EXPLANATORY STATEMENT
Statutory Rules 1986 No. 357
Issued by the Authority of the Minister for Aviation
AIR NAVIGATION REGULATIONS (AMENDMENT)
Paragraph 26(1)(a) of the Air Navigation Act 1920 provides, among other things, that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Under previous sub-regulation 255(2) of the Air Navigation Regulations, whenever the Secretary refused to grant a licence or certificate, he was required to furnish to the applicant notification in writing of the refusal specifying the ground of the refusal and the facts or circumstances that constituted that ground. Previous sub-regulation 258(2) provided that a notice of variation, suspension or cancellation of a licence or certificate should contain full particulars of the facts or circumstances that constituted the ground or grounds for that variation, suspension or cancellation.
The regulations amend regulation 255 and 258 to ensure that any person affected by a decision made under those regulations is informed of their right of appeal.
New sub-regulations 255(2) and (3) provide that whenever the Secretary makes a decision refusing to grant a licence or certificate, the applicant must be informed of the decision, the grounds for the decision and of review rights under the Administrative Appeals Tribunal Act 1975. New sub-regulation 258(2) ensures that, whenever the Secretary makes a decision to vary, suspend or cancel a licence or certificate, the holder of the licence or certificate must be informed of the grounds for the decision and of review rights under the Administrative Appeals Tribunal Act 1975.
New sub-regulations 255(4) and 258(2A) protect the validity of a licensing decision notwithstanding failure by the Secretary to inform the applicant or licence holder of appeal rights. These provisions are consistent with procedures relating to administrative appeals.
Overview
The Air Navigation Regulations (Amendment) Statutory Rules 1986 No. 357, enacted under the authority of the Minister for Aviation, serve to amend existing provisions in the Air Navigation Regulations to ensure that any person adversely affected by decisions made under the Air Navigation Act 1920 is properly informed of their right to appeal. This amendment addresses a gap in the existing regulations, which previously required only the notification of the refusal of a licence or certificate and the reasons for such refusal without explicitly stating the right of appeal. The policy objective of these amendments is to enhance transparency and fairness in the administrative processes by ensuring that applicants and licence holders are aware of their review rights under the Administrative Appeals Tribunal Act 1975. This legislative change ensures that individuals have a clear understanding of their options to seek a review of decisions that affect their aviation-related activities.
Scope and Application
The Air Navigation Regulations (Amendment) Statutory Rules 1986 No. 357 apply to all individuals and entities affected by decisions regarding the granting, variation, suspension, or cancellation of licences or certificates under the Air Navigation Act 1920. This includes pilots, aviation companies, and any other stakeholders involved in the air navigation industry. The regulations have a national reach, applying across Australia and affecting all entities operating within the Commonwealth’s airspace. The amendments to the regulations ensure that any person affected by a decision related to their licence or certificate is informed of their right to appeal under the Administrative Appeals Tribunal Act 1975. This includes both applicants whose licence applications have been refused and holders of licences or certificates that have been varied, suspended, or cancelled. Notably, the regulations explicitly state that the failure to inform an applicant or licence holder of their appeal rights does not invalidate the Secretary’s decision, aligning with broader administrative appeal procedures. The scope of the regulations is further extended or restricted through subordinate instruments as necessary to implement the provisions of the Air Navigation Act.
Key Provisions
The Air Navigation Regulations (Amendment) Statutory Rules 1986 No. 357, issued under the authority of the Minister for Aviation, make significant changes to existing regulations by introducing provisions that ensure transparency and accountability in the decision-making processes for aviation licences and certificates. Regulation 255(2) and (3) now require that whenever the Secretary refuses to grant a licence or certificate, the applicant must be informed in writing of the decision, the specific grounds for the decision, and their right to appeal under the Administrative Appeals Tribunal Act 1975. Similarly, regulation 258(2) mandates that when a decision is made to vary, suspend, or cancel a licence or certificate, the current holder must also be informed in writing of the grounds for the decision and their right to appeal.
These changes impose clear obligations on the Secretary, ensuring that all parties affected by decisions regarding aviation licences and certificates are informed of the reasons for those decisions and their rights to seek a review. The Secretary must provide comprehensive written notifications to applicants and licence holders, detailing the reasons for any refusals, variations, suspensions, or cancellations, and clearly outlining the appeal process. These obligations are designed to enhance transparency and fairness in the administration of aviation regulations.
Failure to comply with these new provisions could lead to significant consequences. While the regulations themselves do not specify particular offences or penalties for non-compliance, the underlying statutes and administrative law principles imply that non-compliance could result in judicial review or other legal actions. The impact on the validity of a licensing decision is mitigated by sub-regulations 255(4) and 258(2A), which ensure that the validity of such decisions is not affected by any failure to inform the applicant or licence holder of their appeal rights. This protects the regulatory framework while holding the Secretary to a high standard of procedural fairness.