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CIVIL AVIATION REGULATIONS (AMENDMENT) 1994 NO. 187EXPLANATORY STATEMENT
STATUTORY RULES 1994 No. 187
Issued by the authority of the Minister for Transport
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 relation to the safety of air navigation.
The Regulations make a number of miscellaneous amendments of the Civil Aviation Regulations (the Regulations). Most of the amendments are of a legal technical kind. The major substantive changes involve the addition of a new regulation SA declaring certain directions and exemptions to be disallowable instruments.
Under regulation 5, the Civil Aviation Authority (the Authority) can issue directions, instructions or notifications, or give permissions, approvals or authorities, in Civil Aviation Orders or in some other written form. Subsection 98 (5) of the Act provides that Civil Aviation Orders are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901. Directions, instructions, notifications, permissions, approvals and authorities not given in Civil Aviation Orders are not, in most cases, subject to Parliamentary scrutiny.
Regulation 5 permits the effect of a Civil Aviation Order to be changed or set aside by a document that is not itself an Order. This is unsatisfactory because the operation of Orders that have been subjected to Parliamentary scrutiny should not be liable to be affected in any way by documents that are not subject to the same scrutiny.
New regulation SA gives effect to an undertaking given by the Minister to the Senate Standing Committee on Regulations and Ordinances to amend the Regulations to ensure that documents (other than airworthiness directives) that affect the operation of Orders will be subject to Parliamentary scrutiny, whatever form they take.
DETAILS OF THE AMENDMENTS ARE AS FOLLOWS:
This regulation provides that the Civil Aviation Regulations (the Regulations) are amended as set out in the Regulations.
This regulation inserts a new regulation 2B. The Regulations contain some provisions expressly conferring power on the Authority to give or issue particular approvals, directions and exemptions and to do other similar things. More often, however, the Regulations simply use expressions such as "except with the approval of the Authority" or "unless the Authority otherwise permits" on the assumption that expressions of that kind are sufficient to confer the power to do the act to which they refer. Not only is that assumption of doubtful validity, but the presence in the same set of Regulations of two different approaches is unsatisfactory and likely to cause confusion.
The new regulation 2B ensures that the Authority and authorised persons have the necessary power to perform all statutory functions referred to in the Regulations.
This regulation inserts a new regulation SA, subregulation (1) of which provides that any written instrument that has the effect of repealing, amending, or otherwise affecting the operation of anything in a Civil Aviation Order is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Subregulation (2) contains a definition, the most important effect of which is to remove airworthiness directives from the operation of the new provision. Airworthiness directives are often needed to deal urgently with air navigation safety issues. The need to act speedily in these cases makes the disallowance process undesirable for airworthiness directives.
New subregulation 5.38 (1 A), which is inserted by this regulation, makes it clear that a person cannot be required to undertake an examination under regulation 5.38 until the time allowed by subregulation 5.39 (2) to request a review of the requirement has expired.
This regulation makes two amendments to regulation 5.39. The amendments are necessary as a result of a change in offices within the Authority. The position of regional manager (flying operations) is now the position of regional manager.
This regulation introduces a new subsection (2A) into regulation 281 to cure a possible anomaly in the operation of the regulation. The new subregulation will avoid any argument that subregulation 281 (2) has displaced the operation of section 4D of the Crimes Act 1914 in the case of offences to which subregulation 281 (2) applies. The new subregulation will itself have the effect of section 4D of the Crimes Act 1914 in relation to those offences.
REGULATIONS 7 AND 8
Regulation 8 inserts a new regulation 303A, subregulation (1) of which empowers the Authority or an authorised person who grants an exemption under the Regulations to impose any condition required in the interests of the safety of air navigation on the exemption.
Subregulation (2) requires any such condition to be either set out in the exemption or given to the holder of the exemption in writing.
Subregulation (3) provides that if a condition of an exemption is contravened, the exemption has no effect while the contravention continues.
Subregulation (4) defines the kinds of exemptions to which the new regulation relates.
Regulation 7 amends subregulation 297A (1) as a consequence of the new regulation 303A. It includes within the definition of "reviewable decision" any decision by the Authority or an authorised person to impose a condition under the new regulation, except in cases where the decision is already covered by section 31 of the Act.
The regulations commenced on gazettal.