Commonwealth Numbered Regulations - Explanatory Statements

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CIVIL AVIATION REGULATIONS (AMENDMENT) 1998 NO. 236

STATUTORY RULES 1999 NO. 236

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

Civil Aviation Act 1988

Civil Aviation Regulations (Amendment)

Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in relation to the safety of air navigation.

PURPOSE OF REGULATIONS

Regulation 272 of the Civil Aviation Regulations (the Regulations) provided that neither the Commonwealth nor the Civil Aviation Safety Authority (CASA) were liable for any expense, loss or damage incurred because of, or arising out of, the cancellation or suspension of a licence, certificate or authority granted under the Regulations.

The new regulations omit regulation 272. The primary reason for doing so is that CASA did not wish to be seen as relying on an exemption provision of this sort in order to avoid being held liable for failure to act reasonably or without due care. CASA believed that it should be accountable for its actions and seen to be accountable for its actions. Accordingly it was no longer appropriate for CASA to retain statutory protection in cases where it had acted unreasonably or negligently.

The repeal of regulation 272 does not change the legal position of delegates of CASA exercising powers of suspension or cancellation under the Regulations, As it stood, regulation 272 did not prevent actions against delegates. Regulation 272 only provided a bar to actions against CASA, i.e. the legal entity created by the Civil Aviation Act 1988. Individuals who had their licences suspended or cancelled were free to sue the individual delegate for any loss suffered as a result of the suspension or cancellation.

Delegates exercise statutory powers in their own name and are personally liable for any damage caused by the exercise of their delegated powers. However CASA had agreed to indemnify delegates against legal action that may arise from the reasonable exercise of their delegated powers. This will not change as a result of the repeal of regulation 272.

REGULATION IMPACT STATEMENT

The attached Regulation Impact Statement has been cleared by the Office of Regulation Review as suitable for attachment to this Statement.

AMENDMENT OF THE REGULATIONS

The amendment of the Regulations omits regulation 272.

The Regulations commenced on gazettal.

Details of the Regulations are attached.

ATTACHMENT

REGULATION 1 (Commencement) This regulation provides that the Regulations commence on gazettal.

REGULATION 2 (Amendment) This regulation provides that the Civil Aviation Regulations (the Regulations) are amended as set out in the Regulations.

REGULATION 3 (Regulation 272 (Liability for expense arising out of cancellation or suspension of licence, certificate or authority)) This regulation omits regulation 272.