EXPLANATORY STATEMENT
Determination under section 12(3) Air Navigation Act 1920
The Determination will exempt airlines from the requirement to have an international airline licence (IAL) when an airline flies over Australian territory without landing. The Determination will also incorporate existing exemptions for airlines that land for non-traffic purposes or operate services in accordance with an agreement approved by the Secretary.
The system of IALs ensures that scheduled international air services are operated in accordance with bilateral air services agreements and arrangements between Australia and our international aviation partners. They also act as a final checking mechanism to ensure that various safety and security approvals are in place prior to the commencement of air operations. Subsection 12(1) of the Air Navigation Act 1920 provides that international airlines shall not operate scheduled international air services over, into or out of Australian territory except in accordance with an IAL.
Paragraph 1(a) of the Determination introduces an exemption to this requirement for services that operate over Australian territory without landing. The current requirement for airlines to have an international airline licence for over-flights is inconsistent with the purpose of the scheme.
Over-flight rights are not regulated by Australia’s air services agreements, as Australia is a signatory to the International Air Transit Agreement of 1944 which grants this right to airlines of all contracting states, including all of our major aviation partners. There is therefore no need to check that over-flights are operated in accordance with a bilateral agreement.
In addition, Australia’s safety and security agencies do not require airlines to obtain prior safety or security approvals to overfly Australian territory without landing. The IAL system’s role in providing an additional checking mechanism for safety and security approvals therefore does not serve any purpose in these circumstances.
The Department has not in the past enforced the requirement to have an international airline licence for over-flights. The requirement would have been extremely difficult to enforce in practice and would not have resulted in a significant safety, security or economic regulatory outcome.
The Determination also incorporates all other exemptions to the requirement to have an international airline licence, providing greater clarity by listing all exemptions in the one instrument.
Paragraph 1(b) of the Determination provides an exemption for non-traffic stops (landing in Australian territory without setting down or taking on passengers or cargo for reward or hire). Previously, this exemption was applied in practice, although it was not formally recognised. Including this exemption in a determination will ensure that the exemption is legally sound.
Paragraph 1(c) preserves an existing exemption for services operated in accordance with an agreement approved in writing by the Secretary under subsection 12(1B) of the Air Navigation Act 1920. Subsection 12(1B) will be repealed by the Aviation Legislation Amendment (International Airline Licences and Carriers’ Liability Insurance) Act 2008 as it has not been used for some time and is no longer considered necessary for the operation of the IAL system. The Government understands that there are no longer any services operating under a subsection 12(1B) approval. However, the Determination will preserve the effect of a previous permission to ensure that no service is unintentionally jeopardised by the commencement of the new scheme.
Paragraph 2 of the Determination provides that the Determination will take effect from 20 March 2009. This is the same day by which the authorising provision contained in the Aviation Legislation Amendment (International Airline Licences and Carriers’ Liability Insurance) Act 2008 must take effect (discussed below).
The Department has not consulted directly with industry in relation to the Determination, as the changes are minor and machinery in nature and do not substantially change the law.
The power to make the Determination is contained in subsection 12(3) of the
Aviation Legislation Amendment (International Airline Licences and Carriers’ Liability Insurance) Act 2008, which amends the Air Navigation Act 1920 to update and streamline the administrative processes associated with the IAL system. Subsection 12(3) allows the Secretary to make a determination that certain categories of international air services are exempt from the requirement to have a licence.
This provision will commence in accordance with item 2 of the table in subsection 2(1) of the Aviation Legislation Amendment (International Airline Licences and Carriers’ Liability Insurance) Act 2008, which provides that Schedule 1 to the Act will commence on a day to be fixed by Proclamation. If Schedule 1 has not commenced by Proclamation within the 6 month period beginning on the day on which the Bill received the Royal Assent, they will commence automatically on the first day after the end of that 6 month period. The Act received the Royal Assent on 20 September 2008, and the provision is therefore due to commence automatically on 20 March 2009.
Subsections 4(1) and 4(2A) of the Acts Interpretation Act 1901, read together, allow a determination to be made between the passing and commencement of an Act, as long as such regulations do not commence before the Act upon which they rely for their authority.
The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.