Agreement between the Government of Australia and the Government of the Kingdom of Thailand relating to Air Services; Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste relating to Air Services; Agreement between the Government of Australia and the Government of Papua New Guinea relating to Air Services
6.1
This Chapter covers three air services agreements:
the Agreement between the Government of Australia and the Government of the Kingdom of Thailand relating to Air Services (the Thai Air Services Agreement);
the Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste relating to Air Services (the Timor-Leste Air Services Agreement); and
the Agreement between the Government of Australia and the Government of Papua New Guinea relating to Air Services (the PNG Air Services Agreement).
6.2
The Thai Air Services Agreement was signed in Bangkok on 2 August 2017. The Agreement will replace an existing treaty governing air services between Australia and Thailand from 1960. The Former Department of Infrastructure, Regional Development and Cities (DIRDC) noted that the Agreement includes modern provisions that aim to support the aviation safety and security framework and offer further commercial flexibility for airlines.
6.3
The Timor-Leste Air Services Agreement was signed in Dili on 26 May 2017. This is the first treaty level air services relationship between Australia and Timor-Leste.
6.4
The PNG Air Services Agreement was signed in Port Moresby on 6 October 2017. The Agreement replaces a previous treaty governing air services between Australia and Papua New Guinea dating from 1980. The NIA notes that the text of the PNG Agreement has been applied on an administrative, non-legally binding basis under a Memorandum of Understanding (MoU) signed in 2010. As such, the Agreement has been observed by aeronautical authorities of the two countries pending entry into force.
6.5
The three proposed treaty actions were tabled in the Parliament on 12 February 2019. A public hearing was held on 1 April 2019. The Committee’s inquiry into the treaty action lapsed at the dissolution of the 45th Parliament on 11 April 2019. The treaty was re-referred to the Committee by the Minister for Foreign Affairs on 29 July 2019, following the re-establishment of the Committee in the 46th Parliament. As noted in paragraph 1.13, updated advice was sought at that time and DIRDC advised that no additional comment was needed.
6.6
These Agreements are being covered together because they are all based on Australia’s model Air Services Agreement, and with a few exceptions, are substantially similar. Differences between the agreements will be identified at relevant points throughout the Chapter.
Background
6.7
International air travel is regulated by the Convention on International Civil Aviation, first signed in Chicago in 1944 (the Chicago Convention). All the countries party to the air services agreements under consideration here have signed the Chicago Convention.
6.8
Article 6 of the Chicago Convention establishes the requirement for parties to have in place agreements to enable international air travel between them:
No scheduled international air services may be operated over or into the territory of a contracting State, except with the special permission or other authorisation of that State, and in accordance with the terms of such permission or authorisation.
6.9
Australia has 105 bilateral air service agreements, although a number of these are of less than treaty status.
6.10
The agreements under consideration here provide access for Australian airlines to the aviation markets of Thailand, Timor-Leste, and Papua New Guinea, and provide airlines from those countries access to the Australian market. The objective of the agreements is to provide a binding legal framework to support the operation of air services between Australia and Thailand, Timor-Leste and Papua New Guinea.
6.11
DIRDC noted that each Agreement is:
… supplemented by arrangements of less than treaty status between the aeronautical authorities, and these settle more detailed commercial entitlements that determine the scope of airlines’ operations under the air service agreements.
6.12
DIRDC informed the Committee that as at 1 April 2019 such a MoU with Timor-Leste was yet to be finalised.
Provisions
6.13
Each of the agreements:
…allow the ‘designated airlines’ of each country to operate scheduled air services carrying passengers, baggage, cargo and mail between the two countries on specified routes in accordance with the provisions of the [Agreement]…the [Agreement] also includes reciprocal provisions on a range of aviation–related matters such as safety, security, competition laws, customs regulations and the commercial aspects of airline operations, including the ability to establish offices in the territory of each Party and to sell fares to the public.
6.14
The three Agreements have the following obligations.
Authorisation of airlines
6.15
Each Party can designate any number of airlines to conduct international air transport between the Parties. Either Party can refuse authorisation of an airline’s operations and impose conditions on the airlines operation if it fails to meet, or operate in accordance with, the conditions set out the agreements.
Grant of access
6.16
Each Party grants the airlines of the other Party the right to fly across its territory without landing and to make stops for non-traffic purposes such as refuelling. Each designated airline also has the right to operate routes between the Parties as specified in an Annex to each agreement. Each Annex in the agreements permits designated airlines from each Party to access any routes.
6.17
Designated airlines are not permitted to undertake domestic services in the country to which they fly.
6.18
The Timor-Leste Air Services Agreement permits designated airlines to operate non-scheduled flights between Australia and Timor‑Leste. The PNG Air Services Agreement contains a similar provision in relation to non-scheduled flights.
6.19
The PNG Air Services Agreement also includes the following additional provision:
If because of armed conflict, political disturbance or developments, or special and unusual circumstances, the designated airlines of one Party are unable to operate a service on their normal routes, the other Party shall use its best efforts to facilitate the continued operation of such services through appropriate temporary rearrangements of such routes as is mutually decided by the parties.
6.20
DIRDC reflected that continued service is not always possible depending on the nature of the conflict, and that safety and security are the key considerations in determining whether services are continued.
6.21
Asked to clarify why this clause was not in each Agreement, DIRDC told the Committee that it is not in Australia’s model text but that the delegation of the Government of Papua New Guinea had requested its inclusion. It highlighted that the clause ‘codifies existing international practices’ and is similar to clauses included in other air service agreements.
Application of laws
6.22
Each Party’s designated airlines must comply with the other Party’s laws and regulations relating to the operation and navigation of aircraft when they are entering, within, or leaving the territory of the Party.
6.23
Parties are required to apply the laws and regulations relating to the operation and navigation of aircraft consistently and without bias.
6.24
Passengers, baggage and cargo transported by designated airlines will be subject to aviation security, narcotics control and immigration checks.
Recognition of certificates
6.25
Each Party is required to recognise the certificates of airworthiness, competency and licences issued or rendered valid by the other Party.
Safety
6.26
Each Party can request consultations at any time concerning safety standards in the other Party. If one Party finds that the safety standards of the other Party are not in line with those required under the Chicago Convention, the Party must notify the other Party of the corrective action required to meet the Chicago Convention standards. Each Party is also able to take immediate action where necessary to ensure the safety of an airline operation.
6.27
Noting recent safety concerns, the Committee queried whether any of the designated airlines under the agreements use Boeing 737 MAX aircrafts. DIRDC stated that none of the airlines currently has these aircrafts in service. The Committee was advised that Air Niugini and Virgin Australia have aircraft on order, but that both companies have stated that those orders are being reviewed.
Aviation security
6.28
Each Party is required to protect the security of civil aviation against acts of unlawful interference and to act in conformity with multilateral conventions relating to aviation security.
6.29
Parties are required to adequately protect aircraft and inspect passengers, crew, baggage, cargo and aircraft stores before and during boarding or loading. Each Party shall consider positively a request from the other Party for reasonable special security measures to meet a particular threat.
6.30
Each Party’s aeronautical authorities may request a security assessment in the other Party’s territory upon 60 days’ notice.
6.31
The Agreements with Timor-Leste and Papua New Guinea will also enable either Party to request immediate consultations if there are reasonable grounds to believe the other Party is not meeting aviation security obligations. If the consultations do not reach a satisfactory outcome, a Party will be able to withhold, revoke or suspend airline operations.
6.32
While the Thai Air Services Agreement does not include similar text relating to immediate consultations, DIRDC stated that there is:
Still a requirement that they conform to ICAO [International Civil Aviation Organization] security standards … [and that there is] separate domestic legislation for security, in terms of the airline needing to have an approved transport security plan to operate [in Australia].
6.33
DIRDC highlighted that the Thai Air Services Agreement also includes the ability for Australian officials to conduct last-port-of-call assessments in Bangkok.
User charges
6.34
Charges for airport, security and navigation services imposed on designated airlines must be reasonable, not unjustly discriminatory, equitably apportioned, and not higher than those imposed on other international airlines. User charges must reflect but not exceed the actual cost of providing the air services.
Customs duties and air fares
6.35
Designated airlines can set their own air fares and will not be charged customs duties on equipment and stores used to support the airline’s operation.
Capacity and schedules
6.36
The passenger and cargo capacity of designated airlines will be agreed by the aeronautical authorities of the parties.
6.37
The Thai Air Services Agreement also requires the approval of timetabling schedules for designated airlines.
6.38
Designated airlines can use any surface transport within a Party to link their customers with departure points.
Implementation
6.39
According to the respective NIAs, each of the Agreements will be implemented using existing legislation including the:
Civil Aviation Act 1988; and
International Air Services Commission Act 1992.
Oversight of airspace
6.40
The Committee questioned whether Australia’s approach to air service agreements has changed since the downing of Malaysia Airlines flight MH17. DIRDC suggested that there has not been an identified need to change the model text since the incident.
6.41
The Civil Aviation Safety Authority (CASA) highlighted that the following advice relating to international safety and security is provided on its website:
Australian air operators and pilots are reminded to check all available and authoritative information about potential safety and security threats to flights before conducting operations in, over or near areas of armed conflict or turmoil. Air operators and pilots should determine if National Aviation Authorities or other government agencies have issued any notices, advisories, bulletins, warnings or other safety information about activities that may pose risks to flights in particular geographic regions or airspace. These should be assessed along with any relevant travel advisories from the Department of Foreign Affairs and Trade.
It is the responsibility of air operators and pilots to consider this kind of information and to make informed decisions about when, and whether, to operate into or over particular areas where local situations and circumstances may pose unacceptable risks. Operators and pilots are always required to be familiar, and to comply, with the applicable aviation laws of other countries in which they conduct operations.
Lastly, the ICAO, is compiling information promulgated by states regarding risks to civil aircraft arising from conflict zones. CASA reminds Australian air operators and pilots considering operations into or over problematic areas to pay attention to all current safety notices and bulletins, including from the following sources—and we have provided links: the ICAO conflict zone information repository; the USFAA prohibitions, restrictions and notices; and the European Aviation Safety Agency safety bulletins as well.
Conclusion
6.42
The Committee has ongoing concerns regarding the dangers imposed for flights transiting conflict zones. The Committee is aware that the safety and security of citizens is paramount and will continue to take an interest in this issue.
6.43
The Committee notes DIRDC’s acknowledgement that there was a significant amount of time between the signing and tabling of these treaty actions.
6.44
The Committee recommends that binding treaty action be taken in relation to these air services agreements.
6.45
The Committee supports the Agreement between the Government of Australia and the Government of the Kingdom of Thailand relating to Air Services and recommends that binding treaty action be taken.
6.46
The Committee supports the Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste relating to Air Services and recommends that binding treaty action be taken.
6.47
The Committee supports the Agreement between the Government of Australia and the Government of Papua New Guinea relating to Air Services and recommends that binding treaty action be taken.