Commonwealth of Australia Explanatory Memoranda

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CIVIL AVIATION AMENDMENT BILL 2003

2002-2003

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

CIVIL AVIATION AMENDMENT BILL 2003

SUPPLEMENTARY EXPLANATORY MEMORANDUM

Amendments to be moved on behalf of the Government

(Circulated by authority of the Minister for Transport and Regional Services,
the Honourable John Anderson, MP)

OUTLINE

The Government amendments to the Civil Aviation Amendment Bill 2003 (the Bill) fall into the following categories:

• amendments to alter the commencement date of the provisions relating to the Civil Aviation Safety Authority’s governance arrangements;

• an amendment to omit several application and savings provisions;

• an amendment to correct an omission from the Bill; and

• an amendment to insert new Schedule 2 which will make the following changes to the Civil Aviation Regulations 1988 (CAR 1988);

- repeal Regulation 268; and
- amend Regulation 269(1)(a).

The amendments to the governance and application and savings provisions are necessary as the Bill was not enacted in time for the new governance arrangements to take effect from 1 July 2003. The amendments that insert Schedule 2 take on board representations from the aviation industry.
CIVIL AVIATION AMENDMENT BILL 2003

NOTES ON AMENDMENTS

Amendments 1, 2, 3, 4 and 5 amend Clause 2 by providing that the commencement date for the table Items 2, 4, 6, 8 and 10 will be the day on which this Act receives Royal Assent.

Amendment 6 inserts new table Items 11 and 12 into Clause 2. Item 11 provides that Item 1 of new Schedule 2 will commence four months after Royal Assent. Item 12 provides that Item 2 of Schedule 2 will commence on the day on which the Act receives Royal Assent.

Amendments 7 and 8 insert the words “and each regulation” after the words “Each Act” in the commencement provision in Clause 3; and insert new subclauses 3(2) and 3(3). These amendments arise from the addition of Schedule 2 which will amend the Civil Aviation Regulations 1988 (CAR 1988). The amendments made by amendment 8 are included to ensure that there is no doubt that, notwithstanding the amendment of CAR 1988 by this Bill, the amended regulations remain regulations, and may be subsequently amended as regulations.

Amendment 9 amends Clause 4 by omitting subclauses 4(3) and 4(4). These provisions were inserted in the Bill on the basis that the CASA Board would be abolished on 1 July 2003, thereby making the Director of Aviation Safety responsible for the preparation of the CASA Annual Report for the financial year ending 30 June 2003.

Amendment 10 inserts new subclause 4(9A) that provides that the repeal of Regulation 268 of the CAR 1988 under Schedule 2 will not apply to notices served by CASA before the repeal of that regulation.

Amendment 11 corrects an omission from the Bill by amending proposed subsection 30DE(2) which relates to the making of a Federal Court order in cases of a serious and imminent risk to air safety. The amendment inserts the words “has engaged in” after the words “the holder” to make the subsection consistent with the wording in proposed subsection 30DC(1). This will ensure that the Federal Court will have regard to the same matters as CASA where it is considering granting such an order.

Amendment 12 amends proposed subsection 31A(2), to provide that a decision by CASA to cancel a licence, certificate or authority (‘authorisation’) under Regulation 269(1)(a) will not be subject to an automatic stay. The reason for this change is explained further below.

Amendment 13 inserts new Schedule 2. This schedule will amend the CAR 1988 by:

• repealing Regulation 268, which it was originally intended would be achieved by regulation amendment; and

• inserting new subregulation (1A) in Regulation 269. At present, paragraph 269(1)(a) allows CASA to vary, suspend or cancel an authorisation where it is satisfied that the authorisation holder has contravened a provision of the Act or the Regulations. Proposed subregulation (1A) provides that CASA may exercise the power to cancel an authorisation under paragraph 269(1)(a) on the ground that the holder has contravened a provision of the Act or the Regulations only if the authorisation holder has actually been convicted or found guilty by a court of an offence against the Act or the regulations in respect of the contravention.

Where CASA cancels an authorisation after the holder has been convicted of an offence, CASA’s decision will be reviewable by the Administrative Appeals Tribunal. However, CASA’s decision to cancel the authorisation will not be subject to an automatic stay under proposed s.31A, as an automatic stay of such a decision would be unwarranted and inappropriate given a court would have found the authorisation holder guilty of the offence. The authorisation holder would have already had the opportunity to put a case to, and be heard by, an independent arbiter.

This amendment to regulation 269 will take effect on Royal Assent, as opposed to the remaining enforcement measures which take effect four months after Royal Assent. As this amendment is not dependent on the other enforcement changes in the Bill, it is considered that the amendment should commence at the same time as the new governance arrangements take effect.

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