Commonwealth Numbered Regulations - Explanatory Statements

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CIVIL AVIATION REGULATIONS (AMENDMENT) 1994 NO. 260

EXPLANATORY STATEMENT

Statutory Rules 1994 No. 260

(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 GovernorGeneral may make regulations for the purposes of the Act and in the interests of the safety of air navigation.

The Civil Aviation Regulations (the Regulations) require persons to pass examinations before they are qualified to hold licences, certificates, ratings, endorsements and authorities issued under the Regulations. The examinations are required for safety reasons. The knowledge and skills tested are directly related to the examinee's ability to carry out the activity authorised by the licence, certificate, rating, endorsement or authority in a way that will not adversely affect the safety of air navigation. A person who cannot pass the necessary examinations cannot demonstrate to the Civil Aviation Authority (the Authority) that he or she can safely carry out the activity concerned. Accordingly, any kind of cheating in relation to these examinations is a very serious matter.

Subregulation 284 (1) of the Regulations prohibited a person from committing a dishonest act in relation to an examination. Subregulation 284 (2) provided that if a person commits a dishonest act he or she is taken not to have passed the examination and is not entitled to sit any other examination for 12 months. This was intended to prevent a person who commits a dishonest act in relation to an examination from being able to use the knowledge that he or she has gained through the dishonest conduct in a subsequent examination.

The structure of regulation 284 meant that a person must be convicted of an offence under subregulation (1) before the administrative penalty set out in subregulation (2) could be applied. Because of the delays involved in pursuing a prosecution, the administrative penalty did not served its intended purpose.

The regulations omit regulation 284 and insert new regulations 298A, 298B, 298C, 298D and 298E. The new regulations provide for:

•       the imposition of the existing administrative penalty on persons who do certain specified acts in the course of attempting an examination;

•       criminal penalties in relation to cheating by persons who are not examination candidates and in relation to personation at examinations;

•       administrative review of the Authority's decision that a person has done one of the specified acts;

•       the effect on the administrative penalty of an application for review.

DETAILS OF THE AMENDMENTS ARE AS FOLLOWS:

REGULATION 1

This regulation provides that the Regulations are amended by these regulations.

REGULATION 2

This regulation omits regulation 284 of the Regulations.

REGULATION 3

This regulation amends subregulation 297A (1) of the Regulations so that a decision by the Authority that a person has done one of the acts set out in proposed new subregulation 298A (1) may be reviewed by the Administrative Appeals Tribunal.

REGULATION 4

This regulation inserts new regulations 298A, 298B, 298C, 298D and 298D into the Regulations.

New subregulation 298A (1) provides that the Authority may give notice to a person if it is satisfied on reasonable grounds that the person has done any one of a number of specified acts in relation to his or her attempt at an examination. These acts include copying the examination paper, removing the examination paper from the examination area, receiving a copy of the examination paper or model answer before attempting the examination, reading the work of another examination candidate and giving or receiving help to complete any part of the examination. New subregulation (3) then allows the person 14 days in which to make reasonable representations about the act concerned. The Authority must take any such representations into account, and make a final decision. It must give the person a second notice if it decides the act was done. Under new subregulation (5), the person is taken not to have passed the examination and is prevented from attempting any examination for a licence, certificate authorisation, rating or endorsement until 1 year from the date of the first examination. The 1 year disqualification period is intended to make it unlikely that any extra knowledge or information a person has gained from his or her unfair conduct in relation to an examination will be of use in a later examination.

New regulation 298B deals with persons who are involved in unfair examination conduct, but who are not attempting an examination (eg persons conducting examinations). The regulation creates an offence in relation to the doing of similar acts to those set out in new regulation 298A.

New regulation 298C creates an offence in relation to a person who takes an examination in someone else's name. If a person is charged with the offence neither the person who took the examination (the personator) nor the person in whose name it was taken (the candidate) is taken to have passed the examination and neither is permitted to attempt an examination for 1 year. The candidate may sit an examination during that period if the Authority is satisfied that he or she did not know about the personation. If the person charged is acquitted, or the charge is withdrawn, the administrative penalty stops applying.

New regulation 298D provides that if a person applies to the Administrative Appeals Tribunal for review of the Authority's decision that he or she has done one of the acts set out in new subregulation 298A (1), the person is not permitted to attempt an examination until the Tribunal finds for the person, or the expiry of a period of 1 year from the date of the examination in relation to which the conduct is alleged. This regulation will ensure that a person who has cheated in an examination cannot avoid the sanction by applying to Tribunal for review and stay of the Authority's decision. As the only penalty for this kind of cheating is the administrative penalty flowing from the Authority's decision that the person has done the act, it would make a nonsense of the regulation if a person were able to avoid the penalty in this way. It may also prejudice air navigation safety if a licence is issued to the person as he or she may not have necessary skills and knowledge.

New regulation 298E provides that if a person attempts an examination when he or she is not permitted under regulation 298A, 298C or 298D to do so, the person cannot pass the examination.

The amending regulations commenced on gazettal.


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