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Civil Aviation (Unmanned Aircraft Levy) Bill 2020

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2019-2020

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

CIVIL AVIATION (UNMANNED AIRCRAFT LEVY) BILL 2020

CIVIL AVIATION AMENDMENT (UNMANNED AIRCRAFT LEVY COLLECTION AND PAYMENT) BILL 2020

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development)



CIVIL AVIATION (UNMANNED AIRCRAFT LEVY) BILL 2020

CIVIL AVIATION AMENDMENT (UNMANNED AIRCRAFT LEVY COLLECTION AND PAYMENT) BILL 2020

 

OUTLINE

 

The Civil Aviation (Unmanned Aircraft Levy) Act 2020 establishes the legal mechanism that will be utilised to impose a levy for future cost recovery arrangements for regulatory services for remotely piloted aircraft (RPA) operators.

 

The Civil Aviation Amendment (Unmanned Aircraft Levy Collection and Payment) Act 2020 amends the Civil Aviation Act 1998 to establish arrangements for the Civil Aviation Safety Authority (CASA) to collect the levy.

 

T he Civil Aviation Safety Amendment (Remotely Piloted Aircraft and Model Aircraft - Registration and Accreditation) Regulations 2019 ( the Principal Regulations), made on 25 July 2019, provide for the registration of certain RPA and model aircraft, and the accreditation, through online training and examination, of their operators. The registration scheme commences for RPA on 30 September 2020, and registration requirements for model aircraft commence in 2022.

 

In line with the Australian Government Charging Framework, registration of RPA (and, from 2022, relevant model aircraft) is a cost recoverable activity. The purpose of the package of legislation is to ensure that commercial and professional users of RPA contribute to the cost of program administration and regulation in order to maintain the integrity and fiscal sustainability of the program over the long term.

 

While the Principal Regulations will allow CASA to commence the registration scheme, CASA does not have the ability to impose a levy to recover the costs of the registration system and related safety oversight activities . Although the Bills have no financial impact on the Commonwealth for the current financial year, their commencement will align with the commencement of the registration scheme.

 

The Bills, if enacted, will create two new Acts of Parliament, as follows:

 

The Civil Aviation (Unmanned Aircraft Levy) Act 2020:

·          commences on the same day as the Principal Regulations commence (30 September 2020);

·          defines key terms such as “RPA” and “model aircraft” (they have the same meaning as in CASR) and “unmanned aircraft levy”;

·          formally imposes unmanned aircraft levy (but until 2022 this will only apply to RPA);

·          provides that the amount of the unmanned aircraft levy is as prescribed by the Levy Regulations made under the Levy Act;

·          provides that the amount so prescribed must not be more than $300 and may be nil;

·          provides that the Act does not impose any tax on the property of any kind belonging to a State within the meaning of s114 of the Constitution;

·          provides for regulations to be made (the Levy Regulations which prescribe the levy amount).

 

The Civil Aviation Amendment (Unmanned Aircraft Levy Collection and Payment) Act:

·          commences on the same day as the Levy Act commences (30 September 2020);

·          inserts into the Civil Aviation Act a new section 46A to provide that the Commonwealth must pay CASA amounts equal to the amounts of unmanned aircraft levy received by CASA on behalf of the Commonwealth;

·          appropriates the Consolidated Revenue Fund accordingly.

 

Financial impact statement

This Bill has no financial impact on the Commonwealth. The unmanned aircraft levy will recover the full cost of relevant unmanned aircraft services.

 

Regulation impact statement

A Regulation Impact Statement was prepared as part of the regulatory framework to establish a registration and accreditation scheme for RPA, which is applicable to the Bills. It is available at: https://www.legislation.gov.au/Details/F2019L01027/Explanatory%20Statement/Text

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Civil Aviation (Unmanned Aircraft Levy) Bill 2020

Civil Aviation Amendment (Unmanned Aircraft Levy Collection and Payment) Bill 2020

 

These Bills are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Purpose

The Civil Aviation (Unmanned Aircraft Levy) Act 2020 establishes the legal mechanism that will be utilised to impose a levy for future cost recovery arrangements for regulatory services for RPA operators.

 

The Civil Aviation Amendment (Unmanned Aircraft Levy Collection and Payment) Act 2020 amends the Civil Aviation Act 1998 to establish arrangements for the Civil Aviation Safety Authority (CASA) to collect the levy.

 

T he Civil Aviation Safety Amendment (Remotely Piloted Aircraft and Model Aircraft - Registration and Accreditation) Regulations 2019 ( the Principal Regulations), made on 25 July 2019, provide for the registration of certain RPA and model aircraft, and the accreditation, through online training and examination, of their operators. The registration scheme commences for RPA on 30 September 2020, and registration requirements for model aircraft commence in 2022.

 

In line with the Australian Government Charging Framework, registration of RPA (and, from 2022, relevant model aircraft) is a cost recoverable activity. The purpose of the package of legislation is to ensure that commercial and professional users of RPA contribute to the cost of program administration and related safety oversight activities in order to maintain the integrity and fiscal sustainability of the program over the long term.

 

While the Principal Regulations will allow CASA to commence the registration scheme, CASA does not have the ability to impose a levy to recover the costs of the registration system and regulation activities . Although the Bills have no financial impact on the Commonwealth for the current financial year, their commencement will align with the commencement of the registration scheme.   

 

The Bills, if enacted, will create two new Acts of Parliament, as follows:

 

The Civil Aviation (Unmanned Aircraft Levy) Act 2020:

·          commences on the same day as the Principal Regulations commence (30 September 2020);

·          defines key terms such as “RPA” and “model aircraft” (they have the same meaning as in CASR) and “unmanned aircraft levy”;

·          formally imposes unmanned aircraft levy (but until 2022 this will only apply to RPA);

·          provides that the amount of the unmanned aircraft levy is as prescribed by the Levy Regulations made under the Levy Act;

·          provides that the amount so prescribed must not be more than $300 and may be nil;

·          provides that the Act does not impose any tax on the property of any kind belonging to a State within the meaning of s114 of the Constitution;

·          provides for regulations to be made (the Levy Regulations which prescribe the levy amount).

 

The Civil Aviation Amendment (Unmanned Aircraft Levy Collection and Payment) Act:

·          commences on the same day as the Levy Act commences (30 September 2020);

·          inserts into the Civil Aviation Act   a new section 46A to provide that the Commonwealth must pay CASA amounts equal to the amounts of unmanned aircraft levy received by CASA on behalf of the Commonwealth;

·          appropriates the Consolidated Revenue Fund accordingly.

 

Human Rights Implications

Civil Aviation (Unmanned Aircraft Levy) Bill 2020

 

The Levy Bill engages the following human rights without imposing unacceptable limitations, as follows:

·          the right to work and rights at work under Article 6 of the International Covenant on Economic, Social and Cultural Rights ( ICESCR );

·          the right to enjoyment of just and favourable conditions of work, including safe and healthy working conditions under Article 7 of the ICESCR; and

·          the right to life under Article 6 of the International Covenant on Civil and Personal Rights ( ICCPR ).

 

Article 6 of the ICESCR

Article 6 of the ICESCR protects the right to work and rights at work.

 

The right to work includes the right of everyone to the opportunity to gain his or her living by work which he or she freely chooses or accepts. Rights in work include the enjoyment of just and favourable conditions of work and to form and join trade unions.

 

The UN Committee on Economic Social and Cultural Rights has stated that the right to work affirms the obligation of States parties to assure individuals their right to freely chosen or accepted work, including the right not to be deprived of work unfairly.

 

The Committee has also stated that, for the right to work, the labour market must be open to everyone. In particular, there can be no discrimination in access to and maintenance of employment on the grounds enumerated in article 2 of ICESCR, namely race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, which has the intention or effect of impairing or nullifying exercise of the right to work. Age should be considered to be a status on which discrimination under article 2 of ICESCR is prohibited. Limiting the work entitlements of non-citizens would not constitute unlawful discrimination under article 2 of ICESCR.

 

 

Article 4 of ICESCR provides that countries may subject economic social and cultural rights only to such limitations 'as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society'. The UN Committee has stated that such limitations must be proportional, and must be the least restrictive alternative where several types of limitations are available, and that even where such limitations are permitted, they should be of limited duration and subject to review. Measures that are retrogressive to the realisation of economic, social and cultural rights must also be properly justified. A retrogressive measure is one that reduces the extent to which an economic, social and cultural right is guaranteed.

 

The Levy Bill may limit the right to work and rights at work as it will impose an unmanned aircraft levy for the registration of an RPA or (from 2022) a relevant model aircraft. This will be an impost on commercial and professional operators of RPA which relates to the right to work in the commercial and professional use of these RPA. A person under the age of 16 years may not legally register an RPA. The impost is otherwise generic and not discriminatory on any of the other prohibited grounds mentioned above.

 

However, these limitations are permissible as funds raised from the levy will be used to fund safety regulatory oversight functions for RPA operations that will contribute to the business continuity of relevant commercial and professional operations and contribute to the reduction of accidents and incidents that could give rise to legal and commercial or professional liability. For safety reasons, individuals under the age of 16 may not operate an RPA except under the supervision of an adult. For related safety reasons, they may not register an RPA.

 

The levy is, therefore, considered to be a reasonable, necessary and proportionate requirement in the context of aviation safety.

 

Article 7 of the ICESCR

Article 7 of the ICESCR protects the right to enjoyment of just and favourable conditions of work, including safe and healthy working conditions.

 

The RPA and model aircraft registration scheme will protect and promote this right by requiring relevant commercial and professional users of RPA and (from 2022) relevant model aircraft, to register their aircraft and their operations in the context of completing an associated safety-focused accreditation course. This will increase the responsible, informed and safe use on RPA and relevant model aircraft, and contribute to the reduction of aviation safety infringements to the benefit of all operators, piloted aircraft, and people and property on the ground.

 

Article 6 of the ICCPR

Article 6 of the ICCPR protects the right to life.

 

Under human rights law, countries and agents of the country must not deprive a person of life arbitrarily or unlawfully. In particular, countries also have a duty to take appropriate steps to protect the right to life.

 

The serious misuse of RPA and relevant model aircraft can have lethal consequences. This instrument promotes the right to life because the registration scheme will increase the responsible, informed and safe use on RPA and relevant model aircraft. The consequential reduction of serious aviation safety infringements will be to the benefit of all operators, piloted aircraft, and people on the ground who might otherwise be exposed to serious injury from unregulated and unregistered use of these aircraft.

 

Civil Aviation Amendment (Unmanned Aircraft Levy Collection and Payment) Bill 2020

This instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

The Bills are compatible with human rights and, to the extent that the Levy Bill may also limit human rights, any potential limitations are reasonable, necessary and proportionate to ensure the safety of aviation operations and to promote the integrity of the aviation safety system.

 

 



NOTES ON CLAUSES

 

These Notes explain the sections of the Levy Bill and the Collection Bill.

 

THE LEVY BILL

 

Part 1 - Preliminary

 

Section 1 - Short title

 

This section provides that the name of the Bill to be enacted by the Parliament of Australia is the Civil Aviation (Unmanned Aircraft Levy) Act 2020 .

 

Section 2 - Commencement

 

This section provides that the commencement of the Act is to be at the later of the start of the day after the Act receives Royal Assent and the commencement of Schedules 1 and 2 to the Principal Regulations.

 

Section 3 - Crown to be bound

 

This section provides that the Act binds the Crown in each of its capacities.

 

Section 4 - Definitions

 

This section provides the definitions for this Act, in particular RPA and model aircraft

 

The section also provides for the definition of unmanned aircraft levy which means the levy payable:

(a)        on applying under the Civil Aviation Safety Regulations 1998 for registration of an aircraft (within the meaning of the Civil Aviation Act 1988 ) as an RPA or as a model aircraft; or

(b)        on applying under the Part 101 Manual of Standards (within the meaning of the Civil Aviation Safety Regulations 1998 ) for permission to operate, or to conduct operations using, an RPA or model aircraft registered under a law of a foreign country.

 

Part 2 - Unmanned Aircraft Levy

 

Section 5 - Imposition of levy

 

This section provides that an unmanned aircraft levy is imposed.

 

Section 6 - Amount of levy

 

This section provides that amount of the unmanned aircraft levy is the amount prescribed by the Levy Regulations. It further provides that the levy amount prescribed must not be more than $300 and may be a nil amount.

 

Part 3—Other matters

 

Section 7 - Act does not impose levy on property of a State

 

This section provides that the Act does not impose a tax on property of any kind belonging to a State. It provides that the expression “property of any kind belonging to a State” has the same meaning as in section 114 of the Constitution and that references to a State include the Australian Capital Territory and the Northern Territory.

 

Section 8 - Regulations

 

This section provides that the Governor-General may make regulations prescribing matters required or permitted by this Act to be prescribed by the regulations, or necessary or convenient to be prescribed for carrying out or giving effect to this Act (in effect, the Levy Regulations).

 

THE COLLECTION BILL

 

The purpose of the Collection Bill is to amend the Civil Aviation Act 1988 to make the requisite unmanned aircraft levy collection arrangements for the Levy Bill.

 

Section 1 - Short title

 

This section provides that the name of the Act to be enacted by the Parliament of Australia is the Civil Aviation Amendment (Unmanned Aircraft Levy Collection and Payment) Act 2020 .

 

Section 2 - Commencement

 

This section provides that the commencement of the Act is to be at the same time the Levy Act commences. However, it further provides that the provisions do not commence at all if the Levy Act does not commence.

 

Section 3 - Schedules

 

This section provides that the legislation that is specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule has effect according to its terms.

 

 

Schedule 1 - Amendments

 

Schedule 1 provides the amendments to be made to the Civil Aviation Act 1988 .

 

Item 1 - Section 3

 

This item inserts a definition of unmanned aircraft levy into section 3 - Interpretation, of the Civil Aviation Act 1988. The new definition provides, in effect, that unmanned aircraft levy means the levy imposed by the Levy Act.

 

Item 2 - After section 46

 

This item inserts a new subsection 46A, Payment of amounts of levy to CASA, into the Civil Aviation Act 1988. The purpose is to provide for the payment of the amounts of collected levy to CASA.

 

Subsection 46A(1) provides that the Commonwealth must pay to CASA amounts equal to amounts of unmanned aircraft levy received by CASA on behalf of the Commonwealth.

 

Subsection 46A(2) provides that, if an amount of the levy is refunded, CASA must pay to the Commonwealth an amount equal to the refund.

 

Subsection 46A(3) provides that the Minister may, on behalf of the Commonwealth, set off an amount payable by CASA under subsection 46A(2) against an amount that is payable to CASA under subsection 46A(1).

 

Subsection 46A(4) provides that the amounts payable under subsection 46A(1) are to be paid out of the Consolidated Revenue Fund, which is appropriated accordingly.

 

Item 3 - After section 95A

 

This item inserts section 95B into the Civil Aviation Act 1988 to provide for delegations . Under subsection 95B(1), the Minister may, in writing, delegate the Minister’s power under subsection 46A(3) (to set off an amount payable by CASA under subsection 46A(2)) to the Secretary of the Department or to an SES employee, or acting SES employee, in the Department. It further provides that in exercising a power under such a delegation, the delegate must comply with any written directions of the Minister.

 

Item 4 - At the end of subsection 98(3)

 

This item inserts paragraph 98(3)(w) into section 98 of the Civil Aviation Act 1988, which provides for when the Governor-General may make regulations. The effect of inserting paragraph 98(3)(w) is that the Governor-General may make regulations for or in relation to the circumstances in which unmanned aircraft levy is payable and the collection of unmanned aircraft levy.