Air Navigation (Essendon Airport) Amendment Regulations 2002 (No. 1) 2002 No. 123
Statutory Rules 2002 No. 123
EXPLANATORY STATEMENT
Minute No: - Minister for Transport and Regional Services
Subject - Air Navigation Act 1920
Air Navigation (Essendon Airport) Amendment Regulations 2002 (No. 1)
Subsection 26(1) of the Air Navigation Act 1920 provides that the Governor-General may make regulations, not inconsistent with this Act:
(a) ....
(b) ...
(c) in relation to air navigation within a Territory or to or from a Territory;
(d) in relation to air navigation, being regulations with respect to trade and commerce with other countries among the States;
(e) in relation to air navigation, being regulations with respect to any other matter with respect to which the Parliament has power to make laws.
Subsection 26(2)(e) provides that regulations may be made for the establishment, maintenance, operation and use of aerodromes.
Subregulations 16(1) and 16(2) provide for the Secretary to issue a notice, to an operator, requesting information about the noise level of an aircraft or information relevant to determining whether, at the time an aircraft took off or landed, it was involved in an emergency. The notice must state the information to be provided, how the information is to be provided, and that the operator must comply with the notice within 30 days of receiving the notice.
Subregulations 16(3) and 16(4) provide that it is a strict liability offence if an operator fails to comply with a notice issued under subregulation 16(1).
The Amendment Regulations amend the Air Navigation (Essendon Airport) Regulations 2001 to ensure that the offence provision in the regulation complies with the Criminal Code Act 1995 (the Criminal Code) and reflects the policy intention.
The Amendment Regulations:
(a) clarify the physical elements (conduct, circumstance and result) and the fault elements (intention and recklessness) of the offence;
(b) define the term engage in conduct used in the Regulations; and
(c) remove the application of strict liability to correct a drafting error and give effect to the policy intention that the prosecution is required to prove the fault elements of the offence.
Details of the Amendment Regulations are set out in the Attachment.
The Amendment Regulations commence on gazettal.
Authority: Subsection 26(2)(e) of the Air Navigation Act 1920
ATTACHMENT
Item 1 provides that the name of the Regulations is the Air Navigation (Essendon Airport) Amendment Regulations 2002. (No. 1)
Item 2 provides that the Regulations commence on Gazettal.
Item 3 provides that that Schedule 1 to the Amendment Regulations amend the specified Regulation.
Schedule 1, Item 1 amends subregulations 16(3) and 16(4) as follows:
• paragraphs 16(3)(a) and 16(3)(b) set out the physical elements of circumstance to which the fault element of recklessness will apply (see subsection 5.6(2) of the Criminal Code). Paragraph 16(3)(c) sets out the physical element of conduct to which the fault element of intention will apply (see subsection 5.6(1) of the Criminal Code). Paragraph 16(3)(d) sets out the physical element of result to which the fault element of recklessness will apply (see subsection 5.6(2) of the Criminal Code),
• defines the term engage in conduct. The definition is consistent with the definition of this term in the Criminal Code; and
• removes the application of strict liability to correct a drafting error and give effect to the policy intention that the prosecution is required to prove the fault elements of the offence.
Overview
The Air Navigation (Essendon Airport) Amendment Regulations 2002 (No. 1) were enacted to amend the Air Navigation (Essendon Airport) Regulations 2001, ensuring compliance with the Criminal Code Act 1995 and reflecting the policy intention regarding the fault elements of offences. These regulations were introduced under the authority of Subsection 26(2)(e) of the Air Navigation Act 1920, which allows the Governor-General to make regulations for the establishment, maintenance, operation, and use of aerodromes. The primary objective of these amendments was to correct a drafting error by removing the application of strict liability and ensuring that the prosecution must prove the fault elements of the offence. This change aligns the regulations with the criminal law framework, particularly in terms of the physical and fault elements of the offence, as well as the definition of "engage in conduct." The Amendment Regulations commenced on gazettal, immediately applying the changes to the existing regulatory framework.
Scope and Application
The Air Navigation (Essendon Airport) Amendment Regulations 2002 (No. 1) amends the Air Navigation (Essendon Airport) Regulations 2001 to align with the Criminal Code Act 1995, ensuring compliance and reflecting the policy intention regarding the offence provisions. These regulations apply to operators of aircraft using Essendon Airport in Victoria, and they pertain specifically to air navigation within a Territory, in relation to trade and commerce with other countries among the states, and any other matters within the Parliament’s legislative power. The regulations establish the physical and fault elements for offences, defining the term 'engage in conduct' and clarifying that prosecution must prove the fault elements of an offence, thereby removing the previously misapplied strict liability. These amendments commence upon gazette publication and are authorised under Subsection 26(2)(e) of the Air Navigation Act 1920.
Key Provisions
The Air Navigation (Essendon Airport) Amendment Regulations 2002 (No. 1) amends the existing Air Navigation (Essendon Airport) Regulations 2001. The primary focus of these amendments is to align the offence provisions within the regulations with the Criminal Code Act 1995 and to correct a drafting error regarding the application of strict liability. Specifically, subregulations 16(3) and 16(4) are amended to clarify the physical and fault elements of the offence, define the term "engage in conduct," and remove the strict liability application to ensure that the prosecution must prove the fault elements of the offence.
These regulations impose certain obligations on aircraft operators in relation to Essendon Airport. Operators are required to comply with notices issued by the Secretary under subregulations 16(1) and 16(2). These notices request information about aircraft noise levels or other information relevant to determining if an aircraft was involved in an emergency at the time of take-off or landing. Operators must provide the requested information within 30 days of receiving the notice. Failure to comply with these notice requirements constitutes an offence.
The Amendment Regulations introduce specific penalties and consequences for non-compliance. Under the amended subregulations 16(3) and 16(4), it is a strict liability offence if an operator fails to comply with a notice issued under subregulation 16(1). However, the amendments remove the strict liability application to ensure that the prosecution must prove the fault elements of the offence, which may include intention or recklessness. This change aligns with the policy intention that the prosecution must establish the necessary mental elements to secure a conviction. The precise penalties for breaching these regulations are not explicitly stated in the provided text but would typically be found within the broader legal framework of the Criminal Code Act 1995 or other relevant legislation.