EXPLANATORY STATEMENT
STATUTORY RULES 1985 No 329
Issued by the Authority of the Minister for Aviation
AIR NAVIGATION REGULATIONS (AMENDMENT)
Section 26 of the Air Navigation Act 1920 provides, inter alia, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
It is expected that the provisions of the Australian Citizenship Amendment Act 1984, which would, inter alia, repeal all references to “British subject” status, will be proclaimed to commence early next year. When those provisions are brought into operation the expression “British subject” will have no meaning for the purposes of the Air Navigation Regulations.
In a review of aviation legislation, references to the expression “British subject” were identified in the Regulations. Regulation 322 provided that, unless the Secretary otherwise directed, a licence or certificate required by or under the Regulations was not to be issued to a person who was not a British subject ordinarily resident in Australia or a corporation substantially owned and effectively controlled by British subjects ordinarily resident in Australia.
Regulation 327 of the Regulations which gives effect to Article 27 of the Chicago Convention by providing for exemption from seizure of aircraft and spare parts on patent claims, also contained the expression “British subjects”. Paragraph 327 (4)(b) limited the application of regulation 327 to aircraft registered in countries which are parties to the International Convention for the protection of Industrial Property, or in which there are in force laws protecting inventions made by British subjects resident in Australia territory.
Regulation 1 amends regulation 322 by omitting references to a “British subject” and “British subjects” and substituting “an Australian citizen” and “Australian citizens’” respectively. This amendment removes the preference for British subjects in the granting of licences and certificates, but retains an Australian citizenship and residency requirement. The Secretary’s existing power to grant exemption from the citizenship requirement has been retained.
In relation to air service licences, the amendment will not affect the established practice whereby foreign applicants, or applicant corporations which are substantially owned by foreign interests, are first required to be approved by the Foreign Investment Review Board.
Regulation 2 amends paragraph 327(4)(b) by omitting the words “British subjects resident in Australian territory” and substituting “Australian citizens”. This amendment is consistent with paragraph (c) of Article 27 of the Chicago Convention which provides that the benefits of exemption from seizure on patent claims shall apply only to such States which are parties to the International Convention for the Protection of Industrial Property or which have enacted patent laws which recognize and give adequate protection to inventions made by the nationals of the other States which are parties to the Chicago Convention.
Overview
The Air Navigation Regulations (Amendment) Statutory Rules 1996, issued under the authority of the Minister for Aviation, were enacted to address the obsolescence of the term "British subject" in the Air Navigation Regulations as a result of the forthcoming provisions of the Australian Citizenship Amendment Act 1984. This amendment ensures that the regulations remain relevant and consistent with the current legal status of individuals in Australia. The primary objective is to update the regulatory framework to reflect modern Australian citizenship, thereby maintaining the integrity and enforceability of the Air Navigation Regulations. The changes include removing preferential treatment of British subjects in the issuance of licenses and certificates and aligning the definition of protected inventions with the International Convention for the Protection of Industrial Property.
Scope and Application
The Air Navigation Regulations (Amendment) Statutory Rules 1985 No 329 amend the Air Navigation Regulations to update references to "British subject" to "Australian citizen" in response to the forthcoming amendments in the Australian Citizenship Amendment Act 1984. This change applies to persons and entities involved in obtaining licences and certificates under the Air Navigation Regulations, as well as to the protection of aircraft and spare parts from seizure on patent claims. The amendment to regulation 322 removes the historical preference for British subjects in the granting of licences and certificates, replacing it with an Australian citizenship requirement while maintaining the Secretary’s ability to grant exemptions. Similarly, the amendment to regulation 327 removes the term "British subjects" from the exemption criteria for seizure of aircraft and spare parts on patent claims, substituting "Australian citizens" to align with the International Convention for the Protection of Industrial Property and the Chicago Convention. These amendments ensure the Regulations remain consistent with current Australian citizenship law and international conventions, reflecting the evolving status of Australia as an independent nation.
Key Provisions
The Air Navigation Regulations (Amendment) Statutory Rules 1985 No 329 amend certain provisions to remove references to “British subject” and replace them with “Australian citizen”. Regulation 322, which previously specified that a licence or certificate required by or under the Regulations was not to be issued to a person who was not a British subject ordinarily resident in Australia or a corporation substantially owned and effectively controlled by British subjects ordinarily resident in Australia, is altered by Regulation 1. This change ensures that the preference for British subjects is removed while maintaining a requirement for Australian citizenship and residency. Regulation 327, which gave effect to Article 27 of the Chicago Convention by providing for exemption from seizure of aircraft and spare parts on patent claims, is also amended by Regulation 2. Paragraph 327(4)(b), which previously limited the application of the regulation to aircraft registered in countries which are parties to the International Convention for the Protection of Industrial Property, or in which there are in force laws protecting inventions made by British subjects resident in Australia territory, is updated to refer to Australian citizens instead.
These amendments impose specific obligations on applicants for licences and certificates under the Regulations. They require applicants to be Australian citizens or corporations substantially owned and effectively controlled by Australian citizens. This change ensures that the preference for British subjects is no longer applicable, while still upholding the requirement for Australian citizenship and residency. Additionally, the Secretary’s existing power to grant exemption from the citizenship requirement is retained, allowing for flexibility in certain cases.
In the context of air service licences, the amendment does not affect the established practice whereby foreign applicants, or applicant corporations which are substantially owned by foreign interests, are first required to be approved by the Foreign Investment Review Board. This means that while the citizenship requirement is now more clearly defined, the process for foreign applicants remains unchanged.
Any breach of the requirements set forth in the Air Navigation Regulations could lead to civil or criminal consequences. Although specific penalties are not detailed in the statutory rules, it is understood that failure to comply with the regulatory requirements could result in penalties under the Air Navigation Act 1920 or other relevant legislation. These penalties could include fines, imprisonment, or other sanctions, depending on the nature and severity of the breach. The precise penalties would be determined in accordance with the legal framework governing aviation and air navigation in Australia.