Commonwealth Numbered Regulations - Explanatory Statements

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AIR NAVIGATION REGULATIONS (AMENDMENT) 1992 NO. 104

STATUTORY RULES 1992 No. 104

Issued by the authority of the Minister for the Arts, Sport, the Environment and Territories for, and on behalf of the Minister tor Shipping and Aviation

Air Navigation Act 1920

Air Navigation Regulations (Amendment)

Sub-section 26(1) of the Air Navigation Act 1920 provides that the Governor-General may make regulations for the purposes of the Act.

Australia has an international legal obligation to comply with united Nations Security Council Resolutions. Air Navigation Regulation 311D gave affect to Security Council Resolution 670 (1990) which required all States to deny permission to aircraft flying to or from Iraq to take off from, land in or overfly their territory. Subregulations 311D(4), (5) and (6) specify the conditions under which the Secretary can approve an aircraft to travel to or from Iraq.

To obviate the necessity to continually amend Regulation 311D In response to further Security Council Resolutions the amendments omit subregulations 311D(4), (5) and (6) and substitute a new subregulation (4) which provides that In deciding whether to give approval the Secretary must take into account Australia's relations with other Countries and its obligations under international law.

The amendments also implement Security Council Resolution 748 (1992), adopted on 1 April 1992. That Resolution requires all States to deny permission to any aircraft to take oft from, land in or overfly their territory if it is destined to land in or has taken off from the territory of Libya, unless the particular flight has been approved on grounds of urgent humanitarian need by the Committee established by clause 9 of the Resolution.

The amendments to the Air Navigation Regulations implement Resolution 749 (1992) by providing:

-       an Australian aircraft must not travel to or from Libya without the express approval of the Secretary;

-       an aircraft that, after the commencement of this regulation, leaves Libyan territory or is destined to land in Libyan territory must not be landed in, flown over or flown from, Australian territory without the express approval of the secretary.

In deciding whether to give approval the Secretary must take into account Australia's relations with other countries and its obligations under international law. This formulation ensures that the requirements of the Resolution are met and obviates the necessity of further amending the Regulations if further security Council Resolutions amend the conditions governing flights to and from Libya.

No provision is made for review on the merits of decisions made pursuant to the amendments. Review on the merits is not considered appropriate because the decisions made under the amendments are for the purpose of fulfilling Australia's International obligations and because of the effect on Australia's relations with other countries.