 

Schedule 1………………………………………………………………… 3

 

 



CIVIL aviation AMENDMENT BILL 1998

outline

The purpose of the Civil Aviation Amendment Bill is to facilitate the findings of a review of the civil aviation regulatory framework.  The Bill will facilitate the introduction of a new set of regulations that are harmonised with civil aviation laws internationally.  The amendments are essentially of a machinery nature, replacing terms such as “the Civil Aviation Regulations” with “the regulations”, and “domestic commercial flight” with “regulated domestic flight”.  The Bill will also enable the Civil Aviation Safety Authority ( CASA ) to issue design standards for unusual aircraft for which common design standards are not in place.

 

The new regulations will be subject to the preparation of a ppropriate Regulation Impact Statement s by CASA.

 

Additionally, the Bill provides for new powers in relation to the retention and destruction of goods seized by CASA during the course of investigating breaches of the Civil Aviation Act 1988 and regulations.  These new powers, the power to retain seized goods for longer than 60 days and the power to destroy seized goods, are vested in courts; CASA must apply to courts for orders to retain or destroy, as the case may be.   These changes have arisen in response to the difficulties which have occurred in commencing proceedings within the 60 day time limit and to provide for goods to be destroyed where the owner cannot be located or has refused to take possession of the goods.

 

The  Bill also clarifies the power of CASA to impose fees by regulation, and provides for limited late-payment penalties to be imposed.

 

Finally, the Bill makes a minor technical amendment to subsection 28BC(3) to correct an anomaly.

 

financial impact statement

The Bill has no direct Budgetary impact.  However, it is envisaged that the regulatory changes which will follow from the Bill will reduce the cost s borne by  of CASA, a primarily Budget-funded body, in administering the civil aviation safety régime in Australia.  The ability for CASA to seek orders for destruction of seized goods may also have an impact on the costs of continued storage of such goods.

regulatory impact statement

[Wendi - I don’t think you need to do much in the RIS, really just a short note on the amendments to the Part IIIA investigation powers.  The rest of the amendments facilitate the making of regulations which will have individual RISs done by CASA - this should be explained in this RIS, however.  The Part IIIA amendments (retention and destruction of goods) will have no additional impact on business.  In fact, I don’t think you will need any of the headings below, just one or two paragraphs (although you may wish to check with Jenny Bryant at ORR, 6240 3258).]

OVERVIEW

 

BACKGROUND

 

 



 

notes on clauses

 

Clause 1 - Short Title

The Bill, when enacted, will be known as the Civil Aviation Amendment Act 1998 .

 

Clause 2 - Commencement

The majority of the Bill commences on Royal Assent.  However, those provisions which delete the term “commercial” from the Act, or which replace the term “domestic commercial flight” with “regulated domestic flight”, and those provisions which permit CASA to retain or destroy seized goods, commence on a date to be fixed by Proclamation, or not longer than 6 months after the date of Royal Assent.  This is to enable CASA to update Air Operator Certificates (‘AOCs’) and permissions under section 27A of the Act to the new terminology, and also to enable CASA to inform people of the changes.

 

Clause 3 - Schedule(s)

The Act is amended as set out in the Schedule to the Bill.

 

Clause 4 - Transitional and application

Where an AOC, permission granted under section 27A of the Act, or an application for either an AOC or permission under section 27A refers to a “domestic commercial flight”, then the reference is, following commencement of the provisions which replace the term “domestic commercial flight” with “regulated domestic flight”, taken to refer to “regulated domestic flight”.

 



schedule 1 - amendment of the civil aviation act 1988

 

Schedule 1 of the Bill provides for amendments of the Civil Aviation Act 1988 .

 

Items 1, 3, 4, 5, 7, 8, 9 and  11

Items 1, 3, 4, 5, 7, 8, 9, and 11 of the Schedule replace the term “Civil Aviation Regulations” with “regulations”.  The change in terms is as a result of the proposal to replace a large body of Civil Aviation Regulations with regulations made under the Act which may be called “Civil Aviation Safety Regulations” or some other name.  The amendments also bring the Act into line with most other Acts of Parliament, which simply refer to “regulations” rather than “ Name of Act Regulations”.

 

         

Items 2, 6, 12, 13, 16, 17, 19, 20, 21, and 23

In recognition of the fact that the safety regulation of aviation activities should not be based fundamentally on the commercial nature of an activity, it is proposed that s. 27(9) of the Act be amended so as to make subsection (2) apply  to the flying or operation of an aircraft for such purposes as are prescribed by regulation.  Under the Classifications of Operations policy recently adopted by CASA, it is not the commercial nature of an operation, but the safety risk involved in the operation, that is the principal determinant of whether an AOC will be issued.  Therefore, references to “commercial” in the Act may give a misleading impression of the nature of operations being regulated, and are to be removed.

 

Items 12, 13, 16, 17, 19, 20, 21 and 22 23 of the Schedule delete the word “commercial” or replace the term “domestic commercial flight” with the term “regulated domestic flight”.  Item 2 defines “regulated domestic flight”, although the definition is the same as the previous definition of “domestic commercial flight”.

 

Item 10

The proposed new regulations dealing with aircraft manufacture and certification may not refer to “certificates of airworthiness” when describing the document issued in respect of an aircraft which certifies that that particular aircraft is airworthy.  As a result, s. 20AA(3) of the Act is being amended to ensure that whatever the document is called in the regulations, it is treated as a “certificate of airworthiness” for the purposes of the Act.

 

Items 14 and 15

Under subsection 27AB(1) of the Act, it is a requirement for all applicants for AOCs to supply flight manuals for their aircraft to CASA.  This has resulted in CASA receiving and holding large numbers of flight manuals for the same types of aircraft unnecessarily.  Only where a new type of aircraft is being introduced for the first time into Australia will CASA require a flight manual; since CASA can request such information under s. 27AC(1) of the Act, the requirement for mandatory lodgement of all flight manuals is being repealed.

 

Item 15 is a technical consequential amendment to s. 27AB(2) as a result of the repeal of s. 27AB(1).

 

Item 18

Increased authority is required to allow for the expansion of the list of key personnel.  One of CASA’s six published principles is the adoption of a safety system approach to regulation.  This principle can manifest itself in many different ways.  One of these ways is through the establishment of a safety program by the AOC holder.  It is common international practice for AOC holders to be required to have either a safety program or a safety manager, with responsibilities for monitoring and addressing safety issues for the company.  In the regulatory review currently under way in CASA, it will be proposed that certain AOC holders be required to have a safety manager.  The Act must contemplate this proposal as well as the possibility of further expansion of what key personnel an AOC holder must have.  As a result, s. 28(3) of the Act is being amended to permit the regulations to increase the scope of the definition of “key personnel”.

 

 

Item 22

Under section 28BC(3) of the Act, CASA may have regard to financial considerations when considering whether to impose or vary a condition on an AOC, but not when considering whether to suspend or cancel an AOC.

 

This anomaly arose as a result of amendments made by the Civil Aviation Legislation Amendment Act 1998 (the amending Act) which separated the power to cancel and suspend AOCs from the power to impose or vary conditions of AOCs but did not make the necessary consequential amendments to subsection 28BC(3).

 

Item 22 corrects this anomaly by restoring the position existing prior to the amending Act, so that CASA is expressly authorised to take into account the financial position of an AOC holder in determining whether to impose or vary conditions on an AOC, or suspend or cancel an AOC.

 

Item 2 4

Part IIIA of the Act empowers CASA and its officers to monitor compliance with the Act and regulations and to investigate possible breaches of the Act and regulations.

 

Section 32AH(1) of the Act provides that an investigator may keep evidence for an investigation for 60 days, or if a prosecution for an offence against the Act or regulations, in the commission of which the evidence may have been used or otherwise involved, is started within that period, until the completion of the proceedings for the offence and of any appeal in relation to the proceedings.

 

It is often the case that difficulty arises in commencing proceedings within the 60 day time limit, particularly in relation to a dangerous goods investigation or a matter which entails the collection of numerous documents.  Witnesses and suspects are regularly interstate which also delays the investigation and consequently affects the time required to commence proceedings.  Dangerous goods require time consuming analysis and again in such matters the alleged offender may not reside where the offence was detected.

 

Item 23 24 amends the Act by inserting a new provision, section 32AHA, which enables an investigator to apply to a magistrate to permit property seized during an investigation to be retained for a further period after the initial 60 days if the thing may afford evidence but proceedings have not commenced.  This is consistent with investigation powers in other Commonwealth Acts, see e.g. section 19CL of the Air Navigation Act 1920 , and section 48J of the Therapeutic Goods Act 1989 .

 

Item 2 5 4

It is often the case that dangerous goods are seized for the purpose of prosecution.  These goods are almost always prohibited from being transported on passenger aircraft and on occasions are prohibited substances under State legislation.  Often, the consignor does not reside where the offence is detected and prosecuted.  Sometimes the alleged offender is from overseas.  Section 32AH(3) of the Act provides that CASA may, in writing, authorise the release of anything seized under subsection (2) to its owner, or to the person from whom it was seized, either unconditionally or subject to such conditions as CASA thinks fit.

 

It is not always possible to return seized goods to their owner and the airline or Customs (being the person from who it was seized) do not want to accept the responsibility for the goods after the matter is finalised.  Unless such goods are forfeited to the state under legislation relating to property used in the commission of an offence, CASA is required to store them indefinitely.  This storage is expensive and has no purpose other than to ensure that CASA does not unlawfully dispose of goods which it does not own.  Item 25 of the Schedule to the Bill inserts a new section 32AL, which will permit a CASA investigator to apply to a court for an order that the goods be destroyed where the owner cannot be located or has refused to take possession of the goods.

 

Item 24 25 also inserts a new section 32AM into the Act, which ensures that the operation of Part IIIA of the Act does not breach the Constitutional prohibition on acquisition of property on other than just terms.

 

Item 25 26

CASA currently charges fees for various services under the Civil Aviation (Fees) Regulations.  CASA is presently undertaking a review of these fees, with a view to moving towards greater industry funding of surveillance of compliance with the Act and regulations.  Item 26 of the Schedule to the Bill inserts a new section 97AA into the Act which clarifies certain aspects of CASA’s ability to charge fees.

 

Firstly, fees prescribed by regulation are payable to CASA, and may be recovered by CASA in any court of competent jurisdiction.  Secondly, regulations may impose time-limits on payment of fees, and may also impose late-payment penalties (to a maximum of 1.5% of the fees outstanding per month that they are outstanding).

 

Item 27

Item 27 adds a sentence to subsection 98(3A) of the Act to clarify the meaning of “modifications” in the provision.

 

Item 28

Under new regulations relating to aircraft manufacture and certification it is proposed that design rules for particular atypical aircraft, for which design standards are not in place, will be regulated by CASA under concept known as “equivalent level of safety”.  Simply put, CASA will make design standards for unusual aircraft on an ad hoc basis, which design standards provide, in CASA’s view, an equivalent level of safety to design standards in force for broadly similar aircraft.  The purpose of this amendment is to ensure that CASA has the necessary legal power to issue such standards, which may otherwise be considered to be an invalid subdelegation of legislative power.

 

Item 28 of the Schedule to the Bill inserts three subsections into s. 98 of the Act which enable CASA to make such design standards as binding legislative instruments.