Civil Aviation Amendment (Unmanned Aircraft Levy Collection and Payment) Bill 2020 - Commentary on Ministerial Responses [2020] AUSStaCSBSD 162 (7 October 2020)

• Chapter 2
• Commentary on ministerial responses
• Civil Aviation Amendment (Unmanned Aircraft Levy Collection and Payment) Bill 2020
• Significant matters in delegated legislation1

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Chapter 2

Commentary on ministerial responses

2.1 This chapter considers the responses of ministers to matters previously raised by the committee.

Civil Aviation Amendment (Unmanned Aircraft Levy Collection and Payment) Bill 2020

Purpose	This bill seeks to amend the Civil Aviation Act 1998 to establish arrangements for the Civil Aviation Safety Authority to collect an unmanned aircraft levy
Portfolio	Infrastructure, Transport, Regional Development and Communications
Introduced	House of Representative on 27 August 2020
Bill status	Before the House of Representatives

Significant matters in delegated legislation^[1]

2.2 In Scrutiny Digest 11 of 2020 the committee requested the minister's advice as to why it is necessary and appropriate to leave the circumstances in which the proposed unmanned aircraft levy is payable, and the collection of the levy payments, to delegated legislation, and whether the bill can be amended to prescribe at least broad guidance in relation to these matters on the face of the primary legislation.^[2]

Minister's response^[3]

2.3 The minister advised:

The Bill intends to ensure that Australia's unmanned aircraft (also known as drones) management systems remains flexible and adaptable to effectively respond to this relatively new and rapidly developing sector of aviation. The Bill will enable the Governor-General to determine, by a legislative instrument (regulations), the circumstances in which unmanned aircraft levy is payable and the collection of the unmanned aircraft levy.
In 2018, the Government agreed to support a mandatory scheme of registration for unmanned aircraft, as recommended by the Senate Standing Committee on Rural and Regional Affairs and Transport in its report – Current and future regulatory requirements that impact on the safe use of remotely piloted aircraft systems, unmanned aerial systems and associated systems, (31 July 2018). The Civil Aviation Safety Authority has, therefore developed an unmanned aircraft registration scheme, which provide for the registration of commercial, utility and similar remotely piloted aircraft (RPA) – voluntarily from 30 September 2020 but compulsorily from 28 January 2021. Government policy requires that the costs of this registration scheme is recovered from its users.
At this stage, the potential number of unmanned aircraft registrants is volatile and very difficult to predict over anything other than the very short term. The nature of RPAs is highly varied and changing rapidly, with different weight and size classes, each operated for a wide range of purposes - this highlights the difficulty with developing an appropriate and targeted cost recovery scheme for such a diverse industry. The registration scheme will provide further information on the scope and size of the industry, inform the development of the cost recovery scheme, and the circumstances in which unmanned aircraft levy is payable and the collection of the levy.
It is necessary, therefore, to have a regulatory mechanism for setting a cost recovery levy in a way that allows for greater responsiveness than would be the case if the cost recovery levy were set as a fixed amount in an Act of the Parliament that would require relatively frequent amendment. The need for such amendments would arise because the fixed amount of cost recovery levy is likely to be quickly superseded by expansion in the numbers of commercial unmanned aircraft, and changes in the regulations and services the levy is being collected to fund.
Due to the rapidly changing nature of the industry, it is likely that the manner in which the levy is collected will similarly need to be updated and adjusted over time to ensure the levy may continue to be collected in a fair an appropriate manner. The use of regulations avoids these logistical problems, and is appropriate because it will allow administrative and technical details of the schemes to be adjusted relatively quickly.
Further, the regulations are disallowable by a single House acting alone, placing the circumstances of oversight and control over what level the cost recovery levy should be set at within Parliament. Once the cost recovery levy is set in the levy regulations, it may be disallowed if a House of the Parliament thinks fit. If, through amending regulations, the cost recovery levy is raised, those amending regulations may be disallowed and the previous cost recovery levy automatically restored by virtue of relevant provisions in the Legislation Act 2003.
Given the complex and dynamic nature of this industry, and noting the oversight mechanisms available to Parliament, the use of delegated legislation remains appropriate. Accordingly, I do not consider it necessary to amend the legislation to place additional guidance in relation to these matters on the face of the primary legislation.

Committee comment

2.4 The committee thanks the minister for this response. The committee notes the minister's advice that the levy scheme has been established in accordance with government policy, which requires that the costs of the unmanned aircraft registration scheme are recovered from its users. The committee also notes the minister's advice that the registration scheme will provide further information on the scope and size of the industry, which is difficult to predict beyond the short term.

2.5 The committee further notes the minister's advice that flexibility is necessary to allow the regulatory scheme to respond to an evolving industry and to ensure that quick adjustments to the administrative and technical details of the scheme can be made to ensure that the levy is collected in a fair and appropriate manner. Finally, the committee notes the minister's advice that the regulations may be disallowed by a single House acting alone.

2.6 While noting this explanation, the committee emphasises its long-standing scrutiny view that it does not consider administrative flexibility or convenience to be sufficient justification for leaving significant elements of a regulatory scheme, such as the proposed unmanned aircraft levy scheme, to delegated legislation.

2.7 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving virtually all of the details of the operation of the proposed unmanned aircraft levy scheme to delegated legislation.

2.8 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

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[1] Schedule 1, item 4, proposed paragraph 98(3)(w). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[2] Senate Scrutiny of Bills Committee, Scrutiny Digest 11 of 2020, pp. 1-2.

[3] The minister responded to the committee's comments in a letter dated 17 September 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 13 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest.