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2002-2003
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
CIVIL AVIATION
LEGISLATION AMENDMENT BILL
2003
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Minister for
Transport and Regional Services,
the Honourable John Anderson, MP)
The purpose of the Civil Aviation Legislation Amendment
Bill 2003 (the Bill) is to make amendments to the Civil Aviation Act 1988
(the CAA) to facilitate ongoing review of civil aviation regulations
and to provide for the simplification and international harmonisation of
Australia's civil aviation regulatory regime.
The
Bill will also make amendments to the Air Navigation Act 1920 to ensure
consistency in definitions with the amended CAA and to the Airports
Act 1996 so as to remove a redundant provision.
The Civil Aviation Safety Authority (CASA) is
currently developing regulations under the CAA which will put in place
maintenance standards for aircraft and aircraft components (so-called
‘aeronautical products’). Such standards already exist (Part 4A of
the Civil Aviation Regulations 1988), but are being reviewed and amended
as part of the Government’s commitment to simplification and international
harmonisation of Australia’s civil aviation regulatory régime. The
Bill will amend some provisions of the CAA in order to:
• enable the alignment of Australian aircraft maintenance philosophies with those of other national airworthiness authorities and international (ICAO) standards;
• enable the regulation of not only the technical aspects of aircraft maintenance, but also the control and management of aircraft maintenance; and
• define certain terms for use in the Act and
regulations.
Some of the amendments included in
this Bill have been debated in Parliament previously as part of earlier Bills.
The proposal to introduce Enforceable Voluntary Undertakings that was included
in the earlier Bills is to be the subject of another Bill. Issues that were
raised in relation to other matters that are included in this Bill have either
been resolved at the time or are explained in this Explanatory Memorandum.
Specifically this Bill will modify the CAA to:
• amend aircraft maintenance-related
definitions;
• amend relevant provisions to use
the new terminology;
• amend the definitions of
“state Aircraft” and “Australian aircraft” to align with
international law and practice;
• empower CASA to
enter into so-called “Article 83bis agreements” with the
national airworthiness authorities of other ICAO States;
and
• make minor corrections to provisions
relating to dealing with goods seized as part of an
investigation.
The Bill will
also:
• amend the Air Navigation Act
1920 to align the definitions of “state aircraft” and
“Australian aircraft” with those in the CAA; and
• amend the Airports Act 1996 by
repealing section 192 to remove the requirement for, and application of,
Ministerial determinations under that Act, regarding airport services which
would otherwise be subject to declaration provisions under Part IIIA of the
Trade Practices Act 1974.
One important
amendment to the CAA is that relating to “Article 83bis
agreements” (Item 4 of Schedule 1 of the Bill). The Bill transfers to
CASA, from the Minister for Transport and Regional Services, the function of
entering into so-called ‘Article 83bis agreements’ with the
national airworthiness authorities of other countries. Under the Convention
on International Civil Aviation, Chicago 1944 (the Chicago Convention) a
State party to the Convention is generally responsible for the safety regulation
of aircraft on that State’s register, irrespective of where the aircraft
is in the world. Some obvious difficulties in administering safety regulations
arise when an aircraft registered in one country is operated in another for a
substantial period. Article 83bis is a relatively recent addition
to the Chicago Convention, and enables the transfer of safety regulatory
functions from the State of registration of an aircraft to the State in which
the aircraft is to operate, on agreement of both States. The International
Civil Aviation Organisation (ICAO) considers that such agreements should be made
between the relevant national airworthiness authorities (NAAs), as they are
administrative instruments of less than treaty
status.
Australia ratified Article 83bis on
2 December 1994 after amending the Civil Aviation Act by the Transport
and Communications Legislation Amendment Act (No. 2) 1993. Importantly a
new section 4A was inserted which allows provisions of the Civil Aviation
Act implementing the functions under Articles 12, 30, 31 and 32 of the
Chicago Convention:
• to be applied to a foreign aircraft identified in an Article 83bis agreement which transfers those functions to Australia; and
• to be disapplied to an Australian aircraft identified
in an Article 83bis agreement which transfers those functions to another
state.
This Bill ensures that CASA will have the
function to enter into Article 83bis agreements on behalf of Australia.
Public scrutiny and transparency of the process is ensured because it is a
requirement under the CAA that CASA publishes in the Gazette the
particulars of an Article 83bis agreement or an amendment to such an
agreement. There will also be detailed administrative and technical provisions
concerning the implementation of Article 83bis agreements in the
regulations.
The Office of Regulation Review has
advised that no Regulation Impact Statement (RIS) is required for the amendments
in this Bill except in relation to amendments that form part of the regulatory
reform program. A RIS has been provided and is included in this Explanatory
Memorandum.
It is not expected that the Bill will be financially significant. The Bill is largely of a machinery nature, and aside from some savings which may flow from improved administration of civil aviation legislation, will have no financial impact on the Commonwealth.
In June 1996, the Regulatory Framework Program (RFP) office of
CASA commenced a Government endorsed review and revision of the Australian
aviation safety requirements currently contained in the Civil Aviation
Regulations (CARs) and the Civil Aviation Orders (CAOs). The proposed new
legislation is called the Civil Aviation Safety Regulations
(CASRs).
Arising from the review, a need to amend
the Civil Aviation Act 1988 was identified to give effect to a proposed
CASR Part 43 — Maintenance Rules, and Part 145 –
Maintenance Organisations, to address the proposed policy
changes.
The proposed changes to the Civil
Aviation Act are to support future CASR Parts and will have no effect on the
current requirements prescribed in the CARs. They will, however, ensure
Australian regulations harmonise with international standards and
practices.
The problem is that the current legislation is ambiguous,
disjointed, difficult to comply with and enforce, and does not support future
changes to maintenance
requirements.
Australia’s aviation safety
requirements are currently contained in the Civil Aviation Act 1988,
Civil Aviation Regulations 1988 (CARs), Civil Aviation Safety
Regulations 1998 (CASRs) and Civil Aviation Orders (CAOs). With the
proposed changes to future legislation, seeking comparative advantage with
respect to international aviation trading agreements, there is a recognised need
that the Act must be changed to incorporate the new definitions and
interpretation necessary to implement new maintenance requirements. Such
changes involve the use of the terms “aeronautical product” and
“maintenance”. These terms replace existing terminology and reflect
the requirements necessary for the enabling legislation dealing with aircraft
maintenance. The proposed legislative changes to the Act seek to achieve
compliance with ICAO Standards and Recommended Practices and to harmonise with
the requirements of other national airworthiness authorities (NAAs) by removing,
wherever practicable, maintenance requirements and terminology currently unique
to Australia.
CASA seeks the introduction of a number of amendments to the
Act and the Civil Aviation Regulations (CARs) to enable the use of terminology
and philosophies which are necessary to enable harmonisation of aircraft
maintenance requirements with other NAAs.
The
objective is to:
• amend the Civil Aviation Act 1988 to facilitate the use of new terminology in future CASRs Part 43 and Part 145 dealing with maintenance of aircraft and aeronautical products;
• enable the alignment of Australian maintenance philosophies with that of other national airworthiness authorities and international standards;
• define and introduce the terms aeronautical product and maintenance; and
• emphasise the maintenance control arrangements for aircraft.
The options considered were limited to
two:
Option 1. Do nothing. In this case the
proposed regulations would potentially be inconsistent with the Act, leading to
confusion, and potentially, invalidity;
or
Option 2. Develop draft legislation
appropriate to the specific task.
No other options
were considered viable or appropriate.
The persons, groups or organisations which could be affected by the problem and proposed changes are those involved with carrying out any general or specific maintenance function(s) on an aircraft or aeronautical product. This includes:
• Registered operators* (referred to in the current CARs as Certificate of Registration holders);
• CAR 30 (proposed CASR Part 145) “approved maintenance organisations”;
• Air Operator Certificate (AOC) holders;
• Licensed aircraft maintenance engineers;
• Holders of maintenance authorisations; and
• Flight
crew.
*Note: Under the terms
of the new CASRs relating to aircraft maintenance, including the CASR Part 47
dealing with aircraft registration, it is proposed to use the term
“registered operator” to replace the term “Certificate of
Registration holder”.
There will be no anticipated added cost to consolidated
revenue due to the amendments of the Act.
There will however, be long term cost benefits to those
aviation industries involved in international trade which will flow from the
legislative changes. Although it is difficult to specify projected cost
benefits, it is a clearly recognised fact that in order to contribute and be a
partner in the aviation world market with respect to the manufacture of
aeronautical products, e.g parts for Boeing aircraft and the overhaul of
aircraft engines, it is necessary to use the same terminology and airworthiness
documentation to gain access to those markets.
There are no environmental issues involved in this change.
A Notice of Proposed Rule Making - NPRM 9901: Proposed
amendments to the Civil Aviation Act 1988 — Relating to Civil
Aviation Safety Regulations, was published for aviation community and public
comments on 14 May 1999. The period for public comment on the proposals
contained in the NPRM closed on 23 July
1999.
In addition to CASA internal discussion
within the Regulatory Framework Program office, District Airworthiness Managers
(DAM’s) and consultation with CASA’s Office of Legal Counsel (OLC)
and the Department of Transport and Regional Services (as it then was) (the
Department), the NPRM was advertised in the national and capital city press.
The NPRM was distributed to members of the CASA
review program’s Technical Committees TC6 (Sport Aviation) and TC7
(Aircraft Maintenance), CASA District Offices and placed on the CASA Internet
web site.
A total of fifty one (51) responses to
the NPRM were received, including seven responses from CASA specialists
responsible for the administration of the maintenance aspects, and forty four
(44) from the aviation industry.
The responses
received related to the NPRM proper and the proposed draft legislation (changes
to ‘the Act’).
Comments of a
general nature were also received covering editorial and typographical errors,
administrative and procedural matters which were taken into account and
incorporated as necessary.
All comments received
were evaluated and, where appropriate, suggestions and recommendations were
incorporated. All comments, including those of a general nature were addressed
collectively in the Summary of Responses to NPRM 9901RP which was published by
CASA on 22 October 1999.
CASA decided to apply Option 2 and have, in conjunction
with OLC and the Department, developed draft legislation appropriate to the
specific task.
The drafting of any proposed amendments to the Civil Aviation
Act is carried out by the Office of Parliamentary Counsel (OPC) in accordance
with drafting instructions issued by the
Department.
There is no proposed implementation
date for the changes to the Civil Aviation Act. Implementation is
expected to take place as expeditiously as possible following Parliamentary
debate and approval. This is necessary to enable the enactment of those
proposed changes to the CASR’s which have already been subject to NPRM
review.
CASA will monitor the effects the changes
to the Civil Aviation Act will have on the existing and future CASR parts
as they are promulgated. A review of the changes will be conducted on
completion of the regulatory reform program (post 2003).
The Act, once enacted, may be cited as the Civil Aviation
Legislation Amendment Act 2003.
Clauses 1-3, items 4-7 and 19-23 of Schedule 1, item 2 of
Schedule 2, and Schedule 3 of the Bill commence on Royal
Assent.
Items 1, 3, and 8-18 of Schedule 1 of the
Bill, which amend definitions and offence provisions as part of the aircraft
maintenance reform package, commence on a date to be fixed by proclamation, or
12 months from Royal Assent, whichever is
earlier.
Item 2 of Schedule 1 of the Bill and item
1 of Schedule 2 of the Bill, which amend the definition of “Australian
aircraft” in the Civil Aviation Act 1988 and the Air Navigation
Act 1920 respectively, commence on a date to be fixed by proclamation, or 12
months from Royal Assent, whichever is earlier. These provisions need to be
able to commence on a date different to the items referred to in the previous
paragraph.
The Civil Aviation Act is amended as set out in
Schedule 1 to the Bill. The Air Navigation Act is amended as set out in
Schedule 2 and the Airports Act is amended as set out in Schedule
3.
This item inserts the definition of aeronautical product
into the interpretation provision of the Civil Aviation Act. The
definition is consistent with (although not identical to) the definition used by
major National Airworthiness Authorities, for example the United States Federal
Aviation Administration and the European Joint Aviation
Authority.
This item will amend the definition of Australian
aircraft to ensure that unregistered aircraft and those aircraft placed
on the register of an aviation organisation or association are subject to
aviation safety regulatory controls. This will mean that the provisions of the
CAA and regulations which currently apply to Australian aircraft
will apply to all aircraft in Australian territory which are not either
foreign registered aircraft or state aircraft (both
terms are defined in subsection 3(1)).
Under the
Chicago Convention, State parties are responsible for regulatory oversight of
aircraft registered in their jurisdiction. Accordingly, many of the provisions
in the CAA apply only to “Australian aircraft” which are defined as
“aircraft registered in Australia”. As a result, unregistered
aircraft are not Australian aircraft and are not covered by many of the aviation
safety regulatory controls.
There are also a large
number of aircraft which are “registered” by being placed on the
register of an aviation organisation or association. Since aircraft placed on
the register of an aviation organisation or association are not registered under
Part 3 of the Civil Aviation Regulations 1988, that is, they are not
registered in Australia in accordance with the registration system prescribed in
the regulations, the Australian Government Solicitor has advised that they are
not therefore “Australian Aircraft”. Hence they too escape the
application of many of the regulatory controls intended to ensure aviation
safety.
Accordingly, this item amends the
definition of “Australian aircraft” to
include:
(a) aircraft registered in Australia;
and
(b) aircraft in Australian territory other than
foreign registered aircraft and state aircraft.
The
amendment to the definition is to commence on a date to be fixed by
proclamation. CASA is currently in the process of re-writing the regulations
dealing with registration of aircraft, and operation and maintenance of aircraft
which are currently not registered with CASA. The amendment to the definition
of “Australian aircraft” is intended to co-incide with the
commencement of those regulations.
Item 3 inserts the definition of maintenance
into the interpretation provision of the Civil Aviation Act. The
definition is consistent with the definition used by the International Civil
Aviation Organisation and by major National Airworthiness Authorities, for
example the United States Federal Aviation Administration and the European Joint
Aviation Authority.
This Item amends the definition of state
aircraft to remove the clause that excludes aircraft which appear on an
Australian register from being classified as state
aircraft.
The effect of this amendment will
be to ensure compliance with the Chicago Convention and to place aircraft that
are used by the Australian Defence Forces for military purposes either on short
or long term lease, under military, not civil, regulation, during the period of
the lease.
This same amendment is being made to the
definition of state aircraft in subsection 3 (1) of the
Air Navigation Act 1920 (see item 2 of Schedule
2).
The Chicago Convention is expressed not to
apply to state aircraft (Art. 3(a)), and deems state aircraft to be
“aircraft used in the military, customs and police services”
(Art. 3(b)). As a result, the standards applied to the operation of
aircraft under the Chicago Convention are not required, as a matter of
international law, to be applied to military, customs and police
aircraft.
Section 4 of the CAA essentially
precludes application of Australia’s aviation safety laws to state
aircraft, in accordance with Art. 3(a) of the Chicago Convention. However,
the definition of “state aircraft” in subsection 3 (1) of the
CAA does not mirror the definition in Art. 3(b) of the Convention. In
particular, aircraft used in Australian customs and police services are not
“state aircraft”, and aircraft which are used by the Australian
Defence Force but which are nevertheless on the Australian (civil) aircraft
register are not “state aircraft”. While the application of civil
aviation safety regulation to domestic customs and police services is
commonplace around the world, it is unusual for any aircraft used by military
forces for military purposes to be subject to civil aviation safety
regulation.
Item 5 provides a new function for the Civil Aviation Safety
Authority to enter into Article 83bis agreements, on behalf of Australia,
with the national airworthiness authorities of other countries who are States
party to the Chicago Convention.
Under the
Chicago Convention a State party to the Convention is generally responsible for
the safety regulation of aircraft on that State’s register, irrespective
of where the aircraft is in the world.
To
overcome obvious difficulties in administering safety regulations when an
aircraft registered in one country is operated in another for a substantial
period, Article 83bis enables the transfer of safety regulatory
functions from the State of registration of an aircraft to the State in which
the aircraft is to operate, on agreement of both States.
Items 6 to 11 inclusive amend sections 20AA, 20AB and 24 to
incorporate the new terms defined in items 1 and 3. The opportunity has also
been taken to improve the language of the sections, in order to make them more
comprehensible and consistent with current Commonwealth drafting styles and the
Criminal Code. These provisions were not amended as part of the Criminal
Code harmonisation process undertaken in late 2001 (see the Transport and
Regional Services Legislation Amendment (Application of Criminal Code) Act
2001) because they were due to be amended for that purpose in the
Aviation Legislation Amendment Bill (No.1) 2001. Accordingly, the
sections still need to be amended to align with the Criminal Code, and
items 6 to 11 of Schedule 1 achieve that
purpose.
Section 5.6 of the Criminal Code
will impute fault elements – knowledge or recklessness, as the case may be
– for the physical elements of the offences created by subsections
20AA(1), (3) and (4), subsection 20AB(2) and subsection 24(2). The implied
fault elements in the offences in subsections 20AA(1), (3) and (4) (items 6 and
8) will serve to clarify that regulatory action may only be taken by CASA to
cancel, suspend or vary an Air Operator’s Certificate as a result of a
breach of one of those subsections if that breach occurs knowingly or
recklessly. Whilst it is arguable that currently such regulatory action can
occur in the absence of a fault element for a breach of such a subsection, the
better view is that it cannot. CASA has always taken this purposive
interpretation of the subsections, and as a result only takes regulatory action
where it is satisfied on the balance of probabilities that the alleged offender
has knowingly or recklessly committed the breach. This amendment simply
specifies the fault element but makes no substantive change to these provisions.
The change therefore removes any doubt about CASA’s interpretation of the
Act and confirms the validity of its existing, and appropriate, enforcement
policy.
The redrafting of the offence in subsection
20AA(1) to align with the Criminal Code has required that exceptions or
defences to the offence be separately identified as such, lest they be confused
with elements of the offence. One such exception is that the aircraft concerned
is employed in private operations and possesses the nationality of a Contracting
State. This defence is now set out in a new subsection
20AA(1A).
Item 7 will replace the reference to
“subsection (1)” in subsection 20AA(2) of the Act with a reference
to “subsection (1A)”.
Item 9
substitutes a new sub-section 20AB(2). This provision widens the scope of the
sub-section to require approval to carry out maintenance on an Australian
aircraft anywhere in the world. The sub-section presently only requires
approval in relation to Australian aircraft in Australian territory. This
change will bring the Act into line with Australia’s international
obligations under the Chicago Convention to control the safety of Australian
registered aircraft wherever they are
situated.
Item 10 substitutes a revised clause to
omit references to redundant terms.
Items 12 and 13 repeal the definitions of aircraft
component and aircraft material as these have been
superseded by the term aeronautical product, defined at item 1.
Item 14 amends the definition of inspection
or test in subsection 27AC(3) by incorporating the term
aeronautical product into a new paragraph (b) which no longer
depends upon the definitions of aircraft component and
aircraft material.
Item 15 changes the definition of key personnel
in subsection 28(3) by replacing the term “aircraft maintenance”
with “aircraft airworthiness and maintenance control”. Many
aircraft operators do not have aircraft maintenance done “in house”,
and therefore there may be no person who could be regarded as “the head of
the aircraft maintenance part” of the operator’s organisation. The
addition of the word “control” is designed to ensure that even when
aircraft maintenance is not done by the aircraft operator itself, if a
particular person is responsible for making arrangements for aircraft
maintenance, then that person will be part of the operator’s key
personnel for the purposes of section 28 of the Act.
Paragraph 28A(1)(d) of the CAA requires that applicants for
Air Operator’s Certificates authorising the use of foreign aircraft
domestically in Australia provide certain information to CASA, including
information relating to the country or countries in which maintenance has been
carried out on the aircraft to which the application relates. However, minor
maintenance is carried out regularly on aircraft during short stops, and for an
aircraft flying international routes there could be dozens of countries in which
it has maintenance done. CASA is not concerned to gather information on
countries in which this minor maintenance is done, and has to date excluded this
information by excluding the requirement to provide a list of countries in which
daily maintenance is carried
out.
However, the concept of daily
maintenance is peculiar to Australia, and is not well understood in the
international aviation industry. The equivalent term used internationally is
line maintenance. Item 16 amends subparagraph 28(1)(d)(iii) so
that it requires information on countries in which maintenance is carried out,
other than those activities encompassed in the ICAO definition of line
maintenance. Item 18 gives effect to the change as it amends subsection
28A(2) by replacing the term daily maintenance with line
maintenance.
Paragraph 28A(1)(g) of the CAA requires that applicants for
Air Operator’s Certificates provide to CASA information on the person
responsible for the operational control of aircraft subject to leases. Item 17
extends this information by requiring information on the person responsible for
the maintenance control of aircraft subject to leases.
Item 19 amends subsection 32AHA to improve the language of the
clause in order to make it more comprehensible. Item 20 amends the subsection
to enable an investigator to apply to a magistrate for an order to retain seized
goods during an investigation, before the expiration of the initial 60
day period.
Currently section 32AHA permits an
investigator to apply to a magistrate for an order permitting the retention of
goods seized in the process of an investigation for a period of up to 90 days
following an initial period of 60 days. However the investigator can only make
an application to a magistrate for such an order following the expiration of the
previous time limit for holding the seized goods. Thus, an investigator is
placed in the position of having to return seized goods under subsection
32AH (1) prior to being able to apply to a magistrate for an order
permitting retention of the goods. The amendment to subsection 32AHA(1) in item
20 will correct this anomaly.
Items 21 and 23 amend section 32AL of the CAA to allow CASA to
seek an order from a magistrate instead of from a “court of competent
jurisdiction”. It was not very clear from the current provision which
court had jurisdiction to issue an order for destruction or disposal of seized
goods, which may range in value from a few dollars’ worth of fireworks to
aircraft components worth several thousands or tens of thousands of dollars.
The amendment to section 32AL clarifies to whom CASA must apply for a
destruction or disposal order.
Item 22 amends
section 32AL of the CAA to allow CASA to seek a court order permitting it to
dispose of seized goods, rather than their destruction. This permits
flexibility in the disposal of unclaimed seized goods; for example, goods may be
disposed of by CASA handing them to police or customs officers, or by selling
them to recoup storage costs.
This item will amend the definition of Australian
aircraft to cross-reference it with that term in the Civil Aviation
Act 1988, ensuring the two pieces of legislation are consistent. Note that
the definition of Australian aircraft in the CAA is being amended
by item 2 of Schedule 1 of this Bill.
This Item amends the definition of state
aircraft to remove the clause that excludes aircraft which appear on an
Australian register from being classified as state aircraft.
The effect of this amendment will be to ensure
compliance with the Chicago Convention and to place aircraft that are used by
the Australian Defence Forces for military purposes either on short or long term
lease, under military, not civil, regulation, during the period of the
lease.
This same amendment is being made to the
definition of state aircraft in subsection 3(1) of the CAA (see
item 4 of Schedule 1 of this Bill).
This item repeals section 192 of the Airports Act 1996
and thereby removes the requirement for, and application of, Ministerial
determinations in declaring airport services which would otherwise be subject to
the declaration provisions in Part IIIA of the Trade Practices Act 1974
(TPA).
Such Ministerial determinations
are, by necessity, in general terms and are subsequently subject to scrutiny by
the Australian Competition and Consumer Commission (ACCC) to determine which
specific services fall within the Minister’s determination and are
therefore exempt from the provisions of Part IIIA of the TPA.
As section 192 provides no tangible benefit to
stakeholders the Productivity Commission found that there was no compelling case
for this process and declared that “all airports should be subject to the
generic access provisions of Part IIIA” of the TPA.