Air Navigation Regulations (Amendment) 1993 No. 318
EXPLANATORY STATEMENT
Statutory Rules 1993 No. 318
Issued by Authority of the Minister for Transport and Communications
Air Navigation Act 1920
Air Navigation Regulations (Amendment)
Paragraph 26(1)(d) of the Air Navigation Act 1920 (the Act) provides that the Governor-General may make regulations, for the purposes of the Act, in relation to air navigation, being regulations with respect to trade and commerce with other countries.
Subsection 26(2) of the Act provides that regulations may be made for or in relation to:
• the licensing of air transport operations [paragraph 26(2) (c)]; and
• the imposition of penalties not exceeding a fine of $5,000 [paragraph 26 (2) (k)].
The Air Navigation Regulations (the Regulations) contain detailed provisions in relation to the licensing of international air transport operations and the granting of timetable approvals.
The amending Regulations revise those provisions. By and large the amendments simply redraft the existing provisions using the "plain English" drafting style. The amendments also clarify the intention of the Regulations.
The main features of the amending Regulations and where they differ from the present Regulations are set out below.
Timetable Provisions
The amending Regulations will:
• define a number of key expressions in the Regulations, such as "agreement.", "foreign country", "international air service", "licensed international airline" and "relevant agreement" [proposed amendments to Regulation 5];
• clarify that the definition of "timetable" includes the capacity on all or part of the route of an international air service [proposed amendments to Regulation 5];
• spell out the minimum requirements for an application for timetable approval [proposed new Regulation 106B(2)];
• remove any doubt about the power of the Secretary to impose conditions in relation to a timetable [proposed new Regulation 106C(1)(b)(ii)];
• ensure that the Secretary, when determining an application for timetable approval, may have regard to the likely type, proportion or amount of traffic, or the origin or destination of traffic, that may be carried on all or part of the route of a service [proposed new Regulation 106B(2)(c)];
• consolidate the provisions relating to variation, suspension and cancellation of approved timetables [proposed new Regulation 106D];
• enable the Secretary to vary, suspend or cancel a condition in relation to an approved timetable, or impose a further condition in relation to an approved timetable [proposed new Regulation 106D(1)];
• remove any doubt about the power of the Secretary to vary, suspend or cancel an approved timetable, or a condition in relation to an approved timetable, or impose a further condition in relation to an approved timetable, if the airline fails to operate a service in accordance with the approved timetable or in accordance with a condition subject to which the timetable is approved [proposed new Regulation 106D(1)(b)];
• enable the Secretary to vary, suspend or cancel an approved timetable, or a condition in relation to an approved timetable, or impose a further condition in relation to an approved timetable, if, in the opinion of the Secretary, the airline, or the government or an authority of a foreign country, has contravened the relevant agreement [proposed new Regulation 106D(1)(d)]. Bilateral aviation agreements, like other international treaties, are susceptible to differing interpretation by the parties to the agreement and it is often difficult to reach a conclusion that one or other of the interpretations is incorrect. The inclusion of the subjective test is to ensure that the Secretary is able to give primacy to Australia's interpretation of its international obligations;
• specify that the conditions which can be imposed in relation to a timetable may relate to the type, proportion or amount of traffic or the origin or destination of traffic, that may be carried on all or part of the route of the service concerned [proposed new Regulation 106E];
• consolidate the offences relating to timetables and increase the level of penalty [proposed new Regulation 106F]; and
• provide for a defence in relation to advertising a timetable that has not been approved by the Secretary where the advertisement states that the operation of the services is subject to Government approval [proposed new Regulation 106F(3)].
Licensing provisions
The amending Regulations will:
• remove the current requirement that a licence shall remain in force for a period not exceeding one year. Under the revised provisions, a licence remains in force until it is cancelled or suspended in accordance with the Act or the Regulations [proposed new Regulation 194(1)]. This will obviate the need for annual licence renewals; and
• clarify the circumstances in which the Secretary may vary the terms of a licence [proposed new Regulation 194(2)]. These are broadly consistent with the circumstances in which the Secretary may vary the terms of a timetable approval.
Transitional and Savings Provisions
The amending Regulations will:
• provide that applications received, but not determined, prior to the commencement of the Regulations are to be determined in accordance with the amended Regulations; and
• preserve existing timetable approvals and treat them as approvals made under the amended regulations.
The Regulations commenced on gazettal.