EXPLANATORY statement

Select Legislative Instrument 2007 No. 70

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

Civil Aviation Act 1988

Civil Aviation Amendment Regulations 2007 (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.  In particular, paragraph 98(1)(f) provides that regulations may be made in relation to safety of air navigation, being regulations with respect to matters which the Parliament has power to make laws.

In November 2000, the Australian and New Zealand Governments undertook to adopt a policy of recognising all aviation-related certification (including Air Operator Certificates [AOCs]) issued by their respective safety regulators to airlines and covered by the “proposed Air Services Agreement” (which was subsequently entered into in August 2002).  Since that time, the Australian Department of Transport and Regional Services and the Civil Aviation Safety Authority (CASA) and the New Zealand Ministry of Transport and Civil Aviation Authority New Zealand (CAA NZ) have been working on implementing that policy.

On 16 September 2006, the Civil Aviation Legislation Amendment (Mutual Recognition with New Zealand) Act 2006 (Amendment Act) received Royal Assent.  Items 1 to 19 of Schedule 1 to the Amendment Act permit the operation of certain aircraft in Australia under authority of a special type of AOC issued by CAA NZ (‘New Zealand AOC with ANZA privileges’), and enables CASA to issue a special type of AOC (‘Australian AOC with ANZA privileges’) which permits the operation of similar aircraft in New Zealand.  A similar and reciprocal Act, the Civil Aviation Amendment Act 2004 (NZ) which amends the Civil Aviation Act 1990 (NZ), was passed by the New Zealand Parliament on 18 March 2004 and commenced the same time the Australian legislation commenced (30 March 2007).

The Regulations support the amendments to the Act and give effect to the Government’s mutual recognition policy by:

• defining the ANZA mutual recognition agreements for the purposes of the Act;
• limiting the application of the policy to operators of large-capacity aeroplanes that are registered in either Australia or New Zealand; and
• consistent with the principles outlined below, exempting holders of New Zealand AOCs with ANZA privileges from certain provisions of the Civil Aviation Regulations 1988.

Details of the Regulations are set out in the Attachment.

As part of the process of implementing the policy of mutual recognition of AOCs, both aviation safety regulators (CASA and CAA NZ) have gone through a process of identifying regulations which may inadvertently pose difficulties for airlines operating under the authority of a mutually-recognised AOC.  The regulators have done so on the basis of consistency with responsibilities under the Convention on International Civil Aviation done at Chicago 1944 (Chicago Convention) and its Annexes, formulated into the following principles:

• responsibility for safety oversight (audit and surveillance, granting of operating permissions and exemptions, etc.) is to remain with the regulator who issued the operator’s AOC (‘home regulator’);
• rules regulating the manner and conduct of aircraft operations (Annex 6 rules) are to be those of the home jurisdiction;
• rules regulating the maintenance and airworthiness of aircraft (Annex 8 rules) are to be those of the country in which the aircraft are registered; and
• rules regulating the flight and manoeuvre of aircraft (Annex 2 rules) are to be those of the country in which the aircraft are flying (or, in international airspace, those of the country in which the aircraft are registered).

Office of Best Practice Regulation, the former Office of Regulation Review, has determined that a Regulation Impact Statement (RIS) is not required for the regulations as they had been adequately considered in the RIS for the Civil Aviation Legislation Amendment (Mutual Recognition with New Zealand) Bill 2005.

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

Item 2 of the Regulations identifies two documents for the purposes of the definition of ANZA mutual recognition agreements in subsection 3(1) of the Civil Aviation Act 1988.  ‘Mutual recognition agreements’ is defined to mean:

• the high level arrangement between the Governments of Australia and New Zealand entitled ‘Arrangement between the Australian and New Zealand Governments on mutual recognition of aviation-related certification’ signed at Wellington on 13 February 2007; and
• the technical document setting out details on the operation of the ANZA mutual recognition principle entitled ‘Operational Arrangement between the Civil Aviation Safety Authority of Australia and the Civil Aviation Authority of New Zealand in relation to mutual recognition of Air Operator Certificates’ signed on 16 March 2007.

These documents are incorporated by reference and are available on the Internet at:  http://www.dotars.gov.au/aviation/legislation/amendment/pdf/HLA_signed_version.pdf; and http://www.dotars.gov.au/aviation/legislation/amendment/doc/Aust-NZ_MR_Operational_Arrangement.doc respectively.

The Regulations commenced on the commencement of items 1 to 19 of Schedule 1 to the Amendment Act.

        ATTACHMENT

DETAILS OF THE CIVIL AVIATION AMENDMENT REGULATIONS 2007 (NO. 1)

Regulation 1 – Name of Regulations

Regulation 1 is a formal provision specifying the name of the Regulations.

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on the commencement of items 1 to 19 of Schedule 1 to the Civil Aviation Legislation Amendment (Mutual Recognition with New Zealand) Act 2006.

Regulation 3 – Amendment to Civil Aviation Regulations 1988

Regulation 3 provides for the amendment of the Civil Aviation Regulations 1988 (CARs) in accordance with Schedule 1.

SCHEDULE 1 – AMENDMENTS

Items 1 and 10 – This moves the definition of large-capacity aeroplane from regulation 262AA, Division 5, Part 14, to subregulation 2(1) in alphabetical order in the list of definitions.  Consequently, the definition applies by default to all provisions of the CARs (including in particular provisions on mutual recognition of Air Operator Certificates (AOCs)), not just the provisions in Division 5, Part 14.

Item 2 – This item identifies two documents for the purposes of the definition of ANZA mutual recognition agreements in subsection 3(1) of the Civil Aviation Act 1988.  The term refers to the high level arrangement between Australia and New Zealand entitled ‘Arrangement between the Australian and New Zealand Governments on mutual recognition of aviation-related certification’ and the technical document for the operation of mutual recognition between the two countries entitled ‘Operational Arrangement between the Civil Aviation Safety Authority (CASA) of Australia and the Civil Aviation Authority (CAA NZ) of New Zealand in relation to mutual recognition of AOCs’.

 These two documents form the basis of the arrangements of mutual recognition of AOCs for the operation of aircraft of more than 30 seats or 15,000kg, as issued by CASA in Australia and CAA NZ in New Zealand.

Item 3 – Item 3 stipulates that Part 7 of the CARs relating to navigation logs does not apply to aircraft that are operated under New Zealand AOCs with Australia New Zealand Aviation (ANZA) privileges.  Such aircraft are subject to comparable regulatory requirements under New Zealand law. 

Items 4 and 5 – These items stipulate that regulation 174A (equipment of aircraft for Visual Flight Rules (V.F.R.) flight) and regulation 177 (equipment of aircraft for Instrument Flight Rules (I.F.R.) flight) do not apply to aircraft that are registered in New Zealand and operated under New Zealand AOCs with ANZA privileges.  Such aircraft are subject to comparable regulatory requirements under New Zealand law.  However, aircraft that are operated under New Zealand AOCs with ANZA privileges remain subject to regulations 174A and 177 if the aircraft are registered in Australia.  This is because the regulation of the installation of equipment in an aircraft is generally an airworthiness issue which, under the Chicago Convention, is the responsibility of the State of Registry of the aircraft.

Item 6 – This item inserts a new Division 1A entitled ‘AOCs with ANZA privileges’ which sets out the additional conditions for the issue of an Australian AOC with ANZA privileges.  The additional conditions are to ensure that the applicant will only use large-capacity aircraft that are registered in Australia or New Zealand for ANZA activities in New Zealand, and that CASA is satisfied of this fact.  This restriction reflects the scope of the mutual recognition scheme as agreed between Australia and New Zealand at the present time.

Items 7 to 9 – Items 7 to 9 stipulate that Divisions 2, 3 and 4 of Part 14 of the CARs do not apply to aircraft that are operated under New Zealand AOCs with ANZA privileges.  Those regulations contain certain requirements to ensure the safety of commercial operations, provisions relating to the actual conduct of operations (e.g. designation of pilots in command, admission to crew compartment etc.) and other general requirements relating to the operation of aircraft (e.g. prohibition of carriage of passengers on certain flights).  Aircraft that are operated under New Zealand AOCs with ANZA privileges are subject to comparable regulatory requirements under New Zealand law.