Commonwealth Numbered Regulations - Explanatory Statements

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AIR SERVICES REGULATIONS (AMENDMENT) 1998 NO. 8

STATUTORY RULES 1998 No. 8

Issued by the Authority of the Minister for Transport and Regional Development

Air Services Act 1995

Air Services Regulations (Amendment)

Subsection 77(1) of the Air Services Act 1995 (the Act) provides that the GovernorGeneral may make regulations prescribing matters required or permitted under the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The primary purpose of the Air Services Regulations (Amendment) is to repeal provisions of the Air Services Regulations (ASRs) relating to the search and rescue services provided by Airservices Australia (AA). The repeal reflects amendments to the Air Services Act effected by the Transport Legislation Amendment (Search and Rescue Service) Act 1997 (the Search and Rescue Act). The Search and Rescue Act established a new national centre for the coordination of civil maritime and aviation search and rescue, the Australian Search and Rescue, Organisation (AusSAR). AusSAR, operated solely by the Australian Maritime Safety Authority (AMSA), brings together the search and rescue functions previously exercised by both AA and AMSA under one mantle. The Search and Rescue Act amended the Act to remove all references to AA's search and rescue functions.

The regulations:

*       repeal the search and rescue powers contained in the ASRs (regulation 4);

*       maintain AA's powers to requisition aircraft and engage persons to operate them, which powers are repealed by regulation 4 (regulation 3);

*       provide an address for where service of documents may be effected on AA (regulation 6); and

*       make several cross-referencing corrections to the ASR-5 (regulation 7).

The "new" regulations inserted into the ASRs by regulation 3 are copies of some regulations repealed by regulation 4. In effect, AA's power to requisition aircraft and engage persons to operate them is shifted from Part 4 of the ASRs to Part 3. The power to requisition can only be exercised for the purpose of performance of the function of the Air Traffic Service provided by AA, and reasonable compensation for such requisition will be payable.

The amendment to the ASRs contained in regulation 7 is necessary because references to provisions of the Act in the ASRs are incorrect, owing to amendments to the Act made during its passage through Parliament. This amendment has retrospective effect from 6 July 1995, the date of commencement of the Act and ASRs. Subsection 48(2) of the Acts Interpretation Act 1901 provides that a provision of regulations may not take effect before the date of notification in the Gazette if the rights of persons are disadvantaged or liabilities are imposed on them. The amendment contained in proposed regulation 7 is purely technical in nature, and the rights and liabilities of persons are unaffected by the retrospective commencement.

Details of the regulations are contained in the Attachment.

Attachment

Regulation 1 - Commencement

The proposed regulations are to commence upon gazettal, other than regulation 7 which will be taken to have commenced on 6 July 1995, the day on which the Air Services Regulations came into force.

Regulation 7 consists of cross-referencing amendments to the Air Services Regulations. The Regulations were drafted prior to the Bill's passage through Parliament. Subsequent amendments to the Bill in the Parliament resulted in incorrect references in the Regulations. These amendments are of a housekeeping nature and neither disadvantage not impose liabilities on any person.

Regulation 2 - Amendment

The proposed Regulations, when made, will amend the Air Services Regulations.

Regulation 3 - New regulations 3.05, 3.06 and 3.07

The following regulations will be inserted in the Airservices Regulations:

Regulation 3.05 will empower AA, for the performance of the functions of the Air Traffic Service to requisition, and engage persons to operate, an aircraft. The regulation also prescribes the manner in which the requisition must be made.

Regulation 3.06 will enable the owner of a requisitioned aircraft, or person engaged to operate an aircraft, to recover compensation from AA for any loss sustained as the result of the requisition or engagement.

Regulation 3.07 will set out the procedures that AA must follow when processing a claim for compensation under regulation 3.05. Provision is made for merits review of compensation decisions under regulation 7.02.

Regulation 4 - Part 4, Division 3 (Search and rescue services)

This regulation will repeal AA's powers with regard to civil aviation search and rescue.

Regulation 5 - Regulation 7.02 (Review of Decision)

This regulation amends 7.02, by providing for the merits review of decisions made under regulation 3.07.

Regulation 6 - New Regulation 7.06

This regulation directs where service on AA may be effected.

Regulation 7 - Further amendments-cross references

This regulation makes a number of cross-referencing amendments to the Regulations.