EXPLANATORY STATEMENT

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 129) Regulation 2015 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 legislative instrument (the Regulation) makes various amendments to the Civil Aviation Regulations 1988 (CAR) and the Civil Aviation Safety Regulations 1998 (CASR). CAR and CASR have been made under the Civil Aviation Act 1988 (the Act). The primary purpose of the Regulation is to promulgate appropriate, clear and concise aviation safety standards concerning certification and operating requirements for foreign air transport operators, and to include effective enforcement mechanisms to secure compliance with those standards by inserting a new Part 129 into CASR. The Regulation will ensure safety outcomes of foreign air transport operations are consistent with the Standards and Recommended Practices (SARPs) of the International Civil Aviation Organization (ICAO). Part 129 of CASR sets out the certification and operating requirements for foreign operators, operating foreign registered aircraft to transport passengers or cargo to, within or from Australian territory. The Part requires a foreign operator to meet International Civil Aviation Organisation (ICAO) standards; have an Air Operator's Certificate (AOC) issued by the State of the operator; and to have a safety management system (SMS). An AOC is an authorisation allowing an aircraft operator to conduct operations in aircraft for particular purposes. An SMS is a systematic approach to managing safety, and includes the organisational structures, accountabilities, policies and procedures necessary to manage safety in a systematic way. Part 129 will also introduce new regulations that will require all crew (flight crew and cabin crew) to be able to communicate in a common language, and will prevent the pairing of inexperienced flight crew members to enhance safety outcomes. Many of the requirements in Part 129 were set out in CAR and the Civil Aviation Orders (CAOs) made under the Act and CAR. The Regulation consolidates and restructures offences and requirements contained in CAR and CAOs. For example, paragraph 129.060 imposes a condition on a foreign air transport AOC requiring the operator not to use an aircraft to conduct a low-visibility operation in Australian territory unless the AOC authorises the use of the aircraft for the operation. This requirement reflects regulation 257 of CAR, which prohibits low-visibility operations. Where CASA has granted foreign operators an exemption from compliance with regulation 257 of CAR, it is a standard condition of the exemption that low-visibility operations must be conducted in accordance with the foreign approval issued to the operator by its national aviation authority. Other provisions address minor technical matters or are machinery provisions and do not engage human rights. For example, regulation 129.005 provides a summary of what Part 129 is about and contains notes referring to related legislation. Regulation 129.020 makes provision for applications to, and granting of approvals by, CASA. The Regulation commences on 20 April 2016. Under the transitional provisions in new Subpart 202.FR of CASR, current foreign air transport operators are allowed up to 2 years to obtain a foreign air transport AOC under Part 129. Part 129 contains 15 regulations with strict liability offences relating to aviation safety. Regulation 135 of CAR makes it an offence of strict liability for the pilot in command of an aircraft possessing the nationality of a Contracting State to allow the aircraft to fly within, or depart from, Australian territory if the aircraft does not comply with specified provisions. The Regulation inserts new subregulation 135(1A) of CAR, so that the strict liability offence in regulation 135 of CAR will no longer apply to the operation of an aircraft if Part 129 of CASR applies to the operation of the aircraft. New regulation 129.115 of CASR is a reverse onus provision. It prohibits the simulation of an emergency or abnormal procedure during a flight that is a foreign air transport operation. The offence is subject to an exception, being that the procedure is simulated only orally, and the defendant bears an evidential burden in relation to the exception. Human rights implications The Regulation engages the following rights: *                the right to life in Article 6 of the International Covenant on Civil and Political Rights (ICCPR); *                the right to health in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); *                the right to the presumption of innocence in Article 14(2) of the ICCPR; *                the right to work in Article 6(1) of the ICESCR; *                the rights of equality and non-discrimination in Articles 2(1) and 26 of the ICCPR and Article 2(2) of ICESCR; and *                the right to protection against arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR. The requirements in the Regulation apply to operators, crew and other individuals involved in the operation of aircraft. To the extent that the requirements apply to aircraft operators that are corporations, human rights are not engaged. Right to life and right to health The right to life in Article 6 of the ICCPR provides that every human being has the right not to be arbitrarily deprived of their life and that this right shall be protected by law. It also includes a duty on governments to take appropriate steps to protect the right to life of those within its jurisdiction. The right to health contained in Article 12 of the ICESCR states that everyone has the right to the highest attainable standard of physical and mental health. In the context of air transport operations, the Regulation addresses risks to the life and health of passengers, pilots, cabin crew and people on the ground that could arise from aviation accidents and incidents. It does so by establishing the administrative and regulatory framework for applications, certification and safety management systems required for organisations and individuals conducting foreign air transport operations that aim to ensure the safety of those operations. The Regulation promotes the rights to life and health by improving aviation safety. Presumption of innocence The presumption of innocence is contained in Article 14(2) of the ICCPR. The presumption of innocence imposes on the prosecution the burden of proving charges, and guarantees that no guilt can be presumed until charges have been proved beyond reasonable doubt. In general, consistency with the presumption of innocence requires the prosecution to prove each element of a criminal offence beyond reasonable doubt. The strict liability offences and reverse onus provision in the Regulation engage the right to the presumption of innocence in the ICCPR. The offence provisions in the Regulation which are strict liability offences engage the right to the presumption of innocence by applying strict liability to all elements of offences. If strict liability applies to physical elements of an offence, those elements can be proved without the need to prove a corresponding fault element. However, the defence of honest and reasonable mistake of fact, as set out in section 9.2 of the Criminal Code, will be available to the defendant. The reverse onus provision in the Regulation, regulation 129.115, engages the right to the presumption of innocence by imposing an evidential burden on the defendant in relation to the exception. The regulation does not impose any legal burdens on a defendant in relation to a fact, only an evidential burden. This only requires a defendant to adduce evidence with respect to the matter, not prove the matter, after which the burden of proof shifts back to the prosecution. To the extent that reverse burden and strict liability offences limit the presumption of innocence, this limitation must be justified as reasonable, necessary and proportionate in pursuit of a legitimate objective. Such a provision may be further supported if the nature of the offence makes it very difficult for the prosecution to prove each element, or if it is clearly more practical for the accused to prove a fact than for the prosecution to disprove it. The strict liability offences, and evidential burden on the defendant in relation to the exception to the offence in regulation 129.115, are considered justified and therefore not inconsistent with the presumption of innocence. The offences are regulatory in nature and relate to administrative and safety requirements that must be adhered to by regulated individuals, operators or organisations involved in the aviation industry. They are reasonable and necessary considering the potentially catastrophic consequences of allowing aircraft to be operated in an unsafe manner. They are also proportionate to the legitimate objective of ensuring the integrity of the aviation safety system. There is an expectation that individuals who participate in the aviation sector are deemed to have accepted certain conditions, particularly where the activities carry public safety risks. The deterrence effect of the strict liability offence also contributes significantly to maintaining the integrity of the aviation safety system and preserving the right to life and health of passengers, pilots, cabin crew and people on the ground that could be affected by aviation accidents and incidents. The strict liability offences are also proportionate in that they fall at the lower end of the scale, not exceeding 50 penalty units plus 3 demerit points. The Government has considered other options in relation to each aviation safety standard and believes that strict liability, or placing the evidential burden on the defendant, is reasonable, necessary and proportionate to achieve effective compliance with, and enforcement of, the relevant standard. Depending on the facts of an offence, the nature of the offences would make it very difficult for the prosecution to prove each element of the offence, or it may be more practical for the accused to prove a fact than for the prosecution to disprove it. For example, regulation 129.065 makes it a strict liability offence for a foreign air transport operator to fail to tell CASA, in writing, within 7 days of specified events, such as the suspension, variation or cancellation of the operator's foreign certificate by the relevant national aviation authority. It would be very difficult for the prosecution to prove the fault element of that offence. Similarly, regulation 129.090 makes it an offence of strict liability for an operator to allow a flight on which a flight crew member did not hold a licence authorising the flight crew member to carry out the duties assigned by the operator. In this case, and especially given practical difficulties in accessing pilot licence information from foreign countries, it is more practical for the operator to prove that the flight crew member held the requisite licence than for the prosecution to disprove it. The use of strict liability offences is consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) published by the Attorney-General's Department. In particular, subpart 2.2.6 of the Guide states that application of strict liability to all physical elements of an offence may be appropriate where it is likely to significantly enhance the effectiveness of the enforcement regime deterring certain conduct and where it is necessary to ensure the integrity of a regulatory regime. Accordingly, any potential limitation of Article 14(2) of the ICCPR is necessary, reasonable and proportionate to the legitimate objective of ensuring the integrity of the aviation safety system. Right to work The right to work, contained in Article 6(1) of ICESCR, includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept. The right to work is engaged by provisions, such as regulation 129.080, 129.250 and 129.255, that place limitations on the performance of duties unless specified qualification, experience and proficiency standards are met. Regulation 129.080 requires an operator to ensure that all crew members (flight crew and cabin crew) are able to communicate orally with each other in a common language. Regulation 129.250 prohibits the conduct of certain flights if none of the pilots occupying a pilot seat has the specified amount of experience. Regulation 129.255 prohibits a flight if the operator is not satisfied that the co-pilot could land the aircraft safely if the pilot in command is incapacitated. The right to work is also engaged by the demerit points scheme, described in Division 3D of Part III of the Act and Division 13.K.2 of CASR. The demerit points scheme provides that a person incurs 3 demerit points for committing a strict liability offence. As mentioned above, the Regulation includes 15 regulations containing strict liability offences. Under the demerit points scheme, a person who incurs 12 demerit points in a 3 year period can have a relevant civil aviation authorisation, such as an AOC or pilot licence, suspended for 90 days. Incurring further demerit points may lead to longer periods of suspension or cancellation of the authorisation. However, CASA has a discretion, under section 30EF of the Act, to reinstate an authorisation, with or without conditions, if it is satisfied that suspension or cancellation of the authorisation would cause the holder severe financial hardship because, without the authorisation, the holder would not be able to earn the holder's principal or only income. The demerit points scheme is reasonable, necessary and proportionate as it helps to ensure compliance with the regulations and the integrity of the aviation safety system, while recognising the right of everyone to the opportunity to gain their living by work. These limitations are necessary and reasonable to ensure that people who operate an aircraft have the required expertise. It is also proportionate to the objective of ensuring the safety of aviation. Further, the Regulation adequately balances the rights of pilots and crew to work with the right of all to life and health by ensuring competent use of aircraft and systems within Australia's aviation environment. For example, the requirements in regulations 129.080, 129.250 and 129.255 are designed to reduce the risk and severity of aviation incidents and accidents that can arise from failure of communications between crew and lack of experience. Accordingly, any potential limitation on the right to work is necessary, reasonable and proportionate in achieving the aim of improving aviation safety. Rights of equality and non-discrimination The rights of equality and non-discrimination, contained in Articles 2(1) and 26 of the ICCPR, provide that each State Party to the ICCPR undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the ICCPR, without distinction of any kind, including language, and that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground, including language. The rights of equality and non-discrimination, contained in Article 2(2) of the ICESCR, provide that the States Parties to the ICESCR undertake to guarantee that the rights enunciated in the ICESCR will be exercised without discrimination of any kind, including as to language. As noted above, the right to work, contained in Article 6(1) of ICESCR, includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept. The rights of equality and non-discrimination are engaged by regulation 129.080, which requires an operator to ensure that all crew members (flight crew and cabin crew) are able to communicate orally with each other in a common language. This requirement would prevent a person who is not able to communicate orally with other crew members in a common language from being part of the crew for a flight, and therefore impact the person's right to work because of discrimination as to language. The UN Human Rights Committee has recognised that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the ICESCR. In determining the 'reasonable and objective' test, the Committee has proceeded on a case-by-case basis. In this case any discrimination arising from the requirement in regulation 129.080 for the crew of an air transport operation to communicate orally in a common language is reasonable and objective, especially given the potentially grave consequences, such as death and serious injury, of a failure of communication in an emergency situation. It is aimed at achieving the legitimate purpose of maximising public safety. This exception is recognised by subsections 9(3) and 15(4) of the Racial Discrimination Act 1975 which provide that prohibitions on racial discrimination do not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia. The prohibition in regulation 129.080 is proportionate and is aimed solely at reducing the risk and severity of aviation incidents and accidents that can arise from failure of communications between crew. It does not require that crew members be able to communicate in a particular language, nor does it discriminate against a person who is able to communicate in a particular language. It does not discriminate on the basis of race, colour, descent or national or ethnic origin. It merely requires that all crew members (flight crew and cabin crew) are able to communicate orally with each other in a common language. Accordingly, any potential limitation on the rights of equality and non-discrimination is necessary, reasonable and proportionate in achieving the aim of improving aviation safety. Right to privacy The right to protection against arbitrary and unlawful interference with privacy, contained in Article 17 of the ICCPR, provides that no one shall be subjected to arbitrary or unlawful interference with his privacy. The right to privacy is engaged by regulation 129.045, which requires prospective operators to provide personal and other information to CASA. It is necessary for CASA to receive this information to ensure that only appropriate individuals, for example those with a good record of compliance with safety standards, are involved in air transport operations, which have inherent safety risks. The protections provided by the Privacy Act 1988 continue to apply to personal information collected. The requirements of the Regulation are necessary in order to ensure proper administration and enforcement of Australia's aviation safety system. Any potential limitation on the right to privacy is necessary, reasonable and proportionate in promoting the objective of improving aviation safety. Conclusion The legislative instrument is compatible with human rights. To the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate in order to ensure the safety of aviation operations and to promote the integrity of the aviation safety system, and therefore promote the rights to life and health.         The Hon. Warren Truss MP, Minister for Infrastructure and Regional Development

 

 

ATTACHMENT B

 

Details of the Civil Aviation Legislation Amendment (Part 129) Regulation 2015

 

Section 1 - Name of regulation

 

This section provides that the title of the regulation is the Civil Aviation Legislation Amendment (Part 129) Regulation 2015.

 

Section 2 - Commencement

 

This section provides that the regulation commences on 20 April 2016.

 

Section 3 - Authority

 

This section provides that the Civil Aviation Legislation Amendment (Part 129) Regulation 2015 is made under the Civil Aviation Act 1988.

 

Section 4 - Schedule(s)

 

This section 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] - Subregulation 2(1)

 

The definition of 'flight crew member' is repealed from subregulation 2(1) of CAR. A revised definition of this term is inserted in the CASR Dictionary by item [8].

 

Item [2] - Subregulation 2(1)

 

The definition of 'flight time' is repealed from subregulation 2(1) of CAR. A revised definition of this term is inserted in the CASR Dictionary by item [8].

 

Item [3] - Before subregulation 135 (1)

 

New subregulation 135(1A) of CAR provides that regulation 135 of CAR, which requires compliance by the pilot in command of foreign registered aircraft with certain provisions of the regulations and requirements of the Chicago Convention, does not apply to the operation of an aircraft if Part 129 of CASR applies to the operation of the aircraft. This subregulation avoids duplication of regulation.

 

 

Civil Aviation Safety Regulations 1998

 

Item [4] - Part 129--Foreign air transport operators--certification and operating requirements

 

Existing Part 129 of CASR contains a heading, 'Commercial air transport operations (foreign operators)', and a note that the Part heading is reserved for future use. This item repeals the existing Part 129 and substitutes a new Part 129 of CASR entitled 'Part 129 - Foreign air transport operators--certification and operating requirements', inclusive of a table of contents.

 

Subpart 129.A--Foreign air transport operations--general

 

This Subpart provides for general requirements for foreign air transport operations.

 

Regulation 129.005 provides that Part 129 of CASR is about making provision for applicants for, and holders of, Air Operator's Certificates (AOCs) that authorise the operation of aircraft for foreign air transport operations and operating requirements for aircraft engaged in foreign air transport operations.

 

There are two notes under regulation 129.005. Note 1 alerts readers that Part 92 of CASR, relating to carriage of dangerous goods, applies to all foreign aircraft (other than state aircraft) operating in Australian territory. Note 2 refers to Division 2 of Part III of the Act, which contains provisions relating to AOC's generally.

 

Regulation 129.020 - Approvals by CASA for Part 129

 

Subregulation 129.020(1) provides that, if a provision of Part 129 refers to a person holding an approval under this regulation, the person may apply in writing to CASA for the approval.

 

Subregulation 129.020(2) provides that, subject to regulation 11.055 (Grant of authorisation) of CASR , CASA must grant the approval mentioned in subregulation 129.020(1).

 

Subregulation 129.020(3) provides that subregulation 11.055(1B) of CASR, which limits CASA's power to grant authorisations, applies to the granting of an approval under this regulation by CASA.

 

Regulation 129.025 provides that, for subsection 27(9) of the Act, the flying or operation of any aircraft for a foreign air transport operation is a prescribed purpose. This means that, subject to exceptions specified in subsection 27(2) of the Act, the owner, operator, hirer and pilot of an aircraft commits an offence under section 29 of the Act if the aircraft conducts a foreign air transport operation without an AOC that authorises the operation.

 

Regulation 129.030 - Foreign air transport operations--foreign air transport AOC required

 

Subregulation 129.030(1) provides that a person contravenes the subregulation if the person conducts a foreign air transport operation and the person does not hold a foreign air transport AOC that authorises the person to conduct the foreign air transport operation.

 

Subregulation 129.030(2) provides that contravention of subregulation 129.030(1) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

 

Regulation 129.035 - Foreign air transport operations--compliance with foreign air transport AOCs

 

Subregulation 129.035(1) provides that a person contravenes the subregulation if the person conducts a foreign air transport operation and the person holds a foreign air transport AOC that authorises the person to conduct the foreign air transport operation, but conducts the operation in a way that contravenes the AOC.

 

Subregulation 129.035(2) provides that contravention of subregulation 129.035(1) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

Regulation 129.040 - Foreign air transport operations--compliance with conditions of foreign air transport AOCs

 

Subregulation 129.040(1) provides that a foreign air transport operator contravenes the subregulation if the operator does not comply with a condition of its foreign air transport AOC.

 

Subregulation 129.040(2) provides that contravention of subregulation 129.040(1) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

Subpart 129.B--Foreign air transport AOCs

 

This Subpart provides the requirements for a foreign air transport operator when applying for a foreign air transport AOC. It also provides the conditions for issue and the conditions placed on the AOC.

 

Regulation 129.045 specifies, for subparagraph 27AC(1)(c)(iii) of the Act, what information and documents CASA may require from a foreign operator who is an applicant for a foreign air transport AOC.

 

Regulation 129.050 provides that if, under section 27AB, 27AC or 27AE of the Act, an applicant for a foreign air transport AOC is required to lodge, or give to CASA, a manual, information or a document, it must be in English.

 

Regulation 129.055 - Foreign air transport AOC--conditions for issue

 

Subregulation 129.055 (1) provides the conditions for the issue of a foreign air transport AOC of which CASA must be satisfied. These conditions are that: the operator holds a foreign certificate for each operation covered by the application; the national aviation authority that issued the foreign certificate meets the requirements in subregulation 129.055(2); the operator holds a certificate of airworthiness issued or authorised by the national aviation authority of the State of registry for aircraft to be operated; the aircraft are maintained and released to service in accordance with ICAO standards; and the operator has a safety management system.

 

A note under subregulation 129.055(1) states that these matters are in addition to the matters specified in section 28 of the Act. That section specifies matters about which CASA must be satisfied before it must issue an AOC.

 

Subregulation 129.055(2) provides that the national aviation authority mentioned in subregulation 129.055(1) is either the national aviation authority of a Contracting State that carries out its functions in respect of foreign air transport operations in accordance with the Chicago Convention, or another national aviation authority that carries out functions that are at least equivalent to functions in respect of foreign air transport operations carried out in accordance with the Chicago Convention.

 

Regulation 129.060 provides, for paragraph 28BA(1)(b) of the Act, the conditions that apply to a foreign air transport AOC issued to an operator. The conditions include that: the operator must conduct the operations authorised by the AOC using only the aircraft, aerodromes, areas of operation and routes authorised by the AOC; the operator's aircraft must not conduct certain operations, such as low-visibility operations unless authorised by the AOC; the operator must comply with other specified authorisations; and that the operator must have a safety management system.

 

Regulation 129.065 - Foreign air transport AOC--requirement to give notice of certain events

 

Subregulation 129.065(1) provides that the regulation applies to a foreign air transport operator if an event mentioned in subregulation 129.065(2) happens in relation to the operator's foreign certificate, an operations specification issued in relation to that certificate, or an operational authorisation mentioned in paragraph 27AE(1)(c) of the Act that applies to an operation conducted under the operator's foreign certificate.

 

Subregulation 129.065(2) specifies the events for which subregulation 129.065(1) applies. These events include that: a foreign certificate, operations specification or operational authorisation expires and is not renewed, or is varied, suspended or cancelled; a new authorisation is issued; or the operator is notified by the national aviation authority that action may be taken to vary, suspend or cancel the certificate, specification or authorisation.

 

Subregulation 129.065(3) provides that the foreign air transport operator contravenes the subregulation if the operator does not tell CASA, in writing, that an event mentioned in subparagraph 129.065(2) has happened within 7 days after the day the event happens.

 

Subregulation 129.065(4) provides that contravention of subregulation 129.065(3) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

Subpart 129.C--Foreign air transport operations--operating requirements

 

This Subpart provides for the operating requirements in relation to a foreign air transport operation.

 

Regulation 129.070 is reserved for future use and is expected to contain provisions about compliance with certain aspects of Part 91 of CASR regarding general operating and flight rules.

 

Regulation 129.075 - Foreign air transport operations--compliance with Annex 6

 

Subregulation 129.075(1) provides that an operator of an aeroplane contravenes the subregulation if the operator operates the aeroplane for a foreign air transport operation and the operation is conducted in a way that contravenes a standard set out in Part I of Annex 6, Operation of Aircraft, to the Chicago Convention.

 

Subregulation 129.075(2) provides that an operator of a helicopter contravenes the subregulation if the operator operates the helicopter for a foreign air transport operation and the operation is conducted in a way that contravenes a standard set out in Part III of Annex 6, Operation of Aircraft, to the Chicago Convention.

 

Subregulation 129.075(3) clarifies that the foreign air transport operator must comply with whichever provision--a provision in Part 129 of CASR or the comparable ICAO standard mentioned in subregulation 129.075(1) or subregulation 129.075(2)--is more stringent.

 

Subregulation 129.075(4) provides that a contravention of subregulation 129.075(1) or subregulation 129.075(2) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

Regulation 129.080 - Foreign air transport operations--common language for crew

 

Subregulation 129.080(1) provides that an operator of an aircraft engaged in a flight that is a foreign air transport operation contravenes the subregulation if all crew members for the flight are not able to communicate orally with each other in a common language.

 

Subregulation 129.080(2) provides that contravention of subregulation 129.080(1) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

Regulation 129.085 - Foreign air transport operations--flights to be in accordance with IFR or approval

 

Subregulation 129.085(1) provides that the operator and the pilot in command of an aircraft engaged in a flight that is a foreign air transport operation each contravene the subregulation if the operation of the aircraft does not meet the requirement mentioned in subregulation 129.085(2).

 

Subregulation 129.085(2) provides that, for subregulation 129.085(1), the requirement is that the aircraft must be operated in accordance with either the instrument flight rules (IFR) or an approval granted under regulation 129.020 for the aircraft to be operated otherwise than in accordance with the IFR.

 

Subregulation 129.085(3) provides that a contravention of subregulation 129.085(1) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

 

Regulation 129.090 - Foreign air transport operations--flight crew licences

 

Subregulation 129.090(1) provides that an operator of an aircraft engaged in a flight that is a foreign air transport operation contravenes the subregulation if a flight crew member for the flight does not hold a licence, issued or authorised by the national aviation authority of the aircraft's State of registry, that authorises the flight crew member to carry out the duties assigned to the member for the flight by the operator.

 

Subregulation 129.090(2) provides that contravention of subregulation 129.090(1) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

Regulation 129.095 - Foreign air transport operations--air displays

 

Subregulation 129.095(1) provides that an operator of an aircraft engaged in a flight that is a foreign air transport operation contravenes the subregulation if the aircraft is flown in an air display.

 

 

Subregulation 129.095(2) provides that an operator of an aircraft engaged in a flight that is a foreign air transport operation contravenes the subregulation if the aircraft is flown below      1000 feet above ground level (AGL) at an aerodrome at which an air display is being conducted, and the requirement mentioned in subregulation 129.095(3) is not met.

 

Subregulation 129.095(3) provides that, for paragraph 129.095(2)(b) the requirement is that either the operator holds an approval granted under regulation 129.020 for the aircraft to be flown below 1,000 feet AGL while the air display is being conducted, or the aircraft is taking off or landing for a flight that is not part of the air display.

 

Subregulation 129.095(4) provides that contravention of subregulation 129.095(1) or subregulation 129.095(2) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

Regulation 129.100 is reserved for future use and is expected to include regulations relating to foreign air transport operations and low-visibility operations.

 

Regulation 129.105 - Foreign air transport operations--flying in formation

 

Subregulation 129.105(1) provides that the operator of an aircraft engaged in a flight that is a foreign air transport operation contravenes the subregulation if, during the flight, the aircraft is flown in formation and the operator does not hold an approval under regulation 129.020 for the aircraft to be flown in formation during the flight.

 

Subregulation 129.105(2) provides that a contravention of subregulation 129.105(1) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

Regulation 129.110 - Foreign air transport operations--simulated IMC prohibited

 

Subregulation 129.110(1) provides that the pilot in command of an aircraft engaged in a flight that is a foreign air transport operation contravenes the subregulation if instrument meteorological conditions (IMC) are simulated during the flight.

 

Subregulation 129.110(2) provides that the contravention of subregulation 129.110(1) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

Regulation 129.115 - Foreign air transport operations--simulated emergency and abnormal procedures prohibited

 

Subregulation 129.115(1) provides that the operator of an aircraft engaged in a flight that is a foreign air transport operation contravenes the subregulation if an emergency procedure is simulated during the flight.

 

Subregulation 129.115(2) provides that the operator of an aircraft engaged in a flight that is a foreign air transport operation contravenes the subregulation if an abnormal procedure is simulated during the flight.

 

Subregulation 129.115(3) provides that subregulations 129.115(1) and 129.115(2) do not apply if a procedure is simulated only orally.

 

Subregulation 129.115(4) provides that a contravention of subregulations 129.115(1) or 129.115(2) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

Regulation 129.120 - Foreign air transport operations--aerobatic manoeuvres prohibited

 

Subregulation 129.120(1) provides that the operator of an aircraft engaged in a flight that is a foreign air transport operation contravenes the subregulation if, during the flight, the aircraft is used to conduct an aerobatic manoeuvre.

 

Subregulation 129.120(2) provides that a contravention of subregulation 129.120(1) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

Regulation 129.125 - Foreign air transport operations--maximum period for use of Australian aircraft in Australian territory 

 

Subregulation 129.125 (1) provides that a foreign air transport operator contravenes the subregulation if they use a particular Australian aircraft to conduct foreign air transport operations for a total time period of more than 90 days, or for a total time period longer than that approved in regulation 129.020 for that particular Australian aircraft. Part 129 does not apply to Australian air transport AOC holders; any wet leasing that an Australian AOC holder may do for a foreign carrier into or out of Australia is performed on their Australian air transport AOC. This limitation is designed to ensure that Australia is not placed in the difficult position of being indefinitely responsible for an aircraft due to its Australian registration, but being willing to accept a foreign issued AOC as the basis for the aircraft's operational approval.

 

Subregulation 129.125(2) provides that a contravention of subregulation 129.125(1) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

Subpart 129.M--Foreign air transport operations--airworthiness and maintenance

 

This Subpart provides airworthiness and maintenance requirements for foreign air transport operations.

 

Regulation 129.200 - Foreign air transport operations--certificates of airworthiness

 

Subregulation 129.200(1) provides that the operator of an aircraft contravenes the subregulation if the aircraft begins a flight that is a foreign air transport operation, and the aircraft does not have a certificate of airworthiness (however described), that has been issued in accordance with Annex 8, Airworthiness of Aircraft, to the Chicago Convention.  

 

Subregulation 129.200(2) provides that an operator of an aircraft contravenes this subregulation if the aircraft is engaged in a flight that is a foreign air transport operation and the certificate of airworthiness (however described) for the aircraft ceases to be in force before the end of the flight. 

 

Subregulation 129.200(3) provides that a contravention of subregulation 129.200(1) or 129.200(2) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

Regulation 129.205 - Foreign air transport operations--continuing airworthiness

 

Subregulation 129.205(1) provides that the operator of an aeroplane contravenes the subregulation if the aeroplane begins a flight that is a foreign air transport operation and, if the aircraft is a foreign registered aircraft,  the operator has not ensured the continuing airworthiness of the aircraft in accordance with the standards set out in the relevant Part of Annex 6, Operation of Aircraft, to the Chicago Convention, and,  if the aircraft is a  registered aircraft, the operator has not ensured the continuing airworthiness of the aircraft in accordance with the requirements of these Regulations that apply to the aircraft.

 

Subregulation 129.205(2) provides that a contravention of subregulation 129.205(1) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

Subpart 129.N--Foreign air transport operations--flight crew

 

This Subpart provides flight crew requirements for foreign air transport operations.

 

Regulation 129.250 - Foreign air transport operations--flight crew experience for aircraft covered by overseas rating

 

This regulation requires that at least one pilot of an aircraft engaged in a foreign air transport operation has a specified amount of experience for the relevant type rating for the aircraft.

 

Subregulation 129.250(1) provides that the operator of an aircraft contravenes the subregulation if the aircraft begins a flight that is a foreign air transport operation and the aircraft is covered by a type rating under the law of the foreign country the national aviation authority of which issued the operator's foreign certificate, and none of the pilots occupying a pilot seat for the flight has the experience required by subregulation 129.250(2) in relation to aircraft covered by the type rating.

 

Subregulation 129.250(2) specifies, for subregulation 129.250(1), the circumstances in which a pilot will have the experience required in relation to aircraft covered by a type rating. The pilot has to either hold an overseas  rating issued under the law of the foreign country that covers the aircraft or successfully complete a command course for an aircraft covered by the type rating. After the grant of the rating or completion of the course, the pilot also has to  successfully complete the flying experience mentioned in subregulation 129.250(3).

 

Subregulation 129.250(3) provides that a pilot's flying experience must be the more stringent of the flying experience set out in subregulation 129.250(4) and the flying experience required under the law of the foreign country, the national aviation authority of which issued the operator's foreign certificate.

 

Subregulation 129.250(4) provides that a pilot's flying experience must be a total of a number of hours and sectors mentioned in subregulation 129.250(5) completed as part of line operations, and may include experience while the pilot is flying under supervision.

 

Subregulation 129.250(5) provides that the number of hours and sectors must be either at least 100 hours and 10 sectors in a 120 day period, or at least 150 hours and 20 sectors. Alternatively, if the aircraft operator who employs the pilot holds an approval under regulation 129.020 that applies to the pilot, then the number of hours and sectors is at least the number of hours and sectors for the pilot stated in the approval.

 

Subregulation 129.250(6) provides that CASA may grant approval under regulation 129.020 for paragraph 129.250(5)(b) only if CASA is satisfied that there are special circumstances in relation to the operator's operation that justify the approval being granted.

 

Subregulation 129.250(7) provides that a contravention of subregulation 129.250(1) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

 

Regulation 129.255 - Foreign air transport operations--co-pilot

 

Subregulation 129.255(1) provides that the operator of an aircraft contravenes the subregulation if the aircraft begins a flight that is a foreign air transport operation, and the operator is not satisfied that the co-pilot could land the aircraft safely if the pilot in command is incapacitated.

 

Subregulation 129.255(2) provides that a contravention of subregulation 129.255(1) is an offence of strict liability. The penalty for the offence is 50 penalty units.

 

Item [5] - Subpart 202.FR

 

Subpart 202.FR of CASR currently contains a heading 'Transitional provisions for Part 129 (Air operator certification--foreign operators)'. It includes notes that the Subpart is reserved for future use and that regulation numbers 202.600 to 202.619 are reserved for use in this Subpart. This item repeals the existing Subpart and substitutes a new Subpart 202.FR of CASR, inclusive of Division 202.FR.1.

 

Subpart 202.FR--Transitional provisions for Part 129 (Foreign air transport operators--certification and operating requirements)

 

Division 202.FR.1--Amendments made by Civil Aviation Legislation Amendment (Part 129) Regulation 2015

 

Regulation 202.600 - AOCs authorising charter or regular public transport operations by foreign operators--if in force immediately before 20 April 2016

 

Subregulation 202.600(1) provides that regulation 202.600 applies to an AOC if, immediately before 20 April 2016 , the AOC was in force and authorised the flying or operation of an aircraft by a foreign operator for the purposes mentioned in paragraphs 206(1)(b) or (c) of CAR. Such an operation is defined as an 'old operation'. Operations for purposes mentioned in paragraphs 206(1)(b) and (c) of CAR are generally known as charter operations and regular public transport operations, respectively.

 

Subregulation 202.600(2) sets out provisions that apply to an AOC that authorised an old operation while the AOC is in force. Subject to any changes to the AOC, the AOC is taken to authorise the flying or operation of the aircraft for a foreign air transport operation that is equivalent to the old operation. Subject to any changes to the AOC or the conditions of the AOC, any conditions of the AOC that relate to the old operation are taken to apply to the foreign air transport operation.

 

Regulation 202.601 - AOCs authorising charter or regular public transport operations by foreign operators--if under suspension immediately before 20 April 2016

 

Subregulation 202.601(1) provides that regulation 202.601 applies to an AOC if, immediately before 20 April 2016, the AOC authorised the flying or operation of an aircraft by a foreign operator for the purposes mentioned in paragraphs 206(1)(b) or (c) of CAR and the AOC was under suspension in relation to such an operation. An operation authorised by the AOC is defined as an 'old operation'. Operations for purposes mentioned in paragraphs 206(1)(b) and (c) of CAR are generally known as charter operations and regular public transport operations, respectively.

 

Subregulation 202.601(2) sets out the provisions that apply to the AOC if the suspension is lifted and while the AOC is in force. Subject to any changes to the AOC, the AOC is taken to authorise the flying or operation of the aircraft for a foreign air transport operation that is equivalent to the old operation. Subject to any changes to the AOC or the conditions of the AOC, any conditions of the AOC that relate to the old operation are taken to apply to the foreign air transport operation.

 

Regulation 202.602 - Applications by foreign operators for AOCs authorising charter or regular public transport operations--if made but not finally determined before 20 April 2016

 

Subregulation 202.602(1) provides that regulation 202.602 applies if a foreign operator applies for an AOC for the purpose mentioned in paragraphs 206(1)(b) or (c) of CAR, and the application has not been finally determined by CASA before 20 April 2016. Operations for purposes mentioned in paragraphs 206(1)(b) and (c) of CAR are generally known as charter operations and regular public transport operations, respectively. An operation that the operator seeks to have authorised by the AOC is defined as a 'proposed operation'.

 

Subregulation 202.602(2) provides that the application for the AOC is taken to be an application for an AOC for a foreign air transport operation that is equivalent to the proposed operation.

 

Regulation 202.603 provides that Division 202.FR.1 is repealed at the start of 20 April 2018. This regulation terminates the transitional arrangements in Division 202.FR.1 at the beginning of that date.

 

Item [6] - Part 1 of the Dictionary

 

Definitions for 'air display' and 'air transport operation' are inserted into Part 1 of the Dictionary.

 

Item [7] - Part 1 of the Dictionary (definition of air transport operations)

 

The existing definition of 'air transport operations' is repealed.

 

Item [8] - Part 1 of the Dictionary

 

Definitions for 'flight crew member', 'flight time', 'foreign air transport AOC', 'foreign air transport operation', 'foreign air transport operator', 'foreign certificate', 'foreign operator', 'land and hold short operation', 'low-visibility approach', 'low-visibility operation' 'low-visibility take-off', 'operations specifications', 'runway visual range', and 'State of registry' are inserted into Part 1 of the Dictionary.

 

Item [9] - clause 1 of Part 2 of the Dictionary

 

A new clause 3 is inserted in Part 2 of the Dictionary.

 

Clause 3 - Definition of air transport operation

 

Subclause 3(1) defines an 'air transport operation' to mean a passenger transport operation, or a cargo transport operation, that is either conducted for hire or reward or is prescribed by an instrument issued under regulation 201.025 of CASR. That definition is subject to subclause 3(2).

 

Subclause 3(2) provides that an operation conducted for a purpose mentioned in paragraph 206(1)(a) of CAR is not an 'air transport operation'. Operations conducted for a purpose mentioned in paragraph 206(1)(a) of CAR are generally known as aerial work operations.