Civil Aviation Legislation Amendment Act 1995

Regulations

SCHEDULE 1

AMENDMENT OF THE CIVIL AVIATION ACT 1988

SCHEDULE 2

AMENDMENT OF THE CIVIL AVIATION ACT 1988

SCHEDULE 3

AMENDMENT OF OTHER ACTS

SCHEDULE 4

AMENDMENT OF THE AUDIT (TRANSITIONAL AND MISCELLANEOUS) AMENDMENT ACT 1995

Civil Aviation Legislation Amendment

Act 1995

No. 82 of 1995

An Act to amend the law relating to aviation

[Assented to 30 June 1995]

The Parliament of Australia enacts:

PART 1—PRELIMINARY

Short title

1. This Act may be cited as the Civil Aviation Legislation Amendment Act 1995.

Commencement

2.

Subject to this section, this Act commences on:

a day to be fixed by Proclamation; or

the first day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent;

whichever is earlier.

If the Commonwealth Authorities and Companies Act 1995 commences on the day that applies under subsection (1) of this section, then sections 4 and 6 of this Act commence immediately after the commencement of the other provisions of this Act.

If the Commonwealth Authorities and Companies Act 1995 has not commenced before the day that applies under subsection (1) of this section, and does not commence on that day, then sections 4 and 6 of this Act commence on the same day as that Act.

If section 4A of the Civil Aviation Act 1988 has not commenced before the day that applies under subsection (1) of this section, then item 15 of Schedule 1 to this Act commences immediately after the commencement of that section.

If the Legislative Instruments Act 1995 has not commenced before the day that applies under subsection (1) of this section, then items 22 and 23 of Schedule 3 to this Act commence immediately after the commencement of that Act.

PART 2—AMENDMENTS

Amendment of the Civil Aviation Act

3. The Civil Aviation Act 1988 is amended as set out in Schedule 1.

Amendment of the Civil Aviation Act

4. The Civil Aviation Act 1988 is amended as set out in Schedule 2.

Amendment of other Acts

5. The Acts specified in Schedule 3 are amended as set out in Schedule 3.

Amendment of the Audit (Transitional and Miscellaneous) Amendment Act

6. The Audit (Transitional and Miscellaneous) Amendment Act 1995 is amended as set out in Schedule 4.

PART 3—TRANSITIONAL

Interpretation

7. In this Part, unless the contrary intention appears:

"AA" means Airservices Australia established by the Air Services Act;

"AA employee" means a person employed by AA under section 41 of the Air Services Act;

"Air Services Act" means the Air Services Act 1995;

"assets" means any legal or equitable estates or interests in real or personal property, whether actual, contingent or prospective, and includes all rights, powers, privileges and immunities, whether actual, contingent or prospective;

"authorised person" means the Minister, or an officer of the Department authorised by the Minister for the purposes of this Part;

"CAA" means the Civil Aviation Authority established under the Civil Aviation Act, as in force immediately before the commencing time;

"CAA staff member" means a person who was a member of the staff of the CAA immediately before the commencing time;

"CAC Act" means the Commonwealth Authorities and Companies Act 1995;

"CASA" means the Civil Aviation Safety Authority established by the Civil Aviation Act;

"CASA staff member" means a person appointed or employed by CASA under section 91 of the Civil Aviation Act;

"Civil Aviation Act" means the Civil Aviation Act 1988;

"commencing time" means the time when this section commences;

"instrument" includes a document and an oral agreement;

"liabilities" means all liabilities, duties and obligations, whether actual, contingent or prospective;

"regulatory functions", in relation to CAA, means functions specified in paragraph 9(1)(a) of the Civil Aviation Act, as in force immediately before the commencing time.

Transfer of CAA staff to AA and CASA

8.

Subject to this section, each CAA staff member becomes an AA employee at the commencing time.

If a CAA staff member is identified in a written determination that is made by an authorised person and takes effect at the commencing time, the staff member becomes a CASA staff member at the commencing time.

If:

a person has become an AA employee or CASA staff member under subsection (1) or (2), or by a previous application of this subsection; and

the person is identified in a written determination by an authorised person that:

is made within 12 months after the commencing time; and

states that the person is to become an AA employee or a CAS A staff member at a time specified in the determination that is not later than 12 months after the commencing time;

the person becomes an AA employee or CAS A staff member, as the case may be, at the time specified in the determination.

A person who becomes an AA employee or CASA staff member under this section:

must be employed on terms and conditions that are not less favourable than the terms and conditions that applied to the person's previous employment; and

is entitled to retain, as an AA employee or CASA staff member, all the benefits that had accrued to the person in respect of the person's previous employment, as if those benefits had accrued in respect of the person's employment as an AA employee or CASA staff member, as the case may be.

Nothing in this section prevents terms and conditions of employment being varied after the commencing time.

In this section:

"previous employment" means:

for a CAA staff member who becomes an AA employee or CASA staff member—employment as a CAA staff member; or

for an AA employee who becomes a CASA staff member— employment as an AA employee; or

for a CASA staff member who becomes an AA employee— employment as a CASA staff member.

Transfer of CAA assets and liabilities to AA and CASA

9.

Subject to this section, the assets and liabilities of CAA become the assets and liabilities of AA at the commencing time.

If an asset or liability is identified in a written determination that is made by an authorised person and takes effect at the commencing time, the asset or liability becomes an asset or liability of CASA at the commencing time.

If:

an asset or liability has become an asset or liability of AA or CASA under subsection (1) or (2), or by a previous application of this subsection; and

the asset or liability is identified in a written determination by an authorised person that:

is made after the commencing time; and

states that the asset or liability is to become an asset or liability of AA or CASA at a time specified in the determination;

the asset or liability becomes an asset or liability of AA or CASA, as the case may be, at the time specified in the determination.

A transfer effected by this section is not a disposal of an asset for the purposes of Part IIIA of the Income Tax Assessment Act 1936.

References in CAA instruments

10.

Each CAA instrument continues to have effect according to its tenor after the commencing time as if:

a reference in the instrument to CAA, to the extent that the reference relates to CAA's regulatory functions, were a reference to CASA; and

except to the extent covered by paragraph (a), all references in the instrument to CAA were references to AA.

In this section:

"CAA instrument" means an instrument in operation immediately before the commencing time:

to which CAA is a party; or

which was given to, or in favour of, CAA; or

in which a reference is made to CAA; or

under which any right or liability accrues or may accrue to CAA.

Pending proceedings

11. If, immediately before the commencing time, CAA was a party to proceedings that were pending or existing in any ifourt or tribunal, then, at the commencing time:

to the extent that the proceedings relate to CAA's regulatory functions—CASA is substituted for CAA in the proceedings and has the same rights and obligations in the proceedings as CAA had; and

for all other purposes, AA is substituted for CAA in the proceedings and has the same rights and obligations in the proceedings as CAA had.

Continuation of AOC applications made under the regulations

12. An application for an AOC that was made under the Civil Aviation Regulations before the commencing time may be dealt with under the Civil Aviation Act after the commencing time as if the application had been made under the Civil Aviation Act.

Continuation of Civil Aviation Orders, AOCs etc.

13.

Civil Aviation Orders that were in force immediately before the commencing time under subsection 98(4A) of the Civil Aviation Act continue to have effect as if they had been made by CASA under that subsection.

Civil Aviation Orders that were in force under regulations under the Civil Aviation Act immediately before the commencing time continue to have effect as if they had been made by CASA under the regulations.

This section does not prevent the amendment or repeal of the Civil Aviation Orders referred to in this section.

AOCs (including their conditions) and permissions that were in force immediately before the commencing time under Part III of the Civil Aviation Act continue to have effect as if they had been issued, imposed or granted by CASA under that Part.

Statutory liens

14.

The Register maintained under section 68 of the Civil Aviation Act is transferred to the custody of the Registrar under the Air Services Act.

The Register maintained under section 64 of the Air Services Act is taken to include everything that comprised the Register referred to in subsection (1) of this section.

A statutory lien in effect under the Civil Aviation Act immediately before the commencing time continues in effect as if it had been vested in AA by the Air Services Act.

Exemption from certain State and Territory stamp duties

15.

No stamp duty is payable under a law of a State or Territory in respect of an exempt matter or anything connected with an exempt matter.

An authorised person may certify in writing:

that a specified matter is an exempt matter; or

that a specified thing was done in connection with a specified exempt matter.

In all courts and for all purposes, a certificate under subsection (2) is evidence of the matter stated in the certificate.

A document that appears to be a certificate under subsection (2) is taken to be such a certificate, and to have been properly given, unless the contrary is established.

In this section:

"exempt matter" means:

an asset or liability ceasing to be an asset or liability of CAA, AA or CASA under this Part and becoming an asset or liability of AA or CASA under this Part; or

the operation of this Part in any other respect.

Certificates in relation to interests in land

16.

This section applies if:

land becomes land of AA or CASA under this Part; and

there is lodged with a land registration official a certificate that:

is signed by an authorised person; and

identifies the land, whether by reference to a map or otherwise; and

states that the land has become land of AA or land of CASA, as the case may be, under this Part.

The land registration official may:

register the matter in the same way that dealings in land of that kind are registered; and

deal with, and give effect to, the certificate.

A document that appears to be a certificate under subsection (1) is taken to be such a certificate, and to have been properly given, unless the contrary is established.

In this section:

"land registration official" means the Registrar of Titles or other proper officer of the State or Territory in which the land is situated.

Certificates in relation to other assets

17.

This section applies if:

an asset becomes an asset of AA or CASA under this Part; and

there is lodged with an assets official a certificate that:

is signed by an authorised person; and

identifies the asset; and

states that the asset has become an asset of AA or an asset of CASA, as the case may be, under this Part.

The assets official may:

deal with, and give effect to, the certificate as if the certificate were a proper and appropriate instrument for transactions in relation to assets of that kind; and

make such entries in the register as are necessary having regard to the effect of this Part.

A document that appears to be a certificate under subsection (1) is taken to be such a certificate, and to have been properly given, unless the contrary is established.

In this section:

"assets official" means a person or authority who, under the law of the Commonwealth or of a State or Territory, has responsibility for keeping a register in relation to assets of the kind concerned.

AA financial rules etc.

18.

This section applies if the CAC Act has not commenced before the commencing day that applies under subsection 2(1) of the Air Services Act, and does not commence on that day.

Until the CAC Act commences, the pre-CAC rules apply to AA and its members in the same way as they applied to CAA and its members.

In this section:

"pre-CAC rules" means sections 43, 44, 45, 46, 47, 48A, 59, 60, 62, 63 and 64 of the Civil Aviation Act, as in force immediately before the commencing time.

Income tax treatment of certain assets

19.

Any eligible building that is used by AA in performing its functions is taken to be owned by AA for the purposes of applying section 54, or Division 10D of Part III, of the Income Tax Assessment Act 1936 to AA.

The surrender by AA of an equitable interest in respect of an eligible building is not a disposal of an asset for the purposes of applying Part IIIA of the Income Tax Assessment Act 1936 to AA.

The granting of a lease by the Federal Airports Corporation to AA or CASA in respect of an eligible building is not a disposal of an asset for the purposes of applying Part IIIA of the Income Tax Assessment Act 1936 to the Federal Airports Corporation.

In this section:

"eligible building" means a building or fixed structure identified in a determination made by an authorised person for the purposes of this section and includes any plant or equipment that is fixed to such a building or fixed structure.

AA to inherit CAA's tax position

20. For the purposes of the taxation laws of the Commonwealth, AA is to be treated as being the successor of CAA.

Appointment of Director of Aviation Safety

21. The first appointment of a Director of Aviation Safety under section 84 of the Civil Aviation Act may be made by the Minister without receiving a recommendation from the Board.

Regulations

22.

The Governor-General may make regulations prescribing matters:

required or permitted by this Act to be prescribed; or

necessary or convenient to be prescribed for carrying out or giving effect to this Act.

In particular, regulations may be made in relation to transitional matters arising out of the abolition of CAA and its replacement by AA and CASA, or otherwise arising out of the enactment of this Act or the Air Services Act.

____________

SCHEDULE 1 Section 3

AMENDMENT OF THE CIVIL AVIATION ACT 1988

1. Title:

After "Aviation" insert "Safety".

2. Subsection 3(1) (definition of "authorised officer"):

Omit "the Authority", substitute "CASA".

3. Subsection 3(1) (definition of "Board"):

Omit "the Authority", substitute "CASA".

4. Subsection 3(1) (definition of "certificate"):

Omit "Air Operator's Certificate", substitute "AOC".

5. Subsection 3(1) (definition of "corporate plan"):

Omit "developed by the Board under paragraph 43(1)(a)", substitute "prepared by the Board under subsection 44(1)".

6. Subsection 3(1) (definition of "member"):

Omit "and the Deputy Chairperson".

7. Subsection 3(1) (definition of "officer"):

Omit "the Authority", substitute "CASA".

8. Subsection 3(1) (definition of "aerodrome"):

Omit the definition, substitute:

" 'aerodrome' means an area of land or water (including any buildings, installations and equipment), the use of which as an aerodrome is authorised under the regulations, being such an area intended for use wholly or partly for the arrival, departure or movement of aircraft;".

9. Subsection 3(1) (definition of "aircraft"):

Omit the definition, substitute:

" 'aircraft' means any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth's surface;".

10. Subsection 3(1) (definition of "regulatory functions"):

Omit the definition, substitute:

" 'regulatory function' means the function under subsection 9(1);".

SCHEDULE 1—continued

11. Subsection 3(1) (definitions of "Air Operator's Certificate", "assets", "Authority", "charge", "currency contract", "Deputy Chairperson", "financial plan", "futures contract", "outstanding amount", "payable", "payment period", "penalty", "Register", "Registrar", "securities", "share" and "statutory lien"):

Omit the definitions.

12. Subsection 3(1):

Insert:

" 'AA' means Airservices Australia established by the Air Services Act 1995;

'AOC' means an Air Operator's Certificate issued under Division 2 of Part III;

'aviation safety standards' means standards relating to the following:

the flight crews engaged in operations of aircraft;

the design, construction, maintenance, operation and use of aircraft and related equipment;

the planning, construction, establishment, operation and use of aerodromes;

the establishment and use of airspace;

the planning, construction, establishment, maintenance, operation and use of:

facilities of the kind referred to in paragraph 8(1)(a) of the Air Services Act 1995; and

services of the kind referred to in paragraph 8(1)(b) of the Air Services Act 1995;

and any construction associated with those facilities or services;

the personnel engaged in:

the maintenance of aircraft and related equipment; or

anything referred to in paragraph (c) or (e);

'CASA' means the Civil Aviation Safety Authority established by this Act;

'Civil Aviation Orders' means the orders made under subsection 98(4A) or referred to in subsection 98(5);

'Director' means the Director of Aviation Safety appointed under section 84;

'ICAO' means the International Civil Aviation Organization referred to in the Chicago Convention;".

13. Subsections 3(2) to (5) (inclusive):

Omit the subsections.

SCHEDULE 1—continued

14. After section 3:

Insert:

Main object of this Act

"3A. The main object of this Act is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.".

15. Section 4A:

Omit "the Authority" (wherever occurring), substitute "CASA".

16. Subsection 5(1):

After "States," insert "of the Australian Capital Territory,".

17. Paragraph 7(ab):

Omit "section 10A", substitute "subsection 9(4)".

18. Part II (heading):

Omit the heading, substitute:

"PART II—ESTABLISHMENT, FUNCTIONS ETC. OF CASA".

19. Subsection 8(1):

Omit the subsection, substitute:

"(1) An authority called the Civil Aviation Safety Authority is established by this subsection.".

Note: The heading to section 8 is altered by omitting "Authority" and substituting "CASA".

20. Subsection 8(2):

Omit "The Authority", substitute "CASA".

21. Subsection 8(3):

Omit "the Authority", substitute "CASA".

22. Section 9:

Repeal the section, substitute:

CASA's functions

"9.

CASA has the function of conducting the safety regulation of the following, in accordance with this Act and the regulations:

civil air operations in Australian territory;

SCHEDULE 1—continued

the operation of Australian aircraft outside Australian territory; by means that include the following:

developing and promulgating appropriate, clear and concise aviation safety standards;

developing effective enforcement strategies to secure compliance with aviation safety standards;

issuing certificates, licences, registrations and permits;

conducting comprehensive aviation industry surveillance, including assessment of safety-related decisions taken by industry management at all levels for their impact on aviation safety;

conducting regular reviews of the system of civil aviation safety in order to monitor the safety performance of the aviation industry, to identify safety-related trends and risk factors and to promote the development and improvement of the system;

conducting regular and timely assessment of international safety developments.

"(2) CASA also has the following safety-related functions:

encouraging a greater acceptance by the aviation industry of its obligation to maintain high standards of aviation safety, through:

comprehensive safety education and training programs; and

accurate and timely aviation safety advice; and

fostering an awareness in industry management, and within the community generally, of the importance of aviation safety and compliance with relevant legislation;

promoting full and effective consultation and communication with all interested parties on aviation safety issues.

"(3) CASA also has the following functions:

co-operating with the Bureau of Air Safety Investigation in relation to the investigation of aircraft accidents and incidents;

any functions conferred on CASA under the Civil Aviation (Carriers' Liability) Act 1959, or under a corresponding law of a State or Territory;

any functions conferred on CASA under the Air Navigation Act 1920;

any other functions prescribed by the regulations, being functions relating to any matters referred to in this section;

promoting the development of Australia's civil aviation safety capabilities, skills and services, for the benefit of the Australian community and for export;

SCHEDULE 1—continued

providing consultancy and management services relating to any of the matters referred to in this section, both within and outside Australian territory;

any functions incidental to any of the functions specified in this section.

"(4) In performing the function under paragraph (3)(f), CASA may, under a contract with a foreign country or with an agency of a foreign country, provide services for that country or agency in relation to the regulation of the safety of air navigation or any other matter in which CASA has expertise. Those services may include conducting safety regulation in relation to foreign aircraft under the law of a foreign country.

"(5) CASA's functions do not include responsibility for aviation security.".