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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CIVIL AVIATION AMENDMENT BILL 2005
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Transport and Regional Services,
the Honourable John Anderson, MP)
CIVIL AVIATION AMENDMENT BILL 2005
OUTLINE
The purpose of the Civil Aviation Amendment Bill 2005 (the Bill) is to amend the Civil
Aviation Act 1988 (the Act) to:
empower the Governor-General to make regulations that may be inconsistent with the
Disability Discrimination Act 1992 and the Sex Discrimination Act 1984 and to put beyond
doubt the validity of existing regulations and past actions based on those regulations;
bring into the Act where it should appropriately be, the requirement that Air Operator's
Certificate (AOC) holders continue to satisfy the Civil Aviation Safety Authority (CASA)
that they meet the conditions of issue of an AOC, as set out in s.28 of the Act; and
standardise references in the Act to aircraft which are registered in countries other than
Australia, ie. change all incorrect references to such aircraft to the defined term "foreign
registered aircraft".
The amendments to the Governor-General's regulation-making power are a re-introduction of
the substance of the Civil Aviation (Relationship with Anti-Discrimination Legislation) Bill
2004, which lapsed with the August 2004 dissolution of Parliament. They take into account a
recommendation made by the Senate Legal and Constitutional References and Legislation
Committee in relation to that Bill.
The proposed amendments will put beyond doubt the validity of some actions carried out in
accordance with safety regulations where these actions may appear inconsistent with either the
Disability Discrimination Act 1992 or the Sex Discrimination Act 1984. In the higher
interests of aviation safety it is important that the Governor-General has the power to make
regulations, from time to time, that could be construed by some as inconsistent with anti-
discrimination legislation.
Although some of these regulations may appear to be inconsistent with the Disability
Discrimination Act 1992 or the Sex Discrimination Act 1984 they are not unnecessarily
restrictive or discriminatory and have been developed solely for reasons of aviation safety. For
example, ICAO Annex 1 Chapter 6.3.2 states that to obtain a Class 1 Medical Assessment (to
exercise the privileges of a commercial or transport pilot licence, flight navigator licence or
flight engineer licence) the applicant shall not suffer from any disease or disability which could
render that applicant likely to become suddenly unable either to operate an aircraft safely or to
perform assigned duties safely.
The amendment allows the Governor-General to make regulations relating to medical fitness of
flight crew or air traffic control licence holders that may be inconsistent with the Sex
Discrimination Act 1984. However, it is possible that perceived disability discrimination may
occur elsewhere in the aviation safety regulations other than in relation to medical fitness. For
example there is a regulatory requirement that when handicapped persons are carried in an
aircraft, all reasonable precautions shall be taken to prevent hazards to other occupants. This
may mean that a person must be both physically and mentally capable of opening emergency
exits if seated in an exit row. Therefore, a broader regulation-making power, and hence a
broader scope of the validation provisions, are required in relation to inconsistency with the
Disability Discrimination Act 1992.
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As recommended by the Senate Legal and Constitutional References and Legislation
Committee, the Bill requires CASA to consult the Human Rights and Equal Opportunity
Commission (HREOC) in the preparation of future regulations that contain provisions that are
inconsistent with the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992.
In addition, as for all regulations made by the Governor-General under the Act, regulations
which have the potential to be inconsistent with the Disability Discrimination Act 1992 or the
Sex Discrimination Act 1984 will be subject to clearance by the Human Rights Branch of the
Attorney-General's Department and will undergo comprehensive consultation procedures and
parliamentary scrutiny.
The amendments will allow Australia to harmonise its aviation safety regulations with
international standards and meet its international obligations as a member State of the
International Civil Aviation Organization (ICAO).
The Bill also inserts a reference note into the Disability Discrimination Act 1992 and the Sex
Discrimination 1984 to inform members of the public of the operations of the proposed
amendments to the Governor-General's regulation-making power in the Civil Aviation Act.
Finally, the Bill re-introduces a minor element of the Civil Aviation Legislation Amendment
(Mutual Recognition with New Zealand and other Matters) Bill 2003, which lapsed with the
August 2004 dissolution of Parliament. Currently, it is a condition imposed on all AOCs that
the holder of the AOC continue to comply with entry control requirements for the issue of the
AOC, that is, continues to comply with section 28 of the Civil Aviation Act 1988 However,
this condition is imposed by a Civil Aviation Order. The Bill will place this condition in the
Act, where it more appropriately sits.
The Bill also corrects errors and standardises references in the Act to aircraft which are
registered in countries other than Australia.
Each one of the amendments in this Bill is testimony to the Government's commitment to
ongoing measured reform which ensures efficient and effective regulation, accessibility and a
world class standard of safety for operators and consumers alike.
Financial impact statement
It is not anticipated that there will be any financial impact from the passage of this Bill.
Regulation impact statement
The Office of Regulation Review (ORR) advised that this Bill does not require a Regulation
Impact Statement (ORR advice 6558).
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CIVIL AVIATION AMENDMENT BILL 2005
NOTES ON CLAUSES
Clause 1: Short Title
Clause 1 is a formal provision specifying the short title of the Act.
Clause 2: Commencement
This clause provides that the Act commences on Royal Assent.
Clause 3: Schedule(s)
The Civil Aviation Act 1988 is amended as set out in Schedules 1 and 2 of the Bill. Each
Schedule is dedicated to amendments on a particular subject matter:
Schedule 1 deals with the relationship between the Act and Commonwealth anti-
discrimination legislation; and
Schedule 2 makes miscellaneous technical amendments to the Act.
SCHEDULE 1 - Relationship between certain anti-discrimination legislation and
regulations under the Civil Aviation Act 1988
Part 1 - Amendments
Item 1 - After subsection 98(6) of the Civil Aviation Act 1988
This item amends s.98 of the Act by inserting new subsections (6A), (6B) and (6C).
New subsection 98(6A) provides that regulations made by the Governor-General under
subsection 98(1) of the Act may contain provisions relating to medical standards that are
inconsistent with the Sex Discrimination Act 1984 where those regulations are necessary for
the safety of air navigation.
New subsection 98(6B) provides that regulations made by the Governor-General under
subsection 98(1) of the Act may contain provisions that are inconsistent with the Disability
Discrimination Act 1992 where those regulations are necessary for the safety of air navigation.
New subsection 98(6C) requires CASA to consult the HREOC in the development of future
regulations that need to be inconsistent with the provisions of the Disability Discrimination
Act 1992 or the Sex Discrimination Act 1984, in the interest of aviation safety. The new
provision also provides that a failure by CASA to consult HREOC will not invalidate
regulations made.
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Item 2 - Insertion of note into section 47 Disability Discrimination Act 1992
Item 2 inserts a note at the foot of s.47 of the Disability Discrimination Act 1992 to inform
members of the public of the operations of the proposed amendments to s.98 of the Civil
Aviation Act.
Item 3 - Insertion of note into section 40 Sex Discrimination Act 1984
Item 3 inserts a legislation note at the foot of s.40 of the Sex Discrimination Act 1984 to
inform members of the public of the operations of the proposed amendments to s.98 of the
Civil Aviation Act.
Part 2 - Provisions dealing with the effect of the Civil Aviation Regulations 1988 and the
Civil Aviation Safety Regulations 1998
The purpose of Part 2 of Schedule 1 is to put beyond doubt the validity of past actions taken
under subordinate legislation made prior to commencement of this Act, thereby maintaining the
understood status quo for people affected by the requirements of the civil aviation safety law
which may be regarded as inconsistent with anti-discrimination legislation. This Part also
ensures the ongoing validity of subordinate legislation made prior to the commencement of this
Act to permit valid actions to be taken in reliance upon such subordinate legislation after the
commencement of this Act.
These provisions do not retrospectively impose any civil or criminal liabilities on people which
they did not already have.
Item 4 - Definitions
This item provides definitions for the purposes of the provisions set out in Part 2 of
Schedule 1.
Item 5 - Effect of the Civil Aviation Regulations and the Civil Aviation Safety Regulations
before the commencement of this Schedule
The effect of this item is to ensure the validity of actions taken under the Civil Aviation
Regulations 1988 and the Civil Aviation Safety Regulations 1998 before the commencement
of Item 1 of Schedule 1, despite any potential inconsistency with the Disability Discrimination
Act 1992 and the Sex Discrimination Act 1984, except where the rights and liabilities of those
concerned had already been determined by a court prior to commencement of that Item.
Item 6 - Effect of the Civil Aviation Regulations and the Civil Aviation Safety Regulations on
and after the commencement of this Schedule
This item deems the new subsections 98 (6A) and (6B) to have always existed, the effect of
which is to put beyond doubt the validity of any provisions of the Civil Aviation Regulations
1988 and the Civil Aviation Safety Regulations 1998 that may be inconsistent with the
Disability Discrimination Act 1992 and the Sex Discrimination 1984. This ensures valid
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actions may be taken under such provisions after commencement of Schedule 1 of the Bill
despite any inconsistency of those regulations with the Disability Discrimination Act 1992 and
the Sex Discrimination 1984.
The text in Items 4 to 6 will be inserted into the End Notes of the Act when the Act is
consolidated.
SCHEDULE 2 - OTHER AMENDMENTS
Part 1 - References to foreign aircraft
The opportunity has been taken to correct errors and standardise references in the Act to
aircraft which are registered in countries other than Australia. Subsection 3(1) of the Act
defines such aircraft as "foreign registered aircraft". However, in several provisions of the act,
the term "foreign aircraft" is used. In each of these instances, the correct term should be
"foreign registered aircraft".
Schedule 2 amends sections 7, 9 and 25 of the Act, and the heading to Subdivision C of
Division 2 of Part III of the Act to replace "foreign aircraft" with the defined term "foreign
registered aircraft".
Part 2 - Ongoing licence conditions
Currently, it is a condition of all AOCs that holders of AOCs continue to satisfy CASA of the
matters set out in s.28 of the Act. Section 28 provides for the matters of which CASA must be
satisfied for the issue of an AOC - it is only natural that the holder of an AOC can continue
throughout the life of the AOC to meet those requirements. This condition is currently
imposed by paragraph 4.4 of Civil Aviation Orders 82.0.
The condition is a fundamental condition of all AOCs, akin to the conditions imposed by
sections 28BD to 28BI of the Act. The opportunity has been taken to lift this fundamental
condition from a relatively obscure piece of legislation - that is, paragraph 4.4 of Civil Aviation
Order 82.0 - into the Act where it properly belongs.
Part 2 of Schedule 2 of the Bill has this effect. Item 8 inserts a new paragraph 28BA(1)(aa)
which imposes the condition set out in new s.28BAA on all AOCs. Item 9 provides that, if the
condition set out in the new s.28BAA is breached, the AOC continues to authorise operation
of aircraft according to its terms. This reflects the situation for breaches of other conditions
imposed by the Act (under paragraph 28BA(1)(a)).
Item 10 then inserts a new s.28BAA which imposes the condition that CASA must remain
satisfied of the matters set out in paragraphs 28(1)(a) and (b) of the Act.
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