Explanatory Statement
Civil Aviation Regulations 1988
Repeal — permission to carry firearms in aircraft and to discharge firearms from aircraft (Western Australia Police Air Wing)
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor‑General may make regulations for the Act and the safety of air navigation.
Subregulation 143 (1) of the Civil Aviation Regulations 1988 (CAR 1988) states that a person, including a flight crew member, must not carry a firearm in, or have a firearm in his or her possession in, an aircraft other than an aircraft engaged in charter operations or regular public transport operations. Subregulation 143 (3) states that it is a defence to a prosecution under subregulation 143 (1) if the person had the written permission of CASA to have the firearm in the aircraft.
Subregulation 144 (1) of CAR 1988 states that a person, including a flight crew member, must not discharge a firearm while on board an aircraft. However, subregulation 144 (3) provides that it is a defence to a prosecution under subregulation 143 (1) if the person had the written permission of CASA to discharge the firearm while on board the aircraft and the firearm was discharged in accordance with the conditions (if any) specified in the permission.
Under subsection 33 (3) of the Acts Interpretation Act 1901 (the AIA), 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.
Instrument
On 20 January 2015, CASA issued instrument CASA 06/15 which applied to 2 aircraft operated by the State of Western Australia through the Commissioner of Police (the operator) under 2 Air Operator’s Certificates for fixed wing and rotary aircraft. The instrument permits persons employed by the operator and other organisations specified in the instrument (such as the Australian Federal Police and Australian Defence Force) to carry a firearm and discharge a firearm while on board the specified aircraft.
In March 2015, the operator and CASA held discussions to refine the application of the instrument, including imposing a new condition on firearms training while removing other conditions that were unnecessarily restrictive on the kind of firearms carried and type of operations conducted by the operator. During this review process, CASA concluded that permissions issued under regulations 143 and 144 of CAR 1988 are, for the purposes of section 5 of the Legislative Instruments Act 2003 (the LIA), administrative in character since it involves applying legislative power granted to CASA to issue permissions of this kind. The content of the law is not otherwise determined or altered. Further, permissions of this kind do not attract the operation of subsection 98 (5A) of the Act (which attract rules on whether an instrument is a legislative instrument) since the permissions would be issued under provisions in CAR 1988 that have not been made for the purpose of subsection 98 (5A).
Consequently, CASA has decided to repeal CASA 06/15 and reissue a revised permission, developed in consultation with the operator, as a separate non-legislative instrument.
Legislative Instruments Act 2003
Instrument CASA 40/15 repeals CASA 06/15 which is a legislative instrument that will expire at the end of December 2017. Under subsection 33 (3) of the AIA, the relevant power of making for instrument CASA 40/15 must be exercisable in a like manner to the instrument being repealed. Instrument CASA 40/15 is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The instrument repeals CASA 06/15 and, at the operator’s request, CASA has issued a separate non-legislative instrument covering the operator’s activities with firearms carried in aircraft. It is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The instrument has been made by a delegate of CASA appointed under subregulation 11.260 (1) of the Civil Aviation Safety Regulations 1998.
The instrument commences on the day of registration.
[Instrument number CASA 40/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Repeal — permission to carry firearms in aircraft and to discharge firearms from aircraft (Western Australia Police Air Wing)
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 legislative instrument repeals instrument CASA 06/15, being a permission for specified persons to carry and discharge firearms while on board aircraft operated by Western Australian Police.
CASA will issue a revised non-legislative instrument covering the same matters.
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.
Civil Aviation Safety Authority