Commonwealth Numbered Regulations - Explanatory Statements

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CIVIL AVIATION REGULATIONS (AMENDMENT) 1995 NO. 224

Statutory Rules 1995 No. 224

(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 the interests of the safety of air navigation.

Section 4 of the Acts Interpretation Act 1901 provides that where an Act confers power to make an instrument of a legislative character then, unless the contrary intention appears, the power may be exercised before the Act concerned comes into operation.

The Act and the Civil Aviation Regulations currently have two main functions. They provide for the regulation of the safety of air navigation and for the establishment of services provided to the aviation industry by the Civil Aviation Authority (the CAA). The Civil Aviation Legislation Amendment Act 1995 (the amending Act) and the Air Services Act 1995 (the services Act) have the effect of dividing these two functions between the Act and the services Act. They also abolish the CAA and divide its responsibilities between two new authorities, the Civil Aviation Safety Authority (CASA) and Airservices Australia. The amending Act also changes the way in which fees for services performed by the regulatory body are determined. It repeals section 66 of the Act (which empowers the CAA's Board to determine charges for prescribed services) and amends section 98 of the Act so that fees for CASA's services may be prescribed in the Regulations.

Subject to certain exceptions, the amending Act and the services Act commence on a day fixed by proclamation.

The regulations amend the Regulations to reflect the creation of the new authorities, the division of responsibilities and the new mechanism for establishing fees.

Details of the regulations are set out in the attachment.

The regulations commence when section 3 of the Civil Aviation Legislation Amendment Act 1995 commences.

DETAILS OF THE REGULATIONS

REGULATION 1

Regulation 1 provides that the Regulations commence when section 3 of the amending Act commences.

REGULATION 2

Regulation 2 provides that the Regulations are amended as set out in the Regulations.

REGULATION 3

Regulation 3 amends subregulation 2 (1) of the Regulations by omitting some definitions, amending others and inserting some new definitions. The changes reflect the change in responsibility from the CAA to CASA and Airservices Australia and the repeal of some of the Regulations which will be remade as regulations under the services Act.

REGULATIONS 4, 8, 11, 14, 15, 16, 17, 18, 19 AND 20

These regulations provide for the references to the Authority or the CAA in the headings of regulations 4, 13F, 14, 20B, 23, 31A, 42B, 42K, 42Q and 51B respectively to be read as references to CASA.

REGULATION 5

Regulation 5 omits regulation 4A of the Regulations. Regulation 4A prescribed CAA functions under section 9 of the Act. The amending Act inserts a new section 9 setting out the functions of CASA. The new section 9 does not provide for additional functions to be prescribed.

REGULATION 6

Regulation 6 amends regulation 7 of the Regulations to empower the Director of CASA to delegate CASA's powers and functions under the Regulations.

REGULATIONS 7, 9, 10, 12, 13, 21, 22, 23, 24, 25, 27 AND 28

These regulations amend regulations 13B, 13I, 13S, 16, 16A, 5.09, 5.14, 5.23, 5.27, 5.198, 83A and 89C of the Regulations respectively to remove references to the payment of charges determined under section 66 of the Act. Section 66 is repealed by the amending Act. Subregulation 98 (3) of the Act instead provides that fees for services may be prescribed in the Regulations.

REGULATIONS 26, 29, 30, 31, 32 AND 33

These regulations amend regulations 82, 94, 99AA, 132, 141 and 297 of the Regulations respectively to reflect the fact that the provision of airway services is a function of Airservices Australia under the services Act.

REGULATION 34

Regulation 34 replaces references to the Authority wherever they occur in the Regulations or the Civil Aviation Orders with references to CASA. The Act as amended by the amending Act refers to "CASK' and does not contain any references to "the Authority".

REGULATION 35

Regulation 35 replaces references to the CAA wherever they occur in the Regulations with references to CASA.

REGULATION 36

Regulation 36 repeals Part IX, Divisions 3 and 4 of Part IXB, Regulations 97, 98, 99, 109, 110 and 119 and subregulations 99A (2), 99AA (1), (2) and (4) and 140 (1), (2), (3), (4) and (7), of the Regulations to reflect the fact that a number of functions currently carried out by the Authority will be carried out by Airservices Australia under the services Act.

The regulation repeals Part XV, regulation 310AA and subregulations 33D (4), 33G (5), 33H (6), 5.09 (5), 5.14 (4), 5.23 (4), 5.27 (6), 5.198 (5), 83A (4) and 310B (9) and paragraph 89G (1) (a) of the Regulations to remove the references to the payment of charges determined under section 66 of the Act and to remove provisions dealing with the honouring of cheques. Section 66 is repealed by the amending Act. Subregulation 98 (3) of the Act instead provides that fees for services may be prescribed in the Regulations. New paragraph 98 (3) (t) inserted by the amending Act provides for the honouring of cheques.

The regulation repeals regulation 211 of the Regulations because the amending Act inserts a provision dealing with applications for Air Operators' Certificates into the Act.

The regulation also repeals subregulation 297A (3) and (4) consistently with recent amendments to the Administrative Appeals Tribunal Act 1975.

REGULATION 37

Regulation 3 7 substitutes references to CASA for references to the CAA or the Authority in notes appearing in a variety of places in the Regulations.

The regulation also omits a number of notes. The notes were intended to be explanatory, and to provide additional guidance to a reader attempting to find his or her way around the Regulations. However, it is now thought that the notes may be misleading rather than helpful, because they can give the reader only part of the relevant information. There is also some doubt as to the legislative status of notes. Except in special circumstances, such as the situation where an offence is created in the Regulations but the penalty for the offence is provided in the Act, it has been decided not to use notes and to remove existing notes.