Civil Aviation Amendment Act 2009
No. 19, 2009
An Act to amend the Civil Aviation Act 1988, and for related purposes
Contents
1............ Short title............................................................................................ 1
2............ Commencement.................................................................................. 1
3............ Schedule(s).......................................................................................... 2
Schedule 1—Governance of CASA 3
Part 1—Main amendments 3
Civil Aviation Act 1988 3
Part 2—Consequential amendment 17
Aviation Transport Security Act 2004 17
Schedule 2—Enforcement 18
Civil Aviation Act 1988 18
Schedule 3—Other amendments 35
Civil Aviation Act 1988 35
Civil Aviation Amendment Act 2009
No. 19, 2009
An Act to amend the Civil Aviation Act 1988, and for related purposes
[Assented to 26 March 2009]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Civil Aviation Amendment Act 2009.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table
The day on which this Act receives the Royal Assent.
26 March 2009
2. Schedule 1
1 July 2009.
1 July 2009
3. Schedule 2, items 1 to 21
The day after this Act receives the Royal Assent.
27 March 2009
4. Schedule 2, item 22
Immediately after the commencement of the provision(s) covered by table item 3.
27 March 2009
5. Schedule 2, items 23 to 28
The day after this Act receives the Royal Assent.
27 March 2009
6. Schedule 3, items 1 to 6
1 July 2009.
1 July 2009
7. Schedule 3, items 7 to 29
The day after this Act receives the Royal Assent.
27 March 2009
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Governance of CASA
Part 1—Main amendments
Civil Aviation Act 1988
1 Subsection 3(1)
Insert:
Board means the Board of CASA.
2 Subsection 3(1)
Insert:
Board member means a member of the Board appointed in accordance with section 54.
3 Subsection 3(1)
Insert:
Chair means the Chair of the Board.
4 Subsection 3(1) (definition of corporate plan)
Omit “Director”, substitute “Board”.
5 Subsection 3(1)
Insert:
Deputy Chair means the Deputy Chair of the Board.
6 Subsection 3(1) (definition of Director)
Omit “section 84”, substitute “section 74”.
7 Subsections 12(1) and (1A)
Omit “CASA”, substitute “the Board”.
8 Subsection 12(4)
Omit “CASA”, substitute “The Board”.
9 Subsection 12(5) (note)
Repeal the note, substitute:
Note: Section 28 of the Commonwealth Authorities and Companies Act 1997 requires the Board to comply with General Policy Orders of the Australian Government to the extent that they apply to CASA.
10 Subsection 12A(1)
Omit “CASA” (first occurring), substitute “the Board”.
Note: The heading to section 12A is altered by omitting “CASA” and substituting “the Board”.
11 Subsection 12A(2)
Omit “CASA”, substitute “the Board”.
12 Sections 12C and 12D
Repeal the sections.
13 Subsections 44(1), (3) and (6)
Omit “Director”, substitute “Board”.
14 Subsections 45(2) and (5)
Omit “Director”, substitute “Board”.
15 Paragraphs 49(2)(a) and (aa)
Repeal the paragraphs, substitute:
(a) particulars of each direction given to the Board by the Minister under section 12, during the financial year covered by the report;
16 Paragraph 49(2)(b)
Omit “CASA” (first occurring), substitute “the Board”.
17 Subparagraph 49(2)(b)(ii)
Repeal the subparagraph, substitute:
(ii) a summary of action taken in the financial year by CASA, or by the Board, because of notice given to the Board in any financial year;
18 Part VII
Repeal the Part, substitute:
Part VII—Board of CASA
Division 1—Establishment and functions
51 Establishment
The Board of CASA is established by this section.
52 Membership
(1) The Board consists of:
(a) the Director; and
(b) up to 4 Board members (including the Chair and Deputy Chair).
Note: As a member of the governing body, the Director is a director of a Commonwealth authority for the purposes of the Commonwealth Authorities and Companies Act 1997: see the definition of director in section 5 of that Act.
(2) The performance of a function or the exercise of a power of the Board is not affected by a vacancy in the membership of the Board.
53 Functions
(1) The functions of the Board are to:
(a) decide the objectives, strategies and policies to be followed by CASA; and
(b) ensure that CASA performs its functions in a proper, efficient and effective manner; and
(c) ensure that CASA complies with directions given by the Minister under section 12B.
(2) The Board has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
(3) All acts and things done in the name of, or on behalf of, CASA by the Board are taken to have been done by CASA.
Division 2—Appointment etc. of Board members
54 Appointment
(1) A Board member is to be appointed by the Minister by written instrument, on a part‑time basis.
(2) The Minister must appoint one Board member to be the Chair and another Board member to be the Deputy Chair.
(3) When appointing Board members, the Minister must ensure an appropriate balance of professional expertise, but need not ensure that particular sectors of the civil aviation industry are represented.
(4) A person’s appointment as a Board member is not invalid because of a defect or irregularity in connection with the person’s appointment.
55 Term of appointment
A Board member holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.
Note: A Board member is eligible for reappointment: see subsection 33(4A) of the Acts Interpretation Act 1901.
56 Remuneration and allowances
(1) A Board member is to be paid such remuneration as is determined by the Remuneration Tribunal. If no determination of that remuneration is in operation, the Board member is to be paid such remuneration as is prescribed.
(2) A Board member is to be paid the allowances that are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
57 Leave of absence
(1) The Minister may grant leave of absence to the Chair on the terms and conditions that the Minister determines.
(2) The Chair may grant leave of absence to another Board member on the terms and conditions that the Chair determines.
58 Outside employment
A Board member must not engage in any paid employment that, in the Minister’s opinion, conflicts or may conflict with the proper performance of his or her duties.
59 Resignation
(1) A Board member may resign by giving to the Minister a signed notice of resignation.
(2) The Chair may resign his or her appointment as the Chair without resigning his or her appointment as a Board member.
(3) The Deputy Chair may resign his or her appointment as the Deputy Chair without resigning his or her appointment as a Board member.
(4) The resignation takes effect on the day on which it is received by the Minister or, if a later day is specified in the resignation, on that later day.
60 Termination of appointment
(1) The Minister may terminate the appointment of a Board member for misbehaviour or physical or mental incapacity.
(2) The Minister may terminate the appointment of a Board member if:
(a) the Board member:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the Board member:
(i) engages in paid employment that the Minister thinks is in conflict with the proper performance of the member’s duties; or
(ii) is absent, except on leave of absence granted under section 57, from 3 consecutive meetings of the Board; or
(c) the Minister thinks that the performance of the Board member has been unsatisfactory for a significant period of time; or
(d) the Board member fails, without reasonable excuse, to comply with an obligation imposed on him or her by section 27F or 27J of the Commonwealth Authorities and Companies Act 1997.
(3) 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, the Minister may terminate the appointment of all Board members or particular Board members.
(4) If the Minister is of the opinion that:
(a) CASA has failed to comply with section 12B; or
(b) the Board members have failed to comply with:
(i) subsection 13(2) or 15(1) of the Commonwealth Authorities and Companies Act 1997; or
(ii) paragraph 16(1)(a) or (b) of the Commonwealth Authorities and Companies Act 1997;
the Minister may terminate the appointment of all Board members or particular Board members.
61 Other terms and conditions
A Board member holds office on such terms and conditions (if any) in relation to matters not provided for by this Act as are determined, in writing, by the Minister.
62 Acting Chair
(1) The Minister may appoint a person to act as the Chair if the Deputy Chair is unable to act as the Chair:
(a) during a vacancy in the office of the Chair, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Chair:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there is a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
Note: See sections 20 and 33A of the Acts Interpretation Act 1901.
63 Acting Board members
(1) The Minister may appoint a person to act as a Board member (other than the Chair):
(a) during a vacancy in the office of a Board member (other than the Chair), whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when a Board member (other than the Chair):
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there is a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
Note: See sections 20 and 33A of the Acts Interpretation Act 1901.
Division 3—Board procedures
Subdivision A—Meetings
64 Times and places of meetings
(1) The Board must hold such meetings as are necessary for the efficient performance of its functions.
(2) Subject to subsections (3) and (4), meetings are to be held at such times and places as the Board decides.
(3) The Chair may call a meeting at any time.
(4) The Chair must call a meeting if requested to do so in writing by at least 2 other Board members.
(5) For the purpose of subsection (4), Board member includes the Director.
65 Presiding at meetings
(1) The Chair presides at all meetings at which he or she is present.
(2) If the Chair is not present at a meeting, the Deputy Chair presides.
(3) If neither the Chair nor the Deputy Chair is present at a meeting, the members present must appoint one of themselves to preside.
66 Quorum
(1) At a meeting of the Board, a quorum is constituted by 3 Board members.
(2) However, if:
(a) a Board member is required by section 27J of the Commonwealth Authorities and Companies Act 1997 not to be present during the deliberations, or to take part in any decision, of the Board with respect to a particular matter; and
(b) when the Board member leaves the meeting concerned there is no longer a quorum present;
the remaining Board members at the meeting constitute a quorum for the purpose of any deliberation or decision at that meeting with respect to that matter.
(3) For the purpose of this section, Board member includes the Director.
67 Voting at meetings etc.
(1) At a meeting of the Board, a question is decided by a majority of the votes of the Board members present and voting.
(2) The person presiding at a meeting has a deliberative vote and, if necessary, also a casting vote.
(3) For the purpose of subsection (1), Board member includes the Director.
68 Conduct of meetings
The Board may, subject to this Subdivision, regulate proceedings at its meetings as it considers appropriate.
Note: Section 33B of the Acts Interpretation Act 1901 provides for participation in meetings by telephone etc.
69 Minutes
The Board must keep minutes of its meetings.
Subdivision B—Decisions without meetings
70 Decisions without meetings
(1) A decision is taken to have been made at a meeting of the Board if:
(a) without meeting, a majority of Board members indicate agreement with the proposed decision in accordance with the method determined by the Board under subsection (2); and
(b) all Board members were informed of the proposed decision, or reasonable efforts were made to inform all Board members of the proposed decision.
(2) Subsection (1) applies only if the Board:
(a) has determined that it applies; and
(b) has determined the method by which Board members are to indicate agreement with proposed decisions.
(3) Paragraph (1)(a) does not apply to a Board member who is prevented by section 27J of the Commonwealth Authorities and Companies Act 1997 from deliberating on the proposed decision.
(4) For the purpose of this section, Board member includes the Director.
71 Record of decisions
The Board must keep a record of decisions made in accordance with section 70.
Part VIIA—The Director and staff of CASA
Division 1—Appointing the Director
72 Director
There is to be a Director of Aviation Safety.
73 Duties
(1) The Director is to manage CASA subject to the directions of, and in accordance with policies determined by, the Board.
(2) All acts and things done in the name of, or on behalf of, CASA by the Director are taken to have been done by CASA.
74 Appointment
(1) The Director is to be appointed by the Board by written instrument, on a full‑time basis.
Note: The Director can be re‑appointed under this section: see subsection 33(4A) of the Acts Interpretation Act 1901.
(2) Before appointing the Director, the Board must consult the Minister.
(3) A Board member is not eligible for appointment as the Director.
(4) The appointment of a person as Director is not invalid because of a defect or irregularity in connection with the person’s appointment.
75 Term of appointment
The Director holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
76 Remuneration and allowances
(1) The Director is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Director is to be paid the remuneration that is determined by the Board in writing.
(2) The Director is to be paid the allowances that are determined by the Board in writing.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
77 Leave of absence
(1) The Director has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Board may grant to the Director leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Board determines in writing.
78 Outside employment
The Director must not engage in paid employment outside the duties of his or her office except with the approval of the Board.
79 Other terms and conditions
The Director holds office on such terms and conditions in relation to matters not provided for by this Act as are determined by the Board in writing.
80 Resignation
(1) The Director may resign by giving to the Board a signed notice of resignation.
(2) The resignation takes effect on the day on which it is received by the Board or, if a later day is specified in the resignation, on that later day.
81 Termination of appointment
The Board may, after consulting the Minister, terminate the appointment of the Director:
(a) for misbehaviour or physical or mental incapacity; or
(b) if the Director:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(c) if the Director is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(d) if the Director engages, except with the Board’s approval, in paid employment outside the duties of his or her office; or
(e) if the Board is satisfied that the Director’s performance has been unsatisfactory; or
(f) if the Director fails, without reasonable excuse, to comply with an obligation imposed on him or her by section 27F or 27J of the Commonwealth Authorities and Companies Act 1997.
82 Acting Director
(1) The Board may appoint a person to act as Director:
(a) during a vacancy in the office of Director, (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Director:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there is a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
Note: See sections 20 and 33A of the Acts Interpretation Act 1901.
Division 2—Staff of CASA
83 Staff of CASA
(1) CASA may employ such persons as it considers necessary for the performance of its functions and the exercise of its powers.
(2) An employee is to be employed on the terms and conditions that the Director determines in writing.
84 Consultants
CASA may engage consultants to assist in the performance of its functions.
19 Subsection 94(1)
After “this Act”, insert “, the regulations, or an instrument made under this Act or the regulations,”.
20 Subsection 94(2)
Repeal the subsection, substitute:
(2) The Director may, in writing, delegate to an officer, if the officer holds, or performs the duties of, an office that is equivalent to a position occupied by an SES employee or acting SES employee, all or any of the following powers:
(a) the Director’s power under subsection 83(2);
(b) the Director’s powers under the regulations;
(c) the Director’s powers under an instrument made under this Act or the regulations.
21 Section 94A
Repeal the section, substitute:
95 Delegation by Board
(1) The Board may delegate, in writing, all or any of its powers under this Act to:
(a) a Board member; or
(b) the Director; or
(c) an officer.
(2) In exercising any powers under the delegation, the Board member, Director or officer, as the case may be, must comply with any directions of the Board.
22 Subsection 96(1)
Before “Where”, omit “(1)”.
23 Subsection 96(1)
Omit “, 12D”.
24 Subsection 96(2)
Repeal the subsection.
25 Transitional provision relating to the Director
(1) The person holding office as the Director under section 84 of the old law immediately before 1 July 2009 is taken to have been duly appointed as the Director by the Board under section 74 of the new law:
(a) for the balance of the person’s term of appointment that remained immediately before 1 July 2009; and
(b) on the terms and conditions provided for in Division 1 of Part VIIA of the new law.
(2) In this item:
new law means the Civil Aviation Act 1988 as in force immediately after the commencement of this item.
old law means the Civil Aviation Act 1988 as in force immediately before the commencement of this item.
Part 2—Consequential amendment
Aviation Transport Security Act 2004
26 Section 9 (definition of Director of CASA)
Repeal the definition, substitute:
Director of CASA has the same meaning as Director has in the Civil Aviation Act 1988.
Schedule 2—Enforcement
Civil Aviation Act 1988
1 Subsection 3(1)
Insert:
civil aviation legislation means:
(a) this Act or the regulations; or
(b) legislative instruments (within the meaning of the Legislative Instruments Act 2003) made under this Act or the regulations; or
(c) Chapter 7 of the Criminal Code, insofar as that Chapter applies to conduct in relation to:
(i) this Act or the regulations; or
(ii) legislative instruments (within the meaning of the Legislative Instruments Act 2003) made under this Act or the regulations; or
(iii) CASA; or
(iv) an officer acting, or purporting to act, in the course of the officer’s official duties; or
(v) an authorised person acting, or purporting to act, in accordance with powers conferred under the regulations; or
(vi) a person to whom a power or function has been delegated under this Act, the regulations, or an instrument made under this Act or the regulations.
2 Subsection 3(1)
Insert:
civil aviation offence means an offence against the civil aviation legislation.
3 Subsection 3(1)
Insert:
data has the same meaning as in Part IAA of the Crimes Act 1914.
4 Subsection 3(1)
Insert:
data held in a computer has the same meaning as in Part IAA of the Crimes Act 1914.
5 Subsection 3(1)
Insert:
data storage device has the same meaning as in Part IAA of the Crimes Act 1914.
6 Subsection 3(1)
Insert:
evidential material means a thing that may be relevant to a civil aviation offence.
7 After subsection 23(2)
Insert:
(2AA) A person must not carry or consign for carriage any goods on board an aircraft and be negligent as to whether the goods are dangerous goods, except:
(a) in accordance with the regulations, including any conditions subject to which the regulations permit the carriage or consignment of those goods; or
(b) in accordance with the Aviation Transport Security Regulations 2005, including any conditions subject to which those regulations permit the carriage or consignment of those goods; or
(c) with the written permission of CASA and in accordance with any conditions specified in the permission.
Penalty: Imprisonment for 2 years.
8 Subsection 30DK(2)
Omit “6 months”, substitute “12 months”.
9 Subsection 30DO(1)
Omit “CASA must disregard a reportable contravention if”, substitute “CASA may disregard a reportable contravention if, having regard to the circumstances in which the contravention occurred,”.
10 Paragraph 30DQ(a)
Omit “was required by that section to disregard”, substitute “disregarded”.
11 Before section 32AA
Insert:
Division 1—Appointment of investigators and issue of identity cards
12 Section 32AA
Before “CASA”, insert “(1)”.
13 At the end of section 32AA
Add:
(2) CASA must not appoint an officer as an investigator unless CASA is satisfied that the officer has suitable qualifications and experience to properly exercise the powers of an investigator.
(3) An investigator must, in exercising powers as an investigator, comply with any directions of CASA.
(4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.
14 At the end of section 32AB
Add:
(6) An investigator must carry his or her identity card at all times when exercising powers as an investigator.
15 Section 32AC
Repeal the section, substitute:
Division 2—Powers of investigators
Subdivision A—Searches without a warrant
32AC Search with consent to monitor compliance
(1) Subject to section 32ACB, for the purpose of finding out whether the civil aviation legislation is being complied with, an investigator may:
(a) enter premises; and
(b) exercise inspection powers.
(2) The power to enter premises and exercise inspection powers can only be exercised for the purpose of finding out whether the Civil Aviation Act 1990 of New Zealand, and the regulations and rules made under that Act, are being complied with if a request has been made to CASA, in accordance with the ANZA mutual recognition agreements, for the exercise of powers under this Part in relation to that legislation.
32ACA Search with consent for evidence in relation to civil aviation offences
Subject to section 32ACB, if an investigator has reasonable grounds for suspecting that there is on, or in, any premises a particular thing which may be evidential material, the investigator may:
(a) enter the premises; and
(b) search the premises for the thing.
32ACB Consent to enter premises
(1) An investigator is not authorised to enter premises unless:
(a) the occupier of the premises has consented to the entry; and
(b) the investigator has shown his or her identity card to the occupier.
(2) An investigator must, before obtaining the consent of an occupier of premises for the purposes of subsection (1), inform the occupier that the occupier may refuse consent.
(3) A consent has no effect unless the consent is voluntary.
(4) A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
(5) A consent that is not limited as mentioned in subsection (4) has effect until the consent is withdrawn.
(6) If an investigator entered premises because of the consent of the occupier of the premises, the investigator, and any person assisting the investigator, must leave the premises if the consent ceases to have effect.
Subdivision B—Applying for and issuing a warrant
16 Subsection 32AD(1A)
Omit “legislation referred to in paragraph (b) of the definition of relevant legislation in subsection 32AC(2) is”, substitute “the Civil Aviation Act 1990 of New Zealand, and the regulations and rules made under that Act (the New Zealand legislation), are”.
17 Subsection 32AD(2)
Omit “relevant legislation”, substitute “civil aviation legislation or the New Zealand legislation”.
18 Subsection 32AD(5)
Repeal the subsection.
19 Section 32AE
Repeal the section.
20 Subsection 32AF(2)
Omit “an offence against this Act or the regulations”, substitute “a civil aviation offence”.
21 Section 32AH
Repeal the section, substitute:
32AH Seizures related to civil aviation offences
(1) This section applies if:
(a) an investigator searches premises with the consent of the occupier, as mentioned in section 32ACA; or
(b) an investigator searches premises in accordance with a warrant that has been issued under section 32AF or 32AG.
(2) The investigator may seize a thing that he or she:
(a) finds in the course of the search; and
(b) believes on reasonable grounds to be evidential material; and
(c) believes on reasonable grounds needs to be seized to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating a civil aviation offence.
Subdivision C—General provisions about executing a warrant
32AHA Announcement before entry
(1) An investigator executing a warrant must, before any person enters premises under the warrant:
(a) announce that he or she, and any other person who enters the premises under the warrant, is authorised to enter the premises; and
(b) give any person at the premises an opportunity to allow entry to the premises.
(2) An investigator is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:
(a) the safety of a person; or
(b) that the effective execution of the warrant is not frustrated.
32AHB Assistance and force in executing a warrant
In executing a warrant, the investigator executing the warrant may:
(a) obtain the assistance that is necessary and reasonable in the circumstances; and
(b) use the force against persons and things that is necessary and reasonable in the circumstances.
32AHC Copy of warrant to be shown to occupier etc.
(1) If the occupier of the premises, or another person who apparently represents the occupier, is present at the premises, the investigator executing the warrant must make a copy of it available to the person.
(2) The investigator must identify himself or herself to the person at the premises.
(3) The copy of the warrant need not include the signature of the magistrate who issued it.
32AHD Occupier entitled to watch search
(1) The occupier of the premises, or another person who apparently represents the occupier, who is present at the premises, is entitled to watch the search.
(2) The right to watch the search being conducted ceases if the occupier, or the person representing the occupier, impedes the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
32AHE Specific powers available to investigator executing a warrant
(1) The investigator executing the warrant or a person assisting him or her may take photographs or video recordings of the premises or things on the premises:
(a) for a purpose incidental to the execution of the warrant; or
(b) with the written consent of the occupier of the premises.
(2) The investigator executing the warrant and all people assisting him or her may, if the warrant is still in force, finish executing the warrant after all of them temporarily stop executing it and leave the premises:
(a) for not more than one hour; or
(b) for a longer period with the written consent of the occupier of the premises.
(3) The execution of a warrant that is stopped by an order of a court may be completed if:
(a) the order is later revoked or reversed on appeal; and
(b) the warrant is still in force.
32AHF Use of equipment to examine or process things
(1) The investigator executing the warrant or a person assisting him or her may bring to the premises any equipment (including electronic equipment) reasonably necessary to examine or process things found at the premises in order to determine whether they are things that may be seized under the warrant.
(2) A thing found at the premises may be moved to another place for examination or processing in order to determine whether it may be seized if:
(a) both of the following apply:
(i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;
(ii) there are reasonable grounds to believe that the thing contains or constitutes evidential material; or
(b) the occupier of the premises consents in writing.
(3) If things are moved to another place for the purpose of examination or processing, the investigator must, if it is practicable to do so:
(a) inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and
(b) allow the occupier or his or her representative to be present during the examination or processing.
(4) The thing may be moved to another place for examination or processing for no longer than 72 hours.
(5) An investigator may apply to a magistrate for one or more extensions of that time if the investigator believes on reasonable grounds that the thing cannot be examined or processed within 72 hours or that time as previously extended.
(6) The investigator must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard in relation to the application.
(7) The investigator executing the warrant or a person assisting him or her may operate equipment (including electronic equipment) already on the premises to examine or process a thing found on the premises in order to determine whether it may be seized under the warrant, if the investigator or the person believes on reasonable grounds that:
(a) the equipment is suitable for the examination or processing; and
(b) the examination or processing can be carried out without damaging the equipment or thing.
(8) A notice of the application given to the occupier of the premises is not a legislative instrument.
32AHG Use of electronic equipment at premises without expert assistance
(1) The investigator executing the warrant or a person assisting him or her may operate electronic equipment on the premises to access data (including data not held at the premises) if he or she believes on reasonable grounds that:
(a) the data might constitute evidential material; and
(b) the equipment can be operated without damaging it.
Note: An investigator can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 32AHI.
(2) If the investigator or the person assisting him or her believes on reasonable grounds that any data accessed by operating the electronic equipment might constitute evidential material, he or she may:
(a) copy the data to a disk, tape or other associated device brought to the premises; or
(b) if the occupier of the premises agrees in writing—copy the data to a disk, tape or other associated device at the premises;
and take the device from the premises.
(3) If:
(a) the investigator or the person assisting him or her takes the device from the premises; and
(b) CASA is satisfied that the data is not required (or is no longer required) for an investigation or the prosecution of a person;
CASA must arrange for:
(c) the removal of the data from any device in the control of CASA; and
(d) the destruction of any other reproduction of the data in the control of CASA.
(4) If the investigator or the person assisting him or her, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can, by using facilities at the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents so produced.
(5) A person may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to put the material in documentary form as referred to in paragraph (4)(b); or
(b) possession of the equipment by the occupier could constitute an offence.
32AHH Use of electronic equipment at premises with expert assistance
(1) If the investigator executing the warrant or a person assisting him or her believes on reasonable grounds that:
(a) evidential material may be accessible by operating electronic equipment at the premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.
(2) The investigator or the person assisting him or her must notify the occupier of the premises, in writing, of:
(a) his or her intention to secure the equipment; and
(b) the fact that the equipment may be secured for up to 24 hours.
(3) The equipment may be secured for up to 24 hours to allow the equipment to be operated by an expert.
(4) If the investigator or the person assisting him or her believes on reasonable grounds that expert assistance will not be available within 24 hours, he or she may apply to a magistrate for an extension of that period.
(5) The investigator or the person assisting him or her must notify the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.
(6) The provisions of this Part in relation to the issuing of warrants apply, with such modifications as are necessary, to the issuing of an extension.
(7) A notification given to the occupier of the premises under this section is not a legislative instrument.
32AHI Person with knowledge of a computer or a computer system to assist access etc.
(1) The investigator executing the warrant may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the officer or a person assisting him or her or to do one or more of the following:
(a) access data held in a computer, or accessible from a computer, that is on premises in relation to which the warrant is in force;
(b) copy the data to a data storage device;
(c) convert the data into documentary form.
(2) The magistrate may grant the order if he or she is satisfied that:
(a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer; and
(b) the specified person is:
(i) in the case of a warrant—reasonably suspected of having committed the offence stated in the warrant; or
(ii) the owner or lessee of the computer; or
(iii) an employee of the owner or lessee of the computer; and
(c) the specified person has relevant knowledge of:
(i) the computer or a computer network of which the computer forms a part; or
(ii) measures applied to protect data held in, or accessible from, the computer.
(3) A person commits an offence if the person fails to comply with the order.
Penalty: Imprisonment for 6 months.
32AHJ Accessing data held on other premises—notification to occupier of those premises
(1) If:
(a) data that is held on premises (other than the premises in relation to which the warrant is in force) is accessed under subsection 32AHG(1); and
(b) it is practicable to notify the occupier of the other premises that the data has been accessed under a warrant;
the investigator executing the warrant must:
(c) do so as soon as practicable; and
(d) if the investigator has arranged, or intends to arrange, for continued access to the data under subsection 32AHG(2) or (5)—include that information in the notification.
(2) A notification under subsection (1) must include sufficient information to allow the occupier of the other premises to contact the investigator.
32AHK Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in section 32AHF, 32AHG or 32AHH:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, had provided any appropriate warning or guidance on the operation of the equipment.
(5) For the purpose of subsection (1):
damage, in relation to data, includes damages by erasure of data or addition of other data.
32AHL Copies of seized things to be provided
(1) If the investigator executing the warrant or a person assisting him or her seizes:
(a) a document, film, computer file or other thing that can be readily copied; or
(b) a device storing information that can be readily copied;
the investigator or the person assisting him or her must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.
(2) However, subsection (1) does not apply if:
(a) the thing that has been seized was seized under subsection 32AHG(2) or paragraph 32AHG(5)(a); or
(b) possession of the document, film, computer file, thing or information by the occupier could constitute an offence.
32AHM Receipts of things seized under warrant
(1) If a thing is seized, as allowed by section 32AH, the investigator executing the warrant or person assisting him or her must provide a receipt for the thing.
(2) If 2 or more things are seized, they may be covered by the one receipt.
32AHN Retention of seized things
(1) Subject to any contrary order of a court, if an investigator seizes a thing, as allowed by section 32AH, an investigator must return it if:
(a) the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; or
(b) the period of 60 days after its seizure ends;
whichever first occurs, unless the thing is forfeited or forfeitable to the Commonwealth.
(2) At the end of the 60 days specified in subsection (1), an investigator must take reasonable steps to return the thing to the person from whom it was seized, unless:
(a) proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or
(b) an investigator may retain the thing because of an order under section 32AHO; or
(c) an investigator is otherwise authorised (by a law, or an order of a court, of the Commonwealth) to retain, destroy or dispose of the thing.
(3) The thing may be returned under subsection (2) either unconditionally or on such terms and conditions as CASA sees fit.
22 Section 32AHA
Renumber as section 32AHO.
23 Subsection 32AHA(1)
Omit “under section 32AH”, substitute “, as allowed by a warrant or section 32AH,”.
24 Paragraph 32AHA(3)(a)
Omit “an offence against this Act or the regulations”, substitute “a civil aviation offence”.
25 Paragraph 32AHA(3)(b)
Omit “an offence against this Act”, substitute “a civil aviation offence”.
26 At the end of Part IIIA
Add:
Division 3—Offences
32AMA Making false statements in warrants
A person commits an offence if:
(a) the person makes a statement in applying for a warrant; and
(b) the person knows that the statement is false or misleading in a material particular.
Penalty: Imprisonment for 2 years.
32AMB Offence for stating incorrect names in telephone warrants
A person commits an offence if:
(a) the person states a name of a magistrate in a document; and
(b) the document purports to be a form of warrant under section 32AG; and
(c) the name is not the name of the magistrate who issued the warrant.
Penalty: Imprisonment for 2 years.
32AMC Offence for unauthorised form of warrant
A person commits an offence if:
(a) the person states a matter in a form of warrant under section 32AG; and
(b) the person knows that the matter departs in a material particular from the form authorised by the magistrate.
Penalty: Imprisonment for 2 years.
32AMD Offence for executing etc. an unauthorised form of warrant
A person commits an offence if:
(a) the person executes or presents a document to another person; and
(b) the document purports to be a form of warrant under section 32AG; and
(c) the person knows that the document:
(i) has not been approved by a magistrate under either of those sections; or
(ii) departs in a material particular from the terms authorised by a magistrate under either of those sections.
Penalty: Imprisonment for 2 years.
32AME Offence for giving unexecuted form of warrant
A person commits an offence if:
(a) the person gives a magistrate a form of warrant under section 32AG; and
(b) the document is not the form of warrant that the person executed.
Penalty: Imprisonment for 2 years.
Division 4—Miscellaneous
32AMF Other laws about search and seizure not affected
(1) This Part is not intended to limit, or exclude the operation of, another law of the Commonwealth relating to:
(a) the search of premises; or
(b) the seizure of things.
(2) To avoid doubt, even though another law of the Commonwealth provides power to do either or both of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
32AMG Magistrates—personal capacity
(1) A function or power conferred on a magistrate by this Part is conferred on the magistrate:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
(2) A magistrate need not accept a function or power conferred.
(3) A magistrate has, in relation to the performance or exercise of a function or power conferred on the magistrate by this Part, the same protection and immunity as if he or she were exercising that function or power as, or as a member of, the court of which the magistrate is a member.
27 Subsection 97A(2)
Omit “of a prosecution for an offence against this Act”, substitute “of this Act or the regulations”.
28 Application
(1) The amendment made by item 8 of this Schedule applies to an undertaking given to CASA on or after the day on which this item commences.
(2) The amendments made by this Schedule (other than items 7 to 10 and 27) apply in relation to:
(a) if a power is exercised under a warrant issued under Part IIIA of the Civil Aviation Act 1988—a warrant issued on or after the day on which this item commences; and
(b) in any other case—a power exercised under Part IIIA of the Civil Aviation Act 1988 on or after the day on which this item commences.
Schedule 3—Other amendments
Civil Aviation Act 1988
1 After subsection 26(3)
Insert:
(3A) For the purposes of being satisfied that the person has complied with, or is capable of complying with, the safety rules, CASA may have regard to the matters set out in section 28AA as if:
(a) the reference in that section to subsection 28(1A) were a reference to paragraph (3)(b) of this section; and
(b) the reference in subparagraph (1)(c)(ii) and paragraph (5)(a) of that section to an AOC were to a permission.
2 After subsection 26(4)
Insert:
(4A) For the purposes of deciding whether to specify a condition in the permission, CASA may have regard to the matters set out in section 28AA as if:
(a) the reference in that section to subsection 28(1A) were a reference to paragraph (4)(b) of this section; and
(b) the reference in subparagraph (1)(c)(ii) and paragraph (5)(a) of that section to an AOC were to a permission.
3 At the end of subsection 27AE(1)
Add:
; (e) evidence of the matters listed in paragraphs 28AA(1)(a), (b), (c) and (d) (including, as applicable, by giving examples of the things mentioned in subsections 28AA(2) to (5)).
4 After subsection 27A(1)
Insert:
(1A) CASA may, by written notice given to the applicant, require the applicant to give CASA evidence of the matters listed in paragraphs 28AA(1)(a), (b), (c) and (d) (including, as applicable, by giving examples of the things mentioned in subsections 28AA(2) to (5)).
5 After subsection 28(1)
Insert:
(1A) For the purposes of paragraph (1)(a), if the AOC sought is an AOC authorising the operation of foreign registered aircraft into Australia, out of Australia, or both, or on regulated domestic flights, other than:
(a) an Australian AOC with ANZA privileges; or
(b) an Australian AOC with ANZA privileges authorising operations of an aircraft registered in New Zealand on regulated domestic flights;
CASA may have regard to the matters set out in section 28AA.
6 After section 28A
Insert:
28AA Matters that CASA may have regard to in issuing an AOC in relation to certain flights by foreign registered aircraft
(1) For the purposes of subsection 28(1A), the matters which CASA may have regard to are:
(a) evidence of any serious safety deficiencies in relation to the applicant’s operations in another country; and
(b) evidence of the applicant’s ability and willingness to address those safety deficiencies; and
(c) evidence relating to the authority or authorities responsible for:
(i) the safety oversight of the applicant’s operations; and
(ii) the registration, certification and airworthiness of aircraft used by the applicant in its operations or to be used under the AOC sought; and
(d) evidence relating to the management and control of the applicant’s operations.
(2) For the purposes of paragraph (1)(a), examples of the kinds of evidence of serious safety deficiencies include all or any of the following:
(a) a report that identifies serious safety deficiencies;
(b) the applicant’s failure to address deficiencies identified during ramp inspections, or similar inspections, carried out by the aviation authority of another country or group of countries;
(c) the fact that another country or group of countries has imposed an operating ban on the applicant because of deficiencies relating to international aviation safety standards;
(d) information relating to an accident or serious incident that indicates systemic safety deficiencies in relation to the applicant’s operations.
(3) For the purposes of paragraph (1)(b), examples of the kinds of evidence of the applicant’s ability and willingness to address safety deficiencies include either or both of the following:
(a) how the applicant responds to requests from CASA for information about the safety aspects of the applicant’s operations;
(b) if the applicant has presented a plan for corrective action to CASA, the aviation authority of another country or group of countries, ICAO or another relevant body or organisation—whether the corrective action proposed is appropriate and sufficient.
(4) For the purposes of paragraph (1)(c), examples of the kinds of evidence mentioned in that paragraph include all or any of the following:
(a) how a relevant authority responds to concerns or issues raised by CASA about:
(i) the safety of the applicant’s operations; or
(ii) the safety of aircraft used by the applicant or another carrier licensed or certified by that authority;
(b) a relevant authority’s reputation for implementing and enforcing relevant aviation safety standards, including:
(i) audits and related corrective action plans established under ICAO’s Universal Safety Oversight Audit Programme or any other similar program; and
(ii) whether the applicant’s authorisation (however described) by the authority is not, or is no longer, recognised by another country or group of countries; and
(iii) if the applicant’s authorisation was not issued by the authority of the country in which the applicant has its principal place of business—that fact;
(c) in relation to aircraft used by the applicant in the country in which the aircraft is registered—whether the aviation authority of that country administers its obligations in accordance with the Chicago Convention.
(5) For the purposes of paragraph (1)(d), examples of the kinds of evidence relating to the management and control of the applicant’s operations include either or both of the following:
(a) whether a person who is participating in, or is likely to participate in, managing the applicant’s operations is not a fit and proper person to participate in the management of the operations of a holder of an AOC;
(b) whether a person who has, or is likely to have, effective control over the applicant’s operations is not a fit and proper person to have effective control over the applicant’s operations.
7 Section 30DX
Before “If”, insert “(1)”.
8 At the end of section 30DX
Add:
(2) A person incurs demerit points if:
(a) the person does not hold a civil aviation authorisation; and
(b) the person commits an offence prescribed by the regulations under paragraph 30DT(a).
(3) If the person incurs demerit points, the demerit points are incurred in relation to an authorisation that is:
(a) within the class of authorisations to which the offence relates; and
(b) held in the 3 year period beginning on the day on which the demerit points would have been incurred had an authorisation been held at the time the offence was committed.
9 After subsection 30DY(1)
Insert:
(1A) If a person incurs demerit points before becoming a holder of a civil aviation authorisation, then, for the purpose of paragraph (1)(b), those points are taken to have been incurred by the holder for offences committed by the holder.
10 After subsection 30DZ(1)
Insert:
(1A) If a person incurs demerit points before becoming a holder of a civil aviation authorisation, then, for the purpose of paragraph (1)(b), those points are taken to have been incurred by the holder for offences committed by the holder.
11 After subsection 30EC(1)
Insert:
(1A) If a person incurs demerit points before becoming a holder of a civil aviation authorisation, then, for the purpose of paragraph (1)(b), those points are taken to have been incurred by the holder for offences committed by the holder.
12 Section 30EE
Before “If”, insert “(1)”.
13 At the end of section 30EE
Add:
(2) If a person incurs demerit points before becoming a holder of a civil aviation authorisation, then, for the purpose of subsection (1), those points are taken to have been incurred by the holder.
14 Section 30EI
Before “If”, insert “(1)”.
15 At the end of section 30EI
Add:
(2) If a person incurs demerit points before becoming a holder of a civil aviation authorisation, then, for the purpose of subsection (1), those points are taken to have been incurred by the holder.
16 Subsection 31A(4)
Omit “for review of the decision”, substitute “for an order under subsection 41(2) of the Administrative Appeals Tribunal Act 1975”.
17 Subsection 31A(5)
Repeal the subsection, substitute:
(5) If the holder applies to the Tribunal as mentioned in subsection (4), the stay continues to have effect until the Tribunal makes an order under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 or decides that no order should be made.
18 Subsection 31A(6)
Omit “in accordance with”, substitute “as mentioned in”.
19 Subsection 31A(7)
Repeal the subsection.
20 Section 31C
Repeal the section, substitute:
31C Tribunal’s ordinary powers not affected
To avoid doubt, section 31A does not affect the operation of subsection 31(2).
21 Before section 96
Insert:
95A Delegation by Secretary of the Department
(1) The Secretary of the Department may delegate, in writing, his or her power under paragraph 28B(1)(b) or 28BAA(2)(b) to an SES employee or acting SES employee in the Department.
(2) In exercising powers under the delegation, the SES employee or acting SES employee, as the case may be, must comply with any directions of the Secretary of the Department.
22 Subsection 98(3A)
After “time to time”, insert “, even if the written instrument or other document does not yet exist when the regulation is made”.
23 Subsection 98(5)
Repeal the subsection, substitute:
(5) The regulations may provide that CASA may issue a Civil Aviation Order containing a direction, instruction, notification, permission, approval or authority.
(5AAA) A Civil Aviation Order issued under a regulation made under subsection (5) is a legislative instrument, but Part 6 of the Legislative Instruments Act 2003 does not apply to the Order.
24 Paragraph 98(5A)(b)
After “airworthiness of”, insert “, or design standards for,”.
25 After subsection 98(5A)
Insert:
(5AA) An instrument issued under paragraph (5A)(a) is a legislative instrument if the instrument is expressed to apply in relation to:
(a) a class of persons; or
(b) a class of aircraft; or
(c) a class of aeronautical product;
but Part 6 of the Legislative Instruments Act 2003 does not apply to the instrument.
(5AB) An instrument issued under paragraph (5A)(a) is not a legislative instrument if the instrument is expressed to apply in relation to:
(a) a particular person; or
(b) a particular aircraft; or
(c) a particular aeronautical product.
26 Subsection 98(5B)
Repeal the subsection, substitute:
(5B) An instrument issued under a regulation made under paragraph (5A)(b) is a legislative instrument if the instrument is, or relates to:
(a) an airworthiness directive; or
(b) an airworthiness standard; or
(c) a design standard;
but Part 6 of the Legislative Instruments Act 2003 does not apply to the instrument.
(5BA) However, an instrument issued under a regulation made under paragraph (5A)(b) is not a legislative instrument if the instrument is expressed to apply in relation to:
(a) a particular person; or
(b) a particular aircraft; or
(c) a particular aeronautical product.
27 After subsection 98(5C)
Insert:
(5D) 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:
(a) as in force or existing at a particular time; or
(b) 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.
28 Application
(1) The amendments made by items 1 to 6 of this Schedule apply in relation to:
(a) an application for a permission or an AOC (within the meaning of the Civil Aviation Act 1988), whether made before, on or after 1 July 2009; and
(b) a permission granted before, on or after 1 July 2009; and
(c) an AOC issued before, on or after 1 July 2009.
(2) The amendment made by item 8 of this Schedule applies in relation to an offence that is committed on or after 1 July 2009.
(3) The amendments made by items 16 to 19 of this Schedule apply in relation to a decision for which a show cause notice is given by CASA on or after 1 July 2009.
29 Saving provision
The amendment made by item 23 of this 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 this item commences.
[Minister’s second reading speech made in—
House of Representatives on 12 February 2009
Senate on 11 March 2009]
(15/09)
