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Aviation Legislation Amendment (International Airline Licences and Carriers' Liability Insurance) Bill 2008

Schedule 2 Carriers’ liability insurance

Part 1 Main amendments

Division 1—Amendments

Civil Aviation Act 1988

1  Subsection 3(1)

Insert:

commercial presence means any type of business or professional establishment.

Example:    A person can have a commercial presence through the creation or maintenance of a branch or representative office.

2  Subsection 3(1)

Insert:

constitutional corporation means:

                     (a)  a corporation to which paragraph 51(xx) of the Constitution applies; or

                     (b)  a body corporate that is incorporated in a Territory.

3  Subsection 3(1)

Insert:

safety rules , in relation to a permission or AOC, means the provisions of this Act, the regulations and the Civil Aviation Orders that relate to safety (including rules about the competence of persons to do anything that would be covered by the permission or AOC).

4  After paragraph 9(3)(b)

Insert:

                    (ba)  enforcing the requirements of this Act and the regulations in relation to insurance and financial arrangements required under Part IVA of the Civil Aviation (Carriers’ Liability) Act 1959 ;

5  Section 18

Repeal the section.

6  Subsections 25(2) and (3)

Omit “specified in the permission”, substitute “to which the permission is subject”.

Note 1:    The following heading to subsection 25(1) is inserted “ Directions ”.

Note 2:    The following heading to subsection 25(2) is inserted “ Permissions ”.

7  At the end of section 25

Add:

             (4)  If a person applies to CASA for a permission under subsection (2) or (3), CASA must grant the permission if CASA is satisfied that the person has complied with, or is capable of complying with:

                     (a)  if the person does not have a commercial presence in Australia—the condition referred to in paragraph (5)(a) (if applicable); and

                     (b)  in any case—the safety rules.

Permissions—conditions

             (5)  A permission granted under subsection (2) or (3) is subject to:

                     (a)  the condition that section 41E of the Civil Aviation (Carriers’ Liability) Act 1959 (which deals with personal injury liability insurance) is complied with (if applicable); and

                     (b)  any conditions specified in the permission.

             (6)  CASA must not do either of the following, except to ensure compliance with the safety rules:

                     (a)  specify a condition under paragraph (5)(b);

                     (b)  vary a condition specified under paragraph (5)(b).

Permissions—suspension and cancellation

             (7)  CASA must not suspend or cancel a permission granted under subsection (2) or (3), except:

                     (a)  if the condition referred to in paragraph (5)(a) is breached; or

                     (b)  to ensure compliance with the safety rules.

8  Subsection 26(1)

Omit “specified in the permission”, substitute “to which the permission is subject”.

Note:       The following heading to subsection 26(1) is inserted “ Permissions ”.

9  Paragraph 26(2)(c)

Omit “given under subsection 25(3) and any conditions specified in the permission”, substitute “granted under subsection 25(3) and any conditions to which the permission is subject”.

10  At the end of section 26

Add:

             (3)  If a person applies to CASA for a permission under this section, CASA must grant the permission if CASA is satisfied that the person has complied with, or is capable of complying with:

                     (a)  if the person does not have a commercial presence in Australia—the condition referred to in paragraph (4)(a) (if applicable); and

                     (b)  in any case—the safety rules.

Permissions—conditions

             (4)  A permission granted under this section is subject to:

                     (a)  the condition that section 41E of the Civil Aviation (Carriers’ Liability) Act 1959 (which deals with personal injury liability insurance) is complied with (if applicable); and

                     (b)  any conditions specified in the permission.

             (5)  CASA must not do either of the following, except to ensure compliance with the safety rules:

                     (a)  specify a condition under paragraph (4)(b);

                     (b)  vary a condition specified under paragraph (4)(b).

Permissions—suspension and cancellation

             (6)  CASA must not suspend or cancel a permission granted under this section, except:

                     (a)  if the condition referred to in paragraph (4)(a) is breached; or

                     (b)  to ensure compliance with the safety rules.

11  Paragraph 27AC(1)(c)

Repeal the paragraph, substitute:

                     (c)  are reasonably required by CASA:

                              (i)  to properly consider the application; or

                             (ii)  to ensure that section 28BI (which deals with personal injury liability insurance) is complied with in relation to an operation, which would be covered by the AOC, to which that section applies; or

                            (iii)  in accordance with the regulations (if any) referred to in paragraph 98(3)(b).

12  Section 27AF

Before “CASA may”, insert “(1)”.

13  At the end of section 27AF

Add:

             (2)  If the applicant is not a constitutional corporation, subsection (1) applies, in relation to a requirement that relates to an acceptable contract of insurance or adequate financial arrangements (within the meaning of Part IVA of the Civil Aviation (Carriers’ Liability) Act 1959 ), to the extent that the application relates to carriage by air covered by Part II, III or IV of that Act .

14  Subsection 27A(2)

Repeal the subsection, substitute:

             (2)  CASA may only grant the permission if it is satisfied:

                     (a)  if the person does not have a commercial presence in Australia—that the person has complied with, or is capable of complying with, the condition referred to in paragraph (4)(a) (if applicable); and

                     (b)  in any case—that to do so will not adversely affect the safety of air navigation.

Note:       The following heading to subsection 27A(1) is inserted “ Granting permission ”.

15  Subsection 27A(4)

Repeal the subsection, substitute:

Conditions

             (4)  A permission granted under this section has effect subject to:

                     (a)  the condition that section 41E of the Civil Aviation (Carriers’ Liability) Act 1959 (which deals with personal injury liability insurance) is complied with (if applicable); and

                     (b)  any conditions relating to the operation, maintenance and airworthiness of the aircraft covered by the permission:

                              (i)  that CASA considers necessary in the interests of the safety of air navigation; and

                             (ii)  that are specified by CASA in the permission.

16  Subsection 27A(5)

After “the conditions”, insert “(other than the condition referred to in paragraph (4)(a))”.

17  Subsection 27A(6)

Repeal the subsection, substitute:

Cancellation

             (6)  CASA may, by oral or written notice given to the holder of a permission granted under this section, cancel the permission if:

                     (a)  the condition referred to in paragraph (4)(a) is breached; or

                     (b)  CASA considers it necessary to do so in the interests of the safety of air navigation.

18  Paragraph 28(1)(a)

Omit all the words after “capable of complying with,”, substitute “the safety rules; and”.

19  Paragraph 28BA(1)(a)

Omit “, 28BH and 28BI”, substitute “and 28BH”.

20  After paragraph 28BA(1)(aa)

Insert:

                    (ab)  the condition that section 28BI is complied with in relation to each operation, covered by the AOC, to which that section applies;

21  Subsection 28BA(2A)

Omit “paragraph (1)(b) or (1)(c)”, substitute “paragraph (1)(ab), (b) or (c)”.

22  At the end of subsection 28BC(1B)

Add “in relation to any operation, covered by the AOC or authorisation, to which that section applies”.

23  Subsection 28BC(1C)

Omit all the words after “the holder of the AOC”, substitute “is a constitutional corporation”.

24  At the end of subsection 28BC(2B)

Add “in relation to any operation, covered by the AOC or authorisation, to which that section applies”.

25  Subsection 28BC(2C)

Omit all the words after “the holder of the AOC”, substitute “is a constitutional corporation”.

26  Section 28BI

Repeal the section, substitute:

28BI   Personal injury liability insurance

Application

             (1)  This section applies in relation to an operation covered by an AOC if any of the following provisions apply in relation to the operation:

                     (a)  subsection 41E(1) or (3) of the Civil Aviation (Carriers’ Liability) Act 1959 ;

                     (b)  subsection 41E(1) or (3) of the Civil Aviation (Carriers’ Liability) Act 1959 as that subsection has effect under a law of a State.

Insurance requirements

             (2)  The holder of the AOC must at all times comply with the applicable provision in relation to the operation.

Note:          The provisions referred to in paragraphs (1)(a) and (b) prescribe, for passenger-carrying operations, certain requirements relating to personal injury liability insurance.

27  Section 32AN (definition of constitutional corporation )

Repeal the definition.

28  After paragraph 98(3)(b)

Insert:

                    (ba)  the manner of applying for permissions under Part III, including the information that may be required, and the conditions to be satisfied, for the granting of permissions;

                    (bb)  requiring specified persons to provide CASA with, or to ensure that CASA is provided with, specified information relating to the entering into, modification, cancellation, non-renewal or expiry of acceptable contracts of insurance or adequate financial arrangements in relation to specified passenger-carrying operations (within the meaning of Part IVA of the Civil Aviation (Carriers’ Liability) Act 1959 ), to the extent that the insurance or arrangements are required under this Act;

Civil Aviation (Carriers’ Liability) Act 1959

29  After subsection 26(1)

Insert:

          (1A)  If an Air Operator’s Certificate in force under the Civil Aviation Act 1988 does not authorise airline operations only because the holder of the certificate does not comply with section 41E of this Act in relation to the operations, this Part has effect as if the certificate did authorise the operations.

30  Before section 41A

Insert:

Division 1 Preliminary

31  Section 41B

Repeal the section, substitute:

41B   Definitions

                   In this Part:

acceptable contract of insurance has the meaning given by section 41C.

adequate financial arrangements has the meaning given by section 41C.

carrier means a person engaged, or proposing to engage, in a passenger-carrying operation.

CASA means the Civil Aviation Safety Authority.

contract of insurance , in relation to a passenger-carrying operation that a carrier engages in, or proposes to engage in, means a contract:

                     (a)  that is between the carrier and an insurer; and

                     (b)  under which the insurer indemnifies the carrier against personal injury liability in respect of each passenger carried, or to be carried, by air by the carrier in the operation.

passenger-carrying operation means an air transport operation for the carriage of passengers to which Part II, III or IV applies.

personal injury liability , in respect of a passenger carried, or to be carried, by air by a carrier in a passenger-carrying operation, means liability under this Act in respect of the death of, or personal injury suffered by, the passenger.

32  Subsection 41C(1)

Repeal the subsection, substitute:

Acceptable contracts of insurance

             (1)  For the purposes of this Part, an acceptable contract of insurance , in relation to a passenger-carrying operation that a carrier engages in, or proposes to engage in, is a contract of insurance that relates to the operation and meets the prescribed requirements.

Note:       The heading to section 41C is replaced by the heading “ Acceptable contracts of insurance and adequate financial arrangements ”.

33  Subsection 41C(3)

After “by the carrier”, insert “in the operation”.

34  Subsection 41C(7)

Repeal the subsection, substitute:

Adequate financial arrangements

             (7)  For the purposes of this Part, adequate financial arrangements , in relation to a passenger-carrying operation that a carrier engages in, or proposes to engage in, are financial arrangements that are adequate to discharge any personal injury liability of the carrier in respect of each passenger carried, or to be carried, by air by the carrier in the operation.

             (8)  To avoid doubt, an acceptable contract of insurance in relation to a passenger-carrying operation is an adequate financial arrangement in relation to the operation.

35  Section 41CA

Repeal the section.

36  Before section 41E

Insert:

Division 2 Insurance requirements

37  Subsections 41E(1) and (1A)

Repeal the subsections, substitute:

             (1)  A person (other than a person who is, or is an agent of, the Crown in any capacity) must not engage in, or propose to engage in, a passenger-carrying operation, unless an acceptable contract of insurance in relation to the operation is in force.

38  Subsection 41E(2)

Omit “carrier”, substitute “person”.

39  At the end of section 41E

Add:

             (3)  A person who is, or is an agent of, the Crown in any capacity must not engage in, or propose to engage in, a passenger-carrying operation, unless adequate financial arrangements in relation to the operation exist.

40  Subsection 41J(1) (definition of prohibited carriage )

Repeal the definition, substitute:

prohibited carriage means a passenger-carrying operation in relation to which:

                     (a)  an acceptable contract of insurance is not in force; or

                     (b)  if the carrier is, or is an agent of, the Crown in any capacity—an adequate financial arrangement does not exist.

41  After section 41J

Insert:

Division 3 Auditing

41JA   Auditing

                   CASA may, at any time and from time to time, by written notice given to a carrier, require the carrier, within a period stated in the notice, to produce evidence, satisfactory to CASA, that:

                     (a)  an acceptable contract of insurance is in force in relation to a specified passenger-carrying operation that the carrier engages in, or proposes to engage in; or

                     (b)  if the carrier is, or is an agent of, the Crown in any capacity—adequate financial arrangements exist in relation to a specified passenger-carrying operation that the carrier engages in, or proposes to engage in.

42  Paragraph 41K(a)

Omit “subsection 41C(1)”, substitute “section 41JA”.

Note:       The heading to section 41K is replaced by the heading “ Audit regulations ”.

43  Paragraph 41K(c)

Omit “subsection”, substitute “section”.

44  Before section 41L

Insert:

Division 4 Miscellaneous

45  Subsection 41L(1)

Omit all the words after “this Part”, substitute “to a member of the staff of CASA”.

46  Subsection 41L(2)

Omit “referred to in paragraph (1)(b)”.

47  At the end of section 41L

Add:

             (4)  In this section:

Director has the same meaning as in the Civil Aviation Act 1988 .

Division 2—Application and saving provisions

48  Definition

In this Division:

commencement time means the time at which this Part commences.

49  Application provisions

(1)        The amendments made by items 1, 3, 5, 6, 7, 8, 9, 10, 14, 15, 16 and 17 of this Schedule apply in relation to anything:

                     (a)  done at or after the commencement time; and

                     (b)  covered by a permission given or granted under section 25, 26 or 27A of the Civil Aviation Act 1988 before, at or after the commencement time.

(2)        The amendment made by item 5 of this Schedule also applies in relation to anything:

                     (a)  done at or after the commencement time; and

                     (b)  covered by a permission given under section 23 of the Civil Aviation Act 1988 at or after the commencement time.

(3)        The amendments made by items 11, 12 and 13 of this Schedule apply in relation to an application for an AOC made before, at or after the commencement time.

(4)        The amendments made by items 19, 20, 21, 22, 24, 26 and 29 of this Schedule apply in relation to a flight or operation:

                     (a)  conducted or carried out at or after the commencement time; and

                     (b)  covered by an AOC issued before, at or after the commencement time.

(5)        Regulations referred to in paragraph 98(3)(ba) of the Civil Aviation Act 1988 , inserted by item 28 of this Schedule, may be expressed to apply in relation to an application for a permission made before, at or after the commencement time.

(6)        Regulations referred to in paragraph 98(3)(bb) of the Civil Aviation Act 1988 , inserted by item 28 of this Schedule, may be expressed to apply in relation to insurance and arrangements required under that Act before, at or after the commencement time.

(7)        The amendments made by items 31, 32, 33, 34, 35, 37, 38, 39, 40, 41, 42 and 43 of this Schedule apply in relation to a passenger-carrying operation engaged in, or proposed to be engaged in, at or after the commencement time.

50  Saving provisions

(1)        If, immediately before the commencement time, a condition specified in a permission under section 25, 26 or 27A of the Civil Aviation Act 1988 was in force, the condition has effect, from the commencement time, as if it had been imposed under that section as amended by this Part.

(2)        If, immediately before the commencement time, a notice given under subsection 41C(1) or 41CA(1) of the Civil Aviation (Carriers’ Liability) Act 1959 was in force, the notice has effect, from the commencement time, as if it had been given under section 41JA of that Act as amended by this Part.

(3)        If, immediately before the commencement time, regulations made for the purposes of paragraph 41K(a), (b) or (c) of the Civil Aviation (Carriers’ Liability) Act 1959 were in force, the regulations have effect, from the commencement time, as if they had been made for the purposes of that paragraph as in force at the commencement time.



 

Part 2 Amendments conditional on the Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008

Civil Aviation Act 1988

51  Subsection 27AF(2)

After “carriage by air covered by Part”, insert “IA,”.

Civil Aviation (Carriers’ Liability) Act 1959

52  Section 41B (definition of passenger-carrying operation )

After “passengers to which Part”, insert “IA,”.

53  Saving provision

(1)        In this item:

Part 1 commencement time means the time at which Part 1 of this Schedule commences.

Part IA notice means a notice given under subsection 41C(1) or 41CA(1) of the Civil Aviation (Carriers’ Liability) Act 1959 , as in force before the Part 1 commencement time, in relation to carriage to which Part IA of that Act applies.

(2)        If, immediately before the Part 1 commencement time, a Part IA notice was in force, the notice has effect, from the commencement of this item, as if it had been given under section 41JA of that Act as in force at the commencement of this item.

Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008

54  Item 7 of Schedule 1

Repeal the item.