Civil Aviation Legislation Amendment (Mutual Recognition with New Zealand) Bill 2005 [2005] AUSStaCSBRp 34 (14 September 2005)

• Civil Aviation Legislation Amendment (Mutual Recognition with New Zealand) Bill 2005
• Background
• Commencement on Proclamation
• Schedule 1, items 1 to 19
• Retrospective commencement
• Schedule 1, items 20 and 29 to 31
• Strict liability
• Schedule 1, item 34

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Civil Aviation Legislation Amendment (Mutual Recognition with New Zealand) Bill 2005

Introduction

The Committee dealt with this bill in Alert Digest No. 8 of 2005. The Minister for Transport and Regional Services responded to the Committee’s comments in a letter dated 6 September 2005. A copy of the letter is attached to this report.

Extract from Alert Digest No. 8 of 2005

Introduced into the Senate on 23 June 2005

Portfolio: Transport and Regional Services

Background

The bill amends the Civil Aviation Act 1988 to permit the mutual recognition of Air Operator’s Certificates for operation of aircraft of more than 30 seats or 15,000 kg, as issued by the Civil Aviation Safety Authority in Australia and the Civil Aviation Authority of New Zealand.

Commencement on Proclamation
Schedule 1, items 1 to 19

Item 2 in the table to subclause 3(1) in the bill provides that the amendments proposed in items 1 to 19 of Schedule 1 would commence on ‘a single day to be fixed by Proclamation’ with no limit specified within which the bill must commence in any event.

The Committee takes the view that Parliament is responsible for determining when laws are to come into force, and that commencement provisions should contain appropriate restrictions on the period during which legislation might commence. This view has long been reflected in the drafting directions issued by the Office of Parliamentary Counsel (currently Drafting Direction 2005, No. 10 at paragraphs 16 to 22).

The drafting direction provides that a clause which provides for commencement by proclamation should also specify a period or date after which the Act either commences or is taken to be repealed. It also provides that any proposal to defer commencement for more than 6 months after assent should be explained in the explanatory memorandum.

The explanatory memorandum states that the deferred commencement is ‘to enable the signing of the inter-governmental arrangement on mutual recognition by the Governments of Australia and New Zealand.’ The Committee has usually accepted this situation as justifying an extended, but not an open-ended, period for commencement (see Drafting Direction 2005, No. 10 at paragraphs 88 to 90). Accordingly, the Committee seeks the Minister’s advice as to whether the commencement clause should not also be subject to a provision that, if the agreement has not been signed by some fixed date, the Act will be automatically treated as having been repealed.

Pending the Minister’s advice, the Committee draws Senators’ attention to the provision, as it may be considered to delegate legislative powers inappropriately, in breach of principle 1(a)(iv) of the Committee’s terms of reference.

Relevant extract from the response from the Minister

At the time the Civil Aviation Legislation Amendment (Mutual Recognition with New Zealand and Other Matters) Bill 2003 (2003 Bill) was introduced, there was some uncertainty regarding the commencement of the Bill, due to the necessity for passage of complementary legislation in New Zealand. The commencement clause for the 2003 Bill had the substance of the Bill commencing on a date to be fixed by Proclamation, without a maximum time after which the Act would be repealed. This commencement provision inadvertently was carried over into the current Bill, despite the complementary New Zealand legislation passing in early 2004. Because of the passage of the complementary New Zealand legislation, only administrative arrangements need to be made after passage of the Bill to give effect to the Government’s mutual recognition policy, and I can confirm that the Government intends for the commencement of the Bill to occur no later than 6 months after Royal Assent.

The Committee thanks the Minister for this response. In the circumstances, the Committee makes no further comment on the provision.

Retrospective commencement
Schedule 1, items 20 and 29 to 31

Items 3 and 5 in the table to subclause 3(1) in the bill provide that the amendments proposed in item 20 and items 29 to 31 of Schedule 1 commence immediately after the commencement of item 10 of Schedule 2 to the Civil Aviation Amendment Act 2005. That Act commenced on 6 July 2005, so it appears these items will have some period of retrospective effect. As a matter of practice, the Committee draws attention to any bill which seeks to have retrospective impact and will comment adversely where such a bill has a detrimental effect on people. The Committee seeks the Minister’s advice as to the effect of the retrospective commencement of these provisions.

Pending the Minister’s advice, the Committee draws Senators’ attention to the provisions, as they may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the Committee’s terms of reference.

Relevant extract from the response from the Minister

In relation to the Committee’s concern about retrospective commencement of some provisions of the Bill, under items 3 and 5 of the commencement table in clause 2, items 20 and 29 to 31 of Schedule 1 will commence at the same time that items 1 to 19 of the Bill do, that is, on a single day to be fixed by Proclamation. This is because items 3 and 5 of the commencement table indicate that items 20 and 29 to 31 of Schedule 1 commence on the later of the two events noted, and one of those events (commencement of item 10 of Schedule 2 of the Civil Aviation Amendment Act 2005) has already occurred. There will therefore be no retrospective commencement of items 20 and 29 to 31 of Schedule 1 of the Bill.

The Committee thanks the Minister for this response.

Strict liability
Schedule 1, item 34

Proposed new subsection 28C(4) of the Civil Aviation Act 1988, to be inserted by item 34 of Schedule 1 to the bill, would create criminal offences of strict liability.

In its Sixth Report of 2002 the Committee reported on the Application of Absolute and Strict Liability Offences in Commonwealth Legislation. It recommended a range of principles which the Committee concluded should form the framework for Commonwealth policy and practice in relation to strict and absolute liability.

In February 2004, the Minister for Justice and Customs published a Guide to the Framing of Commonwealth Offences, Civil Penalties and Enforcement Powers. The Guide draws together the principles of the criminal law policy of the Commonwealth. Part 4.5 of the Guide contains a statement of the matters which should be considered in framing strict and absolute liability offences.

The Committee will generally draw to Senators’ attention provisions which create strict liability and absolute liability offences. Where a bill creates such an offence, the Committee considers that the reasons for its imposition should be set out in the explanatory memorandum which accompanies the bill.

While the explanatory memorandum explains the nature of strict criminal liability, it does not seek to justify its imposition in these circumstances. It is therefore not clear from the explanatory memorandum whether the principles contained in the Committee’s report or the matters listed at Part 4.5 of the Guide have been considered.

The Committee seeks the Minister’s advice as to whether the imposition of strict liability is justified in these circumstances and, further, whether consideration has been given to the principles contained in the Committee’s Sixth Report of 2002 and the matters listed at Part 4.5 of the Guide.

Pending the Minister’s advice, the Committee draws Senators’ attention to the provision, as it may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the Committee’s terms of reference.

Relevant extract from the response from the Minister

Finally, the two offences in new subsections 28C(2) and (3) are administrative in nature and are subject to a maximum fine of 2 penalty units. Offences such as failure to provide information which are subject to trivial sanctions are commonly strict liability offences. It is essential to the operation of the mutual recognition scheme that regulators be informed of changes to details of holders of Australian and New Zealand Aviation (ANZA) Air Operator Certificates (AOCs), and that therefore holders of ANZA AOCs guard against failing to provide this necessary information to regulators.

The Committee thanks the Minister for this response. This explanation meets the Committee’s concerns. The Committee takes the opportunity, however, to draw attention to its long-standing position that the justification for the imposition of strict liability offences should be set out in the explanatory memorandum to a bill.