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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CIVIL AVIATION AMENDMENT BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Infrastructure, Transport,
Regional Development and Local Government
the Honourable Anthony Albanese MP)
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CIVIL AVIATION AMENDMENT BILL 2009
OUTLINE
The purpose of the Civil Aviation Amendment Bill 2009 (the Bill) is to make amendments to
the Civil Aviation Act 1988 (the CA Act) to improve the governance of the Civil Aviation
Safety Authority (CASA), primarily by creating a Board for CASA, strengthening CASA`s
capacity to take necessary safety action and providing for the Secretary of the Department to
delegate certain powers under the CA Act.
The Bill implements the National Aviation Policy Green Paper commitment to enhancing
CASA`s corporate governance by creating a small Board and introducing improvements in
the legislation under which important aspects of CASA`s core functions are administered.
Circumstances have clearly changed since the decision in 2003 to abolish the CASA Board.
Since then, a substantial amount of organisational reform has been undertaken within CASA,
something acknowledged by the Senate Standing Committee on Rural and Regional Affairs
and Transport in its 2008 report Administration of the Civil Aviation Safety Authority
(CASA) and related matters. The way CASA interacts with the aviation industry has also
evolved. Importantly, this Bill implements one of the Senate Committee Report`s key
recommendations -- to introduce a small board of up to five members to provide enhanced
oversight and strategic direction for CASA.
There is widespread support within industry for a new CASA Board that will assist the
organisation to manage the implications of industry growth and other industry trends, such as
low-cost carriers, and to facilitate effective interaction between the regulator and industry.
There are technological and other changes taking place in the aviation sector that point to the
need for governance arrangements that ensure that CASA is equipped to monitor and drive
safety outcomes. The new Board is expected to facilitate better relations across agencies with
safety responsibilities and also assist in the integration of industry and other related
stakeholder inputs into strategy.
The Bill creates a five member CASA Board. One member will be appointed as the Chair of
the Board and a second will be appointed as the Deputy Chair. The CASA Director of
Aviation Safety (Director`) will be an ex officio member of the Board.
The Bill states that the CASA Board is not intended to represent sectional interests of the
aviation industry. It is intended solely as a governance Board working for the overall safety
benefit of the Australian community. CASA`s role inherently involves striking a balance
between the competing needs of different industry sectors. The Board will operate at a
strategic level, supporting CASA`s regulatory and safety oversight role and will not be
directly involved in the day to day activities of the Authority.
The primary functions of the Board are: deciding on the objectives, strategies and policies to
be followed by CASA; ensuring CASA performs its functions in a proper, efficient and effective
manner; and ensuring that CASA complies with directions given by the Minister under section 12B.
The Bill states that the Director will continue to manage CASA under the Board`s strategic
guidance and will be responsible to the Board. The Director will retain responsibility for day-
to-day executive decision-making, staffing and financial management and will be the chief
executive officer.
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The Bill provides that the Minister is the appointing authority for Board membership (except
in the case of the Director who is an ex officio member). The Minister will have the power to
appoint a person to act as a member during the absence or unavailability of a member or
during a vacancy in an office of a member except for the Director.
Board members are to be appointed for periods stated in their instruments of appointment.
The maximum term of appointment would be for three years. Board members will be
appointed on a part-time basis and all members are eligible for reappointment.
With regard to remuneration and other terms and conditions of non-Director Board
appointees, the Bill provides that Board members will be entitled to remuneration and
allowances as determined by the Remuneration Tribunal and otherwise as provided in the
regulations.
The Bill provides for appointment of non-Director Board members to be terminated by the
Minister on specified grounds including misbehaviour, bankruptcy or unsatisfactory
performance. The Minister will also have the power to terminate the appointments of the
entire Board (other than the Director) if the Minister considers that the performance of CASA
Board members, or of CASA, has been unsatisfactory for a significant period of time, or
where the Board has failed to comply with its reporting obligations under the CA Act or the
CAC Act. Non-Director members will be able to resign their appointment in writing delivered
to the Minister.
The Minister appointed a new CASA Director on a 5 year term from March 2009. The Bill
provides transitional provisions to continue the existing Director for the balance of his
existing appointment. Subsequent Director appointments will be made by the Board after
consultation with the Minister. Acting Director appointments will also be a matter for the
Board.
With regard to remuneration and other terms and conditions of the Director, the Bill provides
for the Director`s remuneration to be determined by the Remuneration Tribunal and the Board
may determine the non-remuneration terms and conditions. The Bill states that the Director
may not engage in paid employment outside the duties of his or her office except with the
Board`s approval.
The Bill provides for the appointment of the Director to be terminated by the Board, in
consultation with the Minister, on specified grounds including misbehaviour, bankruptcy or
unsatisfactory performance. The Director may resign his or her appointment in writing
delivered to the Board.
The Bill amends the CA Act to allow the Minister to notify the Board of any views the
Minister may have. The Board must take any Ministerial notifications into account when
fulfilling its duties.
The Bill will also make consequential amendments to the Aviation Transport Security Act
2004 to ensure consistency with the amendments to the CA Act.
The Bill also strengthens and improves CASA`s enforcement powers across a number of
areas. Recent experience has revealed some inadequacies in Australia`s safety regulatory
framework and underlined the desirability of enhancing CASA`s powers to take account of
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developments in the industry and implement a suite of twenty- first century enforcement tools.
The unlawful consignment or carriage of dangerous goods on an aircraft has previously been
classified either as an offence involving intent or recklessness, or as a strict liability offence--
to the latter of which a person`s honest and reasonable mistake of fact provides a complete
defence. However, the most common basis on which persons consign or carry dangerous
goods, namely, on a negligent basis, is not currently covered by the legislation. The Bill fills
this gap by creating the additional offence of negligently consigning or carrying dangerous
goods on an aircraft.
The Bill extends the period of Enforceable Voluntary Undertakings (EVU) - a written
undertaking from a holder of a civil aviation authorisation obliging the holder to take specific
action demonstrating a meaningful commitment to redress identified safety deficiencies -
from 6 months to one year. It often takes more than 6 months for an operator to fulfil its
commitments under a voluntary undertaking. This amendment eliminates the administrative
complications inherent in the process of entering into a fresh undertaking when the term of
the EVU expires and improves CASA`s ability to oversee the process.
Some minor, mechanical amendments clarify certain ambiguities in existing legislative
provisions, and eliminate unintended complications and unnecessary rigidity in the way those
provisions operate. One such amendment confirms that it is CASA, not the Executive
Director of Transport Safety and Investigation (as that position is currently designated in the
Transport Safety Investigation Act), that determines whether the circumstances giving rise to
the protections under the CA Act for reporting certain information to the ATSB entitle the
reporter to those protections.
Another such amendment ensures that demerit points that would otherwise be incurred where
a person has been convicted or found guilty of an offence under the regulations, or has paid
the administrative penalty assessed under an infringement notice issued for such an offence,
will be incurred in relation to a relevant civil aviation authorisations, even if the authorisation
is acquired after the offence was, but within three years of the offence being, committed, or if
the person takes steps to relinquish an authorisation, on a temporary basis, for the purpose of
avoiding demerit points.
The Bill contains a number of changes to CASA`s investigative powers and search and
seizure procedures to bring them into line with current Commonwealth criminal justice
procedures and practices. It will also extend powers to allow CASA to use search and seizure
powers under Chapter 7 of the Criminal Code. Amongst other things, thes e changes require
that CASA investigators are appropriately qualified and comply fully with contemporary
requirements governing the conduct of searches under, and in the absence of, a search
warrant, the management of evidence and the use of computers and related equipment in the
analysis of evidence.
Consistent with a key concern identified in the Green Paper, amendments are proposed in the
Bill to the automatic stay provisions to ensure that any extension beyond 5 days of a CASA
decision to vary, suspend or cancel certain civil aviation authorisations is the result of an
application to the Administrative Appeals Tribunal (AAT) for a stay, and the AAT's
determination of that application. The effect of this amendment would be to ensure that
important safety-related implications of permitting a stay to continue beyond a 5-day period
only occur if a stay order from the AAT is sought. This would minimise any incentive, on the
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part of civil aviation authorisation holders or other affected persons, to unreasonably delay a
determination of the matter on the merits by the AAT.
CASA`s ability to exercise more effective oversight of foreign aircraft operations is
significantly enhanced by a number of amendments to Part III of the CA Act. Essentially,
these amendments enable CASA to require applicants and holders of AOCs and other
permissions authorising the operation of foreign registered aircraft into, out of and within
Australia to provide more information about their ability and willingness to satisfy applicable
safety requirements, and to better enable CASA to assess the ability and willingness of the
regulatory authorities of the countries primarily responsible for the oversight of those
operators, and the aircraft they operate, to meet their safety-related obligations.
Modern aviation safety standards, procedures and practices are developed nowadays by expert
technical bodies and other authorities, and may change quickly and frequently in response to
important safety-related factors. In order to ensure that the regulations, and instruments made
under the regulations, reflect the most current safety standards, procedures and practices, a
number of amendments are proposed facilitating the processes by which these materials can
be lawfully and effectively incorporated, adopted or applied in a timely way.
FINANCIAL IMPACT STATEMENT
The financial impact of the Bill on the Commonwealth is expected to be minimal. A modest
increase in resourcing for CASA to support the new Board is currently being considered as
part of the 2009-10 Budget process.
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NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Comme ncement
2. The Bill contains three schedules of amendments. This clause specifies when the various
provisions of the Bill will commence. The time when particular provisions commence are
set out in the table in subclause 2(1).
Clause 3: Schedule(s)
3. This clause provides that the Civil Aviation Act 1988 is amended as set out in the
applicable items in the Schedules to the Bill. Schedule 1 implements changes to the
governance of CASA in the Civil Aviation Act 1988 and consequential amendments to the
Aviation Transport Security Act 2004. Schedule 2 implements amendments to CASA`s
enforcement system. Schedule 3 makes a range of other amendments.
Schedule 1 - Governance of CASA
Division 1 - Main amendments - Civil Aviation Act 1988
Item 1, 2, and 3 - Subsection 3(1)
1. Items 1, 2 and 3 insert several definitions into the Act to define Board, Board member and
Chair.
Item 4 - Subsection 3(1) (definition of corporate plan)
2. Item 4 amends the definition of corporate plan to place the responsibility for preparing the
plan onto the Board.
Item 5 - Subsection 3(1) (definition of Deputy Chair)
3. Item 5 inserts a definition into the Act. The Deputy Chair will be expected to fulf il the
role of the Chair whenever the Chair is absent.
Item 6 - Subsection 3(1) (definition of Director)
4. Item 6 amends the definition of Director to refer to the new arrangement where the Board
will be responsible for appointing future Directors.
Items 7 and 8--Subsections 12(1), 12(1A) and 12(4)
5. Items 7 and 8 are amendments to reflect that the Minister`s relationship will now be with
the Board and any directions would properly be given to the Board.
Item 9 - Subsection 12(5) (note)
6. Item 9 amends a note to clarify that not all General Policy Orders of the Commonwealth
Government are applicable to CASA, but that the Board must comply with those that are
applicable.
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Items 10 and 11 -Subsections 12A(1) and 12(A2)
7. Items 10 and 11 are amendments to reflect that the Minister`s relationship will now be
with the Board and any notices would properly be given to the Board.
Item 12 - Sections 12C and 12D
8. Item 12 repeals sections 12C and 12D, as these provisions are no longer required in the
CA Act. Section 12D required the provision of information to the Minister and the
departmental Secretary. This section should be repealed as it is no longer appropriate
with the establishment of a Board. Section 12C provided for an agreement between the
Minister and the Director about the performance of CASA`s functions and the exercise of
CASA`s powers. The Director`s supervisory relationship will now be with the Board. As
a result section 12C is no longer required and should be repealed.
Item 13 - Subsections 44(1), (3) and (6) (Corporate plan)
9. Item 13 amends the corporate plan requirements and places the responsibility for all
aspects of the preparation and communication of the plan on the Board.
Item 14 - Subsections 45(2) and (5)
10. Item 14 amends the requirement for the Minister to respond to the Board, rather than
instead of the Director, when giving directions to vary the corporate plan.
Item 15 - Paragraphs 49(2)(a) and (aa)
11. Item 15 repeals two paragraphs that are now redundant and substitutes a new paragraph
that lists a requirement for the Board to include details of each direction it receives from
the Minister in the Annual Report.
Item 16 - Paragraph 49(2)(b)
12. Item 16 is an amendment that updates references to reflect the creation of a Board.
Item 17 - Subparagraph 49(2)(b)(ii)
13. Item 17 amends the subparagraph to reflect the new relationship between the Minister and
the Board, as there is now no direct relationship between the Minister and the Director.
Item 18 - Part VII and Part VIIA
14. Item 18 repeals the previous Part VII and inserts a new Part VII (Board of CASA) and
Part VIIA (The Director and staff of CASA).
15. Part VII establishes the Board of CASA and provides for functions, appointment to the
Board and Board procedures. The purpose of Part VII is to provid e a legislative
framework for the Board, and to ensure that it will have the appropriate powers and
responsibilities to function appropriately. These amendments make clear that the
Minister`s direct relationship is now with the Board, not the Director.
16. New section 51 establishes the Board of CASA.
17. New section 53 specifies the Board`s functions.
18. New section 54 describes the processes by which Board members are appointed.
Subsection 54(3) expressly provides that the Minister must ensure an appropriate balance
of expertise when appointing Board members but makes it clear that this Board will not be
representational`. CASA`s role inherently involves striking a balance between the
competing needs of different industry sectors.
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19. New section 55 specifies that Board members hold office for the term specified in the
instrument of appointment, but that no Board member may be appointed for a term
exceeding 3 years.
20. New section 56 specifies matters related to Board members` remuneration and
allowances.
21. New section 57 deals with leaves of absence for the Chair and Board members.
22. New section 58 provides that the Minister may limit the circumstances under which Board
members may engage in outside employment, where the Minister considers such
employment may conflict with a member`s duties.
23. New section 59 specifies the process by which the Chair, the Deputy Chair and Board
members may resign their positions.
24. New section 60 specifies the circumstances under which the Minister may terminate t he
appointment of a Board member. Paragraph 60(2)(c) provides for the Minister to
terminate the appointment of individual Board members if the performance of the Board
member has been unsatisfactory for a significant period of time. Unsatisfactor y in this
provision is taken to mean with respect to contributing to the functions of the CASA
Board, in the wider context of civil aviation. Subsection 60(3) provides for the Minister to
terminate the appointment of all Board members or particular Board members if the
Minister is of the opinion that the performance of Board members or the performance of
CASA has been unsatisfactory for a significant period of time. For example, the Minister
would be able to consider CASA`s performance was unsatisfactory because of matters
such as failing to perform its functions, failing to comply with Directions or meeting
relevant administrative requirements. This section is not intended to be used where it is
claimed that CASA performance is unsatisfactory merely because CASA is implementing
a Government policy with which a person does not agree.
25. New section 61 allows for the Minister to specify terms and conditions in addition to
those set out in the Act, on which a Board member may hold office.
26. New section 62 provides for the appointment of an Acting Chair.
27. New section 63 provides for the appointment of acting Board members.
28. New section 64 specifies the times when and places where meetings of the Board are
required to and may be held.
29. New section 65 specifies who presides at meetings of the Board.
30. New section 66 specifies the constitution of a quorum of the Board.
31. New section 67 specifies the voting process at meetings of the Board.
32. New section 68 describes the regulation of proceedings at meetings of the Board.
33. New section 69 requires that the Board must keep minutes of meetings of the Board.
34. New section 70 specifies processes related to the taking of decisions by the Board without
meetings.
35. New section 71 requires that the Board must keep a record of decisions taken in
accordance with section 70.
36. Part VIIA provides for the appointment of a Director of Aviation Safety and staff of
CASA. This part is intended to provide a legislative basis for the appointme nt and
functions of the Director and staff of CASA. Consistent with Government policy the
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Director will be appointed by the Board and the Board must consult the Minister before
appointing a Director.
37. New section 72 provides that there is to be a Director of Aviation Safety.
38. New section 73 specifies the duties of the Director.
39. New section 74 describes the process by which the Director is appointed by the Board.
40. New section 75 specifies that the Director is to hold office for the period specified in the
instrument of appointment, but that the period of appointment must not exceed 5 years.
41. New section 76 specifies the process by which the Directors remuneration and allowances
are to be determined.
42. New section 77 describes the Director`s entitlements to recreation leave and leave of
absence.
43. New section 78 provides that the Director must not engage in paid outside employment
except with the approval of the Board.
44. New section 79 provides that, in addition to the provisions specified in the Act, the
Director holds office in accordance with such terms and conditions as the Board may
determine in writing.
45. New section 80 deals with the process by which the Director may resign his or her
position.
46. New section 81 specifies the grounds on which, and the process by which, the Board may
terminate the Director`s appointment. Paragraph 81(e) allows the Board (after consulting
the Minister) to terminate the appointment of the Director if the Board is satisfied that the
Director`s performance has been unsatisfactory.
47. New section 82 describes the circumstances under which, and the process by which, the
Board may appoint a person to act as Director.
48. New section 83 provides for the employment of persons by CASA, and specifies that suc h
persons are to be employed on terms and conditions determined by the Director in writing.
Item 19 - Subsection 94(1)
49. Item 19 allows the Director, by instrument in writing, to delegate all or any of CASA`s
powers under the Act, the regulations or an instrument made under the Act or the
regulations to an officer of CASA.
Item 20 - Subsection 94(2)
50. Item 20 allows the Director, by instrument in writing, to delegate all or any of the
Director`s powers:
to determine the terms and conditions (beyond those terms and conditions specified
in the Act) under which persons are to be employed by CASA - see new subsection
83(2);
under the regulations;
the Director`s powers under an instrument made under the Ac t or the regulations.
Such delegations may only be to an officer of CASA who holds, or performs the duties
of, an office that is equivalent to a position occupied by an SES employee or an acting
SES employee..
Item 21 - Section 94A
51. Item 21 repeals existing section 94A of the Act, under which the Minister may delegate
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powers under sections 85, 87 and 89 of the Act to the Secretary of the Department, and
give directions to the Secretary in relation to the exercise of those powers, with which the
Secretary is required to comply. In its place, new section 95 allows the Board to delegate
any or all of its powers under the Act to a Board member, the Director or an officer; and
to give directions to such persons in relation to their exercise of those powers, with which
they are required to comply..
Item 22, 23 and 24 - Subsections 96(1) and (2)
52. Item 22 amends existing subsection 96(1) to provide that, where the Minister gives a
direction under section 12, 12B or 45 of the Act, or a notice under section 12A, the
Minister shall cause a copy of the direction or notice to be laid before each House of the
Parliament within 15 sitting days of that House after the giving of the direction or the
notice.
53. Item 23 removes the reference to repealed section 12D from subsection 96(1).
54. Item 24 repeals subsection 96(2), which deals with agreements between the Minister and
the Director of the kind contemplated by section 12C of the Act, which section is repealed
by item 12..
Item 25 - Transitional provision relating to the Director
55. Item 25 is a transitional amendment, which provides that the person holding the office of
Director under section 84 of the old law (the Civil Aviation Act as in force immediately
prior to the commencement of this item) will, from the commencement of the new law
(the Civil Aviation Act as in force immediately after commencement of this item), be
taken to have been duly appointed as Director under the new law, for the balance of the
person`s term of appointment that remained immediately before 1 July 2009; and on the
terms and conditions provided for in Division 1, Part VIIA of the new law.
Part 2 - Consequential amendment - Aviation Transport Security Act 2004
Item 26 - Section 9 (definition of Director of CASA)
56. Item 26 is a consequential amendment that will ensure that the term Director of CASA, as
that term appears and is used in the Aviation Transport Security Act 2004 means and
refers to the Director, as that term appears and is used in the Civil Aviation Act..
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Schedule 2 - Enforcement
Civil Aviation Act 1988
Items 1, 2, 3, 4, 5, and 6 - Subsection 3(1)
1. Items 1, 2, 3, 4, 5 and 6 insert new definitions into the Civil Aviation Act for the terms
civil aviation legislation and civil aviation offence which incorporate Chapter 7 of the
Criminal Code. New definitions are also provided for data, data held in a computer, data
storage device and evidential material.
Item 7 - New subsection 23(2AA)
2. Item 7 introduces a new offence for the negligent carriage or consignment of dangerous
goods, complementing existing offences for the intentional or reckless carriage or
consignment of dangerous goods, and a strict liability offence for the same conduct. This
is the most common basis on which dangerous goods are consigned or carried, and the
inclusion of a specific offence with negligence as the fault element will pro vide a sounder
basis for pursuing action against persons on that basis.. Also, if and when the strict
liability offence that currently appears in the Act is removed and supplanted by a strict
liability offence in the regulations, the retention of fault-based offences for the intentional
or reckless and the negligent carriage or consignment of dangerous goods will ensure that
an appropriate range of offences remain, in the Act, to deal effectively and proportionately
with these very serious risks to air safety.
Item 8 - Subsection 30DK(2)
3. Item 8 changes the maximum period for an Enforceable Voluntary Undertaking (EVU)
from 6 months to 12 months. Because it often takes considerably more than 6 months for
an operator to meaningfully fulfil its obligations under an EVU, allowing for a 12 month
period eliminates the need to enter into a fresh undertaking, and avoids the unnecessary
administrative burdens involved in that process.
Item 9 - Subsection 30DO(1)
4. Item 9 makes it clear that a determination of whether a matter is a reportable
contravention for the purposes of protection under the Aviation Self Reporting Scheme is
something for CASA to determine, not the Executive Director of Transport Safety
Investigation. This is what the existing legislation intends to achieve, and is entirely
consistent with the processes by which both CASA and the ATSB manage these matters
under the regulations. The amendment clarifies any ambiguity in respect of this
arrangement, and puts matters that might otherwise not be so readily apparent to persons
making or contemplating use of the Scheme.
Item 10 - Paragraph 30DQ(a)
5. Item 10 is consequential to the amendment specified in item 9.
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Item 11 - New Division 1--Appointment of investigators and issue of identity cards
6. Part IIIA of the Act is to be divided into two Divisions. Division 1 deals with the
appointment of investigators and the issue of identity cards to investigators.
Items 12 and 13 - Section 32AA
7. Items 12 and 13 expand the requirements in relation to the appointment of investigators.
CASA must be satisfied that officers appointed as investigators are suitably qualified and
experienced, and that they must comply with any directions given to them when
exercising their powers as investigators.
Item 14 - Section 32AB
8. Item 14 adds a requirement that investigators must carry their identity cards when
exercising their powers.
Item 15 - New Division 2--Powe rs of investigators--Subdivision A--Searches without a
warrant--Subdivision B--Applying for and issuing a warrant
9. Item 15 is the second new division of Part IIIA. This division deals with investigators`
powers, dividing those powers into the conduct of searches without a warrant
(Subdivision A), applying for and issuing warrants (Subdivision B) and general provisions
dealing with the execution of warrants.
10. Section 32AC deals with searches conducted with consent of the occupier for the purposes
of monitoring compliance with the civil aviation legislatio n. Special requirements apply
in relation to such searches when they are conducted for the purpose of monitoring
compliance with the New Zealand civil aviation legislation, pursuant to an ANZA mutual
recognition agreement.
11. Section 32ACA deals with searches conducted with the occupier`s consent for evidence in
relation to civil aviation offences.
12. Section 32ACD specifies the requirements that must be satisfied for an investigator to
enter premises with consent, the implications of a limitation on the scope of such consent
and the implications of its withdrawal.
Item 16 - Subsection 32AD(1A) - Monitoring Warrants
13. Subsection 32AD(1A) omits the reference to `relevant legislation' as it appears in
subsection 32AC(2) and substitutes that expression with the term `New Zealand
legislation', identifying the latter as the Civil Aviation Act 1990 of New Zealand, and the
rules made under that Act`.
Item 17 - Subsection 32AD(2) - Monitoring Warrants
14. Reference to relevant legislation` is supplanted with a reference to civil aviation
legislation or the New Zealand legislation`.
Item 18 - Subsection 32AD(5) - Monitoring Warrants
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15. The subsection is repealed.
Item 19 - Section 32AE - Offence powers - exercised with consent
16. The subsection is repealed.
Item 20 - Subsection 32AF(2) - Offence related warrants
17. Reference to an offence against this Act or the regulations` is supplanted with a civil
aviation offence`.
Item 21 - Section 32AH
18. The section is repealed and supplanted with a new section 32AH - Seizures related to
civil aviation offences.
19. New section 32AHA deals with investigators` obligations, in certain circumstances, to
announce their presence before entering premises to conduct a search under a warrant.
20. New section 32AHB deals with obtaining assistance in the execution of a warrant, and the
circumstances under which reasonable force may be used in the execution of a warrant.
21. New section 32AHC deals with investigators` obligations to identify themselves to
persons at the premises to be searched, and to make a copy of the search warrant
available to the occupier.
22. New section 32AHD deals with the right of the occupier to watch a search, and the
conditions to which that right is subject.
23. New section 32AHE deals with specific powers available to an investigator executing a
search warrant (e.g., taking photographs, making video recordings, returning to the
premises within a specified time after leaving to complete execution of the warrant).
24. New section 32AHF deals with the use of equipment to examine or process things, and the
removal of things, found at searched premises in order, amongst other things, to determine
if they are subject to seizure.
25. New section 32AHG deals with the use of electronic equipment at the premises to be
searched without expert assistance.
26. New section 32AHH deals with the use of electronic equipment at the premises to be
searched with expert assistance.
27. New section 32AHI deals with the process by which an investigator may apply to a
magistrate for an order requiring a specified person to provide necessary information and
assistance to assist the investigator in his or her efforts to access, copy or convert
information subject to seizure.
28. New section 32AHJ deals with situations in which an investigatory may gain access to
data subject to seizure that is held on other premises.
29. New section 32AHK deals with compensation to persons as a result of the operation of
equipment of the kind described in new sections 32AHF, 32AHG and 32AHH.
30. New section 32AHL deals with the circumstances under which an investigator may be
required to provide the occupier of the premises searched with copies of documents, films,
computer files or other things that can readily be copied, which have been seized during a
search.
31. New section 32AHM specifies requirements for investigators to provide receipts for items
that have been seized during a search.
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32. New section 32AHN deals with the retention of things seized during a search, and when it
may become necessary to return those things to the person from whom they were seized.
Item 22 - Section 32AHA
33. The section is renumbered as section 32AHO.
Item 23 - Subsection 32AHA(1)
34. Reference to under section 32AH` is supplanted with , as allowed by a warrant or
section 32AH`.
Item 24 - Paragraph 32AHA(3)(a)
35. Reference to an offence against this Act` is amended to refer to a civil aviation offence`.
Item 25 - Paragraph 32AHA(3)(b)
36. Reference to an offence against this Act` is amended to refer to a civil aviation offence`.
Item 26 - New Division 3 is added at the end of Part IIIA
37. New section 32AMA deals with making false statements in warrants, introducing an
offence for such conduct.
38. New section 32AMB specifies an offence for stating incorrect names in telephone
warrants.
39. New section 32AMC specifies an offence for stating a matter in a warrant a person knows
to depart in a material particular from the form authorised by the magistrate.
40. New section 32AMD specifies an offence for executing an unauthorised form of warrant.
41. New section 32AME specifies and offence for giving a magistrate a form of warrant that
is not the form of warrant executed by the person.
42. New section 32AMF puts beyond doubt the valid co-existence of Part IIIA with the power
of other law enforcement officers, e.g., Australian Federal Police officers, to secure and
conduct searches under warrants issued under the Crimes Act 1914, as well as the
important, but very different, inspection powers of CASA under the Civil Aviation
Regulations 1988.
43. New section 32AMG provides that the power conferred on magistrates under Part IIIA of
the Act is conferred on them in their personal capacity, and not as a court of a member of
a court, although they retain any protection and immunity afforded them as a member of
the court of which they are a member. Magistrates are note required to accept a power
conferred on them under Part IIIA.
Item 27 - Subsection 97A(2)
44. Consistent with the policy underlying Part 2.5 of the Criminal Code Act 1995 (Corporate
criminal responsibility), this amendment ensures that conduct engaged in on behalf of a
body corporate by a director, servant or agent of the body corporate is attributable to the
body corporate for all enforcement-related purposes of the Act and the regulations, not
merely for the purposes of a prosecution. . Existing provisions excluding such corporate
responsibility where the body corporate can show that it took reasonable precautions and
exercised due diligence to avoid the conduct, are retained.
Item 28 - Application
45. This amendment provides that the amendment contemplated by item 8 (changing the
maximum term of an Enforceable Voluntary Undertaking (EVU) from 6 to 12 months)
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applies only in respect of EVUs entered into on or after the date on which that amendment
comes into force.
Schedule 3 - Other amendments
Civil Aviation Act 1988
Items 1, 2, 3, 4, 5 and 6
1. These amendments ensure that CASA can require holders of, and applicants for,
permissions and Air Operator`s Certificates authorising the conduct of flights into, out of
and within Australian Territory in foreign registered aircraft to provide evidence of their
ability and willingness to comply with all applicable safety requirements. They also make
it clear that CASA may have regard to evidence of the ability and willingness of the
aviation safety regulatory authorities with responsibilities for the oversight of those
foreign registered aircraft (and the operators using those aircraft) to fulfil their safety-
related responsibilities, in relation to those aircraft and operators.
Items 1 and 2 - Section 26
2. New subsections (4) and (4A) are added to ensure that the matters described above may
be addressed in the process of assessing applicants for, and holders of, permissions to
conduct international flights without an Air Operator`s Certificate (AOC).
Item 3 - Subsection 27AE(1)
3. A new paragraph (c) is added to ensure that the matters described above may be addressed
in the process of assessing applicants for, and holders of, Foreign Aircraft Air Operator`s
Certificates (FAAOCs).
Item 4 - Section 27A
4. A new subsection (1A) is added to ensure that the matters described above may be
addressed in the process of assessing applicants for, and holders of, short-term
permissions to operate a foreign registered aircraft on regulated domestic flights.
Item 5 - Section 28
5. A new subsection (1A) is added to provide that, in assessing any applicant for, or holder
of, an AOC authorising the operation of foreign registered aircraft into Australia, out of
Australia, or both, or on specified (non ANZA) regulated domestic flights, CASA may
have regard to the matters set out in new Section 28AA.
Item 6 - New Section 28AA - Matters that CASA may have regard to in issue an AOC in
relation to certain flights by foreign registered aircraft
6. This new provision specifies with particularity the kind of evidence to which CASA may
have regard in making the assessments contemplated by items 1 to 5. Included is
evidence:
of any serious safety deficiencies in relation to the applicant`s operations in
another country (including, but not limited to, the country in which the aircraft
used or to be used by the operated are registered);
of the applicant`s ability and willingness to address those safety deficiencies;
relating to the authority or authorities responsible for the safety oversight of
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the applicant`s operations and the registration, certification and airworthiness
of the aircraft used by the applicant in its operations or to be used under the
AOC sought;
relating to the management and control of the applicant`s operations.
Specific examples of the kind of evidence to which CASA may have regard in each
case are provided.
Items 7, 8, 9, 10, 11, 12, 13, 14 and 15 - Application of demerit points
7. When demerit points are incurred against a class of civil aviation authorisation, they are
incurred against all authorisations within that class, and they remain on the demerit point
register for a period of 3 years.
8. These amendments ensure that a person who would have incurred demerit points against a
civil aviation authorisation, but those points are not incurred because the person has not
yet acquired that authorisation, or has taken steps to temporarily surrender or transfer such
an authorisation (so as to prevent demerit points from being incurred), will incur those
demerit points in respect of any such after-acquired, or re-acquired authorisation, for a 3-
year period after the date on which those points would initially have been incurred, had
the person held the authorisation at the time.
Items 16, 17, 18, 19 and 20--Automatic stay of certain reviewable decisions
9. Consistent with the existing provisions of the Act, these amendments allow for an
automatic stay of certain reviewable decisions taken by CASA for a period of 5 days after
such a decision has been taken.
10. However, whereas the existing provisions provide that the automatic stay continues for a
period of 90 days if an affected person files an application for review of the decision in
the Administrative Appeals Tribunal (AAT) within that period, the amendments require
that the affected person must lodge an application for a stay of CASA`s decision within
that 5 day period.
11. In the event, the stay will continue only until the AAT hears and de termines the stay
application, and thereafter, if at all, on the basis of the AAT`s determination of the stay
application, and for such a period as the AAT decides.
12. Stay applications are heard in the AAT on an expedited basis, and these amendments will
ensure that authorisation holders, whose privileges CASA has decided to vary, suspend or
cancel, may not continue to operate for an extended period of time (pending a merits
review of CASA`s decision), without the AAT deciding, as q uickly as possible, that it is
appropriate that they might do so.
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Item 21 - New section 95A - Delegation by Secretary of the Department
13. Item 21 allows the Secretary to delegate his or her powers under the regulations, in
writing, to an SES employee or acting SES employee in the Department. The Civil
Aviation Legislation (Mutual Recognition with New Zealand) Act 2006 amended the Civil
Aviation Act 1988 to implement Australia's part of the joint commitment between
Australia and New Zealand for the mutual recognition of air operator certification. As
part of this amendment the Secretary of the Department was given specific responsibilities
in relation to the air operator certification process.
14. This item corrects an administrative issue that was the result of the Secretary never
previously having specific powers under the Civil Aviation Act 1988, and thus no power
within the act for the Secretary to delegate his or her responsibilities in regard to these two
requirements.
Item 22 - Subsection 98(3A)
15. Item 22 inserts the phrase , even if the written instrument or other document does not yet
exist when the regulation is made after the words from time to time in subsection
98(3A).
16. Thus, where a regulation provides for or in relation to a matter by applying, adopting or
incorporating matter contained in a written instrument or other document as in force at a
particular time or from time to time, it is not necessary that the written instrument or other
document be in existence when the regulation is made as long as it is in existence when
the regulation and the matter is used.
Item 23 - Subsection 98(5)
17. Item 23 repeals subsection 98(5) and substitutes 2 new subsections. Subsection 98(5)
provides that the regulations may provide that CASA may issue a Civil Aviation Order
containing a direction, instruction, notification, permission, approval or authority.
18. New subsection 98(5AAA) provides that a Civil Aviation Order so issued is a legislative
instrument but Part 6 of the Legislative Instruments Act 2003 does not apply to the Order.
These amendments are a redrafting of subsection 98(5) to remove any doub t that
regulations may empower CASA to issue Civil Aviation Orders to which the sunsetting
provisions of Part 6 of the Legislative Instruments Act 2003 does not apply.
Items 24, 25, 26 and 27 - Subsections 98(5A), (5B) and (5D)
19. Item 24 inserts the words , or design standards for, after the words airworthiness of in
paragraph 98(5A)(b) to permit regulations to empower CASA to issue legislative
instruments in relation to design standards for aircraft as well as in relation to the
airworthiness of aircraft..
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20. Item 25 inserts after subsection 98(5A) 2 new subsections. Subsection 98(5AA) provides
that an instrument issued under paragraph (5A)(a) (in relation to matters affecting the safe
navigation and operation, or the maintenance, of aircraft) is a legislative instrument if the
instrument is expressed to apply in relation to a class of persons a class of aircraft or a
class of aeronautical product. Subsection 98(5AB) provides that an instrument issued
under paragraph (5A)(a) is not a legislative instrument if the instrument is expressed to
apply in relation to a particular person, a particular aircraft or a particular aeronautical
product.
21. Item 26 omits from subsection 98(5B) mention of subsection (5A) and substitutes
mention of (5A)(b) so that instruments issued by CASA in relation to the airworthiness
of, or design standards for, aircraft are legislative instruments but Part 6 o f the Legislative
Instruments Act 2003 does not apply to them. The enduring safety-related nature of the
requirements specified in such instruments make it inappropriate for the sunsetting
provisions of the Legislative Instruments Act to apply in respect of these instruments
22. Item 27 inserts a new subsection 98(5D) which provides that, despite section 14 of the
Legislative Instruments Act 2003, a legislative instrument made under this Act or the
regulations] may apply, adopt or incorporate any matter contained in any instrument or
other writing as in force or existing at a particular time, or as in force or existing from
time to time, even if the other instrument or writing does not yet exist when the legislative
instrument is made.
23. The purpose of this amendment is to enable legislative instruments issued by CASA to
make use of matter in other instruments or writing, for example in Australian or
international standards, and in manufacturers` standards or manuals, as they are revised
and reissued from time to time, and whether they are in existence when the legislative
instrument is made as long as they are in existence when the legislative instrument and the
matter is used.
Item 28 - Application
24. In order to ensure, in the interests of safety, that CASA is able to make use of the
important new powers contemplated by items 1 to 6 of this Schedule, this amendment
provides that CASA`s authority to require information of the kind described in those
provisions is applicable in relation to permissions and authorisations granted, or for which
applications had been made, before the date on which those provisions come into force.
Item 29 - Saving provision
25. Item 29 is a saving provision for the amendments made by item 23 of this Schedule. It
provides that the amendment made by item 23 of the Schedule does not affect the
continuity of any Civil Aviation Orders given or issued under subsection 98(5) of the Civil
Aviation Act 1988 and in force immediately before item 29 commences.
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