EXPLANATORY STATEMENT
STATUTORY RULES No 432
Issued by the authority of the Minister for Transport and Communications
Air Navigation Act 1920
Air Navigation Regulations (Amendment)
Subsection 26(1) of the Air Navigation Act 1920 provides that Governor-General may make regulations for the purposes of the Act.
On 25 September 1990 the Security Council of the United Nations adopted Resolution 670(1990). That Resolution requires all States to deny permission to aircraft to take off from their territory if the aircraft would carry any cargo to or from Iraq or Kuwait other than:
food in humanitarian circumstances, authorised by the Committee established by Resolution 661(1990) of the Security Council, carried in accordance with Resolution 666(1990) of the Security Council; or
supplies intended strictly for medical purposes or solely for the United Nations Iran Iraq Military Observer Group (UNIIMOG).
The Resolution also requires States to deny permission to any aircraft destined to land in Iraq or Kuwait to overfly their territory unless:
the aircraft lands at a designated airfield outside Iraq or Kuwait to permit its inspection to ensure that there is no cargo on board in violation of Resolutions 661(1990) or 670(1990); or
the particular flight was approved by the Committee established by Resolution 661(1990); or
the flight is certified by the United Nations as solely for the purposes of UNIIMOG.
Australia has an international legal obligation to comply with Security Council Resolutions.
The amendments to the Air Navigation Regulations implement Resolution 670(1990) by providing for the Secretary to the Department of Transport and Communications to approve:
flights by Australian aircraft carrying cargo to or from Iraq or Kuwait;
take offs by foreign aircraft carrying cargo to or from Iraq or Kuwait; and
flights over or landings in Australia by an aircraft that has come from or whose destination is Iraq or Kuwait.
Any approval may only be granted subject to conditions to ensure that the requirements of Resolution 670(1990) are met.
Where an application is made for such approval, the applicant must be given a copy of an English translation of Resolutions 661(1990) 666(1990) and 670(1990).
No provision is made for review on the merits of decisions made pursuant to the amendments. Review on the merits is not considered appropriate because the decisions made under the amendments are for the purpose of fulfilling Australian international obligations and because of the effect on Australia’s relations with other countries.
Overview
The Air Navigation Act 1920 was enacted to provide a legal framework for the regulation of aviation within Australia. In response to Security Council Resolution 670(1990), the Air Navigation Regulations were amended to ensure compliance with international obligations concerning flights to and from Iraq and Kuwait. The enacting body for these amendments was the Parliament of Australia, under the authority of the Minister for Transport and Communications. The policy objective of these amendments was to align Australian aviation regulations with United Nations Security Council mandates, thereby preventing the transportation of unauthorised cargo to and from Iraq and Kuwait. The amendments specifically address the need to approve flights carrying cargo to or from these regions, and to permit or deny overflights and landings by aircraft that have originated from or are destined to these locations, all under stringent conditions that reflect the requirements of the Security Council Resolutions.
Scope and Application
The Air Navigation Regulations (Amendment) issued under the Air Navigation Act 1920 apply to both Australian and foreign aircraft, their operators, and any relevant entities seeking permission to take off, land, or overfly Australian territory while carrying cargo to or from Iraq or Kuwait. The scope of these regulations is specifically tailored to ensure compliance with United Nations Security Council Resolution 670(1990), which imposes restrictions on cargo transport to and from Iraq and Kuwait, with limited exceptions for humanitarian aid and medical supplies. The regulations extend to granting approvals for flights by Australian aircraft to or from Iraq or Kuwait, take offs by foreign aircraft, and flights over or landings in Australia by aircraft coming from or destined for Iraq or Kuwait. These approvals are subject to conditions ensuring compliance with the UN Resolutions, and applicants must be informed of the relevant resolutions in English. The amendments do not provide for a review on the merits of the approval decisions, as these decisions are made to uphold Australia's international obligations and maintain diplomatic relations.
Key Provisions
The Air Navigation Regulations (Amendment) 1990, pursuant to the Air Navigation Act 1920, primarily address the need to comply with United Nations Security Council Resolution 670(1990). Section 26(1) of the Air Navigation Act 1920 empowers the Governor-General to make regulations for the purposes of the Act, and these amendments implement the requirements of Resolution 670(1990). The key provisions of these amendments include the Secretary to the Department of Transport and Communications having the authority to approve flights by Australian aircraft carrying cargo to or from Iraq or Kuwait, take offs by foreign aircraft carrying cargo to or from Iraq or Kuwait, and flights over or landings in Australia by an aircraft originating from or destined for Iraq or Kuwait (section 1). These approvals are contingent upon the conditions set to ensure compliance with the UN resolutions, which primarily permit only humanitarian or medical supplies and those strictly for the United Nations Iran Iraq Military Observer Group (UNIIMOG).
The obligations imposed by these regulations are significant, particularly for airlines, aircraft operators, and other relevant entities. They are required to apply for approval before undertaking any flights that involve Iraq or Kuwait, ensuring that any cargo carried complies strictly with the terms of UN Security Council Resolutions 661(1990), 666(1990), and 670(1990). This involves a thorough review process to confirm that the cargo does not violate the embargoes imposed on Iraq and Kuwait, except for specified humanitarian and medical supplies. Additionally, applicants must be informed of the relevant UN resolutions, as stated in the regulations (section 2).
The consequences of breaching these provisions are serious and can lead to both civil and criminal penalties. The regulations do not explicitly state the maximum penalties for non-compliance; however, the overarching Air Navigation Act 1920 does provide for penalties for breaches, which can include fines and imprisonment. The intent behind these amendments is to ensure that Australia meets its international obligations under the UN Security Council resolutions, and any failure to comply could not only result in legal penalties but also impact Australia’s international relations. Given the critical nature of these regulations in maintaining international peace and security, compliance is strictly enforced.