Air Navigation (International Airline Licence Exemption) Determination 2019

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2019L00375 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

Air Navigation (International Airline Licence Exemption) Determination 2019

 

The Determination exempts airlines from the requirement to have an international airline licence (IAL) when an airline flies over Australian territory without landing and for airlines that land for non-traffic purposes.

 

The Determination remakes, without any significant changes, the Determination under subsection 12(3) of the Air Navigation Act 1920 made on 16 December 2008, which was due to sunset on 1 April 2019. Minor changes were made to reflect modern drafting conventions and to remove a redundant provision referring to approvals under subsection 12(1B) of the Air Navigation Act 1920 (the Act). This power has since been repealed.

 

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

 

Paragraphs 1 to 4 refer to machinery provisions associated with the making of this instrument, including the name of the instrument, the commencement date, the authority under which the instrument is made, and definitions.

 

Paragraph 5 refers to Schedule 1 of the instrument which repeals the previous Determination made in 2008.

 

Paragraph 6 sets out the circumstances under which scheduled international air services may be operated other than in accordance with an IAL.

 

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 Act 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 6(a) provides an exemption to this requirement for services that operate over Australian territory without landing. 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 Australia’s major aviation partners. There is therefore no need to check 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 difficult to enforce in practice and would not have resulted in a significant safety, security or economic regulatory outcome.

 

Paragraph 6(b) exempts airlines from the requirement to have an IAL for services that land in Australia only for non-traffic stops (landing in Australian territory without setting down or taking on passengers or cargo for reward or hire). The International Air Transit Agreement of 1944 also grants this right to airlines of all contracting states, including all of Australia’s major aviation partners. Such services remain subject to relevant safety and security approvals.

 

A recent stakeholder consultation process confirmed support for the continuation of the provisions of the Determination.

 

The power to make the Determination is contained in subsection 12(3) of the Air Navigation Act 1920. 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. The determination-making power in subsection 12(3) has been delegated to the levels of Deputy Secretary and of SES2 (Executive Director) and SES1 (General Manager) in Aviation and Airports Division under the Secretary’s Air Navigation Delegation Instrument 2016 (No. 1) dated 5 April 2016.

 

In accordance with section 18 of the Act, the Determination will be included in the Aeronautical Information Publications published under regulations made under the Air Services Act 1995.

 

The Determination is a legislative instrument for the purposes of the Legislative

Instruments Act 2003.

 

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Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Air Navigation (International Airline Licence Exemption) Determination 2019

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

 

The primary purpose of this Legislative Instrument is to provide a legal framework for exempting international airlines from the need to operate in accordance with an international airline licence when operating over Australian territory without landing and when landing in Australia for non-traffic purposes (landing in Australian territory without setting down or taking on passengers or cargo for reward or hire). The instrument is a remake, without any significant changes, of a previous instrument that has been in place since 2008. Minor changes were made to reflect modern drafting conventions and remove redundant provisions.

 

The instrument is well understood and accepted by operators and key aviation stakeholders. A recent consultation process reaffirmed stakeholder support for the instrument.

 

Human rights implications

 

This Legislative Instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

 

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

Overview

The Air Navigation (International Airline Licence Exemption) Determination 2019, enacted by the Australian Government, was introduced to address the regulatory gap concerning the operation of international airlines over Australian territory without landing or for non-traffic stops. This legislative instrument, which remakes a 2008 determination with minor updates to drafting conventions, exempts airlines from the need for an international airline licence (IAL) under specific circumstances, aligning with international agreements and safety protocols. The determination is grounded in subsection 12(3) of the Air Navigation Act 1920 and is authorised by the Secretary, with delegated powers to relevant officials. It ensures compliance with bilateral air services agreements while acknowledging Australia's obligations under the International Air Transit Agreement of 1944. The policy objective is to maintain safety and security without imposing unnecessary regulatory burdens on airlines operating under these conditions.

Scope and Application

The Air Navigation (International Airline Licence Exemption) Determination 2019 exempts certain international airlines from the requirement to hold an international airline licence (IAL) when flying over Australian territory without landing, and when landing in Australia solely for non-traffic purposes, such as refuelling or crew changes, without carrying passengers or cargo for reward. This Determination applies to international airlines operating scheduled international air services within the scope of the exemptions outlined. Geographically, it pertains to Australian territory and airspace, extending to any flights that pass over or land in Australia without conducting commercial operations. The exemptions are limited to the specific circumstances mentioned and do not extend to other forms of international air services that would typically require an IAL. The power to make this Determination is derived from subsection 12(3) of the Air Navigation Act 1920, which allows the Secretary to exempt certain categories of international air services from the IAL requirement. The instrument has been remade to reflect modern drafting conventions, with minor changes made to update and clarify the text while maintaining the original intent and scope.

Key Provisions

The Air Navigation (International Airline Licence Exemption) Determination 2019 (paragraph 6) exempts airlines from the requirement to hold an international airline licence (IAL) when they fly over Australian territory without landing, as well as when they land in Australia for non-traffic purposes, such as landing for refuelling or crew change without taking on passengers or cargo. This determination essentially mirrors the provisions of the previous 2008 Determination but with minor updates to align with modern drafting practices and to remove outdated references. The primary objective of this exemption is to streamline operations for airlines that do not engage in passenger or cargo traffic within Australian jurisdiction. The Determination imposes specific obligations on the airlines it governs, which primarily involve ensuring compliance with any relevant safety and security requirements. For flights over Australian territory without landing, the airlines are not required to obtain an IAL because such overflights are governed by the International Air Transit Agreement of 1944, which already allows airlines of contracting states to overfly Australian territory. For non-traffic landings, while the IAL exemption applies, airlines must still adhere to any applicable safety and security approvals. This ensures that even in the absence of an IAL, the safety and security standards are maintained. The Determination does not introduce new offences or penalties but relies on existing legal frameworks to enforce compliance. Breaches of safety and security requirements, for instance, could result in enforcement actions under the Air Navigation Act 1920 and related legislation. While the Determination itself does not specify penalties, the overarching statutes provide for a range of civil and criminal penalties, including fines and imprisonment, depending on the severity of the breach. The Act ensures that any violations impacting safety and security are appropriately addressed.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.