Bills Digest No. 164  1999-2000 Aviation Legislation Amendment Bill (No 2) 2000

Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Aviation Legislation Amendment Bill (No 2) 2000

Date Introduced: 12 April 2000

House: House of Representatives

Portfolio: Transport and Regional Services

Commencement: The amendments to the Civil Aviation Act 1988 (in Schedule 1) commence on Royal Assent.

The amendments to the Civil Aviation (Carriers' Liability) Act 1959 (in Schedule 2) are taken to have commenced on 23 July 1998. This is the date on which the amendments to the Civil Aviation (Carriers' Liability) Act 1959 contained in Schedule 4 of the Aviation Legislation Amendment Act (No 1) 1998 commenced.

Purpose

The Bill contains a number of amendments to the Civil Aviation Act 1988 which have the following purposes:

• to introduce terminology which is consistent with the terminology used by the International Civil Aviation Organisation and other national airworthiness authorities, and to harmonise some offences with current Commonwealth criminal drafting policy
• to enable CASA to enter into Article 83bis agreements with other national airworthiness authorities, and
• to give CASA the power to accept written undertakings from people in relation to compliance with civil aviation safety legislation.

The Bill also amends the Civil Aviation (Carriers' Liability) Act 1959 to ensure liability limits higher than those set by the Warsaw Convention are imposed only on Australian airlines, not foreign airlines.

Background

The Bill is part of the complete review of civil aviation legislation in Australia begun by the Civil Aviation Safety Authority (CASA) in July 1996. It deals with a number of disparate matters.

Terminological consistency

Currently, the Civil Aviation Act 1988 includes terminology in relation to aircraft maintenance which is unique to Australia. The International Civil Aviation Organisation (the 'ICAO') has passed a Global Rule Harmonization Resolution, urging countries to promote global harmonization of national rules for the application of ICAO standards. In particular, the ICAO encourages use of the precise language of ICAO regulatory standards in national legislation and regulations, as far as practicable.⁽¹⁾

Accordingly, the Bill proposes to delete references to uniquely Australian terms and replace them with internationally recognised and accepted terms. The Explanatory Memorandum states that this will not affect current regulations dealing with aircraft maintenance requirements, but will enable CASA to develop new regulations dealing with aircraft maintenance and maintenance engineer licensing that will comply with the ICAO's regulatory standards.⁽²⁾

Criminal responsibility

The Bill also contains provisions designed to harmonise some of the criminal offences contained in the Civil Aviation Act 1988 with the general principles of criminal responsibility set out in Chapter 2 of the Commonwealth Criminal Code.⁽³⁾ The Bill amends some offences,⁽⁴⁾ but not others.⁽⁵⁾ It seems that only those provisions that were amended to incorporate the new terminology have been harmonised with the Criminal Code. The other offence provisions will need to be harmonised before Chapter 2 of the Commonwealth Criminal Code commences on 15 December 2001.

The offences amended by the Bill all specify the mental state which is a component of the offence. Some offences in the Civil Aviation Act 1988 already specified a mental element, namely, knowledge or recklessness,⁽⁶⁾ and this is not altered in the substituted provisions, although the offences are re-worded.

Other offences in the Civil Aviation Act 1988 did not specify a mental element,⁽⁷⁾ but the provisions substituted in the Bill do. At first blush, this seems a major departure from the earlier drafting. However, it in fact merely formalises what would have been the result when the current provisions are interpreted in light of the common law. At common law there is a presumption that a mental state is an essential element of a criminal offence,⁽⁸⁾ even if the statute defines an offence by reference only to its physical elements (the acts or omissions which constitute it), and does not refer to any mental state.⁽⁹⁾

Each of the three offences amended by the Bill consists of conduct combined with circumstances (flying an unregistered aircraft, carrying out maintenance without permission, and tampering with an aircraft or aeronautical product in a way that may endanger the safety of the aircraft, persons or property). At common law, a mental state would be implied for these offences, although it is not clear if it would be intention or recklessness or a lesser state. The mental state that would apply under the Criminal Code to an offence consisting of acts plus the surrounding circumstances would be intention, knowledge or recklessness.⁽¹⁰⁾ The Bill specifies that the mental state for these three offences is knowledge or recklessness. This is clearly consistent with the Criminal Code, and may or may not be the same as the present, common law, position.

Article 83bis agreements

The Chicago Convention⁽¹¹⁾ makes a country responsible for the safety regulation of aircraft registered in that country, wherever in the world the aircraft is situated. Article 12 requires aircraft to comply with the flight rules and regulations of the country of registration, wherever in the world they may be flying. In addition, the country where an aircraft is registered is responsible for approving radio transmitting apparatus, for issuing certificates of airworthiness to aircraft, and for certifying and licensing pilots.⁽¹²⁾

Article 83bis of the Chicago Convention⁽¹³⁾ permits the transfer of all or some of those functions listed above, if an aircraft is registered in one country but operated (eg pursuant to a lease or charter) by an operator whose principal place of business or permanent residence is in another country. Both the country of registration of the aircraft and the country where the aircraft is operated must agree to the transfer of functions. Article 83bis agreements would facilitate the ability of Australian carriers to lease or charter their aircraft to foreign operators during quieter periods.

The provisions of the Civil Aviation Act 1988 implementing functions under Articles 12, 30, 31 and 32 of the Chicago Convention already apply to foreign aircraft identified in an Article 83bis agreement which transfers functions from another country to Australia. Conversely, these provisions are not applied to Australian aircraft identified in an Article 83bis agreement which transfers functions to another country.⁽¹⁴⁾

This Bill simply gives CASA the function of entering into Article 83bis agreements on behalf of Australia. This is consistent with the ICAO's opinion that Article 83bis agreements should be made between the aeronautical authorities of the relevant countries, as the agreements are instruments with less than treaty status.⁽¹⁵⁾

No criteria are specified which would confine CASA's discretion to enter into Article 83bis agreements. However, Article 83bis agreements can only be made between countries which are parties to the Chicago Convention, and are thus subject to international standards in respect of civil aviation safety.

Enforceable undertakings

The Bill gives CASA the power to accept written undertakings from people in relation to compliance with air safety requirements. This is in addition to the existing enforcement powers possessed by CASA, which include informal counselling, administrative fines, or accepting an informal, unenforceable undertaking, as alternatives to initiating a prosecution for breach of the Act, regulations or Civil Aviation Orders.

The provision in the Bill is modelled on section 87B of the Trade Practices Act 1974. Enforceable undertakings were introduced into the Trade Practices Act 1974 in 1992, as part of the administrative resolution of breaches of the Act. Five years after their introduction, the Chair of the Australian Competition and Consumer Commission commented that 'legally enforceable undertakings ...[have] made the Act both more effective and helped avoid court procedures'.⁽¹⁶⁾

Undertakings have a number of advantages. Rather than pursue suspected breaches through the litigation process, which can be lengthy and expensive, and in which it may be difficult to prove a breach occurred, undertakings will commit the person or entity in breach to cease the conduct in breach and not resume it. Undertakings may also include terms relating to compensation or actions to correct the breach (such as corrective advertising in the trade practices context).⁽¹⁷⁾ The scope of an undertaking is potentially wider and the terms more flexible than a court-imposed remedy. For example, a court may be reluctant to make other orders requiring ongoing monitoring and supervision by the court, whereas an administrative agency such as CASA may be prepared to accept undertakings with an ongoing obligation.⁽¹⁸⁾ Undertakings have also been known to include terms in the nature of community service orders, such as publication of material in relevant trade journals, or undertaking industry-wide compliance education programs.⁽¹⁹⁾

CASA envisages using enforceable undertakings mainly in situations where CASA has detected regulatory inadequacies or non-compliance with legislation, but a prosecution or cancellation of a licence would be disproportionate, as there is no serious or immediate threat to aviation safety.⁽²⁰⁾ In its view, enforceable undertakings would ensure compliance with the law, performing an important preventative function, without the technicalities, delays and resource costs associated with court proceedings. Because breach of an undertaking would be enforceable in the Federal Court without the need to independently prove a breach of the Civil Aviation Act 1988 or the regulations, if enforcement becomes necessary CASA would only have to prove the terms of the undertaking and that it has not been complied with.

Carriers' limitation of liability

The Civil Aviation (Carriers' Liability) Act 1959 was enacted to implement the Warsaw Convention in Australian law.⁽²¹⁾ The Warsaw Convention imposes strict liability on international air carriers in respect of death or personal injury to passengers, destruction or loss of or damage to registered baggage or cargo. The application of the Warsaw Convention is extended to carriers subcontracted by the principal carrier who entered into the contract of carriage by the Guadalajara Convention 1961.⁽²²⁾ Liability under the Warsaw Convention for personal injury or death is limited to 125,000 francs⁽²³⁾ or 250,000 francs.⁽²⁴⁾

If neither the Warsaw Convention nor the Guadalajara Convention is applicable, liability may nevertheless be imposed under Australian law. Part IV of the Civil Aviation (Carriers' Liability) Act 1959 applies to air carriage between Australian States; to from or in an Australian Territory; or between Australia and another country.⁽²⁵⁾ For such air carriage, liability for death or personal injury is currently capped at $500,000.⁽²⁶⁾

In 1995, the Government decided to increase the liability limit of Australian international air carriers for death and personal injury to 260,000 Special Drawing Rights (SDRs)⁽²⁷⁾ for carriage to which the Warsaw Convention or the Warsaw Convention as amended by the Hague Protocol 1955 applied.⁽²⁸⁾ In 1995, 260,000 SDRs was approximately equivalent to $500,000.⁽²⁹⁾ Although this is a breach of the provisions of the Warsaw Convention capping liability, it was perceived that the liability limits set under the Warsaw Convention were inadequate. Liability limits have not been increased since 1955, as attempts to amend them have so far been unsuccessful.⁽³⁰⁾ The unit of currency in which liability is expressed under the Warsaw Convention, the Poincare gold franc,⁽³¹⁾ ceased to exist in the 1970s.⁽³²⁾ Australia felt that it was not possible, consistent with its international obligations, to increase liability limits for foreign carriers, but approached relevant foreign carriers to request them to voluntarily increase their liability limits to the same level.⁽³³⁾ Other countries have similarly considered increasing their liability limits, despite the restrictions contained in the Warsaw Convention.⁽³⁴⁾

The amendments increasing liability for Australian international carriers defined an 'Australian international carrier' as either a carrier authorised by Australia to operate scheduled international air services, or a carrier operating a non-scheduled international charter flight permitted under section 13A of the Air Navigation Act 1920. Section 13A enabled permission to be given to Australian aircraft operators to operate charter services. However, that section has since been repealed, and the cross-references in the Civil Aviation (Carriers' Liability) Act 1959 were replaced with references to section 15D of the Air Navigation Act 1920.⁽³⁵⁾ Section 15D enables permission to be given to any aircraft operators to operate charter services, not only Australian aircraft operators.

The cross-reference to section 15D thus inadvertently imposed the increased liability on foreign charter operators leaving from Australia, as well as on Australian charter operators. The increased liability was only ever intended to apply to Australian international charter operators. The amendment effected by the Bill corrects this error by restricting the increase in liability to authorised charter operators who are 'Australian persons'. The amendment operates retrospectively back to the date the cross-reference to section 15D was introduced.⁽³⁶⁾

Main Provisions

Terminological consistency

The amendments to the Civil Aviation Act 1988 make a number of terminological changes. They replace the concepts of 'aircraft component' and 'aircraft material' with the new term 'aeronautical product' (items 1, 7, 9, 10, 11 and 12).⁽³⁷⁾ The definition of 'aeronautical product' is extremely broad, and covers anything designed to be a part of or used in an aircraft.

The Bill also defines 'maintenance' (item 2). This term already exists in a number of sections, but is currently not defined in the Act. The definition of maintenance is based on ensuring airworthiness, whereas the definition of maintenance currently found in regulation 2 of the Civil Aviation Regulations 1988 centres around the safety of aircraft and the soundness and correct functioning of aircraft components and materials.

The Bill inserts a definition of 'servicing' (item 3) into the Act, which is very similar to the definition currently contained in regulation 2 of the Civil Aviation Regulations 1988.

The concept of 'aircraft maintenance control', as distinct from aircraft maintenance, is introduced to enable CASA to regulate aircraft maintenance in situations where the actual maintenance is not performed in Australia, by requiring someone within the aircraft management to be responsible for maintenance control (items 13 and 15).

Substantive changes

In addition to these terminological changes, the Bill amends subsections 20AA(1), 20AB(2) and 24(2) by explicitly stating the mental element of the offence, where formerly none was specified. As explained above, this probably does not change the substance of the offences, but merely reflects the current common law position, and is consistent with the Criminal Code.

The Bill redrafts subsection 20AA(1), renumbering the present paragraph 20AA(1)(c) as proposed subsection 20AA(1A). Subsection 20AA(2) now needs to be amended to cross-refer to the proposed subsection 20AA(1A) rather than the existing subsection 20AA(1).

Although the amendments to the Civil Aviation Act 1988 were not intended to produce substantive legal changes, a number of such changes have in fact been made. Two of these reflect changes to CASA's policy, and the third reflects complications in interpreting the existing legislation in light of the common law relating to criminal responsibility. It is regrettable that these changes have been made without explaining the shift in policy in the Explanatory Memorandum, as the Explanatory Memorandum is intended to be an aid for courts and lawyers in interpreting legislation.⁽³⁸⁾

The first change involves who is responsible for ensuring that airworthiness and maintenance requirements are met. The current legislation imposes obligations on an aircraft owner, operator, hirer or pilot not to knowingly or recklessly operate an aircraft or permit it to be operated without a certificate of airworthiness and a maintenance release, or equivalent authority under the regulations.⁽³⁹⁾ Proposed subsections 20AA(3) and (4) substantially re-enact these obligations, but only for the operator and the pilot. This is a policy alteration, and reflects CASA's current policy of imposing obligations to ensure airworthiness and maintenance of an aircraft before flying only on the operator and pilot, but not directly on the owner and hirer.

A second substantive change is made to subsection 20AB(2). The subsection presently requires approval under the regulations to carry out maintenance on an Australian aircraft in Australian territory, or aircraft components or aircraft material for an Australian aircraft in Australian territory. The proposed subsection 20AB(2) would require approval under the regulations to carry out maintenance on an Australian aircraft anywhere in the world, not just in Australian territory, although it continues to require approval for maintenance of an aeronautical product only in Australian territory. The extension of Australian maintenance standards to Australian aircraft outside Australian territory marks a change in policy. It would bring the Civil Aviation Act 1988 into line with Australia's obligations under the Chicago Convention to control the safety of its aircraft wherever in the world they may be situated.

The third substantive change is most difficult. It concerns the consequences of breach of the airworthiness and maintenance requirements contained in subsections 20AA(3) and (4). Under the current legislation, an Australian aircraft may not commence a flight without a certificate of airworthiness or authority under the regulations,⁽⁴⁰⁾ or without a maintenance release or authority under the regulations.⁽⁴¹⁾ This is only a criminal offence if the person knew or was reckless as to whether the aircraft had a valid certificate and release or an authority under the regulations.⁽⁴²⁾

However, non-compliance with the Civil Aviation Act 1988 can have regulatory consequences. In particular, CASA may only issue an Air Operator's Certificate or AOC (broadly, permission for a particular aircraft to fly) to a person if CASA is satisfied that they have complied with the provisions of the Act.⁽⁴³⁾ In addition, CASA has a discretionary power to suspend or cancel an existing AOC if a person has breached the requirements of the Act.⁽⁴⁴⁾ It is understood that CASA's regulatory policy is that it will take action in relation to an AOC only if the person concerned has knowledge or recklessness, that is, has committed an offence. However, the legal effect of the legislation may differ from CASA's enforcement policy.

The question is whether 'non-compliance' with the legislation refers only to the commission of an offence, or could refer also to breach of the Civil Aviation Act 1988 without committing an offence. There are two possible ways of interpreting the section. The first relies on a literal reading of the provisions. Subsections 20AA(3) and (4) in their natural meaning express a strict prohibition on commencing a flight without the requisite authorisations. Thus, it would be a breach of the Civil Aviation Act 1988 to commence a flight without one of these authorisations, even where no criminal offence is committed because the person did not know and was not reckless as to whether the flight was authorised. As a consequence, a person who has not complied with these subsections, even if he or she is not guilty of a criminal offence, could not obtain an AOC⁽⁴⁵⁾ and may, at CASA's discretion, have an existing AOC cancelled.

The second possible interpretation is more purposive than literal, and is premised on the notion that to contravene the legislation it is not sufficient to do the physical acts proscribed. Rather, a contravention consists of physical acts together with the mental state, which may be express in the provision or implied by operation of law. On this view, a person who is involved in a contravention of subsections 20AA(3) or (4) but who lacked the knowledge or recklessness required to commit an offence under subsection 20AA(5), has not contravened the Civil Aviation Act 1988. This interpretation is consistent with CASA's current enforcement policy. It is also supported by the reasoning in a South Australian case,⁽⁴⁶⁾ in which the Supreme Court of South Australia held that there can be no contravention of a statute where no offence has been committed, in that case because the defence of honest and reasonable mistake was available. In support of the literal construction, it should be emphasised that this decision depended on the construction of the Builders' Licensing Act 1967 (SA). King J stressed that it was not intended to suggest that in any statute where civil consequences depended on a contravention of legislation, this could only be applied if an offence had been committed.⁽⁴⁷⁾ Further, in a more recent case, it was held that contravention is not necessarily an offence, although it does include an offence.⁽⁴⁸⁾

The provisions of the Civil Aviation Act 1988 dealing with the issue and cancellation of AOCs use the language of 'compliance' and 'non-compliance' with the Civil Aviation Act 1988 rather than contravention. Thus, the decisions on the meaning of 'contravention' are not directly applicable, although by analogy they are relevant. In any event the current authorities do not resolve the issue, but leave it to the interpretation of the particular provisions in each case. It is difficult to state confidently whether, in the context of the Civil Aviation Act 1988, non-compliance with subsections 20AA(3) and (4) was intended to make a person unsuitable to be granted an AOC, or whether these consequences were intended to apply only where an offence had been committed.

If the second, purposive, interpretation described above is correct, the Bill makes no substantive changes. However, if the first, literal, interpretation is correct, the Bill does substantively alter the existing legal position, although not what is actually enforced. Proposed subsections 20AA(3) and (4) of the Bill do not affect the criminal liability of persons responsible for aircraft operations. However, they do remove the strict liability for non-compliance with those provisions. Proposed subsections 20AA(3) and (4) will each incorporate the requirement of knowledge or recklessness which is currently separate in subsection 20AA(5). This will have the effect that if there is in fact no valid certificate of airworthiness or authority under the regulations or if there is a maintenance requirement outstanding, but the operator or pilot does not know and is not reckless as to these matters, it would be lawful to fly the aircraft. There will be no contravention of the Act without knowledge or recklessness, therefore an operator or pilot could not be denied an AOC or have an existing AOC cancelled.

There may not be many situations in which a person does not know that an aircraft has not been certified as airworthy or has a maintenance requirement outstanding, and is not reckless in not taking steps to find out. However, a situation can be envisaged where an operator or pilot takes appropriate steps to find out whether the aircraft is approved to fly, for example, by contacting representatives of the owner of the aircraft, and is (wrongly) informed that the aircraft is so approved. Although the operator or pilot has not been reckless, the aircraft is in fact not approved. Under the provisions amended in the Bill, the aircraft has legal permission to fly, as the prohibition on flying is dependent on the mental state of the operator or pilot. It is uncertain whether this reflects the current situation under subsections 20AA(3) or (4), or effects a change in policy.

Article 83bis agreements

Item 4 of Schedule 1 inserts an additional function for CASA in subsection 9(3) of the Civil Aviation Act 1988, namely, 'entering into 83 bis agreements on behalf of Australia'. A definition of '83 bis agreement' is already contained in subsection 3(1) of the Civil Aviation Act 1988.

Enforceable undertakings

Proposed section 31A is very similar to section 87B of the Trade Practices Act 1974, which has been operating successfully for several years. It provides that giving an undertaking will be completely voluntary, but if a person gives an undertaking, they will only be able to withdraw or vary it with CASA's consent.

In addition, CASA will be able to seek an order from the Federal Court if a person has breached the undertaking. In this way, breach of the undertaking will itself be evidence of an offence, without the need to separately prove a breach of the Civil Aviation Act 1988 or regulations. If the Federal Court finds that the person has breached a term of the undertaking, it may make all or any of the following orders:

• an order directing the person to comply with that term of the undertaking
• an order directing the person to pay to the Commonwealth an appropriate amount, and
• any other order that the Court considers appropriate.

Carriers' limitation of liability

Schedule 2 of the Bill corrects the error in the cross-references in the definition of 'Australian international carrier' contained in sections 11A and 21A of the Civil Aviation (Carriers' Liability) Act 1959,⁽⁴⁹⁾ whereby increased liability limits were inadvertently imposed on foreign charter operators. An 'Australian international carrier' will now be either a carrier authorised by Australia to operate scheduled international air services, or a carrier operating a non-scheduled international charter flight permitted under section 15D of the Air Navigation Act 1920 who is an 'Australian person'. Thus, the increased liability for death or personal injury will not apply to foreign charter operators, but only to Australian charter operators.

The Bill defines 'Australian person' to include an Australian citizen or resident, Commonwealth, State, Territory and local government bodies, and corporations incorporated within Australia and substantially owned by any of these persons. It is the same definition as is contained in subsection 7(7) of the Qantas Sale Act 1992, and as will be included in the Air Navigation Act 1920.⁽⁵⁰⁾

Concluding Comments

The Bill contains a number of minor amendments harmonising the terminology used in the Civil Aviation Act 1988 with internationally applicable terminology, and harmonising the drafting of certain offence provisions with current Commonwealth criminal drafting practice. Interestingly, not all offence provisions in the Civil Aviation Act 1988 have been harmonised with the Criminal Code. In addition, a few substantive policy amendments have been made to these sections. Further, by drafting oversight, the cross-reference in subsection 20AA(2) has not been updated.

The introduction of two new powers for CASA, to enter into Article 83bis agreements on behalf of Australia, and to accept voluntarily given enforceable undertakings as an alternative to pursuing criminal prosecution for breaches of the legislation, seem sensible measures. Although the latter power will depend on the person or body which is suspected of contravening the Act voluntarily offering an undertaking, it nevertheless provides an additional tool for CASA to ensure compliance with the legislation, in addition to existing powers including to initiate prosecutions for breach of the legislation.

Endnotes

Contact Officer and Copyright Details

Katrine Del Villar
22 May 2000
Bills Digest Service
Information and Research Services

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ISSN 1328-8091
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