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2002-2003
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
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)
CIVIL AVIATION AMENDMENT BILL 2003
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
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.