Commonwealth Numbered Regulations - Explanatory Statements

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CIVIL AVIATION REGULATIONS (AMENDMENT) 1991 NO. 410

EXPLANATORY STATEMENT

STATUTORY RULES 1991 No. 410

Issued by the authority of the Minister for Shipping and Aviation Support

Civil Aviation Act 1988

Civil Aviation Regulations (Amendment)

Subsection 98(1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in particular in relation to the safety of air navigation.

Subsection 98(3A) of the Act permits the Civil Aviation Regulations (the Regulations) to adopt and apply other instruments as in force from time to time.

Paragraphs 23(1)(a), 23(2)(a) and 23(2A)(a) of the Act permit the carriage, or consignment for carriage, of dangerous goods only in accordance with the Regulations including any conditions specified in the Regulations. Subparagraph 23(3)(b)(ii) of the Act defines dangerous goods to include things which the Regulations declare to be dangerous goods. Subsection 23(3A) provides that fox the purposes of subparagraph 23(3)(b)(ii), the Regulations may adopt and apply the Dangerous Goods List contained in the Technical Instructions for the Safe Transport of Dangerous Goods by Air (the Technical Instructions) issued and amended by the Council of the International Civil Aviation Organisation.

Section 23A of the Act provides that a person who consigns cargo for carriage on an aircraft may be required, under the Regulations, to make a statement concerning the contents of the cargo.

Subsection 23B(1) of the Act provides that the Regulations may require persons involved in the transport of air cargo to undertake specified training relating to dangerous goods.

The Civil Aviation Regulations (Amendment) insert a new Part XIIIA called "Dangerous Goods" into the Regulations. The Regulations:

       for the purposes of paragraphs 23(1)(a), 23(2)(a) and 23(2A)(a) of the Act, permit the carriage of dangerous goods on aircraft only in accordance with the Technical Instructions and subject to the conditions set out in the Regulations;

       for the purposes of subparagraph 23(3)(b)(ii) of the Act, declare the things specified in the Dangerous Goods List contained in the Technical Instructions to be dangerous goods;

       for the purposes of section 23A of the Act, set out the requirements for a statement concerning the contents of cargo consigned for carriage by air;

       for the purposes of subsection 23B(1) of the Act, set out the requirements for training relating to dangerous goods.

These provisions give effect to Annex 18 to the Convention on International Civil Aviation which requires Contracting States to take the necessary measures to achieve compliance with the detailed instructions contained in the Technical Instructions for the safe transport of dangerous goods by air. The purpose of the requirement for air cargo to be accompanied by a statement concerning the contents of the cargo is to alert trained personnel to the possibility that the cargo may contain dangerous goods. The purpose of the requirements for training relating to dangerous goods is to ensure that persons handling air cargo appreciate the risks involved in the transport of dangerous goods by air and have a knowledge of the legislative requirements.

The Civil Aviation Regulations (Amendment) also make a number of miscellaneous amendments to the Regulations.

Regulation 134 authorises the Authority or an authorised person to give permission for certain flights. The amendment to regulation 134 includes in that regulation other express purposes for which permits to fly may be issued.

Regulation 256A is amended to empower the Authority to permit live animals to be carried in aircraft in a manner other than the manner set out in the regulation.

New regulation 297A provides for the administrative review of certain decisions made by the Authority.

The amendments to subregulation 260(2) and to item 1 of Schedule 2 to the Regulations correct minor drafting errors.

Details of the Regulations are attached.

The Regulations come into effect on 1 January 1992.

ATTACHMENT

DETAILS OF CIVIL AVIATION REGULATIONS (AMENDMENT)

Regulation 1

This regulation provides that the amending Regulations commence on 1 January 1992.

Regulation 2

This regulation provides that the Civil Aviation Regulations (the Regulations) are amended as set out in the amending Regulations.

Regulation 3

This regulation amends regulation 134 of the Regulations by adding paragraphs 134(1) (ba), (bb) and (bc) to include in that regulation other express purposes for which permits to fly may be issued. These purposes are included in permits but as there was previously no express reference to such purposes in the Regulations legal doubts had been expressed about their validity. The amendment is intended to put the matter beyond doubt.

Regulation 4

This regulation amends regulation 256A of the Regulations. Regulation 256A prohibited animals, other than guide dogs, from being in aircraft unless they were kept in containers and the containers were carried in the manner set out in the regulation. This was not appropriate in all cases. For example, it is considered that police dogs should be able to be in the passenger cabins of police aircraft and not be kept in containers.

The new subregulation 256A(1) provides that live animals may be carried in aircraft either in accordance with regulation 256A or with the written permission of the Authority. If an animal is carried with the Authority's permission the new subregulation requires that it be carried in accordance with any condition imposed on such a permission.

The amendment to subregulation 256A(5) is a technical amendment consequential on the amendment to subregulation 256A(1).

Regulation 5

Regulation 5 amends subregulation 260(2) of the Regulations by inserting a penalty of $1,000 for an offence against the subregulation.

A decision by the Authority not to give permission under subregulation 260(1), or to impose a condition on the permission, is reviewable by the Administrative Appeals Tribunal.

Regulation 6

This regulation inserts a new Part XIIIA called "Dangerous Goods" into the Regulations.

Regulation 262A sets out the application of the new Part XIIIA which applies in relation to the transport of dangerous goods on Australian aircraft or on foreign aircraft within Australian territory.

Regulation 262B defines the terms "dangerous goods accident", "dangerous goods incident", "dangerous goods manual", "employee", "freight forwarder", "postal article", "regular shipper of dangerous goods" and "Technical Instructions" for the purposes of Part XIIIA. The most significant term in relation to dangerous goods is the definition of "Technical Instructions". The Technical Instructions for the Safe Transport of Dangerous Goods by Air, issued and amended by the Council of the International Civil Aviation Organisation, amplify the provisions of Annex 18 to the International Convention on Civil Aviation and contain the detailed instructions necessary for the safe transport of dangerous goods by air.

Regulation 262C provides that, for the purposes of the definition of "dangerous goods" in subsection 23(3) of the Act, the things specified in the Dangerous Goods List contained in the Technical Instructions are declared to be dangerous goods. Dangerous goods are items or substances of a kind which are considered likely to endanger the safety of an aircraft or its occupants. The classes of dangerous goods set out in the Technical Instructions and examples of things specified as dangerous goods in the Dangerous Goods List are set out in Table A and Table B at the foot of the regulation. The examples are not exhaustive and are intended only as an aid to readers.

Regulation 262D sets out the circumstances under which an aircraft can carry dangerous goods for the purposes of paragraph 23(1)(a) of the Act. Regulation 262E sets out the circumstances in which a person is permitted to carry, or consign for carriage, dangerous goods on an aircraft for the purposes of paragraphs 23(2)(a) and 23(2A)(a) of the Act. The regulations permit the transport of dangerous goods by air only in accordance with the Technical Instructions and subject to the conditions set out in regulations 262F, 262J and 262K. An explanatory note has been included at the end of regulation 262E as an aid to readers seeking information about the transport of dangerous goods by air.

The conditions set out in regulation 262E only apply to operators engaged in commercial operations. An operator is not allowed to carry dangerous goods on an aircraft unless he or she has a dangerous goods manual and complies with the requirements relating to a dangerous goods manual under regulation 262G and any directions issued by the Authority under regulation 262H. The safety of an aircraft or its occupants is dependent upon dangerous goods not being carried unless they are handled in accordance with prescribed procedures. Accordingly, there is a need for operators engaged in commercial operations to have a dangerous goods manual which sets out the instructions for handling dangerous goods and which is available to all employees whose duties relate to the handling of cargo on the operator's aircraft.

Regulation 262G sets out the requirements relating to a dangerous goods manual that must be complied with by an operator engaged in commercial operations. A dangerous goods manual is to contain instructions for handling dangerous goods, copies of the manual are to be made available to employees and the manual is to be kept up-to-date. The dangerous goods manual may be incorporated in the operator's operations manual or any other manual maintained by the operator relating to the handling of cargo.

Regulation 262H empowers the Authority to issue directions to an operator engaged in commercial operations concerning the contents, distribution and revision of a dangerous goods manual.

All operators are required to comply with the condition relating to the reporting of a dangerous goods incident under regulation 262J.

Regulation 262K applies to operators, freight forwarders and regular shippers of dangerous goods and requires up-to-date records to be kept in relation to the training that must be undertaken by the employees of those persons.

Regulation 262M sets out the requirements for a written statement concerning the contents of cargo consigned by air for the purposes of section 23A of the Act. In the interests of safety, a statement of this kind is considered necessary to prevent dangerous goods from being inadvertently handled as general air cargo. Trained personnel will be able to readily identify dangerous goods. For example, cargo described as "rare old films" would alert trained personnel to the probability that the films are nitrocellulose based. Such films would be classified as dangerous goods because they are liable to spontaneous combustion and are included in the Dangerous Goods List contained in the Technical Instructions.

Subregulation 262M(1) requires a person who consigns cargo for carriage on an aircraft to make a written statement that declares that the cargo does not contain dangerous goods or describes the contents of the cargo. Under subregulation (2), the requirements do not apply to a passenger's or crew member's baggage or personal effects when these are to be carried on the same aircraft as the passenger or crew member. Under subregulation (3), except as provided for in subregulations (4) and (5), the requirements apply to the Australian Postal Corporation which is to be taken to be the person who consigns a postal article for carriage on an aircraft in Australia. Subregulation (4) exempts Australia Post from compliance with subregulation (1) in relation to postal articles consigned from a place outside Australia for delivery by air to a person in Australia. Under subregulation (5), subregulation (1) does not apply to postal articles not exceeding the size specified in the subregulation. Under subregulation (6) a freight forwarder is to be taken to be a person who consigns cargo for carriage on an aircraft.

Under regulation 262U, the Authority is empowered to exempt any person from compliance with subregulation 262M(1). An exemption is subject to the person complying with any conditions set out in the exemption. An exemption would enable cargo to be consigned by air without an accompanying statement subject to any specified conditions.

Regulation 262N enables the Australian Postal Corporation or a freight forwarder to make a written statement in relation to cargo being consigned for carriage on an aircraft, on the faith of a written statement that has been provided to them.

Regulations 262P, 262Q and 262R set out the requirements for training relating to dangerous goods for the purposes of subsection 23B(1) of the Act. Training must be undertaken by those employees of operators, regular shippers of dangerous goods and freight forwarders who are involved in handling cargo in the course of the cargo being carried, or consigned for carriage, on an aircraft. A training course must be undertaken in accordance with the appropriate syllabus of training that is specified in Schedule 4. Successful application of the restrictions concerning the transport of dangerous goods by air is dependent on properly established training programs. Personnel involved with air cargo need to be able to identify dangerous goods, know whether the goods should be carried by air and, if the goods are to be carried by air, the manner in which the goods are to be packed, stored and carried.

The training requirements for the employees of operators are set out in subregulations 262P(1), (2), (3) and (4): The requirements apply to those employees who are flight crew or cabin attendants or whose duties relate to the acceptance or the loading of cargo or to security screening procedures. The training requirements for employees of operators do not apply in relation to cargo carried on aircraft engaged in private operations.

Regulation 262Q sets out the requirements relating to dangerous goods training for employees of regular shippers of dangerous goods. The requirements apply to employees whose duties relate to packing and consigning dangerous goods for carriage, or consignment for carriage, on an aircraft.

Regulation 262R sets out the requirements relating to dangerous goods training for employees of freight forwarders. The requirements apply to those employees whose duties relate to the acceptance, or involve the handling, of cargo consigned for carriage on an aircraft.

Regulation 262S sets out the intervals at which training is to be undertaken. A person who is required to undertake training under subregulations 262P(1), (3) or (4) or 262R(1) or regulation 262Q must undertake that training course once every two years. A person who is required to undertake training under subregulation 262P(2) or 262R(2) must undertake that training course once every three years.

Regulation 262T requires the Authority to approve the details of a training course conducted for the purposes of subregulation 262P(1) or (3) or 262R(1) or regulation 262Q.

The Authority recognises that certain sections of industry already undertake the training of their employees in relation to dangerous goods and also that there may be circumstances in which training specified in the Regulations may not be required. Regulation 262U empowers the Authority to exempt a person from compliance with regulation 262P, 262Q, 262R or 262S or a specified provision of those regulations. An exemption is subject to the person complying with any conditions set out in the exemption.

Under regulation 262V, the Authority is empowered to determine that a person is a regular shipper of dangerous goods if the person carries out the activities referred to in the regulation.

Regulation 7

This regulation inserts a new regulation 297A in Part XVIII of the Regulations. Regulation 297A provides for the administrative review of certain decisions made by the Authority. A refusal to exempt a person under subregulation 262U(1), or a determination under subregulation 262V(1) that a person is a regular shipper of dangerous goods, is reviewable by the Administrative Appeals Tribunal.

Regulation 8

This regulation amends Schedule 2 by omitting from item 1 the reference to Regulation 49. The reference to "Regulation 49" should only appear in item 2.

Regulation 9

This regulation adds a new Schedule 4 to the Regulations. Schedule 4 sets out the syllabus of training for each of the training courses referred to in regulations 262P, 262Q and 262R. Each syllabus of training is set out in a separate part of the Schedule and includes the significant components of the Technical Instructions. For example, the exceptions set out in the Technical Instructions for dangerous goods carried on an aircraft by a passenger, a crew member or the operator of the aircraft are included in the syllabus for cabin attendants.


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