Chapter One - Introduction
Civil Aviation Legislation Amendment (Mutual Recognition with New
Zealand) Bill 2005
1.1
The Civil Aviation Legislation Amendment (Mutual
Recognition with New Zealand)
Bill 2005 (the bill) was introduced into the Senate on 23 June 2005. On 10 August 2005, the bill was referred for inquiry to the
Rural and Regional Affairs and Transport Legislation Committee (the committee)
on the recommendation of the Senate Selection of Bills Committee.
1.2
A similar bill entitled the Civil Aviation Legislation
Amendment (Mutual Recognition with New Zealand
and Other Matters) Bill 2003 had been introduced into the previous Parliament
in June 2003. It was the subject of an inquiry by the committee's predecessor
which reported in June 2004.
1.3
The Civil Aviation Legislation Amendment (Mutual
Recognition with New Zealand
and Other Matters) Bill 2003 lapsed with the proroguing of the 40th
Parliament.[1] The differences between
the 2005 bill and that which lapsed arise from recommendations made by the
committee's predecessor on the initial bill.
Conduct of the inquiry
1.4
The committee approached those who had participated in
the June 2004 inquiry inviting comment to the revised bill. It also agreed to
consider the submissions made and evidence provided in the 2004 inquiry as part
of this inquiry.
1.5
The committee sought further public comment by
advertising the inquiry in The Australian
on 17 and 31 August 2005. The
committee received two submissions (see Appendix 1).
1.6
The committee held a public hearing in Canberra
on 29 August 2005. It heard
evidence from a number of witnesses, including the Flight Attendants'
Association of Australia, Virgin Blue Airlines Pty Ltd, the Australian
Federation of Air Pilots and the Department of Transport and Regional Services
(see Appendix 2). All the evidence presented to the committee is available on
the parliament's homepage at http://www.aph.gov.au
1.7
The committee appreciates the time and work of all
those who provided oral and written submissions to the inquiry. Their work has
assisted the committee considerably in its inquiry.
Purpose of the bill
1.8
The bill amends the Civil
Aviation Act 1988 to permit the mutual recognition of certain
aviation-related safety certification between Australia
and New Zealand
in relation to large aircraft (greater than 30 seats or 15,000 kgs).[2]
1.9
New Zealand
has implemented corresponding amendments to its Civil Aviation Act 1990 by the addition of 'Part 1A – ANZA Mutual
Recognition'. The New Zealand
legislation passed into law on 18
March 2004.[3]
1.10
The bill and its associated regulations is the first
step toward mutual recognition of aviation safety certificates between Australia
and New Zealand.
It provides for the mutual recognition of Air Operator Certificates (AOCs) for large
aircraft, as issued by the Civil Aviation Safety Authority (CASA) in Australia
and the Civil Aviation Authority of New Zealand (CAANZ).
1.11
The possession of an AOC permits an air operator to conduct
commercial activities. Aircraft operators wishing to operate in both Australia
and New Zealand
are currently required to hold, and comply with, two AOCs issued by their
respective aviation safety regulators (CASA and CAANZ). The Explanatory Memorandum notes that:
This results in duplication, complexity and added administrative
and financial burdens on operators, which may in turn deter operators from
establishing air services in the other country. This is inconsistent with the
intention of the 'open skies' Air Services Agreement to promote competition
among Australian and New Zealand
operators, including on domestic routes.[4]
1.12
Under the new legislative arrangements, CASA will be
able to approve an AOC for an Australian operator that will authorise
operations in both Australia
and New Zealand
and will be accepted for use by New Zealand
authorities. This particular AOC will be termed an Australian AOC with ANZA
privileges – where ANZA means Australia
and New Zealand Aviation.[5] Similar
arrangements will allow New Zealand
operators with a New Zealand AOC with ANZA privileges to
operate on Australian routes.
1.13
The particular aviation authority that issues the AOC
(with ANZA privileges) is the authority that will monitor its
use by the operator – whether its operations are in Australia
or New Zealand.
This means that Australian operators choosing to hold an AOC with ANZA
privileges issued by CASA will be subject to regulatory oversight by CASA –
even when operating in New Zealand,
and vice versa.[6]
1.14
Any extension of mutual recognition to certificates
other than AOCs (for the operation of large aircraft) will be achieved by
further amendment to the Civil Aviation
Act 1988. This provision implements recommendation 2 of the committee's report
on the 2003 bill.[7]
Provisions of the bill
Mutual recognition
1.15
Schedule 1 contains the new provisions that will
implement the mutual recognition arrangements with New
Zealand.[8]
1.16
Items 2 and 3 define ANZA activities
in Australian territory and New Zealand
territory, respectively.[9] ANZA
is the acronym for Australia
and New Zealand Aviation.
1.17
Item 4 defines ANZA mutual recognition
agreements as being 'the agreement or arrangement, or agreements or
arrangements, as amended and in force from time to time, identified in
regulations made for the purposes of this definition'.[10]
1.18
The ANZA mutual recognition agreements
will be identified in Regulations. It is envisaged that:
...the principal arrangement defining the scope of the scheme will
be in the form of an instrument of less-than-treaty status. The arrangement
will set out joint understandings on the application of mutual recognition
between the respective Governments. It will cover such key issues as the mutual
recognition principle; set out the scope of the mutual recognition commitment;
identify procedures to be followed in relation to temporary stop notices; allow
for mutual assistance with enforcement; and cover future extension of mutual
recognition arrangements. At this stage the Governments have agreed that ANZA
mutual recognition should only apply to aircraft with greater than 30 seats or
more than 15,000kg.[11]
Temporary stop notices
1.19
A new section – 28D – will administer CASA's power to
issue a temporary stop notice to a holder of a New Zealand AOC with ANZA
privileges.
1.20
The bill includes a provision which allows a regulator
to issue a temporary stop notice to an operator holding an AOC with ANZA
privileges issued by the other regulator, who is normally responsible for
regulating the safety of its operations. Temporary stop notices require the
holder to cease all activity, and would only be issued if the safety regulator
considered there was a serious risk to flying safety.
Scrutiny of Bills
1.21
The Senate Scrutiny of Bills Committee has the
responsibility for examining all legislation that comes before the Senate. Its
terms of reference include matters relating to rights and liberties and also
parliamentary scrutiny.
1.22
Item 2 in the table to subclause 3(1) in the bill
provides that provisions relating to mutual recognition will commence on 'a
single day to be fixed by Proclamation' with no limit specified within which the
bill must commence in any event.[12]
1.23
The Scrutiny of Bills Committee made specific comments
in relation to this item:
The Committee takes the view that Parliament is responsible for
determining when laws are to come into force, and that commencement provisions
should contain appropriate restrictions on the period during which legislation
might commence.[13]
1.24
The Scrutiny of Bills Committee noted the statement in
the explanatory memorandum that the deferred commencement is 'to enable the
signing of the inter-governmental arrangement on mutual recognition by the
Governments of Australia and New Zealand.'
At the same time however, the Scrutiny Committee sought the Minister's advice
as to whether the commencement clause should not also be subject to a provision
that, if the agreement has not been signed by some fixed date, the Act will be
automatically treated as having been repealed.[14]
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