CIVIL AVIATION AMENDMENT BILL 2009

i Civil Aviation Amendment Bill 2009 No. , 2009

Contents

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Schedule(s) ......................................................................................... 2

Schedule 1--Governance of CASA

Part 1--Main amendments

Civil Aviation Act 1988

Part 2--Consequential amendment

Aviation Transport Security Act 2004

Schedule 2--Enforcement

Civil Aviation Act 1988

Schedule 3--Other ame ndments

Civil Aviation Act 1988

Civil Aviation Amendment Bill 2009 No. , 2009 1

A Bill for an Act to amend the Civil Aviation Act

1988, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Civil Aviation Amendment Act 2009.

2 Commence ment

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Civil Aviation Amendment Bill 2009 No. , 2009

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1

1 Ju ly 2009.

1 Ju ly 2009

3. Schedule 2,

items 1 to 21

The day after this Act receives the Royal

Assent.

4. Schedule 2,

item 22

Immediately after the commencement of the

provision(s) covered by table item 3.

5. Schedule 2,

items 23 to 28

The day after this Act receives the Royal

Assent.

6. Schedule 3,

items 1 to 6

1 Ju ly 2009.

1 Ju ly 2009

7. Schedule 3,

items 7 to 29

The day after this Act receives the Royal

Assent.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Governance of CASA Schedule 1

Main amendments Part 1

Civil Aviation Amendment Bill 2009 No. , 2009 3

Schedule 1

Governance of CASA

Part 1

Main amendments

Civil Aviation Act 1988

1 Subsection 3(1)

Insert:

Board means the Board of CASA.

2 Subsection 3(1)

Insert:

Board member means a member of the Board appointed in

accordance with section 54.

3 Subsection 3(1)

Insert:

Chair means the Chair of the Board.

4 Subsection 3(1) (definition of corporate plan)

Omit "Director", substitute "Board".

5 Subsection 3(1)

Insert:

Deputy Chair means the Deputy Chair of the Board.

6 Subsection 3(1) (definition of Director)

Omit "section 84", substitute "section 74".

7 Subsections 12(1) and (1A)

Omit "CASA", substitute "the Board".

8 Subsection 12(4)

Omit "CASA", substitute "The Board".

Schedule 1 Governance of CASA

Part 1 Main amendments

4 Civil Aviation Amendment Bill 2009 No. , 2009

9 Subsection 12(5) (note)

Repeal the note, substitute:

Note:

Section 28 of the Commonwealth Authorities and Companies Act

1997 requires the Board to comply with General Policy Orders of the

Australian Government to the extent that they apply to CASA.

10 Subsection 12A(1)

Omit "CASA" (first occurring), substitute "the Board".

Note:

The heading to section 12A is altered by omitting "CASA" and substituting "the

Board".

11 Subsection 12A(2)

Omit "CASA", substitute "the Board".

12 Sections 12C and 12D

Repeal the sections.

13 Subsections 44(1), (3) and (6)

Omit "Director", substitute "Board".

14 Subsections 45(2) and (5)

Omit "Director", substitute "Board".

15 Paragraphs 49(2)(a) and (aa)

Repeal the paragraphs, substitute:

(a) particulars of each direction given to the Board by the

Minister under section 12, during the financial year covered

by the report;

16 Paragraph 49(2)(b)

Omit "CASA" (first occurring), substitute "the Board".

17 Subparagraph 49(2)(b)(ii)

Repeal the subparagraph, substitute:

(ii) a summary of action taken in the financial year by

CASA, or by the Board, because of notice given to the

Board in any financial year;

18 Part VII

Governance of CASA Schedule 1

Main amendments Part 1

Civil Aviation Amendment Bill 2009 No. , 2009 5

Repeal the Part, substitute:

Part VII--Board of CASA

Division 1--Establishment and functions

51 Establishme nt

The Board of CASA is established by this section.

52 Membe rship

(1) The Board consists of:

(a) the Director; and

(b) up to 4 Board members (including the Chair and Deputy

Chair).

Note:

As a member of the governing body, the Director is a director of a

Commonwealth authority for the purposes of the Commonwealth

Authorities and Companies Act 1997: see the definition of director in

section 5 of that Act.

(2) The performance of a function or the exercise of a power of the

Board is not affected by a vacancy in the membership of the Board.

53 Functions

(1) The functions of the Board are to:

(a) decide the objectives, strategies and policies to be followed

by CASA; and

(b) ensure that CASA performs its functions in a proper, efficient

and effective manner; and

Minister under section 12B.

(2) The Board has the power to do all things necessary or convenient

to be done for or in connection with the performance of its

functions.

(3) All acts and things done in the name of, or on behalf of, CASA by

the Board are taken to have been done by CASA.

Schedule 1 Governance of CASA

Part 1 Main amendments

6 Civil Aviation Amendment Bill 2009 No. , 2009

Division 2--Appointment etc. of Board members

54 Appointment

(1) A Board member is to be appointed by the Minister by written

instrument, on a part-time basis.

(2) The Minister must appoint one Board member to be the Chair and

another Board member to be the Deputy Chair.

(3) When appointing Board members, the Minister must ensure an

appropriate balance of professional expertise, but need not ensure

that particular sectors of the civil aviation industry are represented.

(4) A person's appointment as a Board member is not invalid because

of a defect or irregularity in connection with the person's

appointment.

55 Term of appointment

A Board member holds office for the period specified in the

instrument of appointment. The period must not exceed 3 years.

Note:

A Board member is eligible for reappointment: see subsection 33(4A)

of the Acts Interpretation Act 1901.

56 Remuneration and allowances

(1) A Board member is to be paid such remuneration as is determined

by the Remuneration Tribunal. If no determination of that

remuneration is in operation, the Board member is to be paid such

remuneration as is prescribed.

(2) A Board member is to be paid the allowances that are prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

57 Leave of absence

(1) The Minister may grant leave of absence to the Chair on the terms

and conditions that the Minister determines.

(2) The Chair may grant leave of absence to another Board member on

the terms and conditions that the Chair determines.

Governance of CASA Schedule 1

Main amendments Part 1

Civil Aviation Amendment Bill 2009 No. , 2009 7

58 Outside employme nt

A Board member must not engage in any paid employment that, in

the Minister's opinion, conflicts or may conflict with the proper

performance of his or her duties.

59 Resignation

(1) A Board member may resign by giving to the Minister a signed

notice of resignation.

(2) The Chair may resign his or her appointment as the Chair without

resigning his or her appointment as a Board member.

(3) The Deputy Chair may resign his or her appointment as the Deputy

Chair without resigning his or her appointment as a Board member.

(4) The resignation takes effect on the day on which it is received by

the Minister or, if a later day is specified in the resignation, on that

later day.

60 Termination of appointment

(1) The Minister may terminate the appointment of a Board member

for misbehaviour or physical or mental incapacity.

(2) The Minister may terminate the appointment of a Board member if:

(a) the Board member:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(b) the Board member:

(i) engages in paid employment that the Minister thinks is

in conflict with the proper performance of the member's

duties; or

(ii) is absent, except on leave of absence granted under

section 57, from 3 consecutive meetings of the Board;

Schedule 1 Governance of CASA

Part 1 Main amendments

8 Civil Aviation Amendment Bill 2009 No. , 2009

member has been unsatisfactory for a significant period of

time; or

(d) the Board member fails, without reasonable excuse, to

comply with an obligation imposed on him or her by

section 27F or 27J of the Commonwealth Authorities and

Companies Act 1997.

(3) If the Minister is of the opinion that the performance of Board

members or the performance of CASA has been unsatisfactory for

a significant period of time, the Minister may terminate the

appointment of all Board members or particular Board members.

(4) If the Minister is of the opinion that:

(a) CASA has failed to comply with section 12B; or

(b) the Board members have failed to comply with:

(i) subsection 13(2) or 15(1) of the Commonwealth

Authorities and Companies Act 1997; or

(ii) paragraph 16(1)(a) or (b) of the Commonwealth

Authorities and Companies Act 1997;

the Minister may terminate the appointment of all Board members

or particular Board members.

61 Other terms and conditions

A Board member holds office on such terms and conditions (if

any) in relation to matters not provided for by this Act as are

determined, in writing, by the Minister.

62 Acting Chair

(1) The Minister may appoint a person to act as the Chair if the Deputy

Chair is unable to act as the Chair:

(a) during a vacancy in the office of the Chair, whether or not an

appointment has previously been made to the office; or

(b) during any period, or during all periods, when the Chair:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

Governance of CASA Schedule 1

Main amendments Part 1

Civil Aviation Amendment Bill 2009 No. , 2009 9

(2) Anything done by or in relation to a person purporting to act under

an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there is a defect or irregularity in connection with the

appointment; or

(d) the occasion to act had not arisen or had ceased.

Note:

See sections 20 and 33A of the Acts Interpretation Act 1901.

63 Acting Board me mbers

(1) The Minister may appoint a person to act as a Board member

(other than the Chair):

(a) during a vacancy in the office of a Board member (other than

the Chair), whether or not an appointment has previously

been made to the office; or

(b) during any period, or during all periods, when a Board

member (other than the Chair):

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

(2) Anything done by or in relation to a person purporting to act under

an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there is a defect or irregularity in connection with the

appointment; or

(d) the occasion to act had not arisen or had ceased.

Note:

See sections 20 and 33A of the Acts Interpretation Act 1901.

Division 3--Board procedures

Subdivision A--Meetings

64 Times and places of meetings

(1) The Board must hold such meetings as are necessary for the

efficient performance of its functions.

Schedule 1 Governance of CASA

Part 1 Main amendments

10 Civil Aviation Amendment Bill 2009 No. , 2009

(2) Subject to subsections (3) and (4), meetings are to be held at such

times and places as the Board decides.

(3) The Chair may call a meeting at any time.

(4) The Chair must call a meeting if requested to do so in writing by at

least 2 other Board members.

(5) For the purpose of subsection (4), Board member includes the

Director.

65 Presiding at meetings

(1) The Chair presides at all meetings at which he or she is present.

(2) If the Chair is not present at a meeting, the Deputy Chair presides.

(3) If neither the Chair nor the Deputy Chair is present at a meeting,

the members present must appoint one of themselves to preside.

66 Quorum

(1) At a meeting of the Board, a quorum is constituted by 3 Board

members.

(2) However, if:

(a) a Board member is required by section 27J of the

Commonwealth Authorities and Companies Act 1997 not to

be present during the deliberations, or to take part in any

decision, of the Board with respect to a particular matter; and

(b) when the Board member leaves the meeting concerned there

is no longer a quorum present;

the remaining Board members at the meeting constitute a quorum

for the purpose of any deliberation or decision at that meeting with

respect to that matter.

(3) For the purpose of this section, Board member includes the

Director.

67 Voting at meetings etc.

(1) At a meeting of the Board, a question is decided by a majority of

the votes of the Board members present and voting.

Governance of CASA Schedule 1

Main amendments Part 1

Civil Aviation Amendment Bill 2009 No. , 2009 11

(2) The person presiding at a meeting has a deliberative vote and, if

necessary, also a casting vote.

(3) For the purpose of subsection (1), Board member includes the

Director.

68 Conduct of meetings

The Board may, subject to this Subdivision, regulate proceedings

at its meetings as it considers appropriate.

Note:

Section 33B of the Acts Interpretation Act 1901 provides for

participation in meetings by telephone etc.

69 Minutes

The Board must keep minutes of its meetings.

Subdivision B--Decisions without meetings

70 Decisions without meetings

(1) A decision is taken to have been made at a meeting of the Board if:

(a) without meeting, a majority of Board members indicate

agreement with the proposed decision in accordance with the

method determined by the Board under subsection (2); and

(b) all Board members were informed of the proposed decision,

or reasonable efforts were made to inform all Board members

of the proposed decision.

(2) Subsection (1) applies only if the Board:

(a) has determined that it applies; and

(b) has determined the method by which Board members are to

indicate agreement with proposed decisions.

(3) Paragraph (1)(a) does not apply to a Board member who is

prevented by section 27J of the Commonwealth Authorities and

Companies Act 1997 from deliberating on the proposed decision.

(4) For the purpose of this section, Board member includes the

Director.

Schedule 1 Governance of CASA

Part 1 Main amendments

12 Civil Aviation Amendment Bill 2009 No. , 2009

71 Record of decisions

The Board must keep a record of decisions made in accordance

with section 70.

Part VIIA--The Director and staff of CASA

Division 1--Appointing the Director

72 Director

There is to be a Director of Aviation Safety.

73 Duties

(1) The Director is to manage CASA subject to the directions of, and

in accordance with policies determined by, the Board.

(2) All acts and things done in the name of, or on behalf of, CASA by

the Director are taken to have been done by CASA.

74 Appointment

(1) The Director is to be appointed by the Board by written instrument,

on a full-time basis.

Note:

The Director can be re-appointed under this section: see subsection

33(4A) of the Acts Interpretation Act 1901.

(2) Before appointing the Director, the Board must consult the

Minister.

(3) A Board member is not eligible for appointment as the Director.

(4) The appointment of a person as Director is not invalid because of a

defect or irregularity in connection with the person's appointment.

75 Term of appointment

The Director holds office for the period specified in the instrument

of appointment. The period must not exceed 5 years.

Governance of CASA Schedule 1

Main amendments Part 1

Civil Aviation Amendment Bill 2009 No. , 2009 13

76 Remuneration and allowances

(1) The Director is to be paid the remuneration that is determined by

the Remuneration Tribunal. If no determination of that

remuneration by the Tribunal is in operation, the Director is to be

paid the remuneration that is determined by the Board in writing.

(2) The Director is to be paid the allowances that are determined by

the Board in writing.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

77 Leave of absence

(1) The Director has such recreation leave entitlements as are

determined by the Remuneration Tribunal.

(2) The Board may grant to the Director leave of absence, other than

recreation leave, on such terms and conditions as to remuneration

or otherwise as the Board determines in writing.

78 Outside employme nt

The Director must not engage in paid employment outside the

duties of his or her office except with the approval of the Board.

79 Other terms and conditions

The Director holds office on such terms and conditions in relation

to matters not provided for by this Act as are determined by the

Board in writing.

80 Resignation

(1) The Director may resign by giving to the Board a signed notice of

resignation.

(2) The resignation takes effect on the day on which it is received by

the Board or, if a later day is specified in the resignation, on that

later day.

Schedule 1 Governance of CASA

Part 1 Main amendments

14 Civil Aviation Amendment Bill 2009 No. , 2009

81 Termination of appointment

The Board may, after consulting the Minister, terminate the

appointment of the Director:

(a) for misbehaviour or physical or mental incapacity; or

(b) if the Director:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

consecutive days or for 28 days in any 12 months; or

(d) if the Director engages, except with the Board's approval, in

paid employment outside the duties of his or her office; or

(e) if the Board is satisfied that the Director's performance has

been unsatisfactory; or

(f) if the Director fails, without reasonable excuse, to comply

with an obligation imposed on him or her by section 27F or

27J of the Commonwealth Authorities and Companies Act

1997.

82 Acting Director

(1) The Board may appoint a person to act as Director:

(a) during a vacancy in the office of Director, (whether or not an

appointment has previously been made to the office); or

(b) during any period, or during all periods, when the Director:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

(2) Anything done by or in relation to a person purporting to act under

an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there is a defect or irregularity in connection with the

appointment; or

(d) the occasion to act had not arisen or had ceased.

Governance of CASA Schedule 1

Main amendments Part 1

Civil Aviation Amendment Bill 2009 No. , 2009 15

Note:

See sections 20 and 33A of the Acts Interpretation Act 1901.

Division 2--Staff of CASA

83 Staff of CASA

(1) CASA may employ such persons as it considers necessary for the

performance of its functions and the exercise of its powers.

(2) An employee is to be employed on the terms and conditions that

the Director determines in writing.

84 Consultants

CASA may engage consultants to assist in the performance of its

functions.

19 Subsection 94(1)

After "this Act", insert ", the regulations, or an instrument made under

this Act or the regulations,".

20 Subsection 94(2)

Repeal the subsection, substitute:

(2) The Director may, in writing, delegate to an officer, if the officer

holds, or performs the duties of, an office that is equivalent to a

position occupied by an SES employee or acting SES employee, all

or any of the following powers:

(a) the Director's power under subsection 83(2);

(b) the Director's powers under the regulations;

Act or the regulations.

21 Section 94A

Repeal the section, substitute:

95 Delegation by Board

(1) The Board may delegate, in writing, all or any of its powers under

this Act to:

(a) a Board member; or

Schedule 1 Governance of CASA

Part 1 Main amendments

16 Civil Aviation Amendment Bill 2009 No. , 2009

(b) the Director; or

(2) In exercising any powers under the delegation, the Board member,

Director or officer, as the case may be, must comply with any

directions of the Board.

22 Subsection 96(1)

Before "Where", omit "(1)".

23 Subsection 96(1)

Omit ", 12D".

24 Subsection 96(2)

Repeal the subsection.

25 Transitional provision relating to the Director

(1)

The person holding office as the Director under section 84 of the old

law immediately before 1 July 2009 is taken to have been duly

appointed as the Director by the Board under section 74 of the new law:

(a) for the balance of the person's term of appointment that

remained immediately before 1 July 2009; and

(b) on the terms and conditions provided for in Division 1 of

Part VIIA of the new law.

(2)

In this item:

new law means the Civil Aviation Act 1988 as in force immediately

after the commencement of this item.

old law means the Civil Aviation Act 1988 as in force immediately

before the commencement of this item.

Schedule 2 Enforcement

18 Civil Aviation Amendment Bill 2009 No. , 2009

Schedule 2

Enforcement

Civil Aviation Act 1988

1 Subsection 3(1)

Insert:

civil aviation legislation means:

(a) this Act or the regulations; or

(b) legislative instruments (within the meaning of the Legislative

Instruments Act 2003) made under this Act or the regulations;

applies to conduct in relation to:

(i) this Act or the regulations; or

(ii) legislative instruments (within the meaning of the

Legislative Instruments Act 2003) made under this Act

or the regulations; or

(iii) CASA; or

(iv) an officer acting, or purporting to act, in the course of

the officer's official duties; or

(v) an authorised person acting, or purporting to act, in

accordance with powers conferred under the

regulations; or

(vi) a person to whom a power or function has been

delegated under this Act, the regulations, or an

instrument made under this Act or the regulations.

2 Subsection 3(1)

Insert:

civil aviation offence means an offence against the civil aviation

legislation.

3 Subsection 3(1)

Insert:

data has the same meaning as in Part IAA of the Crimes Act 1914.

Enforcement Schedule 2

Civil Aviation Amendment Bill 2009 No. , 2009 19

4 Subsection 3(1)

Insert:

data held in a computer has the same meaning as in Part IAA of

the Crimes Act 1914.

5 Subsection 3(1)

Insert:

data storage device has the same meaning as in Part IAA of the

Crimes Act 1914.

6 Subsection 3(1)

Insert:

evidential material means a thing that may be relevant to a civil

aviation offence.

7 After subsection 23(2)

Insert:

(2AA) A person must not carry or consign for carriage any goods on

board an aircraft and be negligent as to whether the goods are

dangerous goods, except:

(a) in accordance with the regulations, including any conditions

subject to which the regulations permit the carriage or

consignment of those goods; or

(b) in accordance with the Aviation Transport Security

Regulations 2005, including any conditions subject to which

those regulations permit the carriage or consignment of those

goods; or

any conditions specified in the permission.

Penalty: Imprisonment for 2 years.

8 Subsection 30DK(2)

Omit "6 months", substitute "12 months".

9 Subsection 30DO(1)

Schedule 2 Enforcement

20 Civil Aviation Amendment Bill 2009 No. , 2009

Omit "CASA must disregard a reportable contravention if", substitute

"CASA may disregard a reportable contravention if, having regard to

the circumstances in which the contravention occurred,".

10 Paragraph 30DQ(a)

Omit "was required by that section to disregard", substitute

"disregarded".

11 Before section 32AA

Insert:

Division 1--Appointment of investigators and issue of

identity cards

12 Section 32AA

Before "CASA", insert "(1)".

13 At the end of section 32AA

Add:

(2) CASA must not appoint an officer as an investigator unless CASA

is satisfied that the officer has suitable qualifications and

experience to properly exercise the powers of an investigator.

(3) An investigator must, in exercising powers as an investigator,

comply with any directions of CASA.

(4) If a direction is given under subsection (3) in writing, the direction

is not a legislative instrument.

14 At the end of section 32AB

Add:

(6) An investigator must carry his or her identity card at all times when

exercising powers as an investigator.

15 Section 32AC

Repeal the section, substitute:

Enforcement Schedule 2

Civil Aviation Amendment Bill 2009 No. , 2009 21

Division 2--Powers of investigators

Subdivision A--Searches without a warrant

32AC Search with consent to monitor compliance

(1) Subject to section 32ACB, for the purpose of finding out whether

the civil aviation legislation is being complied with, an investigator

may:

(a) enter premises; and

(b) exercise inspection powers.

(2) The power to enter premises and exercise inspection powers can

only be exercised for the purpose of finding out whether the Civil

Aviation Act 1990 of New Zealand, and the regulations and rules

made under that Act, are being complied with if a request has been

made to CASA, in accordance with the ANZA mutual recognition

agreements, for the exercise of powers under this Part in relation to

that legislation.

32ACA Search with consent for evidence in relation to civil aviation

offences

Subject to section 32ACB, if an investigator has reasonable

grounds for suspecting that there is on, or in, any premises a

particular thing which may be evidential material, the investigator

may:

(a) enter the premises; and

(b) search the premises for the thing.

32ACB Consent to enter premises

(1) An investigator is not authorised to enter premises unless:

(a) the occupier of the premises has consented to the entry; and

(b) the investigator has shown his or her identity card to the

occupier.

(2) An investigator must, before obtaining the consent of an occupier

of premises for the purposes of subsection (1), inform the occupier

that the occupier may refuse consent.

(3) A consent has no effect unless the consent is voluntary.

Schedule 2 Enforcement

22 Civil Aviation Amendment Bill 2009 No. , 2009

(4) A consent may be expressed to be limited to entry during a

particular period. If so, the consent has effect for that period unless

the consent is withdrawn before the end of that period.

(5) A consent that is not limited as mentioned in subsection (4) has

effect until the consent is withdrawn.

(6) If an investigator entered premises because of the consent of the

occupier of the premises, the investigator, and any person assisting

the investigator, must leave the premises if the consent ceases to

have effect.

Subdivision B--Applying for and issuing a warrant

16 Subsection 32AD(1A)

Omit "legislation referred to in paragraph (b) of the definition of

relevant legislation in subsection 32AC(2) is", substitute "the Civil

Aviation Act 1990 of New Zealand, and the regulations and rules made

under that Act (the New Zealand legislation), are".

17 Subsection 32AD(2)

Omit "relevant legislation", substitute "civil aviation legislation or the

New Zealand legislation".

18 Subsection 32AD(5)

Repeal the subsection.

19 Section 32AE

Repeal the section.

20 Subsection 32AF(2)

Omit "an offence against this Act or the regulations", substitute "a civil

aviation offence".

21 Section 32AH

Repeal the section, substitute:

32AH Seizures related to civil aviation offences

(1) This section applies if:

Enforcement Schedule 2

Civil Aviation Amendment Bill 2009 No. , 2009 23

(a) an investigator searches premises with the consent of the

occupier, as mentioned in section 32ACA; or

(b) an investigator searches premises in accordance with a

warrant that has been issued under section 32AF or 32AG.

(2) The investigator may seize a thing that he or she:

(a) finds in the course of the search; and

(b) believes on reasonable grounds to be evidential material; and

its concealment, loss or destruction, or its use in committing,

continuing or repeating a civil aviation offence.

Subdivision C--General provisions about executing a warrant

32AHA Announcement before entry

(1) An investigator executing a warrant must, before any person enters

premises under the warrant:

(a) announce that he or she, and any other person who enters the

premises under the warrant, is authorised to enter the

premises; and

(b) give any person at the premises an opportunity to allow entry

to the premises.

(2) An investigator is not required to comply with subsection (1) if he

or she believes on reasonable grounds that immediate entry to the

premises is required to ensure:

(a) the safety of a person; or

(b) that the effective execution of the warrant is not frustrated.

32AHB Assistance and force in executing a warrant

In executing a warrant, the investigator executing the warrant may:

(a) obtain the assistance that is necessary and reasonable in the

circumstances; and

(b) use the force against persons and things that is necessary and

reasonable in the circumstances.

Schedule 2 Enforcement

24 Civil Aviation Amendment Bill 2009 No. , 2009

32AHC Copy of warrant to be shown to occupier etc.

(1) If the occupier of the premises, or another person who apparently

represents the occupier, is present at the premises, the investigator

executing the warrant must make a copy of it available to the

person.

(2) The investigator must identify himself or herself to the person at

the premises.

(3) The copy of the warrant need not include the signature of the

magistrate who issued it.

32AHD Occupie r entitled to watch search

(1) The occupier of the premises, or another person who apparently

represents the occupier, who is present at the premises, is entitled

to watch the search.

(2) The right to watch the search being conducted ceases if the

occupier, or the person representing the occupier, impedes the

search.

(3) This section does not prevent 2 or more areas of the premises being

searched at the same time.

32AHE Specific powe rs available to investigator executing a

warrant

(1) The investigator executing the warrant or a person assisting him or

her may take photographs or video recordings of the premises or

things on the premises:

(a) for a purpose incidental to the execution of the warrant; or

(b) with the written consent of the occupier of the premises.

(2) The investigator executing the warrant and all people assisting him

or her may, if the warrant is still in force, finish executing the

warrant after all of them temporarily stop executing it and leave the

premises:

(a) for not more than one hour; or

(b) for a longer period with the written consent of the occupier of

the premises.

Enforcement Schedule 2

Civil Aviation Amendment Bill 2009 No. , 2009 25

(3) The execution of a warrant that is stopped by an order of a court

may be completed if:

(a) the order is later revoked or reversed on appeal; and

(b) the warrant is still in force.

32AHF Use of equipme nt to examine or process things

(1) The investigator executing the warrant or a person assisting him or

her may bring to the premises any equipment (including electronic

equipment) reasonably necessary to examine or process things

found at the premises in order to determine whether they are things

that may be seized under the warrant.

(2) A thing found at the premises may be moved to another place for

examination or processing in order to determine whether it may be

seized if:

(a) both of the following apply:

(i) it is significantly more practicable to do so having

regard to the timeliness and cost of examining or

processing the thing at another place and the availability

of expert assistance;

(ii) there are reasonable grounds to believe that the thing

contains or constitutes evidential material; or

(b) the occupier of the premises consents in writing.

(3) If things are moved to another place for the purpose of examination

or processing, the investigator must, if it is practicable to do so:

(a) inform the occupier of the address of the place and the time

at which the examination or processing will be carried out;

and

(b) allow the occupier or his or her representative to be present

during the examination or processing.

(4) The thing may be moved to another place for examination or

processing for no longer than 72 hours.

(5) An investigator may apply to a magistrate for one or more

extensions of that time if the investigator believes on reasonable

grounds that the thing cannot be examined or processed within 72

hours or that time as previously extended.

Schedule 2 Enforcement

26 Civil Aviation Amendment Bill 2009 No. , 2009

(6) The investigator must give notice of the application to the occupier

of the premises, and the occupier is entitled to be heard in relation

to the application.

(7) The investigator executing the warrant or a person assisting him or

her may operate equipment (including electronic equipment)

already on the premises to examine or process a thing found on the

premises in order to determine whether it may be seized under the

warrant, if the investigator or the person believes on reasonable

grounds that:

(a) the equipment is suitable for the examination or processing;

and

(b) the examination or processing can be carried out without

damaging the equipment or thing.

(8) A notice of the application given to the occupier of the premises is

not a legislative instrument.

32AHG Use of electronic equipment at premises without expert

assistance

(1) The investigator executing the warrant or a person assisting him or

her may operate electronic equipment on the premises to access

data (including data not held at the premises) if he or she believes

on reasonable grounds that:

(a) the data might constitute evidential material; and

(b) the equipment can be operated without damaging it.

Note:

An investigator can obtain an order requiring a person with knowledge

of a computer or computer system to provide assistance: see

section 32AHI.

(2) If the investigator or the person assisting him or her believes on

reasonable grounds that any data accessed by operating the

electronic equipment might constitute evidential material, he or she

may:

(a) copy the data to a disk, tape or other associated device

brought to the premises; or

(b) if the occupier of the premises agrees in writing--copy the

data to a disk, tape or other associated device at the premises;

and take the device from the premises.

(3) If:

Enforcement Schedule 2

Civil Aviation Amendment Bill 2009 No. , 2009 27

(a) the investigator or the person assisting him or her takes the

device from the premises; and

(b) CASA is satisfied that the data is not required (or is no longer

required) for an investigation or the prosecution of a person;

CASA must arrange for:

CASA; and

(d) the destruction of any other reproduction of the data in the

control of CASA.

(4) If the investigator or the person assisting him or her, after operating

the equipment, finds that evidential material is accessible by doing

so, he or she may:

(a) seize the equipment and any disk, tape or other associated

device; or

(b) if the material can, by using facilities at the premises, be put

in documentary form--operate the facilities to put the

material in that form and seize the documents so produced.

(5) A person may seize equipment under paragraph (4)(a) only if:

(a) it is not practicable to put the material in documentary form

as referred to in paragraph (4)(b); or

(b) possession of the equipment by the occupier could constitute

an offence.

32AHH Use of electronic equipment at premises with expe rt

assistance

(1) If the investigator executing the warrant or a person assisting him

or her believes on reasonable grounds that:

(a) evidential material may be accessible by operating electronic

equipment at the premises; and

(b) expert assistance is required to operate the equipment; and

material may be destroyed, altered or otherwise interfered

with;

he or she may do whatever is necessary to secure the equipment,

whether by locking it up, placing a guard or otherwise.

(2) The investigator or the person assisting him or her must notify the

occupier of the premises, in writing, of:

Schedule 2 Enforcement

28 Civil Aviation Amendment Bill 2009 No. , 2009

(a) his or her intention to secure the equipment; and

(b) the fact that the equipment may be secured for up to 24

hours.

(3) The equipment may be secured for up to 24 hours to allow the

equipment to be operated by an expert.

(4) If the investigator or the person assisting him or her believes on

reasonable grounds that expert assistance will not be available

within 24 hours, he or she may apply to a magistrate for an

extension of that period.

(5) The investigator or the person assisting him or her must notify the

occupier of the premises of his or her intention to apply for an

extension, and the occupier is entitled to be heard in relation to the

application.

(6) The provisions of this Part in relation to the issuing of warrants

apply, with such modifications as are necessary, to the issuing of

an extension.

(7) A notification given to the occupier of the premises under this

section is not a legislative instrument.

32AHI Person with knowledge of a compute r or a compute r system

to assist access etc.

(1) The investigator executing the warrant may apply to a magistrate

for an order requiring a specified person to provide any

information or assistance that is reasonable and necessary to allow

the officer or a person assisting him or her or to do one or more of

the following:

(a) access data held in a computer, or accessible from a

computer, that is on premises in relation to which the warrant

is in force;

(b) copy the data to a data storage device;

(2) The magistrate may grant the order if he or she is satisfied that:

(a) there are reasonable grounds for suspecting that evidential

material is held in, or is accessible from, the computer; and

(b) the specified person is:

Enforcement Schedule 2

Civil Aviation Amendment Bill 2009 No. , 2009 29

(i) in the case of a warrant--reasonably suspected of

having committed the offence stated in the warrant; or

(ii) the owner or lessee of the computer; or

(iii) an employee of the owner or lessee of the computer; and

(i) the computer or a computer network of which the

computer forms a part; or

(ii) measures applied to protect data held in, or accessible

from, the computer.

(3) A person commits an offence if the person fails to comply with the

order.

Penalty: Imprisonment for 6 months.

32AHJ Accessing data held on othe r premises--notification to

occupie r of those premises

(1) If:

(a) data that is held on premises (other than the premises in

relation to which the warrant is in force) is accessed under

subsection 32AHG(1); and

(b) it is practicable to notify the occupier of the other premises

that the data has been accessed under a warrant;

the investigator executing the warrant must:

(d) if the investigator has arranged, or intends to arrange, for

continued access to the data under subsection 32AHG(2) or

(5)--include that information in the notification.

(2) A notification under subsection (1) must include sufficient

information to allow the occupier of the other premises to contact

the investigator.

32AHK Compensation for damage to electronic equipme nt

(1) This section applies if:

(a) as a result of equipment being operated as mentioned in

section 32AHF, 32AHG or 32AHH:

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; or

Schedule 2 Enforcement

30 Civil Aviation Amendment Bill 2009 No. , 2009

(iii) programs associated with the use of the equipment, or

with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person

who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating

the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the

user of the data or programs, such reasonable compensation for the

damage or corruption as the Commonwealth and the owner or user

agree on.

(3) However, if the owner or user and the Commonwealth fail to

agree, the owner or user may institute proceedings in the Federal

Court of Australia for such reasonable amount of compensation as

the Court determines.

(4) In determining the amount of compensation payable, regard is to

be had to whether the occupier of the premises, or the occupier's

employees or agents, if they were available at the time, had

provided any appropriate warning or guidance on the operation of

the equipment.

(5) For the purpose of subsection (1):

damage, in relation to data, includes damages by erasure of data or

addition of other data.

32AHL Copies of seized things to be provided

(1) If the investigator executing the warrant or a person assisting him

or her seizes:

(a) a document, film, computer file or other thing that can be

readily copied; or

(b) a device storing information that can be readily copied;

the investigator or the person assisting him or her must, if

requested to do so by the occupier of the premises or another

person who apparently represents the occupier and who is present

when the warrant is executed, give a copy of the thing or the

information to that person as soon as practicable after the seizure.

(2) However, subsection (1) does not apply if:

Enforcement Schedule 2

Civil Aviation Amendment Bill 2009 No. , 2009 31

(a) the thing that has been seized was seized under subsection

32AHG(2) or paragraph 32AHG(5)(a); or

(b) possession of the document, film, computer file, thing or

information by the occupier could constitute an offence.

32AHM Receipts of things seized under warrant

(1) If a thing is seized, as allowed by section 32AH, the investigator

executing the warrant or person assisting him or her must provide a

receipt for the thing.

(2) If 2 or more things are seized, they may be covered by the one

receipt.

32AHN Retention of seized things

(1) Subject to any contrary order of a court, if an investigator seizes a

thing, as allowed by section 32AH, an investigator must return it if:

(a) the reason for its seizure no longer exists or it is decided that

it is not to be used in evidence; or

(b) the period of 60 days after its seizure ends;

whichever first occurs, unless the thing is forfeited or forfeitable to

the Commonwealth.

(2) At the end of the 60 days specified in subsection (1), an

investigator must take reasonable steps to return the thing to the

person from whom it was seized, unless:

(a) proceedings in respect of which the thing may afford

evidence were instituted before the end of the 60 days and

have not been completed (including an appeal to a court in

relation to those proceedings); or

(b) an investigator may retain the thing because of an order

under section 32AHO; or

of a court, of the Commonwealth) to retain, destroy or

dispose of the thing.

(3) The thing may be returned under subsection (2) either

unconditionally or on such terms and conditions as CASA sees fit.

22 Section 32AHA

Renumber as section 32AHO.

Schedule 2 Enforcement

32 Civil Aviation Amendment Bill 2009 No. , 2009

23 Subsection 32AHA(1)

Omit "under section 32AH", substitute ", as allowed by a warrant or

section 32AH,".

24 Paragraph 32AHA(3)(a)

Omit "an offence against this Act or the regulations", substitute "a civil

aviation offence".

25 Paragraph 32AHA(3)(b)

Omit "an offence against this Act", substitute "a civil aviation offence".

26 At the end of Part IIIA

Add:

Division 3--Offences

32AMA Making false statements in warrants

A person commits an offence if:

(a) the person makes a statement in applying for a warrant; and

(b) the person knows that the statement is false or misleading in

a material particular.

Penalty: Imprisonment for 2 years.

32AMB Offence for stating incorrect names in telephone warrants

A person commits an offence if:

(a) the person states a name of a magistrate in a document; and

(b) the document purports to be a form of warrant under

section 32AG; and

warrant.

Penalty: Imprisonment for 2 years.

32AMC Offence for unauthorised form of warrant

A person commits an offence if:

Enforcement Schedule 2

Civil Aviation Amendment Bill 2009 No. , 2009 33

(a) the person states a matter in a form of warrant under

section 32AG; and

(b) the person knows that the matter departs in a material

particular from the form authorised by the magistrate.

Penalty: Imprisonment for 2 years.

32AMD Offence for executing etc. an unauthorised form of warrant

A person commits an offence if:

(a) the person executes or presents a document to another

person; and

(b) the document purports to be a form of warrant under

section 32AG; and

(i) has not been approved by a magistrate under either of

those sections; or

(ii) departs in a material particular from the terms

authorised by a magistrate under either of those

sections.

Penalty: Imprisonment for 2 years.

32AME Offence for giving unexecuted form of warrant

A person commits an offence if:

(a) the person gives a magistrate a form of warrant under

section 32AG; and

(b) the document is not the form of warrant that the person

executed.

Penalty: Imprisonment for 2 years.

Division 4--Miscellaneous

32AMF Other laws about search and seizure not affected

(1) This Part is not intended to limit, or exclude the operation of,

another law of the Commonwealth relating to:

(a) the search of premises; or

(b) the seizure of things.

Schedule 2 Enforcement

34 Civil Aviation Amendment Bill 2009 No. , 2009

(2) To avoid doubt, even though another law of the Commonwealth

provides power to do either or both of the things referred to in

subsection (1), a similar power conferred by this Part may be used

despite the existence of the power under the other law.

32AMG Magistrates--personal capacity

(1) A function or power conferred on a magistrate by this Part is

conferred on the magistrate:

(a) in a personal capacity; and

(b) not as a court or a member of a court.

(2) A magistrate need not accept a function or power conferred.

(3) A magistrate has, in relation to the performance or exercise of a

function or power conferred on the magistrate by this Part, the

same protection and immunity as if he or she were exercising that

function or power as, or as a member of, the court of which the

magistrate is a member.

27 Subsection 97A(2)

Omit "of a prosecution for an offence against this Act", substitute "of

this Act or the regulations".

28 Application

(1)

The amendment made by item 8 of this Schedule applies to an

undertaking given to CASA on or after the day on which this item

commences.

(2)

The amendments made by this Schedule (other than items 7 to 10 and

27) apply in relation to:

(a) if a power is exercised under a warrant issued under Part IIIA

of the Civil Aviation Act 1988--a warrant issued on or after

the day on which this item commences; and

(b) in any other case--a power exercised under Part IIIA of the

Civil Aviation Act 1988 on or after the day on which this item

commences.

Other amend ments Schedule 3

Civil Aviation Amendment Bill 2009 No. , 2009 35

Schedule 3

Other amendments

Civil Aviation Act 1988

1 After subsection 26(3)

Insert:

(3A) For the purposes of being satisfied that the person has complied

with, or is capable of complying with, the safety rules, CASA may

have regard to the matters set out in section 28AA as if:

(a) the reference in that section to subsection 28(1A) were a

reference to paragraph (3)(b) of this section; and

(b) the reference in subparagraph (1)(c)(ii) and paragraph (5)(a)

of that section to an AOC were to a permission.

2 After subsection 26(4)

Insert:

(4A) For the purposes of deciding whether to specify a condition in the

permission, CASA may have regard to the matters set out in

section 28AA as if:

(a) the reference in that section to subsection 28(1A) were a

reference to paragraph (4)(b) of this section; and

(b) the reference in subparagraph (1)(c)(ii) and paragraph (5)(a)

of that section to an AOC were to a permission.

3 At the end of subsection 27AE(1)

Add:

; (e) evidence of the matters listed in paragraphs 28AA(1)(a), (b),

the things mentioned in subsections 28AA(2) to (5)).

4 After subsection 27A(1)

Insert:

(1A) CASA may, by written notice given to the applicant, require the

applicant to give CASA evidence of the matters listed in

paragraphs 28AA(1)(a), (b), (c) and (d) (including, as applicable,

Schedule 3 Other amendments

36 Civil Aviation Amendment Bill 2009 No. , 2009

by giving examples of the things mentioned in subsections

28AA(2) to (5)).

5 After subsection 28(1)

Insert:

(1A) For the purposes of paragraph (1)(a), if the AOC sought is an AOC

authorising the operation of foreign registered aircraft into

Australia, out of Australia, or both, or on regulated domestic

flights, other than:

(a) an Australian AOC with ANZA privileges; or

(b) an Australian AOC with ANZA privileges authorising

operations of an aircraft registered in New Zealand on

regulated domestic flights;

CASA may have regard to the matters set out in section 28AA.

6 After section 28A

Insert:

28AA Matters that CASA may have regard to in issuing an AOC in

relation to certain flights by foreign registered aircraft

(1) For the purposes of subsection 28(1A), the matters which CASA

may have regard to are:

(a) evidence of any serious safety deficiencies in relation to the

applicant's operations in another country; and

(b) evidence of the applicant's ability and willingness to address

those safety deficiencies; and

for:

(i) the safety oversight of the applicant's operations; and

(ii) the registration, certification and airworthiness of

aircraft used by the applicant in its operations or to be

used under the AOC sought; and

(d) evidence relating to the management and control of the

applicant's operations.

(2) For the purposes of paragraph (1)(a), examples of the kinds of

evidence of serious safety deficiencies include all or any of the

following:

Other amend ments Schedule 3

Civil Aviation Amendment Bill 2009 No. , 2009 37

(a) a report that identifies serious safety deficiencies;

(b) the applicant's failure to address deficiencies identified

during ramp inspections, or similar inspections, carried out

by the aviation authority of another country or group of

countries;

imposed an operating ban on the applicant because of

deficiencies relating to international aviation safety

standards;

(d) information relating to an accident or serious incident that

indicates systemic safety deficiencies in relation to the

applicant's operations.

(3) For the purposes of paragraph (1)(b), examples of the kinds of

evidence of the applicant's ability and willingness to address safety

deficiencies include either or both of the following:

(a) how the applicant responds to requests from CASA for

information about the safety aspects of the applicant's

operations;

(b) if the applicant has presented a plan for corrective action to

CASA, the aviation authority of another country or group of

countries, ICAO or another relevant body or organisation--

whether the corrective action proposed is appropriate and

sufficient.

(4) For the purposes of paragraph (1)(c), examples of the kinds of

evidence mentioned in that paragraph include all or any of the

following:

(a) how a relevant authority responds to concerns or issues raised

by CASA about:

(i) the safety of the applicant's operations; or

(ii) the safety of aircraft used by the applicant or another

carrier licensed or certified by that authority;

(b) a relevant authority's reputation for implementing and

enforcing relevant aviation safety standards, including:

(i) audits and related corrective action plans established

under ICAO's Universal Safety Oversight Audit

Programme or any other similar program; and

(ii) whether the applicant's authorisation (however

described) by the authority is not, or is no longer,

Schedule 3 Other amendments

38 Civil Aviation Amendment Bill 2009 No. , 2009

recognised by another country or group of countries;

and

(iii) if the applicant's authorisation was not issued by the

authority of the country in which the applicant has its

principal place of business--that fact;

which the aircraft is registered--whether the aviation

authority of that country administers its obligations in

accordance with the Chicago Convention.

(5) For the purposes of paragraph (1)(d), examples of the kinds of

evidence relating to the management and control of the applicant's

operations include either or both of the following:

(a) whether a person who is participating in, or is likely to

participate in, managing the applicant's operations is not a fit

and proper person to participate in the management of the

operations of a holder of an AOC;

(b) whether a person who has, or is likely to have, effective

control over the applicant's operations is not a fit and proper

person to have effective control over the applicant's

operations.

7 Section 30DX

Before "If", insert "(1)".

8 At the end of section 30DX

Add:

(2) A person incurs demerit points if:

(a) the person does not hold a civil aviation authorisation; and

(b) the person commits an offence prescribed by the regulations

under paragraph 30DT(a).

(3) If the person incurs demerit points, the demerit points are incurred

in relation to an authorisation that is:

(a) within the class of authorisations to which the offence relates;

and

(b) held in the 3 year period beginning on the day on which the

demerit points would have been incurred had an authorisation

been held at the time the offence was committed.

Other amend ments Schedule 3

Civil Aviation Amendment Bill 2009 No. , 2009 39

9 After subsection 30DY(1)

Insert:

(1A) If a person incurs demerit points before becoming a holder of a

civil aviation authorisation, then, for the purpose of

paragraph (1)(b), those points are taken to have been incurred by

the holder for offences committed by the holder.

10 After subsection 30DZ(1)

Insert:

(1A) If a person incurs demerit points before becoming a holder of a

civil aviation authorisation, then, for the purpose of

paragraph (1)(b), those points are taken to have been incurred by

the holder for offences committed by the holder.

11 After subsection 30EC(1)

Insert:

(1A) If a person incurs demerit points before becoming a holder of a

civil aviation authorisation, then, for the purpose of

paragraph (1)(b), those points are taken to have been incurred by

the holder for offences committed by the holder.

12 Section 30EE

Before "If", insert "(1)".

13 At the end of section 30EE

Add:

(2) If a person incurs demerit points before becoming a holder of a

civil aviation authorisation, then, for the purpose of subsection (1),

those points are taken to have been incurred by the holder.

14 Section 30EI

Before "If", insert "(1)".

15 At the end of section 30EI

Add:

Schedule 3 Other amendments

40 Civil Aviation Amendment Bill 2009 No. , 2009

(2) If a person incurs demerit points before becoming a holder of a

civil aviation authorisation, then, for the purpose of subsection (1),

those points are taken to have been incurred by the holder.

16 Subsection 31A(4)

Omit "for review of the decision", substitute "for an order under

subsection 41(2) of the Administrative Appeals Tribunal Act 1975".

17 Subsection 31A(5)

Repeal the subsection, substitute:

(5) If the holder applies to the Tribunal as mentioned in subsection (4),

the stay continues to have effect until the Tribunal makes an order

under subsection 41(2) of the Administrative Appeals Tribunal Act

1975 or decides that no order should be made.

18 Subsection 31A(6)

Omit "in accordance with", substitute "as mentioned in".

19 Subsection 31A(7)

Repeal the subsection.

20 Section 31C

Repeal the section, substitute:

31C Tribunal's ordinary powe rs not affected

To avoid doubt, section 31A does not affect the operation of

subsection 31(2).

21 Before section 96

Insert:

95A Delegation by Secretary of the Department

(1) The Secretary of the Department may delegate, in writing, his or

her power under paragraph 28B(1)(b) or 28BAA(2)(b) to an SES

employee or acting SES employee in the Department.

Other amend ments Schedule 3

Civil Aviation Amendment Bill 2009 No. , 2009 41

(2) In exercising powers under the delegation, the SES employee or

acting SES employee, as the case may be, must comply with any

directions of the Secretary of the Department.

22 Subsection 98(3A)

After "time to time", insert ", even if the written instrument or other

document does not yet exist when the regulation is made".

23 Subsection 98(5)

Repeal the subsection, substitute:

(5) The regulations may provide that CASA may issue a Civil

Aviation Order containing a direction, instruction, notification,

permission, approval or authority.

(5AAA) A Civil Aviation Order issued under a regulation made under

subsection (5) is a legislative instrument, but Part 6 of the

Legislative Instruments Act 2003 does not apply to the Order.

24 Paragraph 98(5A)(b)

After "airworthiness of", insert ", or design standards for,".

25 After subsection 98(5A)

Insert:

(5AA) An instrument issued under paragraph (5A)(a) is a legislative

instrument if the instrument is expressed to apply in relation to:

(a) a class of persons; or

(b) a class of aircraft; or

but Part 6 of the Legislative Instruments Act 2003 does not apply to

the instrument.

(5AB) An instrument issued under paragraph (5A)(a) is not a legislative

instrument if the instrument is expressed to apply in relation to:

(a) a particular person; or

(b) a particular aircraft; or

26 Subsection 98(5B)

Repeal the subsection, substitute:

Schedule 3 Other amendments

42 Civil Aviation Amendment Bill 2009 No. , 2009

(5B) An instrument issued under a regulation made under

paragraph (5A)(b) is a legislative instrument if the instrument is, or

relates to:

(a) an airworthiness directive; or

(b) an airworthiness standard; or

but Part 6 of the Legislative Instruments Act 2003 does not apply to

the instrument.

(5BA) However, an instrument issued under a regulation made under

paragraph (5A)(b) is not a legislative instrument if the instrument

is expressed to apply in relation to:

(a) a particular person; or

(b) a particular aircraft; or

27 After subsection 98(5C)

Insert:

(5D) Despite section 14 of the Legislative Instruments Act 2003, a

legislative instrument made under this Act or the regulations may

apply, adopt or incorporate any matter contained in any instrument

or other writing:

(a) as in force or existing at a particular time; or

(b) as in force or existing from time to time;

even if the other instrument or writing does not yet exist when the

legislative instrument is made.

28 Application

(1)

The amendments made by items 1 to 6 of this Schedule apply in relation

to:

(a) an application for a permission or an AOC (within the

meaning of the Civil Aviation Act 1988), whether made

before, on or after 1 July 2009; and

(b) a permission granted before, on or after 1 July 2009; and

(2)

The amendment made by item 8 of this Schedule applies in relation to

an offence that is committed on or after 1 July 2009.

Other amend ments Schedule 3

Civil Aviation Amendment Bill 2009 No. , 2009 43

(3)

The amendments made by items 16 to 19 of this Schedule apply in

relation to a decision for which a show cause notice is given by CASA

on or after 1 July 2009.

29 Saving provision

The amendment made by item 23 of this Schedule does not affect the

continuity of any Civil Aviation Orders given or issued under

subsection 98(5) of the Civil Aviation Act 1988 and in force

immediately before this item commences.

Commonwealth of Australia Bills

CIVIL AVIATION AMENDMENT BILL 2009