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CIVIL AVIATION AMENDMENT REGULATIONS 2004 (NO. 4) 2004 NO. 345
Issued under the authority of the Minister for Transport and Regional Services
Civil Aviation Act 1988
Civil Aviation Amendment Regulations 2004 (No. 4)
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act, and regulations in relation to safety of air navigation, being regulations with respect to matters with respect to which the Parliament has power to make laws.
Subsection 9 (1) of the Act specifies, in part, that the Civil Aviation Safety Authority (CASA) has the function of conducting the safety regulation of civil air operations in Australian territory by means that include developing and promulgating appropriate, clear and concise aviation safety standards and issuing certificates, licences, registrations and permits.
The Regulations amend the Civil Aviation Safety Regulations 1998 (CASR) by inserting a new Part 11, entitled "Regulatory administrative procedures", into those regulations. The Regulations also make changes to the Civil Aviation Regulations 1988 (CAR) consequential to the making of CASR Part 11. CASR Part 11 and its consequential amendments are contained in Schedule 1 and Schedule 2 to the Regulations.
CASR Part 11 is a completely new set of regulations, developed as part of CASA's Regulatory Reform Programme (RRP), to provide a regulatory regime that covers the administration of authorisations, exemptions, directions, delegations and Manuals of Standards. CASR Part 11 provides CASA with administrative and regulatory powers, and sets out associated procedures, necessary for the efficient administration of the civil aviation safety system. These powers and procedures relate to the:
• processing of applications for authorisations and variations issued under the CASR;
• issue of safety-related directions;
• issue of exemptions from the CASR;
• delegation of CASA's powers under the CASR; and
• issue of Manuals of Standards.
Further, the Regulations include a large number of amendments to CAR and CASR of a housekeeping nature. These amendments are contained in Schedules 1, 3, 4 and 5, and Parts 2 to 5 inclusive of Schedule 2, to the Regulations.
Item 136 of Schedule 2 to the Regulations gives effect to an undertaking by the Minister for Transport and Regional Services to the Senate Standing Committee on Regulations and Ordinances in relation to amendment of regulation 21.875 of CASR. Items 137, 146 and 147 of Schedule 2 to the Regulations gives effect to undertakings given by the Minister for Transport and Regional Services to the Senate Standing Committee on Regulations and Ordinances in relation to amendment of regulations 47.035, 47.160 and 47.165 of CASR.
The Office of Regulation Review (ORR) has assessed that the Regulations have only a minor impact on business and that the preparation of a Regulation Impact Statement (RIS) is not mandatory.
An outline of the changes introduced in the Regulations is at Attachment A.
Details of the Regulations are set out in Attachment B.
ATTACHMENT A
DESCRIPTION OF THE CHANGES IN THE REGULATIONS
New Part 11 of the Civil Aviation Safety Regulations 1998
The primary purpose of the Regulations is to introduce Part 11 of the Civil Aviation Safety Regulations 1998 (CASR). Part 11 appears in Part 1 of Schedule 2 to the Regulations.
CASR Part 11, which has been developed as part of CASA's Regulatory Reform Programme (RRP), consolidates in the one body of legislation the administrative provisions for the issue of authorisations, exemptions, directions, delegations and Manuals of Standards by CASA. This assists in the consistent application of those processes across the various instruments issued by CASA, and the centralisation of exemption and direction powers assists CASA to identify regulatory inadequacies that may necessitate revision.
CASR Part 11 contains the administrative provisions for the issue of authorisations (e.g. licences, ratings, certificates and endorsements), including the processing of applications for authorisations, suspension or cancellation of authorisations at the holder's request, and, where applicable, renewing time-limited authorisations. In keeping with CASA's existing powers in the Civil Aviation Regulations 1988 (CAR), Part 11 also empowers CASA to grant exemptions from the CASR, issue directions in the interests of aviation safety, and delegate its powers. Part 11 also provides the criteria for doing these things and the limitations thereon.
The consolidation of provisions relating to applications for aviation-related authorisations, exemptions and directions is expected to bring about consistency in CASA's dealings in relation to applications. It also means that other CASR Parts need not deal with the generic administrative processes associated with applications, thereby making those other Parts shorter, simpler, and easier to understand. CASR Part 11 will be introduced prior to the effective date of many proposed Parts of CASR that address specific authorisations, such as Part 61 (Flight Crew Licensing) and Part 66 (Maintenance Personnel Licensing). With the making of Part 11, these other Parts will not require administrative provisions dealing with application for, and renewal of, the relevant authorisations.
In addition to addressing the administration of authorisations, exemptions and directions, CASR Part 11 also includes the rules for the administration of the delegation of CASA's powers under the CASR and the consultation requirements prior to CASA issuing a Manual of Standards (MOS).
Consequent on the making of Part 11 (in particular, Subparts 11.F and 11.H), Schedule 1 of the Regulations amends existing regulations 7 and 308 of the CAR, which are CASA's current powers to delegate its powers and to exempt people or classes of people from the requirements of the civil aviation regulations.
From the date of commencement of the Regulations, CASA will be able to:
• delegate its powers in CAR under regulation 7 of CAR and delegate its powers in CASR under Subpart 11.H of CASR; and
• issue exemptions from the requirements of the CAR under regulation 308 of CAR and from the requirements of the CASR under Subpart 11.F of CASR.
"Housekeeping" amendments
The CASR have been progressively amended since 1998 as the Regulatory Reform Programme (RRP) has progressed, largely to include new Parts and Subparts to regulate further matters of aviation safety. Over that time, drafting practices for CASR have changed as CASA and the Office of Legislative Drafting of the Attorney-General's Department have sought to develop a consistent style for the regulations. At the end of the RRP, the CASR will consist of 58 Parts (organised into Parts that basically follow the framework of the Federal Aviation Regulations (FARs) of the USA) and many hundreds of pages of regulations, and consistency of style and format is seen as key to ease of use and interpretation.
As subject matter has been deleted from CAR and re-made in a new form in CASR as part of the RRP, considerable consequential changes have been required to CAR. Unfortunately a few consequential amendments of CAR have been inadvertently missed in the multitude of regulatory amendments. Schedule 1 to the Regulations makes a number of these amendments (none retrospectively).
Schedule 1 to the Regulations amends CAR to correct errors which have been introduced into those regulations as a result of removing subject matter from CAR and re-making it in a new form in CASR as part of the RRP. For example, Schedule 1 corrects incorrect references to regulations and deletes references to repealed regulations. The opportunity has also been taken to correct typographical errors identified in CAR, and to substitute references to "date of commencement" of regulations with explicit references to the actual dates of commencement. As noted above, Schedule 1 also amends regulations 7 and 308 of CAR as a consequence of the making of CASR Part 11.
The Civil Aviation Amendment Regulations 2004 (No.1) (Part 47 Regulations) commenced on 15 November 2004. The Part 47 Regulations inserted a new CASR Part 47, relating to aircraft registration, and item 3 of Schedule 1 to those Regulations amended CAR to provide that certain registration decisions of CASA are reviewable by the Administrative Appeals Tribunal (AAT). Item 52 of Schedule 1 to the Regulations repeals the amendment to CAR relating to AAT review, but at the same time CASR is amended by item 157 of Schedule 2 to provide for that AAT review (in essence, the AAT review provision is moved from CAR to CASR).
Parts 2 to 5 of Schedule 2, and Schedules 3 to 5 to the Regulations also make a number of "housekeeping" amendments to CASR and several Civil Aviation Amendment Regulations which ensure that existing provisions of CASR adopt the same format and numbering of those Parts of CASR currently in development, and move existing transitional provisions in various amending regulations into that Part of CASR specifically devoted to transitional provisions (Part 202).
Part 2 of Schedule 2 to the Regulations replaces existing tables of contents of Parts of CASR, made as regulations, with those same tables of contents made as Notes to the regulations. This is intended to allow editorial amendment of those tables of contents by Office of Legislative Drafting, rather than requiring legislative amendment.
Part 3 of Schedule 2 to the Regulations replaces references in CASR to "the date of commencement of this regulation" or equivalent, with explicit dates. It also re-makes and moves existing transitional provisions which had sat in various amending regulations, (i.e. those regulations repealed by Schedules 3, 4 and 5), into Part 202 of CASR which is specifically devoted to transitional provisions. These amendments are intended to enhance interpretation of CASR.
Part 4 of Schedule 2 to the Regulations alters the format of numbers of Divisions and Subparts of Parts of CASR to accord with industry usage, again to assist in interpretation.
Part 5 of Schedule 2 to the Regulations makes a number of miscellaneous amendments to CASR to correct inadvertent errors, which have resulted from amendments to those regulations as the RRP has progressed. Amongst these are amendments to CASR Part 47 to clarify the operation of that Part and to give effect to undertakings given by Minister for Transport and Regional Services to the Senate Standing Committee on Regulations and Ordinances on 27 August 2004.
Schedules 3, 4 and 5 to the Regulations repeals transitional provisions in the Civil Aviation Amendment Regulations 2000 (No.3), Civil Aviation Amendment Regulations 2001 (No.4) and Civil Aviation Amendment Regulations 2002 (No.2) respectively, which are re-made in Part 202 of CASR by Part 3 of Schedule 2.
ATTACHMENT B
DETAILS OF THE REGULATIONS
Regulation 1 - Name of Regulations
Regulation 1 names the amending regulations as the Civil Aviation Amendment Regulations 2004 (No. 4).
Regulation 2 - Commencement
Regulation 2 provides that the Regulations commence on the date of their notification in the Gazette.
Regulation 3 - Amendment of Civil Aviation Regulations 1988
Regulation 3 provides that Schedule 1 amends the Civil Aviation Regulations 1988 (CAR).
Regulation 4 - Amendment of Civil Aviation Safety Regulations 1998
Regulation 4 provides that Schedule 2 amends the Civil Aviation Safety Regulations 1998 (CASR).
Regulations 5 to 7 - Amendment of Civil Aviation Amendment Regulations (various)
Regulations 5, 6 and 7 provides that Schedules 3, 4 and 5 amends the Civil Aviation Amendment Regulations 2000 (No. 3), the Civil Aviation Amendment Regulations 2001 (No. 4) and the Civil Aviation Amendment Regulations 2002 (No. 2), respectively.
Schedule 1 Amendments of Civil Aviation Regulations 1988 (regulation 3)
Items 1 to 5, and 44 - Corrections of typographical errors
Items 1 to 5 inclusive and item 44 of Schedule 1 corrects some typographical errors in CAR, including deleting an extra "the" (item 1) and correcting mis-described provisions of CAR (items 2, 3, 4, 5 and 44).
Items 6, 12, 22, 34, 46 and 51 - Replacement of `CAR 1998' by `CASR'
On 20 December 2002, item 3 of Schedule 1 to Statutory Rules No.350 of 2002 re-named the then Civil Aviation Regulations 1998 the Civil Aviation Safety Regulations 1998. Item 16 of that Schedule then defined the terms CAR and CASR to mean the Civil Aviation Regulations 1988 and the Civil Aviation Safety Regulations 1998, respectively.
As a consequence of these changes to the name of and references to regulations made under the Act, references to `CAR 1998' in the Civil Aviation Regulations 1988 were changed to `CASR'; see item 4 of Schedule 2 to Statutory Rules No.350 of 2002.
However, a small number of references were missed. Items 6, 12, 22, 34, 46 and 51 of Schedule 1 to the Regulations correct these references.
Items 7, 13 to 21, 24 to 32, and 59 - Replacement of `authorised person' by `the authorised person'
Items 7, 13 to 21, 24 to 32, and 59 of Schedule 1 inserts a "the" or an "an", as appropriate, in front of references to "authorised person" in a number of provisions of CAR. This corrects grammatical errors and ensures that the authorised person being referred to, is the same authorised person referred to earlier in the amended provision.
Items 8, 9 and 68 to 85 - Replacement of references to commencement of regulations with explicit dates
Items 8, 9 and 68 to 85 of Schedule 1 amends provisions of CAR by replacing references to "the commencement of this regulation" (or equivalent) with the actual dates of commencement of the regulations. A number of items (68, 72, 84 and 85) replace whole transitional provisions towards the end of CAR, in order to improve the grammar and comprehension, although no substantive changes are made.
Items 10, 35 to 39, 47 to 50, and 53 - Amendments to CAR consequent on commencement of CASR Part 139
Schedule 1 to the Civil Aviation Amendment Regulations 2003 (No.1), Statutory Rules No.58 of 2003, inserted a new Part 139 into CASR, relating to certification of aerodromes. Consequently, equivalent provisions in Part 9 of CAR were repealed by Schedule 2 to those Regulations. However, a number of existing cross-references in CAR to provisions of repealed Part 9 of CAR were not repealed or up-dated to refer to equivalent provisions in CASR Part 139.
Items 10, 48 and 49 repeal the references to provisions of Part 9 of CAR. Item 35 corrects a reference to an aerodrome licence issued under repealed CARs to an aerodrome certificate or registration of an aerodrome under the new CASR Part 139. Items 36, 37 and 38 amends CAR to replace references to repealed provisions with the equivalent provisions in CASR Part 139.
Item 47 removes the reference to aerodrome licences from the definition of licence in sub-regulation 263 (1). That provision defines what is meant by "licence" for the purposes of CASA's powers to suspend, vary or cancel licences under Part 16 of CAR. Aerodrome certificates and registrations can be suspended, varied or cancelled by CASA under CASR Part 139, so there is no need for them to be subject to the regime in Part 16 of CAR.
Item 53 repeals a paragraph of sub-regulation 297A (1) which grants the AAT jurisdiction to review a decision of CASA to refuse to transfer an aerodrome licence. Under CASR Part 139, aerodrome certificates are not transferable (regulation 139.085), so CASA cannot decide whether or not to transfer one.
Items 11 and 61 to 66 - Amendments to CAR consequent on commencement of CASR Part 11
CASA's power to delegate its powers and functions under CASR is presently in regulation 201.002. This regulation is repealed and remade in CASR Part 11 (see Subpart 11.H of that Part, and item 25 of Part 1 of Schedule 2). At the same time, CASA's power of delegation in regulation 7 of CAR is amended so that it only applies to powers and functions under CAR. That is, CASA is empowered to delegate its powers and functions under CAR exclusively under regulation 7 of CAR, and is empowered to delegate its powers under functions under CASR exclusively under Subpart 11.H of CASR. Item 11 of Schedule 1 amends regulation 7 of CAR to ensure that it does not empower the delegation of powers under functions under CASR.
Similarly, proposed CASR Part 11 empowers CASA to issue exemptions from CASR. Regulation 308 of CAR currently empowers CASA to exempt aircraft, or persons engaged in the operation of aircraft, from provisions of the regulations - both CAR and CASR. The amendments made by items 61 to 66 of Schedule 1 have the effect of limiting the application of regulation 308 to exemptions against the provisions of the CAR, as exemptions from the provisions of the CASR are undertaken under the new CASR Subpart 11.F.
Item 23 - Regulation 42WA, note
Item 23 updates the note to regulation 42WA of CAR to clarify where guidance material relating to an authorised release certificate may be found (on the CASA website), and where a list of acceptable foreign documents (equivalent authorised release certificates) may be found.
Item 33 - Subregulation 54 (2)
Regulation 55A of CAR was inserted by Civil Aviation Amendment Regulations 2002 (No.4), Statutory Rules No.221 of 2002. However, a consequential amendment to sub-regulation 54 (2) to refer to changes to flight manuals approved under the new regulation was inadvertently overlooked. Item 33 corrects this omission.
Items 40 to 42, and 56 to 58 - Amendments to CAR consequent on commencement of CASR Part 65
Schedule 1 to the Civil Aviation Amendment Regulations 2002 (No.2), Statutory Rules No.167 of 2002, inserted Part 65 into CASR, relating to licensing of air traffic controllers and flight service officers. Consequently, equivalent provisions in Part 10 of CAR were repealed, and a number of other amendments were made to CAR, by Schedule 2 to those regulations.
Unfortunately, a number of references to repealed provisions of Part 10, and references to licences etc. issued under those repealed provisions, were inadvertently missed. Items 40 to 42 and 56 to 58 of Schedule 1 to the Regulations updates those references.
Item 43 - Correction of heading
Item 43 replaces the heading of regulation 169 of CAR so that it more accurately reflects the content of the regulation, that is, "preventing collisions on water" rather than "preventing of collisions at sea".
Items 45 and 60 - Amendments consequent on repeal of regulation 134
Regulation 134 of CAR, relating to grant of special flight permits by CASA, was repealed by Statutory Rules No.235 of 1998. The subject matter of regulation 134 was remade as regulations 21.196 to 21.201 of CASR.
Item 45 replaces an incorrect reference to subregulation 134 (1) in paragraph 252A (2) (c) of CAR with the correct reference to regulation 21.197 of the CASR.
Item 60 repeals the reference to regulation 134 in subregulation 303A (4); this reference does not need to be up-dated to regulation 21.197 of CASR as regulation 303A does not, on its face, apply to special flight permits issued under regulation 21.197 of CASR.
Item 52 - Amendment consequent on enactment of CASR Part 47
The provision for AAT review of CASA's decisions under CASR Part 47 is to be moved from CAR to CASR. Item 3 of Schedule 1 to the Civil Aviation Amendment Regulations 2004 (No.1) amended paragraph 297A (1) (a) of the CAR and provided for AAT review of the suspension or cancellation of the registration of an aircraft under CASR Part 47. The AAT review rights for decisions made under CASR are being consolidated in regulation 201.004 of CASR. Item 157 of Schedule 2 to the Regulations amends regulation 201.004 of CASR to provide for AAT review of CASA's decisions under CASR Part 47. The same provision does not need to appear in the CAR, so item 52 repeals paragraph (a) of subregulation 297A (1) of CAR. In essence, the AAT review provision for decisions made under CASR Part 47 is being moved from CAR to CASR.
Item 54 - Amendment consequent on enactment of CASR Part 92
Item 54 repeals paragraphs (t) and (u) of subregulation 297A (1) of CAR, which provides for AAT review of certain decisions of CASA. Paragraphs (t) and (u) relate to decisions by CASA under regulations repealed by Schedules 3 and 5 to Civil Aviation Amendment Regulations 2003 (No.8) (Part 92 Regulations), relating to consignment and carriage of dangerous goods by air. There are no equivalent decisions made by CASA under the Part 92 Regulations, although other decisions made by CASA under those regulations are reviewable by the AAT under regulation 201.004 of CASR.
Item 55 - Regulation 298
Item 55 deletes the reference to regulation 211 in regulation 298 of the CAR. Regulation 211 was repealed by amendment to the CAR under Statutory Rules 1995 No. 224, and this cross-reference was inadvertently missed in that amendment.
Item 67 - Repeal of regulations 310A, 310B and 310C
Item 67 repeals three regulations which are no longer of any effect. Regulations 310A and 310B permitted CASA to conduct safety audit programs for Qantas Airways Ltd and Ansett Transport Industries Ltd for the financial year 1995-1996, the conduct of which CASA could receive a fee from those companies under regulation 3 of the Civil Aviation (Fees) Regulations (as they then were). No other safety audit programs conducted by CASA in pursuance of its general functions under the Civil Aviation Act 1988 were or are currently chargeable. Regulation 310C made it clear that the determination and conduct of a safety audit programs under regulation 310A and 310B affected its other powers or functions.
These regulations ceased to have any effect on 1 July 1996. Accordingly, it is appropriate that they be repealed, and item 67 of Schedule 1 of the Regulations does so.
Item 86 - Reordering and updating regulations 324 and 325
Item 20 of Schedule 1 to Civil Aviation Amendment Regulations 1999 (No.6), Statutory Rules No.353 of 1999, inserted regulation 325 of CAR "after regulation 323". This put regulation 325 in between regulations 323 and 324, i.e. out of numerical sequence.
Item 86 of Schedule 1 to the Regulations repeals and remakes regulations 324 and 325 of CAR in the correct numerical sequence. The opportunity has also been taken to change the references to "commencement of this regulation" or equivalent with the specific date of commencement (1 December 1999) in CAR 324, and with the specific title of the regulations making the amendments referred to in CAR 325. Similar replacement of references to "commencement" with specific dates is also being under taken in CASR (see Part 3 of Schedule 3), to aid in interpretation of the provisions.
Items 87 and 88 - Replacement of `CAA' with `CASA'
Regulation 35 of the Civil Aviation Regulations (Amendment), Statutory Rules No.224 of 1995, replaced references to the "CAA" in many regulations of CAR with the abbreviation "CASA" (being the title of the organisation responsible for administering CAR from the commencement of those regulations). However, that regulation did not amend headings to Schedules to CAR. Items 87 and 88 replaces the abbreviation "CAA" in the headings to Schedules 5 and 6 to CAR, with the abbreviation "CASA".
Schedule 2 Amendments of Civil Aviation Safety Regulations 1998 (regulation 4)
Part 1 Amendments relating to regulatory administrative procedures (Items 1 to 34 of Schedule 2)
Part 1 of Schedule 2 to the Regulations inserts a new Part 11 into CASR, and makes amendments to CASR consequential to CASR Part 11.
Items 1, 2 and 3 - Amendment of the Guide
The CASR starts with a Guide on How to Use the Civil Aviation Safety Regulations 1998 (`Guide'). This Guide provides information to assist people to read and understand the CASR, how to contact or obtain information from CASA and other government aviation agencies, and how to become involved in the regulatory amendment process.
Items 1, 2 and 3 amend paragraphs 52, 53, 79, and 83 to 91, and inserts a new paragraph 91A of the Guide relating to Manuals of Standards (MOSs), which are documents published by CASA and amended from time to time which contain safety standards given effect to in the CASR. CASA has recently undertaken a review of its processes for publishing and amending MOSs, and the new paragraphs of the Guide reflect changes to those processes.
Item 4 - Regulation 1.008
Item 4 inserts a new regulation 1.008 into CASR to provide that inconsistency between provisions of MOSs and provisions of the Civil Aviation Act and regulations are resolved in favour of the Act or regulations, as the case may be.
Item 5 - Part 11 of Civil Aviation Safety Regulations 1998
Item 5 inserts a new Part 11, entitled `Regulatory administrative procedures' in numerical sequence to follow Part 1 of the CASR. The provisions of Part 11 are described below.
Part 11 Regulatory administrative procedures
Note This part is made up as follows:
This note would insert the table of contents for Part 11.
Subpart 11.A Preliminary
New regulations 11.005 to 11.015
These regulations deal with general preliminary matters, including the applicability of Part 11, a brief description of its contents, and definitions used in the Part.
Regulation 11.015 defines key terms for the interpretation of Subpart 11.B. Importantly, it would define what is meant by the term authorisation. Subpart 11.B deals with the processes for the issue of authorisations. An authorisation is essentially a statutory licence to undertake an aviation-related activity, such as a flight crew, air traffic controller, or aircraft maintenance engineer licence, a certificate to maintain aircraft or operate an aerodrome, or an approval to provide an air traffic control or aerodrome rescue and fire fighting service. It is not intended that ad hoc approvals granted by CASA under operational provisions of CASR - for example, low flying approvals, special flying permits, and air display approvals - be subject to Subpart 11.B. Further, a delegation of CASA's powers is not an authorisation.
Subpart 11.B Applications
Subpart 11.B provides CASA with its general powers in relation to the receipt and processing of applications for a wide variety of certificates, licences, approvals and other licence-like instruments issued under the CASR which permit a person to undertake an aviation-related activity.
New regulation 11.020 - Effect of this Subpart
Because Subpart 11.B provides CASA's general powers for processing applications for all authorisations issued under CASR, these provisions apply notwithstanding any other provisions in relation to processing applications for particular authorisations in other Parts of the CASR.
New regulation 11.025 - Application of this Subpart to authorised representatives
It is envisaged that some authorisations under the CASR may be issued by "authorised representatives" of CASA, people from outside CASA who, because of skills, qualifications, knowledge, etc. have been appointed by CASA to undertake specific licensing and approval functions which would otherwise be performed by officers of CASA. Authorised representatives would have the same powers and obligations of CASA officers in processing applications for authorisations; accordingly, references in Subpart 11.B to CASA include references to authorised persons where other provisions of the CASR permit applications for authorisations to be made to authorised persons.
New regulation 11.030 - When application taken to be complete
This regulation specifies that an application must be made in an approved manner, and include all the information and documents and manuals required for assessment, and the fee paid if applicable. Although CASA could accept an application which does not comply with this regulation, it would not be obliged to process the application until it does comply.
New regulation 11.035 - Other things CASA can ask applicant to do - test or interview
This regulation specifies that CASA can ask an applicant to undertake a test (written, oral or on-line examination or practical assessment) or interview for the purposes of satisfying the requirements for the authorisation.
This regulation also specifies that if the applicant is a corporation, CASA can ask the applicant to have a specified officer of the corporation to do the test or interview.
The regulation will not compel an applicant to undertake the test or attend the interview, and the sanction for failing to do so would only be that CASA does not have sufficient information before it to be satisfied that the applicant meets the criteria for the issue of the authorisation.
New regulation 11.040 - Other things CASA can ask applicant to do - provide more information
Applications for authorisations to undertake complex aviation-related activities are seldom submitted complete with all the information CASA may need to assess them. Consideration of some applications may take some time, as CASA and the applicant exchange information in order for the applicant to demonstrate that it satisfies the criteria for the issue of the authorisation.
Regulation 11.040 recognises the reality that CASA will, in many cases, require further information from an applicant to consider a particular application.
An applicant would not be compelled by the regulation to provide the information, but as for CASR 11.035, failure to do so may lead CASA to refuse to issue the authorisation, as it could not be satisfied the applicant meets the criteria for its issue.
Subregulation 11.040 (2) enables CASA to request information relating to an applicant's financial standing and financial capacity to undertake the activity authorised by the authorisation being applied for, in circumstances where there may be an adverse effect on the safety of air navigation if the applicant were granted the authorisation and was then unable to carry out the activity. Typically, this subregulation would apply to the provision of aviation support services, for example, aerodrome rescue and fire fighting services or air traffic services.
New regulation 11.045 - Other things CASA can ask applicant to do - demonstrate a service or facility
This regulation completes the suite of regulations under which CASA can request further evidence of an applicant's ability to meet the criteria for the issue of an authorisation. It enables CASA to ask the applicant to give a demonstration of its ability to provide a service or demonstrate the operation of a facility required for the safe conduct of the aviation-related activity authorised by the authorisation applied for. It also allows CASA to inspect any facility or equipment proposed to be used in such an activity.
New regulation 11.050 - Material that CASA may or must take into account
Regulation 11.050 sets out the matters that CASA may or must take into account when deciding whether or not to issue an authorisation to an applicant. In particular, it may take into account material:
• in the application or otherwise provided by the applicant;
• obtained during a test or interview of the applicant, or from a demonstration or inspection of a service or facility; and
• in CASA's records about the applicant.
Subregulations 11.050 (2) and (3) provides natural justice for an applicant about whom CASA has adverse material in its records, which CASA intends to take into account in considering the application. CASA must put the adverse material to the applicant and invite the applicant to make a submission in relation to that material within a reasonable period of time. If the applicant does so, CASA must take the submission into account in deciding whether or not to issue the authorisation.
CASA is also required to take into account any prior cancellation "for cause" of an authorisation held by the applicant or a person with whom the applicant was connected. Thus, for example, when considering an application for a pilot licence, CASA is required to take into account a prior cancellation of any relevant authorisation (such as a pilot licence) held by the applicant.
Similarly, when CASA is considering an application by a company for a certificate to undertake aircraft maintenance, CASA must take into account a prior cancellation of a similar certificate held by that company or another company sharing common directors or officers with the applicant company, and even cancellations of aircraft maintenance engineer licences held by directors or officers of the applicant company.
New regulation 11.055 - Grant of authorisation
This regulation requires CASA to grant an authorisation applied for if:
• the applicant meets the criteria and requirements of CASR for the issue of the authorisation (paragraphs (1)(a) and (b) and subregulation 11.055 (2)); and
• no provision of the Act or CASR precludes CASA from granting the authorisation (qualification at beginning of subregulation (1), and paragraph (1)(c)); and
• granting the authorisation is not likely to have an adverse effect on the safety of air navigation (paragraph (1)(d)).
It is intended that paragraph 11.055 (1)(d) operates as a fit and proper person test. Subregulation (4) would set out the matters relevant to this test. This subregulation is based on section 10 of the Civil Aviation Act 1990 of New Zealand.
Subregulations 11.055 (7) and (8) provides that CASA can grant an authorisation in relation to only some of the matters sought in the application, and can place conditions on the authorisation which are either permitted or required under CASR or are otherwise necessary in the interests of the safety of air navigation.
New regulation 11.060 - Notice of decision
CASA is required to give an applicant notice of its decision on the application as soon as possible after making the decision. This can be accomplished merely by sending the applicant a copy of the authorisation applied for. However, if CASA has refused to grant the authorisation, or has granted it subject to conditions which were not applied for, then CASA must give the applicant notice of its decision and the reasons for that decision. Note that failure to provide notice or reasons for a decision does not, of itself, invalidate the decision.
The Note to the regulation advises that most decisions in relation to authorisations are subject to external merits review by the Administrative Appeals Tribunal - see section 31 of the Act, CAR 297A, and CASR 201.004.
New regulation 11.065 - When authorisation comes into effect
An authorisation comes into effect on the date stated in the notice or document provided under regulation 11.060, or if no date is specified, on the date of the notice or document.
New regulation 11.070 - Conditions of authorisations - notice to CASA of certain matters
This regulation imposes conditions on holders of authorisations (and in some circumstances their legal agents) to notify CASA of certain matters, in order for CASA to keep its records up-to-date. While most of the notice requirements only act as conditions on the authorisation, CASR 201.005, 201.010 and 201.015 impose criminal sanctions on failure to notify CASA of name, nationality or address changes (see item 26 of Schedule 3, below).
Note regulation number 11.075 is reserved for future use
New regulation 11.080 - When authorisations cease
This regulation sets out that an authorisation will cease if the holder dies or, if held by a corporation or a member of a partnership, the corporation or partnership is dissolved.
Subpart 11.C Authorisation documents, certificates and related matters
New regulations 11.090 to 11.105 - Authorisation documents specified in the Chicago Convention
To ensure international recognition of authorisation documents issued by CASA, regulations 11.090 to 11.105 inclusive prescribes the form of authorisation documents by reference to relevant provisions of the Annexes to the Chicago Convention.
New regulation 11.110 - Authorisation document - other authorisations
This regulation sets out the required form of authorisation documents which are not subject to international specifications.
New regulation 11.115 - Replacement documents
This regulation provides that CASA may replace an authorisation document that is incorrect, or from which information has been omitted or has been lost or destroyed.
Subpart 11.D Variation, suspension and cancellation of authorisations at holder's request
New regulations 11.120 to 11.130 - Variation, suspension or cancellation of authorisations at holder's request
Subpart 11.D provides CASA's general powers to vary, suspend or cancel an authorisation at the request of the holder of the authorisation (CASA's powers to vary, suspend or cancel an authorisation "for cause" are proposed to be contained in the Act and Part 13 of the CASR).
The process for varying an authorisation at the holder's request is largely the same as the process for granting an authorisation, with the exception that the holder of the authorisation need not include information or a document in the application for variation which the holder has already given CASA and which has not changed since it was given. Otherwise, all of the provisions of Subpart 11.B apply to the application for variation as if it were an application for a grant of an authorisation, and CASA has discretion under CASR 11.055 whether or not to vary the authorisation as requested.
If the holder of an authorisation asks CASA to suspend or cancel the authorisation, CASA must do so in accordance with the holder's request.
Subpart 11.E Time-limited authorisations
New regulations 11.135 to 11.150 - Continuation of time-limited authorisations until application for renewal is decided
The purpose and effect of Subpart 11.E ise to extend the operation of an authorisation past what would otherwise be its expiry date if the holder of the authorisation has applied for a new authorisation in the same terms as the old, and CASA has not made a decision on the application prior to the old authorisation's expiry date.
For the holder of an authorisation to obtain the benefit of the extension of the old authorisation, the holder must have:
• applied for a new authorisation which is substantively the same as the old authorisation;
• made the application a reasonable period of time before the expiry of the old authorisation (if the holder is a corporation, 90 days, if an individual, 21 days); and
• made an otherwise complete application.
Further, if CASA requests further information from the applicant within a period of time, and the applicant does not supply that information in time, the authorisation expires at that time.
The process for granting a new authorisation to replace an old time-limited authorisation is largely the same as the process for granting an initial authorisation, with the exception that the holder of the authorisation need not include information or a document in the application for variation which the holder has already given CASA and which has not changed since it was given.
Otherwise, all of the provisions of Subpart 11.B apply to the application for the new authorisation as if it were an application for a grant of an initial authorisation. CASA is not obliged to issue the new authorisation on the same terms as the old (although in most cases such a decision would be subject to external merits review by the Administrative Appeals Tribunal).
Subpart 11.F Exemptions from provisions of CASR
New regulations 11.155 to 11.235 - Exemptions from provisions of CASR
An "exemption" can be thought of as an approval or permission which allows the subject of the exemption to avoid compliance with a legal requirement. Presently, CAR 308 provides CASA with its primary power to exempt people from compliance with the CAR, and is the source of power for Civil Aviation Order (CAO) section 95. However, there are additional exemption provisions scattered throughout the CAR and CAOs which are heavily utilised, one of the most prominent being paragraph 4 of CAO 48.0, which provides for exemptions from flight crew flight and duty time limits.
The view has often been expressed that CASA "regulates by exemption", giving rise to inconsistency and uncertainty in the application of standards. CASA is strongly of the view that, provided standards are clear and appropriate, exemptions from them should not be necessary. To an extent, the fact that exemptions are relatively common currently is recognition of the fact that not all existing standards are clear and appropriate.
It is envisaged that the standards in CASR would result in a marked reduction in the need for exemptions to be issued. Nevertheless, CASA recognises that it is not possible to draft perfect or complete safety standards, and that advances in technology and knowledge of human factors can render standards obsolete or inappropriate. Further, there may be situations where a person can meet the intent of a safety standard in a manner not contemplated by the standard. So there is a need for CASA to retain a power to issue exemptions. This power would reside in Subpart 11.F.
Subpart 11.F provides CASA with a power to issue exemptions from provisions of CASR. As a consequence, the existing general exemption provision, CAR 308, would be amended so that it is only applicable to the CAR (see items [61] to [65] of Schedule 1).
The provisions of the Subpart reflects the following philosophies:
• exemptions can only be issued in unusual circumstances;
• exemptions must maintain an appropriate level of safety;
• exemptions must be of limited duration;
• the process for issuing exemptions must be open and transparent; and
• exemptions must add value to the process of identifying and amending inappropriate safety standards.
There are two general types of exemptions - "standard exemptions" (dealt with in Division 11.F.1) and "exceptional circumstance exemptions" (dealt with in Division 11.F.2). Standard exemptions are exemptions issued by CASA during the ordinary course of business, and the provisions dealing with these take into account all of the philosophies mentioned above.
Exceptional circumstance exemptions are exemptions issued by CASA where some large-scale emergency requires the use of aircraft in ways which are not reasonably contemplated by the safety standards, and the safety standards need to be ameliorated in the short term to cope with a larger risk.
The provisions dealing with exceptional circumstance exemptions take into account the first four of the philosophies mentioned above.
CASA can issue an exemption of its own volition, or on application. Regulation 11.165 deals with applications for standard exemptions. Importantly, unless CASA otherwise agrees, an application for a standard exemption must be made to CASA at least 3 months prior to its proposed date of commencement. CASA considers that currently most requests for urgent exemptions reflect poor contingency planning by the applicants. In many cases, urgent exemptions are requested to deal with unlikely but foreseeable events. It is envisaged that the requirement to lodge applications at least 3 months prior to the commencement of an exemption will motivate potential applicants to consider alternative methods of compliance with the safety standards they would otherwise seek to be exempt from.
Applications for standard exemptions are dealt with in much the same way as applications for authorisations (CASR 11.170), including CASA's powers to require further information etc., and CASA's obligations to take certain matters into account. In deciding whether or not to issue an exemption, and what conditions to impose on an exemption, subregulation 11.170 (3) requires CASA to regard as paramount the preservation of a level of aviation safety which is at least acceptable.
Exemptions are of a limited duration - a maximum of 2 years for standard exemptions, and 6 months for exceptional circumstances exemptions (subregulations 11.230 (1) and (2)). (Standard exemptions may be renewed, however, see CASR 11.175). An exemption in relation to a person would not be transferable to another person (CASR 11.235). An exemption in relation to particular aircraft is tied to the aircraft owner or aerodrome operator (subregulation 11.230 (3)). A new aircraft owner could not obtain the benefit of an exemption automatically, but must apply for a new exemption.
Exemptions are disallowable instruments (CASR 11.215), meaning that they must be tabled before both Houses of Parliament, and both Houses are permitted to disallow them.
CASA must publish a notice of the making of an exemption in the Gazette (because they are disallowable instruments), and must publish on the Internet any exemptions it issues (CASR 11.225). Exemptions will also be legislative instruments and hence subject to the Legislative Instruments Act 2003 when that Act commences.
CASA would continue to keep a register of exemptions, which is made public on the Internet. However, it proposes to use the register in a pro-active manner, as a kind of "log of issues". The register enables CASA to monitor who has what exemptions (a useful tool for assessing the safety health of an organisation), but perhaps more importantly, it would enable CASA to identify where standards are deficient or inappropriate. For example, if a large number of people require long-term exemptions against a particular provision of CASR, that is fairly good evidence that the provision is inappropriate.
Finally, if a condition on an exemption imposes an obligation on a person, then a failure by that person to comply with the obligation is an offence (CASR 11.210). It should be noted that not only is the failure to comply with a condition of an exemption an offence in itself, but the failure to comply means the person is not acting within the authority of the exemption, and is probably also not compliant with the safety standard to which the exemption relates. This non-compliance with the safety standard may also constitute a separate offence or offences.
Subpart 11.G Directions
New regulations 11.240 to 11.255 - Directions
CASA currently has broad powers of direction under the CAR. For example, with the exception of Section 82 and Section 95 CAOs, all CAOs have as their legislative basis a power in the CAR for CASA to issue a direction, instruction, notification, permission, approval or authority. While it is not proposed that CASA would have the power to issue Orders under CASR, it is still considered necessary for CASA to have the power to issue directions of general application to deal with urgent safety matters which, for one reason or another, are not dealt with specifically by the CASR. Again, rather than having matter-specific powers of direction scattered throughout the CASR, for the sake of consistency and legislative drafting and administrative efficiency, it has been decided to have a single broad power of direction in Part 11.
Like exemptions, directions provide useful feedback into the adequacy and clarity of the CASR. Where a direction is issued to deal with an ongoing (rather than short-term) safety issue, which the CASR does not deal with adequately, then consideration should be given to amending the CASR. In that light, directions would be of limited duration (1 year, CASR 11.250), either dealing with a short-term safety issue or otherwise providing time for the processes of legislative amendment to be undertaken (this contrasts with directions under the CAR, which may be of unlimited duration). A person subject to a direction who contravenes that direction would commit an offence (CASR 11.255).
Directions, like exemptions, are disallowable instruments - they must be notified in the Gazette and are subject to Parliamentary scrutiny and repeal. They will be legislative instruments and hence subject to the Legislative Instruments Act 2003 when that Act commences.
Subpart 11.H Delegation of CASA's powers
New regulation 11.260 - Delegation
This regulation empowers the Director of CASA to delegate to a person CASA's powers and functions under the CASR. However, there are a small number of significant powers which must be exercised by the Director personally, and these are listed in subregulation (2). Delegations are subject to conditions, and delegates are subject to general written directions by the Director.
Subpart 11.J Manuals of Standards - procedures
New regulations 11.265 to 11.295 - Procedures for issue and amendment of Manuals of Standards
Subpart 11.J prescribes the public consultation requirements for the development and amendments of Manuals of Standards (MOSs). MOSs are documents published by CASA which set out the detail of aviation safety standards and requirements. They are incorporated by reference into the CASR; that is, certain provisions of the CASR require that a person comply with or adheres to a standard prescribed in a specified MOS. For each Part of the CASR for which a MOS is required CASA would publish a separate MOS. Thus, for example, there are separate MOSs for Part 65, Part 143, Part 172, etc. See also `Incorporated Manuals' in the Guide.
The provisions of Subpart 11.J replace existing consultation requirements in some CASR Parts, but apply to MOSs for all Parts. In the ordinary course of events, CASA must publicly consult on any proposed MOS or amendment to a MOS, in accordance with CASR 11.280 to 11.290.
However, in line with Commonwealth government policy on consultation for regulatory change, there are a number of circumstances in which consultation is not required (although CASA may still do so if it chooses) (CASR 11.275):
• the MOS is required in the interests of aviation safety;
• the MOS is required to give effect to a Ministerial undertaking or an international obligation;
• the MOS is of a minor or machinery nature that does not substantially alter existing arrangements; or
• consultation would endanger aviation security or otherwise be contrary to the public interest.
Further, consultation prior to issue or amendment of a MOS is not necessary where the issue or amendment must be done as soon as possible in the interests of aviation safety. However, CASA would still be required to consult on the MOS or amendment to the MOS afterwards.
CASA must give reasonable notice of its proposal to issue or amend a MOS, invite comments on the MOS or amendment, and must consider those comments before issuing or amending the MOS. Nevertheless, a failure by CASA to follow the mandatory consultation procedures does not render any MOS or amendment to a MOS invalid.
Items 6 to 9 - Regulation 21.002E
Items 6 to 9 inclusive amend regulation 21.002E such that it only provides for the publication of cancellation action, and that CASA's head of power to cancel on request is in CASR 11.130. Regulation 21.002E provides for the cancellation of instruments issued under CASR Part 21 on request. With the making of Subpart 11.D, such a provision is redundant, except insofar as it provides for publication of the cancellation of certain instruments.
Items 10, 11, 13, 14, 16, 17, 19, 20, 22 and 23 - Specific persons to be given notification of the making or amendment of a Manual of Standards
These items amend provisions of the CASR which empower CASA to issue MOSs for Parts 65, 143, 171 and 172, and Subpart 139.H. Items 11, 14, 17, 20 and 23 insert new subregulations which require CASA to give notice to certain persons of its intention to issue or amend a MOS. These are persons particularly affected by the relevant MOS. This specific notification requirement is in addition to CASA's obligation to give notice to the public generally of its intention to issue or amend a MOS set out in CASR 11.280 (see also Note 2 to subregulation 11.280 (1)).
Items 10, 13, 16, 19 and 22 simply make the current regulation the first subregulation of the amended provisions.
Items 12, 15, 18, 21 and 24 - Repeal of duplicate Manual of Standards public consultation requirements
These items repeal provisions in Parts 65, 143, 171 and 172, and Subpart 139.H, which required public consultation for MOSs for those Parts. These provisions have been superseded by Subpart 11.J and are redundant.
Item 25 - Repeal of regulation 201.002
Regulation 201.002 of CASR provides that the Director may delegate CASA's powers and functions under CASR. This regulation is replaced by regulation 11.260, so it is redundant. Transitional arrangements ensure that existing delegations made under regulation 201.002 continue in force (see item 27 of Schedule 3).
Item 26 - Offences for failure to notify CASA of changes of information
Item 26 of Schedule 2 inserts three new offences into CASR, in order to ensure that CASA holds up-to-date information on holders of authorisations. These offences support the administrative processes in Part 11, and mirror some conditions imposed on authorisations by regulation 11.070.
New regulation 201.005 - Notice of change of name or trading name
This regulation requires the holder of an authorisation to tell CASA of a change to the holder's name or trading name within 14 days of the change. This ensures that CASA's records are kept up-to-date.
This regulation prescribes a penalty of 5 penalty units if the holder of the authorisation failed to notify CASA in the specified time frame of 14 days. Note that the level of the penalty unit is set out in the Crimes Act 1914. Currently, a penalty unit is $110.
The offence is an offence of strict liability.
New regulation 201.010 - Notice of change of nationality
Certain authorisations held by individuals, such as flight crew and aircraft maintenance engineer licences, have the holder's nationality endorsed on the face of the document. The form of these licences is consistent with requirements imposed on Australia as party to the Chicago Convention. This regulation is designed so that it ensures that holders of such authorisations notify CASA of any change to their nationality, so that CASA may issue a corrected licence to them.
This regulation prescribes a penalty of 5 penalty units if the holder of the authorisation failed to notify CASA in the specified time frame of 14 days. The offence is an offence of strict liability.
New regulation 201.015 - Notice of change of address etc
This regulation requires the holder of an authorisation to tell CASA of a change to the holder's address within 14 days of the change. This ensures that CASA's records are kept up-to-date.
This regulation prescribes a penalty of 5 penalty units if the holder of the authorisation failed to notify CASA in the specified time frame. The offence is an offence of strict liability.
New regulation 201.020 - Service of documents
This regulation specifies the address to serve documents on CASA as the CASA Building, Corner Northbourne Avenue and Barry Drive, Canberra City, Australian Capital Territory.
Item 27 - Subpart 202.AD
Item 27 inserts a new Subpart 202.AD covering the transitional provisions for Part 11. The Subpart introduces regulations 202.010 to 202.012 that provide for the continuation of existing delegations and exemptions made under amended and repealed regulations, and for pre-commencement consultation on MOSs to satisfy the requirements of Subpart 11.J.
New regulation 202.010 - Continuation of certain existing delegations
This regulation provides that a delegation of a power or function under CASR, which had been previously made under regulation 7 of CAR or regulation 201.002, continues to have effect according to its terms as if made under regulation 11.260. Further, any directions given by the Director in relation to the exercise of the delegated power or function continue to have effect. Delegations and directions continued in effect by subregulations 202.010 (1), (2) and (3) can be revoked.
New regulation 202.011 - Continuation of certain exemptions
This regulation provides that an exemption made under regulation 308 of CAR continues to have effect according to its terms. The exemption could also be revoked under regulation 308 of CAR as if that regulation continued to permit it to be made.
New regulation 202.012 - Consultation on certain Manuals of Standards
This regulation provides that consultation on a MOS undertaken prior to the commencement of Subpart 11.J which would, had it been undertaken after commencement, have satisfied the consultation requirements of that Subpart, need not be repeated following commencement.
Items 28 to 32 - Amendment of transitional provisions for Manuals of Standards
Items 28 to 32 amend existing transitional provisions for a MOS made by CASA prior to 1 May 2003. The provisions of CASR Parts 65, 139, 143, 171 and 172 which are referred to in the provisions of CASR Part 202 being amended are repealed by the Regulations (see items 12, 15, 18, 21 and 24 of Schedule 2). Accordingly, to aid in interpretation of those transitional provisions of CASR Part 202 it is convenient to add the words "(as in force on 1 May 2003)", thereby making it clear what the transitional arrangements for Manuals of Standards for Parts 65, 139, 143, 171 and 172 were at that time.
Item 33 - Dictionary, Part 1
Item 33 amends the CASR Dictionary, Part 1 by introducing the meaning for terms `charged with an offence', `convicted of an offence', `drug-critical authorisation', `expiation notice', `probity-critical authorisation', `probity offence', `psychoactive substance' and `psychoactive substance offence' which are now used or referenced in the new regulations, in particular, the provision requiring notice to CASA of certain matters (subregulation 11.070 (1)).
Item 34 - Dictionary, Part 2
Item 34 repeals the existing Part 2 of the Dictionary of CASR and inserts new clauses 25, 35 and 60. These clauses provide extended definitions of the terms `charged with', `convicted' and `psychoactive substance'. Note that existing clauses of Part 2 of the Dictionary are not repealed in toto - items 185 to 188 in Part 5 of Schedule 2 re-make existing clauses of Part 2 of the Dictionary, as well as reserving particular clause numbers for specific use in the future. The objective of the repeal, re-make and reservation of numbers is to have the clauses of Part 2 of the CASR Dictionary in alphabetical order for ease of use.
New clause 25 - Extended meaning of charged with for certain offences
This new clause provides that the meaning of charged with a psychoactive substance offence has a meaning, beyond the ordinary meaning, which includes the issue of an expiation notice in relation to the offence.
New clause 35 - Extended meaning of convicted
This new clause provides that the meaning of convicted of an offence has a meaning, beyond the ordinary meaning, which includes having the offence taken into account when being sentenced for another offence, having been found guilty of the offence but discharged without conviction, and, having been issued with an expiation notice for the offence, paid the penalty required by the notice.
New clause 60 - Meaning of psychoactive substance
This new clause defines, for these Regulations, the term psychoactive substance by reference to section 1.1 of Annex 1 of the Chicago Convention and the definition of therapeutic substance by reference to the Therapeutic Goods Act 1989.
Part 2 Amendments relating to `internal tables of provisions' (Items 35 to 86 of Schedule 2)
Part 2 of Schedule 2 to the Regulations replaces all of the existing tables of contents of the Parts of CASR, which are made as regulations, with tables of contents made as Notes to the regulations. This would enable the Office of Legislative Drafting of the Attorney-General's Department to amend and keep the tables of contents up-to-date as an editorial process. It is proposed that all future Parts of CASR are made with tables of contents as notes, rather than substantive regulations.
Item 35 - Guide, paragraph 57
Item 1 inserts a revised paragraph 57 in the Guide that explains that each CASR Part will contain a table of contents, which will be in the form of a note immediately located after the Part heading.
Items 37, 40, 42, 44, 46, 48, 50, 52, 54, 56, 58, 60, 62, 64, 66, 68, 70, 72, 74, 76, 78, 80, 82, 84 and 86 - Repeal of tables of contents provisions
These items repeal current provisions of the CASR, which specify the tables of contents (invariably the first regulation in any particular CASR Part). However, all repealed tables of contents are re-inserted into the CASR as notes (see immediately following paragraph).
Items 36, 39, 41, 43, 45, 47, 49, 51, 53, 55, 57, 59, 61, 63, 65, 67, 69, 71, 73, 75, 77, 79, 81, 83 and 85 - Insertion of tables of contents as notes
These items re-insert the tables of contents repealed by the items listed in the preceding paragraph, albeit as notes and not substantive legislative provisions.
Item 38 - Regulation 1.006
Item 2 repeals the current regulation 1.006 and replaces it with a provision explaining the legal status tables of contents in the CASR. Tables of contents are notes to the CASR, and are therefore not substantive legislative provisions, but are for convenience of reference only.
Part 3 Amendments substituting explicit dates for references to dates (Items 87 to 124 of Schedule 2)
Items 87 to 104, 106 to 108, 110 to 114 and 116 to 124 - Substituting explicit dates of commencement
Part 3 of Schedule 2 to the Regulations substitutes explicit dates of commencement of various regulations in CASR for the general references to "the commencement of this regulation" or equivalent. By-and-large, these references appear in transitional provisions in CASR, although there are a few other regulations which are designed to refer to a matter fixed in time. The objective is to enhance the readability of the amended regulations; the amendments have no legal or operational effect.
Items 105, 109 and 115 - Moving transitional provisions from ad hoc regulatory amendments to Part 202 of CASR
In the past, when a new CASR Part was made to replace existing regulations in CAR, saving and transitional provisions were including in the regulations which made the new CASR Part. However, a specific Part of CASR, Part 202, has been enacted to provide for all savings and transitional provisions required during the transition from CAR to CASR. It is the current drafting practice for savings and transitional provisions to be made as amendments to CASR Part 202 rather than as stand-alone provisions in the regulations which make the new CASRs. The objective is put all savings and transitional provisions in one consolidated body of legislation, that being CASR Part 202.
Items 105, 109 and 115 of Schedule 2, and Schedules 3, 4 and 5, have the effect of shifting savings and transitional provisions originally made in the Civil Aviation Amendment Regulations 2000 (No. 3), the Civil Aviation Amendment Regulations 2001 (No. 4) and the Civil Aviation Amendment Regulations 2002 (No. 2) into CASR Part 202.
Item 105 remakes a transitional provision relating to marking of aircraft originally appearing in regulation 5 of the Civil Aviation Amendment Regulations 2000 (No. 3), which is repealed by Schedule 3 of the Regulations.
Item 109 remakes a transitional provision relating to air traffic controller and flight service officer licences originally appearing as regulation 5 of the Civil Aviation Amendment Regulations 2002 (No. 2), which is repealed by Schedule 5 of the Regulations.
Item 115 remakes a transitional provision relating to authorisations to operate unmanned aircraft originally appearing as regulation 4 of the Civil Aviation Amendment Regulations 2001 (No. 4), which is repealed by Schedule 4 of the Regulations.
Part 4 Renumbering of certain Subparts and Divisions (Items 125 to 127 of Schedule 2)
Items 125 to 127 - Amendment of Subpart and Division numbers
In the past, the format of Subpart and Division numbering in the CASR has followed the traditional drafting style of the Office of Legislative Drafting. Thus, for example, a Subpart of a CASR Part was referred to as "Subpart H of Part 139". However, custom and usage in CASA and the aviation industry is to refer to that Subpart simply as "Subpart 139.H". This has motivated a change to the numbering format for ease of reference and use of the CASR.
Item 125 makes the necessary changes to the format of existing CASR Subpart and Division numbers. Items 126 and 127 provides that any reference in existing CASR to those Subparts and Divisions is to be changed to the Subpart or Division that is now renumbered.
Part 5 Other miscellaneous amendments (Items 128 to 188 of Schedule 2)
Items 128 to 131 - Amendment of the Guide
Items 128 to 131 amends the (non-legislative) Guide to CASR, to update references to legislation enacted since the Guide was made and details of where to obtain hard copies of the Regulations.
Item 132 - Subregulation 1.004 (2), note
Item 132 expands the Note to subregulation 1.004 (2) to provide more information.
Item 133 - New regulation 1.005
Item 133 inserts a new regulation 1.005 - Appendixes, which explains the form and legal status of appendixes to provisions of CASR.
Item 134 - Amendment of Table 13.375
Table 13.375 of regulation 13.375 of CASR lists the prescribed classes of civil aviation authorisation for the purposes of section 30DU of the Act (being civil aviation authorisations which may be suspended or cancelled by incurring demerit points under Division 3D of Part III of the Act). From 15 November 2004, aircraft registration certificates have been issued under Part 47 of CASR rather that under Part 3 of CAR. Item 134 amends the relevant item in table 13.375 to make the necessary change.
Items 135, 148, 156, 160 and 161 - Correction of errors in headings
These items correct the headings of regulation 21.271 (missing plural) and Subparts 202.GC and 202.HB (incorrect capitalisation), as well as making the headings to regulation 67.120 and Part 200 of CASR more appropriately reflect the content of the relevant provisions.
Item 136 - Amendment of subregulation 21.875 (1)
Regulation 21.875 was inserted into CASR by Civil Aviation Safety Amendment Regulations 2003 (No.1), Statutory Rules No.297 of 2003. On 4 December 2003 the Senate Standing Committee on Regulations and Ordinances noted that it was not clear that the requirement in subregulation 21. 875 (3) in relation to marking of an aeronautical product was part of the offence in subregulation (1).
It was intended that failure to mark an aeronautical product in accordance with subregulation (3) constituted part of the offence in subregulation (1). Consequently, the Minister for Transport & Regional Services undertook to have sub-regulation (1) amended to put this beyond doubt.
The amendment in item 136 gives effect to this undertaking, by making it clear that the marking of aeronautical products in accordance with subregulation (3) is mandatory and subject to criminal sanction.
Item 137 - Substitution of regulation 47.035
On 5 August 2004 the Senate Standing Committee on Regulations and Ordinances commented that although CASR Part 47 imposed an obligation on the holder of a certificate of registration to notify CASA of a change in relevant details within 14 days, CASA was not under a similar time constraint in amending the register for incorrect information. However, on 27 August the Minister advised the Committee that it was not appropriate to put in place a fixed time frame for CASA to make changes to the register due to the realities of resource allocation within CASA. Nevertheless, in order to deal with the Committee's concern, CASA agreed to amend regulation 47.035 to clearly impose an obligation on it to correct the register `as soon as practicable'. Item 137 substitutes a new regulation 47.035 containing this obligation for the existing regulation.
Item 138 - Amendment of regulation 47.040
Regulation 47.040 permits CASA to request information from an aircraft registration holder if it thinks there is an error in the Civil Aircraft Register. However, the only way of currently enforcing a request for information is to cancel the registration if the information is not forthcoming, see regulation 47.130 (3). CASA considers that this may be a disproportionate response to a failure to provide information in the required period.
Item 138 amends regulation 47.040 by providing that failure to provide information is an offence of strict liability, punishable by a fine of up to 10 penalty units. CASA is empowered to issue an infringement notice, carrying a fine of $110, to a registration holder who fails to provide the required information.
Item 139 - Amendment of regulation 47.065
Regulation 47.065 prescribes the information which must be given to CASA by an applicant for aircraft registration. That includes the name and address of the owner of the aircraft. However, an aircraft may be owned by more than one person. In that circumstance, CASA requires the name of the owner appointed by the remaining owners to act on their behalf, as it will be that person who will hold the certificate of registration and will be the person with whom CASA deals.
Item 139 amends regulation 47.065 to provide that an application for aircraft registration for an aircraft owned by more than one person must include the name and signature of the owner who acts on behalf of the other owners.
Item 140 - Correction of Note 2 to regulation 47.065
Note 2 to regulation 47.065 currently states that, if an aircraft is registered for a specific period, CASA must cancel the registration at the end of that period, and refers to subregulation 47.130 (1). However, that subregulation in fact provides that registration lapses (by operation of law) at the end of the specific period; CASA need take no action to cancel the registration. Item 140 corrects the Note accordingly.
Items 141, 142 and 143 - Amendments to regulation 47.100
Items 141 to 143 amends regulation 47.100 to clarify its operation. Firstly, it is made clear that failure to notify CASA of a change of registered operator for an aircraft is a strict liability offence punishable by a fine of up to 10 penalty units (currently there is no sanction for a failure to notify CASA of this significant fact) (new penalty and subregulation (5A)). Secondly, to facilitate a registered operator resigning from that position, CASA will accept a resignation direct from a registered operator without having to obtain notice from a registration holder, and in that circumstance CASA will be obliged to notify the registration holder of the resignation of the registration holder (new subregulation (5B)). Thirdly, to ensure that CASA obtains all necessary information from a registration holder about an appointment or change of registered operator, it is made clear that CASA needs to accept notices which are not compliant with the requirements of subregulations (6) and (7) (new subregulation (7A).
Items 144 and 145 - Clarification of timeframe for return of old certificates of registration
Items 144 and 145 amends regulations 47.120 and 47.135 to make it clear that a registration holder need only return an old certificate of registration 14 days after they actually receive a replacement or they receive notice that the old certificate has lapsed or been cancelled.
Items 146 and 147 - Amendment of regulations 47.160 and 47.165
On 5 August 2004 the Senate Standing Committee on Regulations and Ordinances commented that the wording of regulations 47.160 and subregulation 47.165 (3) indicated that CASA had some discretion to register an aircraft or approve an application for a change of registration mark, when the relevant regulations on registration and changes of registration mark did not appear to grant such discretions. The Minister for Transport and Regional Services agreed that CASA had no such discretions in the circumstances dealt with by regulations 47.160 and 47.165, and agreed to change the wording of those regulations to reflect that more clearly. Items 146 and 147 make these amendments.
Items 149 and 154 - Repeal of regulations 67.141 and 139.036
Items 149 and 154 repeal regulations 67.141 and 139.036, which provides for AAT review of certain decisions of CASA under CASR Part 67 and CASR Part 139. The jurisdiction of the AAT to review these decisions is maintained, however, see item 157. In effect, the provisions on review of decisions under Part 67 and Part 139 are being moved from regulations 67.141 and 139.036 to regulation 201.004.
Items 150 to 152 - Amendment of tables of medical standards
Items 150 to 152 substitute the word "appropriate" for "approved" in some paragraphs of the medical standards in CASR Part 67. Currently, as drafted the medical standards for flight crew and air traffic controllers require that a person who has a "problematic use of substances" (a defined term) cannot be issued with a medical certificate unless, inter alia, he or she is undertaking or has successfully completed an "approved course of therapy" for that problematic use. The term "approved" means "approved by CASA", see the definition of approved in Part 1 of the Dictionary. CASA does not approve courses of therapy for the purposes of the medical standards in CASR Part 67. Rather, the course of therapy must be considered by the designated aviation medical examiner who is certifying the person against the medical standard as "appropriate" to address the problematic use of substances. The amendments to the medical standards by items 138 to 140 now make this clear.
Item 153 - Regulation 101.015
Item 153 corrects the obsolete references to `Part 3 of CAR 1988' and `Part 45 of CAR 1998' to new references `Part 47' and `Part 45' as a result of the CAR 1998 name change to CASR and the replacement of Part 3 of CAR with Part 47 of CASR on 15 November 2004.
Item 155 - Updating cross-reference
Item 155 replaces the reference to `designated under regulation 139.745,' in the definition of officer in charge in subregulation 139.915 (1) of CASR with the correct reference `appointed under regulation 139.773'. Regulation 139.745 was repealed by item 48 of Schedule 1 to Statutory Rule 2003 No. 75 with effect from 1 May 2003, and replaced by regulation 139.773. However, the cross-reference to regulation 139.745 was not up-dated.
Item 157 - Updating AAT review provision
Item 157 up-dates the provision in CASR which grants jurisdiction to the Administrative Appeals Tribunal to review certain decisions of CASA (regulation 201.004). The amendment would add new paragraphs (k) to (q). Paragraphs (k) and (l) replace paragraph 297A(1)(a) of CAR, which is repealed by item 52 of Schedule 1. Paragraph (m) replaces regulation 67.141 and paragraphs (o), (p) and (q) replaces regulation 139.036; these two regulations are repealed by items 149 and 154 of Schedule 2, respectively. Paragraph (n) corrects an oversight by granting the AAT jurisdiction to review a decision under CASR Part 92, which had not been subject to AAT review before.
Item 158 - Amendment of subregulation 202.223 (2)
The transitional provisions dealing with the repeal of CAR Part 3 and the enactment of CASR Part 47 are contained in CASR Subpart 202.BF. In the 12 months between 15 November 2004 and 14 November 2005, aircraft registered under CAR Part 3 will be re-registered under CASR Part 47. Until then, however, their existing registration is maintained as if CAR Part 3 still applied. Nevertheless, only minor changes to registration details can be made; more significant changes need to be reflected in re-registration of the aircraft under CASR Part 47. Subregulation 202.223 (2) sets out what details can be amended in the aircraft register without requiring re-registration of the aircraft under Part 47. However, that provision does not currently provide for changes of name (without change of legal entity) nor for cancellation of registration.
Item 158 amends subregulation 202.223 (2) to enable CASA to change the name of the registration holder of an aircraft, and to cancel the registration of an aircraft, without requiring re-registration of the aircraft under CASR Part 47.
Item 159 - Repeal of Subpart 202.AM
Subpart 202.AM is currently nothing more than a Subpart heading "reserved for future use" for transitional arrangements for a Part 24 of CASR. There are no plans to make a CASR Part 24, and so there is no point in reserving the Subpart. It is repealed accordingly.
Items 162 to 165, 167 to 170, 172 to 176, 178, 179 and 181 to 184 - Correction of grammatical errors in definitions
These items amend Part 1 of the Dictionary of CASR by inserting an em-dash between defined terms and the references to the provisions of CASR where those terms is defined. This simply corrects a grammatical error in the definitions.
Item 166 - Correction of cross-reference to regulation in CASR
Item 16 of Schedule 1 of the Civil Aviation Amendment Regulations 2002 (No.11), Statutory Rule No.350 of 2002, substituted a definition of CAR airworthiness directive in Part 1 of the Dictionary to CASR, which included an incorrect cross-reference to regulation 202.4 of CASR. This cross-reference should have been to CASR 202.170. This error was identified after those regulations had been prepared and was sought to be corrected in a subsequently drafted body of regulations. Unfortunately, the subsequently drafted regulations were in fact made before Civil Aviation Amendment Regulations 2002 (No.11), as the Civil Aviation Amendment Regulations 2002 (No.9), Statutory Rule No.310 of 2002 (see Item 12 of Schedule 1 of those regulations). Consequently, Item 12 of Schedule 1 of SR 2002/321 preceded the definition of CAR airworthiness directive substituted by Item 16 of Schedule 1 of SR 2002/350, and the wrong cross-reference was not corrected.
Item 166 finally fixes the wrong cross-reference in paragraph (b) of the definition of CAR airworthiness directive in Part 1 of the Dictionary of CASR.
Item 171 - Correction of typographical error
Item 171 corrects a typographical error in paragraph (a) of the definition of designated aviation medical examiner (replaces "an" with "a").
Item 177 - Amendment of definition of NAA
The European Aviation Safety Authority (EASA), an agency of the European Union (EU), came into existence in July 2003 and commenced operations in September 2003. That agency is progressively taking over aviation regulatory functions from the various regulatory agencies of the states of the EU. As a result, references in CASR to those agencies, generically termed "national airworthiness authorities" (NAAs), need to include reference to EASA. The definition of NAA in Part 1 of the Dictionary of CASR is therefore amended by item 177 to include reference to EASA.
Item 180 - Correction of cross-reference to regulation in CAR
Item 180 corrects the reference to paragraph 206 (1) (c) of CAR in the definition of regular public transport operations. See also items 3, 4 and 5 of Schedule 1 to the Regulations.
Items 185 to 188 - Re-ordering of Part 2 of the Dictionary of CASR
Items 185 to 188 would re-make Part 2 of the Dictionary of CASR after its repeal by item 34 of Schedule 2. The items would insert pre-existing definitions in alphabetical order, while also reserving clause numbers for definitions which are likely to be needed in the future. The combined effect of items 34, 171, 172, 173 and 174 of Schedule 2 would re-make Part 2 of the Dictionary of CASR in alphabetical order and insert new definitions required for the operation of CASR Part 11.
Schedule 3 Amendment of Civil Aviation Amendment Regulations 2000 (No. 3) (regulation 5)
Item 1 - Regulations 5 to 8
Item 1 repeals the original transitional provisions for CASR Parts 45 and 47 contained in regulations 5 to 8 of the Civil Aviation Amendment Regulations 2000 (No. 3). Regulation 5 would be re-made as CASR 202.200, see Item 105 of Schedule 2. Regulations 6 to 8 inclusive related to the transition of CASR Part 47 as originally made in the Civil Aviation Amendment Regulations 2000 (No. 3), the regulations for which were disallowed on 8 November 2000. Consequently, those regulations have no operation, and would not be re-made in CASR Part 202 (although transitional provisions for the new CASR Part 47 have been inserted into Subpart 202.BF of CASR by the Civil Aviation Amendment Regulations 2004 (No.1) with effect from 15 November 2004).
Schedule 4 Amendment of Civil Aviation Amendment Regulations 2001 (No. 4) (regulation 6)
Item 1 - Regulation 4
Item 1 repeals regulation 4 of the Civil Aviation Amendment Regulations 2001 (No. 4), which provided the transitional arrangements relating to the authorisations, permissions and approvals previously granted for the operation of unmanned aircraft or rockets which are now covered in CASR Part 101.
The transitional provisions are moved to Subpart 202.FA - Transitional provisions for Part 101, see Item 115 of Schedule 2 which provides for the relocation of this regulation to Subpart 202.FA.
Schedule 5 Amendment of Civil Aviation Amendment Regulations 2002 (No. 2) (regulation 7)
Item 1 - Regulation 5
Item 1 repeals regulation 5 of the Civil Aviation Amendment Regulations 2002 (No. 2), which provided the transitional provisions for persons holding air traffic controller licences as this provision would be moved to and incorporated in Subpart 202.CF - Transitional provisions for Part 65, see Item 109 of Schedule 2 which provides for the relocation of this provision to Subpart 202.CF.