CIVIL AVIATION LEGISLATION AMENDMENT (PART 117) REGULATION 2013 (SLI NO 222 OF 2013) EXPLANATORY STATEMENT

CIVIL AVIATION LEGISLATION AMENDMENT (PART 117) REGULATION 2013 (SLI NO 222 OF 2013)

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. That subsection also provides that the Governor-General may make regulations for the purposes of carrying out and giving effect to the provisions of the Convention on International Civil Aviation (Chicago Convention) relating to safety and in relation to the safety of air navigation, being regulations with respect to any other matters 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 Amendment Regulation introduces regulation 117.010, which makes it an offence for a person to make representations that they are willing to conduct an activity using an aircraft when they are not the holder of a civil aviation authorisation that is required for the conduct of the activity. Regulation 117.010 refers to civil aviation authorisations rather than to an air operator's certificate (AOC). This is a direct consequence of new CASR Part 141, Flight Training Organisations, under which certain flying training activities are conducted not under an AOC but rather under a different kind of civil aviation authorisation - a Part 141 certificate. Regulation 117.010 would also apply to other authorisations relating to the use of aircraft.

Under regulation 210 of the CAR the representation must have taken the form of a public notice, regulation 117.010 does not contain such a requirement, making it applicable to written and verbal representations. The Amendment Reregulation would provide that an offence against regulation 117.010 is one of strict liability. The penalty has been increased from 10 penalty units for an offence against the previous CAR regulation 210, to 50 penalty units for an offence against CASR 117.010.

The Amendment Regulation also introduces regulation 117.015 regarding directions by CASA to an AOC holder or a Part 141 operator who conducts flight training in aircraft to complete and submit safety-related surveys or questionnaires. This regulation is the successor to previous requirements in CAOs 82.1, 82.3, 82.5, and 82.7 directed to AOC holders.

Regulation 117.015 will reflect the change under CASR Part 141 which states that flying training organisations are required to hold a Part 141 certificate rather than an AOC. Regulation 117.015 clarifies that the requirements of the regulation only extend to questions that are mandatory and also provides flexibility for CASA survey and questionnaire respondents in terms of establishing and extending deadlines for submitting answers, as compared to the previous requirements in the CAOs. An offence against regulation 117.015 is one of strict liability and the penalty is 25 penalty units.

Given these proposals were largely consequential initial targeted consultation was undertaken over a two week period through the publication of the draft regulations on the CASA website and the use of the Standards Consultative Committee Discussion Forum on 2 April 2013.

CASA only received comments from three stakeholders and these focussed on the short consultation period and legal drafting issues. The latter issues were discussed with the legislative drafters and the CASA office that administers the safety questionnaire program, with CASA agreeing to clarify in its response to industry, that only mandatory questions in the survey or questionnaire need be answered.

CASA undertook further discussions with industry on the draft regulations at the meeting of the Standards Consultative Committee on 1 May 2013 attended by a wide cross section of industry stakeholders. The only substantive issue raised by industry at the meeting was concern that the draft penalty for an offence under regulation 117.015 (i.e. failing to comply with surveys and questionnaires) was excessive. CASA, in consultation with legislative drafters subsequently agreed to halve the penalty to 25 penalty units.

The OBPR assessed that the changes would have minor impacts and no further analysis in the form of a Regulation Impact Statement was required (OBPR ID: 14988).

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003. Details of the Regulation are set out in Attachment B.

The Regulation commences on 4 December 2013 to coincide with the commencement of the Flight Crew Licensing Suite of regulations (CASR Parts 61, 64, 141 & 142 ).

ATTACHMENT A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Civil Aviation Legislation Amendment (Part 117) Regulation 2013

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The primary purpose of the legislative instrument is to insert a new Part 117 into the Civil Aviation Safety Regulations 1998 (CASR) regarding representations and surveys. Specifically, the legislative instrument provides for an offence in relation to the making of misrepresentations about holding certain civil aviation authorisations. The legislative instrument also provides for CASA to direct certain persons to complete and submit surveys and questionnaires and for an associated offence for failing to follow a direction.

Human Rights Implications

Presumption of Innocence

There are offence provisions in this legislative instrument which are strict liability offences and engage the right to the presumption of innocence under the International Covenant on Civil and Political Rights. The offences relate to administrative and safety requirements that must be adhered to by regulated individuals or organisations involved in the aviation industry to ensure the integrity of the aviation safety system.

The strict liability offences in the legislative instrument are considered justified, and therefore not inconsistent with the presumption of innocence, in that they are regulatory in nature, meaning there is an expectation on individuals who participate in the aviation sector to be deemed to have accepted certain conditions, particularly where the activities carry public safety risks. The deterrence effect of the strict liability offences also contributes significantly to maintaining the integrity of the aviation safety system. The strict liability offences are also proportionate in that they fall at the lower end of the scale, not exceeding 50 penalty units.

Conclusion

The legislative instrument is compatible with human rights and to the extent that it may also limit human rights, those limitations are reasonable and proportionate in order to ensure the safety of aviation operations and to promote the integrity of the aviation safety system.

Anthony Albanese

Minister for Infrastructure and Transport

ATTACHMENT B

Details of the Civil Aviation Legislation Amendment (Part 117) Regulation 2013

Section 1--Name of regulation

Section 1 names the regulation as the Civil Aviation Legislation Amendment (Part 117) Regulation 2013.

Section 2--Commencement

Section 2 provides that the regulation commences on 4 December 2013.

Section 3--Authority

Section 3 provides that the regulation is made under the Civil Aviation Act 1988.

Section 4--Schedule(s)

Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1--Amendments

Civil Aviation Regulations 1988

Item [1]

Item [1] repeals the regulation 210: Restriction of advertising of commercial operations.

Civil Aviation Safety Regulations 1998

Item [2] Regulation 117 - Representations and surveys

Item [2] inserts new Part 117 that includes the following regulations:

Regulation 117.005

Regulation 117.005 sets out what provisions are included in Part 117.

Regulation 117.010

Regulation 117.010 provides that it is an offence for a person to represent that the person is willing to conduct an activity using an aircraft, if the person does not hold an authorisation to conduct the activity in the aircraft, and that it is an offence for the person to conduct the activity if the person does not hold the authorisation.

Regulation 117.015

Regulation 117.015 sets out that CASA may direct holders of Air Operator Certificates or Part 141 operators who conduct flight training in an aircraft to complete and submit mandatory questions in a survey or questionnaire within a certain time period. It also provides that a person may request, and CASA may grant, an extension in relation to a survey or questionnaire. Subregulations 117.015 (5) and (6) provide that a person commits a strict liability offence, with a penalty of 25 penalty units, if the person does not comply with a direction by CASA under the regulation.

Commonwealth Numbered Regulations - Explanatory Statements