Bills Digest No. 147 2002-03
Civil Aviation
Legislation Amendment Bill 2003
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
Endnotes
Contact Officer & Copyright Details
Passage History
Civil
Aviation Legislation Amendment Bill 2003
Date Introduced:
27 March 2003
House: House of Representatives
Portfolio: Transport and Regional
Services
Commencement:
The Act itself and some of
the main amendments commence on Royal Assent. Other amendments
commence on day fixed by Proclamation, or failing that, 12 months
after Royal Assent.
To main purposes of the Bill are:
- to amend the Civil Aviation Act 1988 (the Act) as a
prelude to the introduction of new regulations covering aircraft
maintenance standards, and
- to repeal section 192 of the Airports Act 1996 which
relates to the access to services regime in Part IIIA of the Trade Practices
Act 1974.
Background
In its various forms, the Civil Aviation
Safety Authority (CASA)(1) has been attempting
regulatory reform over the past decade with the estimated
completion date steadily slipping. Repeated management and policy
changes, plus other factors, combined with complexity of aviation
regulations, have contributed to the delays. Reassuringly, the June
2002 release of the Australian National Audit Office
Follow-up Audit of the Civil Aviation Safety Authority found
general compliance with its 1999 audit recommendations, although
the ANAO raised three matters and issues of risk identification.
Meanwhile the CASA Regulatory Reform Program has proceeded, with an
apparently successful public conference airing earlier this year,
and reflecting industry support. This Bill should provide a basis
for the regulatory change ahead, in line with international
standards.
Items 1 and
3 insert definitions of aeronautical product and
maintenance into subsection 3(1) of the Act respectively. The
Explanatory Memorandum to the Bill states
that:(2)
[these definitions are] consistent with [those]
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.
Item 2 inserts a new
definition of Australian Aircraft into existing subsection 3(1) of
the Act. The current definition only includes aircraft registered
in Australia. Item 2 will expand this by also
including in the definition any aircraft in Australian
territory(3), except foreign registered
aircraft or state aircraft. The practical effect is to expand the
range of aircraft subject to aviation safety controls under the
Act, regulations, orders etc. According to the Explanatory
Memorandum, the rationale for this amendment is
that(4)
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 coincide with the commencement of those
regulations.
Item 4 amends the definition
of state aircraft in existing subsection 3(1). Currently an
aircraft that is considered to be part of the Australia Defence
Force (ADF) is not a state aircraft if it is registered
under the civil aviation requirements.(5) State aircraft
generally fall outside the scope of the Act. Thus planes leased to
the ADF currently continue to come under civil aviation regulation
even if used for military purposes. Article 3 of the Chicago
Convention(6) provides that:
this Convention shall be applicable only to civil
aircraft, and shall not be applicable to state aircraft Aircraft
used in military, customs and police services shall be deemed to be
state aircraft.
Item 4 brings the Act into
line with Article 3. It is understood that the ADF is actively
reviewing lease arrangements for future support aircraft
acquisitions. The change proposed by item 4 will
likely strengthen the possibility that re-fuelling tanker aircraft
and liaison aircraft might be acquired by the ADF through lease
arrangements rather than outright purchase.
Item 5 inserts a new
paragraph 9(3)(ca) to give CASA the power to enter into
Chicago Convention Article 83bis agreements with other
countries. Such agreements allow responsibility for civil aviation
regulation to be transferred between signatories and are usually
expressed to apply to certain aircraft where they are registered in
one country but actually operate in another. The Minister s second
reading speech states:(7)
While at present there are no 83bis agreements
between Australia and another country this provision will
facilitate such agreements in the future.
Currently the Minister for Transport and Regional
Services has the power to enter into article 83bis agreements but
CASA does not. As ICAO considers that such agreements should be
made directly between the relevant national airworthiness
authorities, because they are administrative instruments of less
than treaty status, this bill appropriately transfers the function
to CASA.
Administrative and technical provisions concerning
the implementation of these agreements will be covered in
regulations to be developed by CASA and the department in
consultation with industry.
The amendment to transfer the function of entering
into 83bis agreements to CASA is consistent with Australia's
objective of harmonising our legislative framework with
international standards of safety regulation. Such agreements could
also benefit the Australian aviation industry and the consumer in
terms of increased economic opportunities and reduced costs.
For example, domestic operators would potentially
have greater flexibility and more cost-effective options in
operating their aircraft fleets and in being able to lease aircraft
that are under-utilised in Australia during periods of low demand
to overseas operators. Australian maintenance organisations may
also benefit due to increased opportunities to carry out work on
foreign aircraft that would otherwise have been carried out
overseas.
Items 6-8 amend the wording
of offences in existing section 20AA for flying aircraft contrary
to safety requirements. Items 6 and
7 make no practical changes to the offences or the
punishment for breach they merely update the language to make it
consistent with the style of the Criminal Code Act 1995.
The same changes were contained in the Aviation Legislation
Amendment Bill (No.1) 2001, but that Bill
lapsed with the proroguing of Parliament in October 2001.
Item 8, although similar to the provision it
replaces (existing paragraph 20AA(3b)), does seem to introduce some
new requirements in order for an offence to occur, particular in
new paragraph 20AA(4)(c) and
(d).
Item 11 makes a similar
stylistic change to the existing offence in section 24 of tampering
with an aircraft if this endangers aircraft safety etc. However, it
is curious that an offence new paragraph 24(2)(b) mentions the
requirement of endanger the safety twice. It is not clear whether
there is a technical reason for this or whether it is a drafting
oversight.
Item 9 substitutes a
new subsection 20AB(2) for the existing version.
The subsection deals with carrying out of maintenance on aircraft
or aircraft parts. It currently only requires that the maintenance
person be authorised by regulations if the work relates to an
Australian aircraft in Australian territory. Item
9 will extend this requirement to Australian aircraft
regardless of where it is. The Explanatory Memorandum
says:(8)
the 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.
Authorisation will also be required for
maintenance done in Australia on any aeronautical product. The
Explanatory Memorandum says nothing about why this
addition has been incorporated into the bill.
Items 10 and
12-14 make minor consequential changes.
Item 15 amends paragraph
28(3)(c). Existing section 28 requires CASA to issue an
Air Operator s Certificate
(AOC) only if it is satisfied of certain
matters.(9) One of these is that the applicant must have
key personnel [that] have appropriate experience in air operations
to conduct or to carry out the AOC operations safely . Included in
the definition of key personnel is the head of the aircraft
maintenance part (if any) of the organisation .
Item 15 replaces aircraft maintenance in this
definition with aircraft airworthiness and maintenance control in
this context. The Explanatory Memorandum comments that
this change is to recognise the situation where:(10)
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.
No information is given in the Explanatory
Memorandum as to whether CASA has been refused an AOC
application because of the issue which item 15
addresses.
Where the AOC would authorise the operation of
a foreign registered aircraft on regulated domestic flights, CASA
must also be satisfied of additional matters before issuing the
AOC. These matters are listed in section 28A. One of these is that
the AOC applicant must have informed CASA of the country or
countries in which maintenance, other than daily maintenance, was
carried out on the aircraft during that year . Items
16 and 18 replace the term daily
maintenance with line maintenance , as the apparently the later is
the standard international aviation industry term.(11)
The definition of line maintenance includes malfunction
rectifications performed en route and at base stations during
transit, turn-around or night stops thus maintenance of this kind
does not have to be reported under section 28A.
Item 17 also relates to
section 28A matters. Specifically, existing paragraph 28A(1)(g)
requires that, where an aircraft the subject of an AOC application
is leased, CASA must be given information on the person responsible
for operational control over the aircraft. Item 17
widens this requirement to include information on the person
responsible for the controlling the airworthiness and maintenance
of the aircraft.
Items 19 and
20 amends subsection 32AHA(1). Under certain
circumstances, section 32AHA allows a magistrate to order that
evidence (goods, records etc) seized under section 32AH to be
retained by an investigator beyond the normal time periods
specified in section 32AH. These time periods are 60 days, or
completion of any relevant proceedings,(12) providing in
the latter case the prosecution is started within that 60 days.
The literal meaning of the current wording of
32AHA(1) means that any application for extended retention of
evidence can only be made following the expiration of the 60 day
period. Accordingly, an investigator may be technically required to
return seized evidence before being able to apply for an extended
retention order. Item 20 will allow an application
(and a subsequent order) to be made before the expiration
of the 60 day period if there is a reasonable likelihood that
[relevant] proceedings will not commence before the end of the 60
days. The Explanatory Memorandum provides no indication
whether the current wording of 32AHA(1) has lead to loss of
evidence etc in cases where it has had to be returned due to
proceedings not commencing within the 60 day period.
Item 19 makes a minor
stylistic wording change.
Items 21 and
23 amend existing section 32AL. This provision
allows, under certain circumstances, a court of competent
jurisdiction to authorise CASA to go ahead and destroy specified
things seized under section 32AH. The Explanatory
Memorandum comments that:(13)
It [is] 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 amendments will specifically give a
magistrate the power to grant an order authorising destruction. No
details are given whether CASA currently applies to magistrates for
destruction orders, and if so, whether any orders have been
challenged by the owners of the relevant property.
Item 22 also amends to
section 32AL. It will allow CASA to seek a court order permitting
it to dispose of goods seized under section 32AH, rather than their
destruction. An example of disposal would include selling them.
Items 1 and
2 amend the definition of Australian aircraft and
state aircraft respectively to make them consistent with the
changes proposed in Items 2 and 4
of Schedule 1.
Item 1 repeals section 192 of the Airports
Act 1996. Section 192 relates to the access to services regime
in Part IIIA of the Trade
Practices Act 1974. This regime is designed
to:
facilitate
third parties obtaining access to the services of certain essential
facilities of national significance. The notion underlying the
regime is that access to certain facilities with natural monopoly
characteristics, such as electricity grids or gas pipelines, is
needed to encourage competition in related markets, such as
electricity generation or gas production. Access to such facilities
can be achieved if a person seeking access is successful in having
the service 'declared' and then negotiates access with the service
provider.
Part IIIA can be applied to major airports either
through a simple determination decision by the Transport Minister
under section 192 of the Airports Act 1996
or through a much more involved process by the
Treasurer under Part IIIA itself. Under section 192, there
are effectively no considerations that the Transport Minister has
to take into account in making a determination. In addition, the Transport Minister
must make the determination as soon as practical after the
expiry of the airports designated period (14) rather
than the more discretionary decision by the Treasurer under Part
IIIA. The one major constraint under section 192 is that it appears
the determination cannot be renewed beyond its expiry date
specified when the determination was made. It is understood this is
because section 192 was intended as an interim measure only. As
noted in the second reading speech, as at July 2003, only
Sydney (Kingsford Smith) airport would be the only airport subject
to section 192. The Minister commented
that:(15)
The section has become redundant in the sense that
declaration of airport services is currently available under the
provisions of part IIIA of the Trade Practices Act 1974. Repeal of
the section will ensure that all airports are subject to uniform
statutory provisions in regard to providing access to certain
essential facilities.
The
proposed repeal of section 192 seems consistent with the comment of
the Productivity Commission in a recent report that
it:(16)
has not been persuaded that there is a case for
the continuation of special access provisions that impose
more easily satisfied declaration criteria for airports than other
industries.
Notwithstanding the Productivity Commission s view,
Sydney (Kingsford Smith) airport plays a key role in the overall
competitiveness of Australia s aviation system. It would therefore be
useful if the Government provided more information why section 192
has no possible utility in relation to this airport.
- The Civil Aviation Safety Authority (CASA)
was established in 1995 as an independent statutory authority under
section 8 of the Civil Aviation Act 1988.
CASA was formed out of the
old Civil Aviation Authority, which was split in two,
with service provider functions being taken up by the new
Airservices Australia.
- At pp. 10-11.
- This includes the airspace over the mainland,
territorial sea and external territories.
- At pp. 10-11.
- Existing section 4 excludes state aircraft
from the main civil aviation requirements in Part III of the
Act.
- Its full name is the 1944 Convention on
International Civil Aviation.
- The Hon Peter McGauran, House of
Representatives Debates 27 March 2003 p. 13755.
- At p. 13.
- Note that section 28 does not actually
prohibit CASA from issuing an AOC even if it is not
satisfied of all relevant matters.
- At p. 13.
- Explanatory Memorandum p. 14.
- That is, proceedings in relation to
prosecution of an offence.
- At p. 15.
- This is usually a twelve-month period
starting when a lease is granted on the airport: subsection 192(5)
of the Airports Act 1996.
- Op cit.
- Price Regulation of Airport
Services, Report no. 19 January 2002, p. xxxiv. The report can
be downloaded at http://www.pc.gov.au/inquiry/airports/finalreport/airports.pdf.
Angus Martyn and Matthew James
19 May 2003
Bills Digest Service
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ISSN 1328-8091
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