EXPLANATORY STATEMENT

Select Legislative Instrument 2005 No. 137

Issued under the authority of the Minister for Transport and Regional Services

Civil Aviation Act 1988

Civil Aviation Amendment Regulations 2005 (No. 1)

Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides, in part, that the Governor‑General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act, and regulations in relation to safety of air navigation, being regulations with respect to matters with respect to which the Parliament has power to make laws.

Subsection 9 (1) of the Act specifies, in part, that the Civil Aviation Safety Authority (CASA) has the function of conducting the safety regulation of civil air operations in Australian territory by means that include developing and promulgating appropriate, clear and concise aviation safety standards and issuing certificates, licences, registrations and permits.

The Civil Aviation Amendment Regulations 2003 (No.5), Statutory Rules 2003, No. 201 harmonised the Civil Aviation Regulations 1988 (CAR) with the Criminal Code to ensure that the existing offence provisions in the CAR continued to operate in the same manner as they did before the application of the Criminal Code to all Commonwealth legislation on 15 December 2001. Under regulation 262AP, operations in experimental aircraft at night, under the instrument flight rules (I.F.R.), or over built-up areas, were unlawful unless expressly approved by CASA or an authorised person.  The harmonisation amendments to the regulation were designed to make it clear that the non-existence of an approval was not an element of the offence, but rather the existence of an approval was a defence to the offence.  That is, the amendments made it clear that the defendant bore the evidentiary burden of establishing the existence of an approval to conduct what were otherwise unlawful operations

Unfortunately, the harmonising amendment made inadvertent changes to regulation 262AP, Experimental aircraft – operating limitations that removed reference to CASA or an authorised person authorising certain operations in experimental aircraft. Concern with the change to regulation 262AP was brought to CASA’s attention by affected aviation community stakeholders.  For the purposes of consultation, the Regulations have been developed in conjunction with the aviation industry Standards Consultative Committee (SCC) and the associated Operations Standards and Sport and Recreation Standards Sub-committees.

The Regulations clarify the operation of regulation 262AP, to make it clear once again that operations by experimental aircraft at night, under the I.F.R., and over built-up areas, are permitted if expressly approved by CASA or an authorised person.  Nevertheless, it remains the case that the evidentiary burden of establishing the existence of an approval would remain with the defendant in any criminal prosecution for breach of the regulation.

The Office of Regulation Review (ORR) has assessed that the Regulations have only a minor impact on business, are considered minor and machinery in nature and do not substantially alter existing arrangements and that the preparation of a Regulation Impact Statement (RIS) is not mandatory.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

Details of the Regulations are attached.

ATTACHMENT

Details of the Civil Aviation Amendment Regulations 2005 (No. 1)

Regulation 1 - Name of Regulations

Regulation 1 names the Regulations as the Civil Aviation Amendment Regulations 2005
(No. 1).

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

Regulation 3 - Amendment of Civil Aviation Regulations 1988

Regulation 3 provides that Schedule 1 amends the Civil Aviation Regulations 1988.

SCHEDULE 1 – Amendments

   (regulation 3)

Item 1 – Subregulation 262AP (4)

Item 1 amends subregulation 262AP (4) by re-inserting a previous provision that permitted operations over a city or built-up area subject to authorisation by CASA or an authorised person (an industry representative).  The authorisation provision was inadvertently removed by a previous amendment at the time of harmonising with the Criminal Code.

Item 2 – Subregulation 262AP (6), including the penalty

Item 2 amends subregulation 262AP (6) by re-inserting a previous provision that provided operational flexibility subject to authorisation to do so, granted by CASA or an authorised person (an industry representative).  The authorisation provision was inadvertently removed by a previous amendment at the time of harmonising with the Criminal Code.

Item 3 – Subregulation 262AP (14)

Item 3 deletes subregulation 262AP (14), a defence provision for subregulation 262AP (4), as this provision is no longer relevant following the amendment to subregulation 262AP (4) at Item [1]. The provision was inserted at the time of harmonising with the Criminal Code to cater for the amendment to subregulation 262AP (4) which had inadvertently removed alternative authorisation powers.

Item 4 – Subregulation 262AP (15), including the note

Item 4 deletes subregulation 262AP (15), a defence provision for subregulation 262AP (6), as this provision is no longer relevant following the amendment to subregulation 262AP (6) at Item [2]. The provision was inserted at the time of harmonising with the Criminal Code to cater for the amendment to subregulation 262AP (6) which had inadvertently removed alternative authorisation powers.