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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