EXPLANATORY STATEMENT
STATUTORY RULES 1990 NO. 289
Issued by authority of the Minister for Shipping and Aviation Support
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.
A commitment was given to the Senate Standing Committee on Regulations and Ordinances that the Civil Aviation Regulations (the Regulations) would be amended to clarify various provisions relating to the service of notices and to require persons authorised for purposes of the Regulations to carry and produce proof of identity. The purpose of the amendments to the Regulations is to honour the commitment given to the Committee. This is achieved by:
(a) amending the provisions that provided that the notification of decisions can be served by post on a person or “be otherwise brought to his or her attention”. The method of bringing the notification of a decision to a person’s attention is now set out in each regulation; and
(b) requiring a person authorised for purposes of the Regulations to be issued with an identity card and requiring the identity card to be produced if requested in certain specified circumstances.
A minor drafting error in subregulation 176(1) has also been corrected.
Details of the amendments are in the Attachment.
The amending Regulations commenced on the date of their notification in the Gazette.
ATTACHMENT
DETAILS OF AMENDMENTS
Regulation 1 - Principal Regulations
This regulation provides that, for purposes of the amending Regulations, “Principal Regulations” means the Civil Aviation Regulations.
Regulation 2 - Civil Aviation Orders
This regulation added a new subregulation (3) to the existing regulation 5. Regulation 5 provides that a direction, instruction or notification by the Civil Aviation Authority (CAA) may be issued in Civil Aviation Orders. The new subregulation provides that, in such cases, the direction, instruction or notification will be taken to have been served on a person on the date on which the making of the Order is notified in the Gazette.
Regulation 3 - Identity cards
This Regulation inserted a new regulation 6A into the Regulations. Existing regulation 6 provides that the CAA may appoint persons to be authorised persons for purposes of the Regulations. The new regulation 6A provides that the CAA must issue identity cards to those authorised persons. An identity card must bear a recent photograph of the person to whom it is issued, must state that the person is an authorised person for the purposes of a specific regulation and must be in a form approved by the CAA. A person who ceases to be an authorised person must return his or her identity card to the CAA.
Regulation 4 - Certificates of approval
This regulation added new subregulations (5) and (6) to the existing regulation 30. Regulation 30 provides that, for the purpose of ascertaining whether the activities to which a certificate of approval applies are being carried out in a satisfactory manner (where the certificate gives a person approval to engage in the design, manufacture, distribution or maintenance of aircraft, aircraft components or aircraft materials), an authorised person may:
(a) inspect any aircraft, aircraft component or aircraft material;
(b) inspect any process or systems carried on by, or records held by, the certificate holder;
(c) conduct tests; or
(d) require the certificate holder to furnish certain information.
The new subregulations 30(5) and 30(6) provide that an authorised person must produce his or her identity card if requested to do so by the certificate holder or by a person who has any control over any subject matter or thing being, or to be, tested or inspected. If the authorised person fails to produce his or her identity card, that person is not authorised to carry out inspections or tests and must cease any inspections or tests being carried out.
Regulation 5 - Admission to crew compartment
This regulation added new subregulations (5) and (6) to the existing regulation 227. Regulation 227 requires the pilot in command of an aircraft to admit an authorised person to the crew compartment of the aircraft.
The new subregulations 227(5) and 227(6) provide that an authorised person requiring access, or who has been granted access, to the crew compartment of an aircraft must produce his or her identity card if requested to do so by the pilot in command. If the authorised person fails to produce his or her identity card, that person is not permitted to have access to the crew compartment. If that person has already been admitted to the crew compartment, he or she must leave immediately.
Regulation 6 - Access of authorised persons to aerodromes, aircraft etc
This regulation added new subregulations (2) and (3) to the existing regulation 305. Regulation 305 provides that an authorised person shall have access to any place to which access is necessary for the purpose of carrying out any powers or functions vested in the person under the Regulations.
The new subregulations 305(2) and 305(3) provide that an authorised person must produce his or her identity card if requested to do so by the occupier or person in charge, or apparently in charge, of the place or thing to which access is sought. If the authorised person fails to produce his or her identity card, that person is not permitted access and, if access has already been granted, that access must be terminated.
Regulation 7 - Further amendments
This regulation provided for further amendments to the Regulations as set out in the Schedule to the amending Regulations. Except for the amendment to subregulation 176(1), these amendments all relate to provisions where the manner of service of notice is to be clarified.
The amendment to subregulation 176(1) corrected a minor grammatical error by replacing the words “an licence” with “a licence”.
All the previous provisions relating to service of notice provided that the notification etc may be served by post on the person or be otherwise brought to his or her attention. All references to notifications etc being served “by post” were deleted and in their place, the expression “served” is used. By virtue of section 28A of the Acts Interpretation Act 1901, reference to post is unnecessary. That section provides that a document may be served:
(a) on a natural person -
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by prepaid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b) on a body corporate - by leaving it at, or sending it to, the head office, a registered office or a principal office of the body corporate.
In addition, amendments to subregulations 26(4) and 29(5) provide that a notification or direction may be affixed to the aircraft to which it relates if it cannot be served on a person. Subregulation 26(4) relates to the notification of the suspension of the certificate of airworthiness of an aircraft and subregulation 29(5) relates to a direction that an aircraft of a Contracting State (that is, a country other than Australia, that is a party to the Convention on International Civil Aviation) may not fly, where that aircraft has suffered major damage or has developed a major defect. In either case, flight by the aircraft could lead to a serious accident and it is necessary that the aircraft be prevented from flying. Fixing a notice to the aircraft ensures that the notice will come to the attention of any person who intends to fly the aircraft.