Civil Aviation Regulations (Amendment) 1991 No. 147
EXPLANATORY STATEMENT
STATUTORY RULES 1991 No. 147
CIVIL AVIATION REGULATIONS (AMENDMENT)
(ISSUED BY THE AUTHORITY OF THE MINISTER FOR SHIPPING AND AVIATION SUPPORT)
Section 98 of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in particular in relation to the imposition of penalties, not exceeding a fine of $5,000, for a contravention of a provision of the regulations or a direction, instruction or condition issued, given, made or imposed under, or in force by virtue of, the regulations.
The purpose of the regulations is to replace the general offence provisions in the Civil Aviation Regulations (the Principal Regulations) with specific penalties for each offence in the Principal Regulations.
Subregulation 281(1) as in force before these amendments provided that it was an offence for a person to contravene a provision of the Principal Regulations. Subregulation 281(5) as in force before these amendments provided that if no other penalty was prescribed by the Regulations the penalty for contravening a provision of the Regulations was $2500 if the offence was prosecuted summarily and $5000 if the offence was prosecuted upon indictment.
The Principal Regulations have been amended by omitting subregulations 281(1) and (5) and instead providing a specific maximum penalty of $500, $1000, $2500 or $5000 for the various offences in the Regulations. In many instances this simply requires the inclusion of a penalty at the foot of the relevant regulation or subregulation. In other cases, however, it has been necessary to restructure particular regulations to create a specific offence. For example regulation 22B which empowers the Authority to issue a certificate of type approval subject to conditions has been amended by the insertion of subregulation 22B(4). The subregulation makes it an offence to contravene a condition to which a certificate of type approval is subject.
Other consequential amendments have also been necessary. Certain regulations needed to be amended to specifically refer to the person who will be guilty of an offence if the regulation is not complied with. Generally this will be the holder of the certificate of registration for the aircraft or the pilot in command of the aircraft.
It has also been necessary in some cases to provide an exception to particular offences for a person who has a reasonable excuse for contravening certain regulations. This exempts a person who fails to comply with a provision or a direction for a legitimate reason, such as in an emergency.
The amendments have been recommended by the Attorney-General's Department because the previous scheme was contrary to criminal law policy. This is because the Regulations did not provide the Courts or the public with any guidance as to the relative seriousness with which the Legislature regarded particular offences.
The amendments commenced on the day of gazettal.
Overview
The Civil Aviation Regulations (Amendment) 1991 No. 147 was enacted to address a significant gap in the regulatory framework governing civil aviation in Australia. These amendments were made under the authority of the Minister for Shipping and Aviation, pursuant to Section 98 of the Civil Aviation Act 1988. The primary objective of these amendments was to replace the general offence provisions in the Civil Aviation Regulations with specific penalties for each offence, thereby providing clarity and consistency in enforcement. The previous regulatory scheme was deemed inconsistent with criminal law policy as it failed to offer any indication of the relative severity of particular offences, both to the courts and the public. The amendments ensure that specific maximum penalties are clearly defined for various offences, thereby enhancing the predictability and fairness of the regulatory regime.
Scope and Application
The Civil Aviation Regulations (Amendment) 1991 No. 147 applies to all individuals, entities, and activities within the scope of the Civil Aviation Regulations 1988, which includes aircraft operators, pilots, and other aviation personnel. The regulations are applicable nationally across Australia, as they are made under the authority of the Civil Aviation Act 1988, a Commonwealth Act. The amendment specifically aims to clarify and replace the general offence provisions within the Civil Aviation Regulations with explicit penalties for each offence, thereby ensuring that the seriousness of different violations is clearly communicated and uniformly enforced. The amendments set out specific maximum penalties ranging from $500 to $5000 depending on the nature and severity of the offence. Some provisions include exemptions for individuals who can demonstrate a reasonable excuse for non-compliance, such as actions taken in an emergency situation. The application of these regulations is further extended and detailed through subordinate instruments, which may include further specifications and exceptions not explicitly stated in the primary regulations.
Key Provisions
The Civil Aviation Regulations (Amendment) 1991 No. 147, issued under the authority of the Minister for Shipping and Aviation, introduces significant changes to the penalties for contravening the Civil Aviation Regulations (Principal Regulations). Section 281 of the Civil Aviation Act 1988, which previously outlined general penalties for contraventions, has been replaced with specific penalties for each offence outlined in the Principal Regulations. This change ensures that the courts and the public have a clearer understanding of the seriousness of the various offences within the aviation sector. These amendments are intended to provide a more structured approach to penalties, aligning with current criminal law policies.
The regulations impose specific obligations on various parties, including aircraft owners, pilots, and aviation authorities. For example, under the new regulations, the holder of a certificate of registration for an aircraft or the pilot in command is generally the person responsible for compliance with the regulations. This includes adherence to any conditions attached to a certificate of type approval, with subregulation 22B(4) making it an offence to contravene such conditions. The regulations also require that in many instances, a specific penalty is stated at the end of the relevant regulation or subregulation, thereby clarifying the consequences of non-compliance. In some cases, restructuring of the regulations was necessary to create specific offences, such as those related to the issuance of type approval certificates.
Failure to comply with the amended regulations can lead to various penalties, depending on the nature and severity of the offence. The specific maximum penalties range from $500 to $5000. For example, if a person contravenes a provision of the regulations, the penalty may be up to $5000 if the offence is prosecuted on indictment. Conversely, if prosecuted summarily, the penalty could be as low as $500. The amendments also include provisions for exceptions, such as when a person has a reasonable excuse for not complying with certain regulations, such as in an emergency situations. These exceptions are intended to provide flexibility in cases where non-compliance is unavoidable due to legitimate reasons.
The new penalty structure aims to ensure that the severity of the penalties reflects the seriousness of the offence, providing better guidance to both the courts and the public. The amendments have been recommended by the Attorney-General's Department to align with criminal law policy, addressing the previous lack of clarity regarding the relative seriousness of different offences within the aviation sector. These changes came into effect on the date of gazettal, marking a significant update to the regulatory framework governing civil aviation in Australia.