Civil Aviation Regulations (Amendment) 1998 No. 236
EXPLANATORY STATEMENT
STATUTORY RULES 1999 NO. 236
Issued by the authority of the Minister for Transport and Regional Development
Civil Aviation Act 1988
Civil Aviation Regulations (Amendment)
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in relation to the safety of air navigation.
PURPOSE OF REGULATIONS
Regulation 272 of the Civil Aviation Regulations (the Regulations) provided that neither the Commonwealth nor the Civil Aviation Safety Authority (CASA) were liable for any expense, loss or damage incurred because of, or arising out of, the cancellation or suspension of a licence, certificate or authority granted under the Regulations.
The new regulations omit regulation 272. The primary reason for doing so is that CASA did not wish to be seen as relying on an exemption provision of this sort in order to avoid being held liable for failure to act reasonably or without due care. CASA believed that it should be accountable for its actions and seen to be accountable for its actions. Accordingly it was no longer appropriate for CASA to retain statutory protection in cases where it had acted unreasonably or negligently.
The repeal of regulation 272 does not change the legal position of delegates of CASA exercising powers of suspension or cancellation under the Regulations, As it stood, regulation 272 did not prevent actions against delegates. Regulation 272 only provided a bar to actions against CASA, i.e. the legal entity created by the Civil Aviation Act 1988. Individuals who had their licences suspended or cancelled were free to sue the individual delegate for any loss suffered as a result of the suspension or cancellation.
Delegates exercise statutory powers in their own name and are personally liable for any damage caused by the exercise of their delegated powers. However CASA had agreed to indemnify delegates against legal action that may arise from the reasonable exercise of their delegated powers. This will not change as a result of the repeal of regulation 272.
REGULATION IMPACT STATEMENT
The attached Regulation Impact Statement has been cleared by the Office of Regulation Review as suitable for attachment to this Statement.
AMENDMENT OF THE REGULATIONS
The amendment of the Regulations omits regulation 272.
The Regulations commenced on gazettal.
Details of the Regulations are attached.
ATTACHMENT
REGULATION 1 (Commencement) This regulation provides that the Regulations commence on gazettal.
REGULATION 2 (Amendment) This regulation provides that the Civil Aviation Regulations (the Regulations) are amended as set out in the Regulations.
REGULATION 3 (Regulation 272 (Liability for expense arising out of cancellation or suspension of licence, certificate or authority)) This regulation omits regulation 272.
Overview
The Civil Aviation Regulations (Amendment) 1998 No. 236, issued under the authority of the Minister for Transport and Regional Development, was enacted to address the accountability of the Civil Aviation Safety Authority (CASA) in relation to the safety of air navigation. This amendment arose from a desire by CASA to remove a statutory protection that shielded it from liability in cases where it had acted unreasonably or negligently. By repealing regulation 272, which previously exempted CASA from liability for expenses, losses, or damages incurred due to the cancellation or suspension of a licence, certificate, or authority, the legislation aims to ensure that CASA is held accountable for its actions. The repeal does not affect the personal liability of CASA delegates who exercise powers of suspension or cancellation, as they remain individually liable for any damages caused by the exercise of their powers. This amendment reflects a policy objective of transparency and accountability in the administration of civil aviation safety regulations.
Scope and Application
The Civil Aviation Regulations (Amendment) 1998 No. 236 amends the Civil Aviation Regulations to omit regulation 272, which previously exempted the Commonwealth and the Civil Aviation Safety Authority (CASA) from liability for any expense, loss, or damage arising from the cancellation or suspension of a licence, certificate, or authority granted under the Civil Aviation Regulations. This change reflects CASA’s desire to be accountable for its actions and to avoid reliance on statutory exemptions in cases of unreasonable or negligent actions. The amendment ensures that CASA is held liable for its actions, while the legal position of CASA delegates exercising suspension or cancellation powers remains unchanged. Delegates are still personally liable for damages caused by the exercise of their powers, and CASA will continue to indemnify them against legal action arising from the reasonable exercise of these powers. This amendment applies to all entities and individuals governed by the Civil Aviation Regulations, with no specified exclusions or thresholds, and it extends across the Commonwealth of Australia as per the Civil Aviation Act 1988.
Key Provisions
The Civil Aviation Regulations (Amendment) 1998 No. 236 primarily focuses on the repeal of regulation 272 (Regulation 3). Regulation 272, which previously stated that neither the Commonwealth nor the Civil Aviation Safety Authority (CASA) were liable for any expense, loss or damage incurred due to the cancellation or suspension of a licence, certificate or authority granted under the Civil Aviation Regulations, has been omitted. The primary objective of this amendment was to ensure that CASA is accountable for its actions and seen to be so, rather than relying on a statutory exemption to avoid liability for unreasonable or negligent actions. This change does not affect the personal liability of CASA delegates who exercise statutory powers in their own names, nor does it affect CASA's agreement to indemnify its delegates against legal action arising from the reasonable exercise of their powers.
The new regulations impose obligations on CASA to be transparent and accountable in its actions. By removing regulation 272, CASA is now subject to legal action for any losses incurred due to the unreasonable or negligent cancellation or suspension of licences, certificates, or authorities. This shift in liability aims to uphold the standard of due care expected from regulatory bodies in their operations. CASA must ensure that its actions comply with the highest standards of reasonableness and care to avoid potential legal repercussions.
Failure to act with due care or reasonability can lead to civil liability for CASA. Although CASA delegates remain personally liable for any damages caused by the exercise of their delegated powers, the repeal of regulation 272 ensures that CASA, as a legal entity, is not shielded from liability in cases of negligence. This means that individuals who have suffered losses due to the unreasonable actions of CASA can now pursue legal action against the authority itself. The maximum penalties or specific consequences for such breaches are not detailed in the provided text but would typically involve compensation for the incurred losses and potential administrative sanctions.