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Legislative changes - Explanatory statementStatutory Rules 2002,No 349

Explanatory statement
Statutory Rules 2002, No 349

Civil Aviation Act 1988
Civil Aviation Amendment Regulations 2002 (No. 10) (119K Adobe Acrobat file)
Attachment - Details of the amending Regulations (112K Adobe Acrobat file)

Issued by the Authority of the Minister for Transport and Regional Services

Explanatory Statement

Section 98 of the Civil Aviation Act 1988 provides that the Governor-General may make regulations for the purposes of the Act.

The Regulations align the offence provisions in Civil Aviation Regulations 1998 (CAR 1998) Part 101, relating to unmanned aircraft and rockets with the Criminal Code Act 1995 (the Criminal Code), following the application of the Criminal Code to all Commonwealth legislation on 15 December 2001.

In particular, the Regulations amend Part 101 to:

  • specify that an offence is an offence of strict liability;
  • give effect to current drafting protocols relating to penalty provisions where the penalty units are positioned at the foot of the provision rather than in the body of the provision;
  • delete unnecessary provisions and substitute them with necessary ones relating to the application of strict liability; and
  • introduce numbering for certain provisions.

CAR 1998 Part 101 entitled Unmanned Aircraft and Rockets, covering the operation of unmanned balloons (both tethered and free), model aircraft, rockets, a new class of aircraft termed Unmanned Aerial Vehicles (UAVs), and firework displays, was incorporated in the CAR 1998 by Civil Aviation Amendment Regulations 2001 (No. 4) dated 20 December 2001.

CAR 1998 Part 101 commenced on 1 July 2002, however, its provisions were not aligned with the Criminal Code with respect to offences and penalty provisions.

Chapter 2 of the Criminal Code contains general principles of criminal responsibility that apply to the offence provisions contained in the Criminal Code and all other Commonwealth offence provisions. If regulations containing existing offence provisions are not amended to have regard to the Criminal Code, the Criminal Code may alter the interpretation of those offence provisions.

Chapter 2 adopts the common law approach of subjective fault based principles. It clarifies the traditional distinction of dividing offences into actus reus (the physical act, now referred to as the physical element) and mens rea (what the defendant thought or intended, now referred to as the fault element). The prosecution bears the onus of proving each of the physical elements. Each offence must contain at least one of the physical elements, but any combination of the physical elements may be present in an offence provision. For every physical element of an offence, the prosecution must also prove a corresponding fault element.

If legislation containing an offence provision does not specify a fault element for a physical element of the offence, the Criminal Code applies a default fault element under Section 5.6 of the Criminal Code.

In relation to an offence that operates as strict liability, a fault element can only be dispensed with in relation to an offence (or in relation to a particular element of an offence) if the offence specifies that it is a strict liability offence (or that a particular element is a strict liability element). A strict liability offence is one where proof of a fault element is not required. The defence of mistake of fact is available for a strict liability offence (or a strict liability element of an offence). In the absence of express reference to the fact that an offence is a strict liability offence, a court will be obliged to interpret an offence provision as a fault offence rather than a strict liability offence, and will require proof of fault elements in relation to the physical elements.

The entire Criminal Code harmonisation process has received prior approval of the Office of Regulation Review (ORR), therefore a Regulation Impact Statement is not required for the Regulations. The incidental consequential amendments created through the application of the Criminal Code to Part 101 have also been considered by the ORR to not have a direct or significant indirect impact on business and do not restrict competition.

Details of the Regulations are set out in the Attachment. The Regulations commenced on gazettal.