Air Transport (Route Licensing—Passenger Services) Act 2002

This Act may be cited as the Air Transport (Route

Act 2002.

In this Act, unless the contrary intention appears—

air service means a service provided by aircraft between airports in the State;

CASA means the Civil Aviation Safety

Authority;

charter service means a passenger service where—

seats on the aircraft are not made available to members of the public generally; and

the service satisfies any other criteria prescribed by the regulations for the purposes of this definition, but does not include any service of a class excluded by the regulations from the ambit of this definition;

declared route—see section 5(1);

passenger service means an air service involving the carriage of passengers for a fare or other consideration;

route service licence means a licence under

Part

3;

scheduled air service means—

a passenger service conducted between two airports in the State according to a fixed schedule; or

any other passenger service of a class prescribed by the regulations for the purposes of this definition, but does not include any service of a class excluded by the regulations from the ambit of this definition;

Tribunal means the South Australian Civil and

Administrative Tribunal established under the South Australian Civil and Administrative Tribunal

Act 2013.

For the purposes of this Act, a route between any two places will be taken to be constituted by any route that an aircraft may take when flying between those two places.

For the purposes of this Act, a person who operates a scheduled air service between two airports to which a declared route relates will be taken to be operating the service on the declared route.

In making a decision under this Act as to the number of route service licences that should be awarded for a particular route, and to whom a route service licence should be awarded, the Minister must take into account the following (insofar as the Minister thinks appropriate and without limiting any other matter that the Minister may consider relevant):

the extent to which a particular arrangement may result in a monopoly, or a market share that is close to a monopoly, in the provision of air services within the State;

the benefits in maintaining and developing sustainable air services, and competition between the operators of air services, within the

State;

the steps that may need to be taken to promote or encourage the efficient operation of air services within the State, and innovation in the delivery of air services;

the public benefits that may accrue if air services are maintained or encouraged within the State.

For the purposes of subsection (1), a reference to the State includes a

part of the State.

The Minister may, by notice in the Gazette, declare a route between two airports in the State to be a declared route for the purposes of this Act.

A notice under subsection (1) must include—

a description of the route; and

information on the number of route service licences that the Minister expects to be made available for the relevant route; and

information about the conditions that may be fixed in relation to a route service licence; and

information on the process for making an application for a route service licence, and may include other information the Minister considers appropriate.

The Minister should not declare a route to be a declared route unless the Minister is satisfied that it is in the public interest that the declaration be made in order to encourage an operator or operators of air services to establish, maintain, re-establish, increase or improve scheduled air services on the route.

The Minister must, in connection with the operation of subsection (3), take into account—

the apparent public demand for scheduled air services on the relevant route; and

the publicly declared intentions of any operator, or potential operator, of scheduled air services on the relevant route; and

any economic or social costs that may be suffered by a local community if a declaration is not made; and

the extent to which scheduled air services may improve if a declaration is made; and

the adequacy of alternative transport services that are available, or might become available if a declaration is not made, to members of the local communities within the vicinity of the relevant airports; and

financial issues associated with the operation of scheduled air services on the relevant route, and may take into account such other matters as the Minister thinks fit.

Subject to this section, a declaration under this section will initially have effect for a period, not exceeding three years, specified by the Minister by notice in the Gazette.

If, at the time the Minister makes a declaration under this section with respect to a route, a person is operating a scheduled air service on that route, the operation of a declaration must commence not earlier than six weeks after the day on which the declaration is published in the Gazette.

The period of six weeks under subsection (6) will cease to apply if the scheduled air services on the route are discontinued.

The Minister may from time to time, by notice in the Gazette—

vary the day on which the operation of the declaration is to commence;

extend the period of operation of a declaration.

However, any particular extension must not exceed three years and in any event the total period of a declaration must not exceed six years (although the expiration of a declaration does not prevent the Minister making a new declaration in relation to the same route after due consideration of the matters prescribed by subsections (3) and (4)).

The Minister may at any time, if the Minister thinks fit, by notice in the Gazette, revoke a declaration under this section.

If the Minister—

makes a declaration under this section; or

varies the day on which the operation of a declaration is to commence under this section; or

extends the period of a declaration under this section; or

revokes a declaration under this section, the Minister must ensure—

that a copy of the relevant notice is published—

on a website determined by the Minister; or

in a newspaper circulating generally in the State; or

in a newspaper circulating generally in Australia; and

if a person is operating a scheduled air service on the relevant route at the time of the publication of the relevant notice—that a copy of the notice is served on the person in the manner prescribed by the regulations.

The publication of information under subsection (2) does not prevent the Minister subsequently making a decision or taking action that is different to what was published by the Minister under that subsection.

A person must not, during the period of a declaration under

Part

2, operate a scheduled air service on the declared route unless the person is the holder of a route service licence for that route issued by the Minister under this Act.

Subsection (1) does not apply with respect to—

a charter service; or

an air service provided in place of a scheduled air service normally provided by the holder of a route service licence due to an emergency or technical difficulty with, or the routine maintenance of, a particular aircraft; or

an alternative or additional air service contemplated by the terms or conditions of a route service licence; or

an air service operated with the consent of the Minister under section 10; or

an air service of a prescribed kind. Maximum penalty: $35 000.

All route service licences are to be granted on application to the

Minister.

The Minister may invite applications for a route service licence or for route service licences for a declared route by tender or may invite applications on any other basis as the Minister thinks fit.

An application for a route service licence—

must be made in the manner and form required by the Minister;

and

must be accompanied by the prescribed fee.

The Minister may require an applicant for a route service licence—

to furnish further information specified by the Minister;

and

to verify, by statutory declaration, information furnished for the purposes of the application.

An applicant for a route service licence must meet any requirement, standard, criteria, qualification or condition set out in the regulations or specified by the Minister in an invitation for applications or by notice given in accordance with the regulations, and must satisfy the Minister as to any other matter the Minister considers relevant.

If the Minister decides not to grant an application for a route service licence, the Minister must, at the request of the applicant, give the applicant a written statement of the Minister's reasons for the decision.

The conditions of a route service licence may—

fix the term of the licence and provide for its extension;

make provision with respect to performance and service levels (including as to the quality and type of aircraft to be used in the provision of scheduled air services on the declared route), and flight schedules (and provide a scheme for their review or variation from time to time);

make provision with respect to the fares to be charged by the holder of the licence for scheduled air services on the declared route (and provide a scheme for their review or variation from time to time);

make provision with respect to alternative or additional air services in specified circumstances;

fix amounts payable by the holder of the licence for or under the licence;

provide for the provision of infrastructure or for capital or other expenditure by the holder of the licence;

require the provision of reports and other information to the Minister;

provide for the suspension or cancellation of the licence by the Minister and the grounds for suspension or cancellation;

make any other provision the Minister considers appropriate.

It will be a condition of a route service licence that the holder of the licence—

must have appropriate CASA certification to operate the relevant air services on the declared route at the time of commencing operations on the route (and, if the person to whom the licence is granted does not have such CASA certification at the time that the licence is granted, that he or she obtain it within a period specified by the Minister (being a period expiring before operations are due to commence under the licence)); and

must maintain appropriate CASA certification during the term of the licence.

Before suspending or cancelling a licence pursuant to a condition under subsection (1)(h) (but without affecting the operation of subsection (4)), the Minister must give the holder of the licence a reasonable opportunity to make representations about the proposed action.

If the holder of a route service licence is in breach of the condition imposed by subsection (2), the licence is immediately suspended by force of this subsection during the period of the breach (and the Minister may then proceed to cancel the licence if the breach is not remedied within a reasonable time).

The Minister may, after consultation with the holder of the route service licence, if the Minister considers it appropriate to do so, by written notice to the holder of the route service licence, vary a condition to which a route service licence is subject.

The holder of a route service licence may, on application made to the Minister in writing, request the variation of a condition to which the licence is subject, and the Minister may, as the Minister thinks fit—

grant the variation; or

refuse to grant the variation.

The conditions of a route service licence may be varied by the addition, substitution or deletion of one or more conditions.

Nothing in subsections (5), (6) or (7) allows the variation of the condition imposed by subsection (2).

A person must not contravene or fail to comply with a condition of a route service licence. Maximum penalty: $35 000.

A route service licence may (but need not)—

confer on the holder of the licence an exclusive right to operate scheduled air services on the declared route; and

provide for other matters relevant to the operation of air services (including new scheduled air services) on the declared route.

However, a right conferred on the holder of a route service licence—

cannot affect or limit the ability of another person to operate an air service of a kind specified by the regulations, or specified in the licence itself, during the term of the licence (and such a specified air service may be a scheduled air service); and

will be subject to such other qualifications as may be prescribed by the regulations, or specified in the licence itself, during the term of the licence.

The holder of a route service licence must not transfer, assign, subcontract or otherwise deal with the licence, or a right, power or duty under the licence, except with the consent of the Minister. Maximum penalty: $20 000.

The Minister must not consent to a dealing under subsection (1) unless satisfied—

that adequate provision will be made for the operation of services under the terms of the route service licence; and

as to any other matter the Minister considers relevant.

A purported dealing in contravention of subsection (1) is void.

Subsection (1) does not apply—

to a situation where a service is being provided in place of a scheduled air service normally provided by the holder of the route service licence due to an emergency or technical difficulty with, or the routine maintenance of, a particular aircraft; or

to an alternative or additional air service contemplated by the terms or conditions of the route service licence; or

in circumstances prescribed by the regulations, or specified in the licence itself, for the purposes of this subsection.

In addition to any other fee payable under this Act, the Minister may require the payment of—

a fee for lodging a tender for a route service licence under this

Part; and

a fee for administering a route service licence under this Part (which fee may vary from licence to licence, and may be payable from time to time during the term of the licence).

The Minister may determine the amount of a fee under this section, subject to any limits prescribed by the regulations.

Subject to subsection (2), if at the time the Minister makes a declaration under section 5(1) with respect to a particular route a person (an existing operator) is operating a scheduled air service on that route, the Minister must, before the Minister makes a general invitation to the aviation industry for applications for a route service licence, offer to grant to the existing operator a route service licence on conditions that the Minister considers to be fair and reasonable in the circumstances after taking into account any representations made by the existing operator.

The Minister is not required to make an offer under subsection (1) if the existing operator has publicly declared that he or she intends to discontinue scheduled air services on the route.

An existing operator has 14 days in which to accept an offer under subsection (1) after its receipt by the existing operator.

The Minister must, within 12 sitting days after awarding a route service licence under this Part, cause a report containing the following information to be laid before both Houses of Parliament:

the full name of the person to whom the licence has been awarded;

the term of the licence;

details concerning—

the performance and service levels, and flight schedules, required at the commencement of the licence; and

the fares to be initially charged by the holder of the licence;

other information the Minister considers appropriate.