Commonwealth Numbered Regulations - Explanatory Statements

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CIVIL AVIATION REGULATIONS (AMENDMENT) 1991 NO. 157

STATUTORY RULES 1991 No. 157

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 enabling a person who is alleged to have contravened a specified provision of the regulations to pay to the Authority, as an alternative to prosecution, a specified penalty, not exceeding an amount equal to one-fifth of the maximum penalty prescribed for contravening that provision.

The purpose of the regulations is to introduce a scheme of . administrative fines for breaches of the Civil Aviation Regulations (the Principal Regulations).

Previously if a person breached a provision of the Principal Regulations, the only option for penalising the breach was to prosecute the person for an offence. Prosecutions are often costly and time consuming - so much so as to be a disincentive to prosecuting minor infringements. Also, deciding to prosecute (as the only penalty option) often meant that a person was dragged through the courts for what was only a minor infringement.

Under the scheme introduced by the amending regulations, a person who is alleged to have breached a particular regulation will have the option of paying an administrative fine as an alternative to being prosecuted for the offence. The scheme will only apply in relation to certain specified regulations (the regulations specified being those giving rise to less serious breaches).

The introduction of an administrative fine system was one of the recommendations in the second report of the Air Safety Regulation Review Task Force. The Attorney-General's Department also encourages the use of administrative penalties for minor breaches of legislation as a means of relieving pressure on investigation, prosecution and judicial resources.

Details of the Regulations are attached.

The Regulations commence on 1 July 1991.

ATTACHMENT

DETAILS OF STATUTORY RULES NO. CIVIL AVIATION REGULATIONS (AMENDMENT)

Regulation 1

This regulation provides that the amendments are to commence on 1 July 1991.

Regulation 2

This regulation provides that the Civil Aviation Regulations (the 'Principal Regulations') are amended as set out in the Regulations.

Regulation 3

This regulation inserts a new Division 3 in Part XVI of the Principal Regulations. Division 3 comprises proposed new regulations 296A-296J.

Regulation 296A defines the following three terms for the purposes of Division 3:

•       infringement notice which means a notice served under regulation 296B;

•       prescribed offence which means an offence against a provision of the regulations specified in column 2 of an item in Schedule 2;

•       prescribed penalty which means, in relation to a prescribed offence, the penalty specified in column 3 of Schedule 2 opposite an item in that Schedule.

Regulation 296B empowers an authorised person to serve an infringement notice in accordance with proposed regulations 296D and 296E on a person who is believed to have committed a prescribed offence. It is not appropriate to provide guidelines for the exercise of the discretion provided by the new regulation as the exercise of the discretion is a preliminary step before prosecution.

Regulation 296C enables an authorised person to withdraw an infringement notice up to 28 days after the date the notice was served on a person (or if a further period has been allowed, before the end of that further period). The infringement notice must be withdrawn by notice in writing served on the person in accordance with regulation 296D. If the person has already paid the prescribed penalty in accordance with the infringement notice the Authority must cause an amount equal to the prescribed penalty to be refunded to the person.

Regulation 296D sets out how an infringement notice or a notice of withdrawal may be served on a person. Service on a natural person can be effected by delivery of the notice to the person, or by sending the notice by post either to the person's usual postal address or the person's last known postal address, place of residence or business. Leaving the notice with a person apparently over 16 years old and apparently an occupant of or employed at the person's last known place of business or residence is also sufficient service. If the person is a body corporate service can be effected either by delivery to a person reasonably believed to be both an officer (or in the service) of the body corporate and over 16 years of age, or by sending the notice by post to the postal address (or an office or place of business) of the body corporate.

Regulation 296E sets out what matters must be specified in an infringement notice. The matters include the name of the authorised person who serves the notice; the nature of the alleged offence; the day, time and place of the alleged offence; and the manner in which and the place where the prescribed penalty may be paid. The infringement notice must also indicate to the person who is served with the notice that he or she can avoid the matter being dealt with by a court by paying the prescribed penalty within 28 days from the date the notice was served.

Regulation 296F provides that any liability of the person for the alleged prescribed offence is discharged if the person pays the prescribed penalty before the end of 28 days (or such further period as is allowed) from when the notice was served and the infringement notice has not been withdrawn. Also, in this situation no further proceedings can be taken against the person in respect of the alleged prescribed offence and the person will not be considered to have been convicted of the prescribed offence. As a person is not considered to have been convicted of the prescribed offence it is not necessary for a record of those persons who have paid an administrative fine to be maintained.

Regulation 296G provides that at the hearing of a prosecution for a prescribed offence for which an infringement notice has been served a certificate signed by an authorised person can provide evidence of certain matters stated in the certificate. The certificate can state that the authorised person did not allow a further period for the purposes of regulation 296E and that the prescribed penalty was not paid within 28 days of the date the notice was served. Equally subregulation 296G(2) provides that the certificate can state that the authorised person did allow a further period of up to 28 days for the purposes of regulation 296E and that the prescribed penalty was not paid within that further period, and subregulation 296G(3) provides that the certificate can state that the infringement notice was withdrawn at a specified date.

Regulation 296H provides that if more than one infringement notice is served on a person for the same prescribed offence, the payment by the person of the prescribed penalty in accordance with one of those infringement notices is sufficient for the person to discharge his or her liability.

Regulation 296I provides that if a person pays a prescribed penalty by cheque then unless the cheque is honoured upon presentation the person is not to be taken to have paid the penalty.

Regulation 296J makes it clear that a person is not required to be served with an infringement notice for a prescribed offence and that a person may be prosecuted for such an offence. Also, the provisions do not limit the fine that a Court may impose on the person following a conviction for the offence. The regulation ensures that the Authority retains the freedom to prosecute a person in breach of the Regulations where it considers that this is the appropriate penalty.

Regulation 4

This regulation amends the heading of the Schedule by altering it to Schedule 1. This is necessary because a new Schedule is being inserted in the Principal Regulations.

Regulation 5

This Regulation adds a new Schedule to the Principal Regulations. Schedule 2 lists the regulations which will be subject to the administrative fines procedures and the administrative fines that may be imposed for breaches of those regulations. At this stage, the regulations specified are those which give rise to less serious breaches. The listed fines do not exceed 20% of the maximum penalty for the offence. This limitation is required by paragraph 98(1)(q) of the Civil Aviation Act 1988.