Air Services Act 1995

The Act affects AA itself, members of the Board, the Chief Executive Officer, and AA's employees and consultants. It also reaches everyone who uses AA services and facilities: airline operators, owners, lessors, operators, lessees, hirers, charterers and pilots in command of aircraft for which AA imposes service charges or holds a statutory lien. The Civil Aviation Safety Authority (CASA), established by the Civil Aviation Act 1988, sits alongside AA as the safety regulator and is named in section 3 and section 44 (assets transferred to CASA do not form part of AA's initial capital).

Land developers and airport lessees are also affected through the noise and environmental functions in section 8(1)(d), the section 9(2) environmental obligation, and the directions in section 16. The interaction with the Airports Act 1996 brings airport master plans and Australian Noise Exposure Forecasts into the picture.

Section 9 sets the manner of performance. AA must regard the safety of air navigation as the most important consideration. Subject to that, AA must perform its functions in a manner that, as far as is practicable, protects the environment from the effects of operation and use of aircraft and the effects associated with the operation and use of aircraft. AA must perform its functions consistently with Australia's obligations under the Chicago Convention and any other agreement between Australia and other countries relating to safety of air navigation.

Section 10 obliges AA to consult and cooperate with government, commercial, industrial, consumer and other relevant bodies and organisations (including ICAO and bodies representing the aviation industry) where appropriate. Section 11 confers general powers, including the power to enter into contracts, acquire and dispose of property, form companies, raise money, and let on hire plant and machinery.

Section 16 lets the Minister give written directions to AA, which AA must comply with under section 16(3). If AA suffers financial detriment as a result of complying, AA is entitled to be reimbursed by the Commonwealth the amount the Minister determines under section 16(4) (this does not apply to environmental functions under section 8(1)(d) or (e) by force of section 16(5)). Section 17 lets the Minister notify AA of views about strategic direction; AA must take account of those notices when performing its functions and when preparing a corporate plan under section 35 of the Public Governance, Performance and Accountability Act 2013. Section 18 authorises directions to give documents to a ministerial nominee.

The Board's role under section 21 is to decide objectives, strategies and policies, and to ensure AA performs its functions properly, efficiently and effectively. The Board has nine members under section 22 (Chairperson, Deputy Chairperson, Chief Executive Officer, plus six others), with appointed members serving for up to five years (section 27) and subject to termination grounds in section 32 (misbehaviour, incapacity, bankruptcy, conflict, missed meetings, sustained underperformance, or section 18 or PGPA section 19 non-compliance).

Charging powers sit in Division 3 of Part 5. Section 53 lets the Board determine charges for services or facilities and penalties for late payment. The charge must be reasonably related to expenses incurred or to be incurred by AA in relation to the matters to which the charge relates and must not be such as to amount to taxation. Section 54 makes the Minister a gatekeeper: the Board must give 30 days' notice and the Minister can approve or disapprove. Section 55 layers in Part VIIA of the Competition and Consumer Act 2010, including notices under sections 95L(3), 95P, 95ZJ, with the consequence that the section 54(2) clock is paused until the Minister receives the relevant notice or report and the Minister can substitute a fresh determination under section 55(5)-(6).

Late payment penalty under section 56 is capped at 1.5 per cent per month of the unpaid amount, calculated from the due date and compounded. Recovery is in a court of competent jurisdiction under section 57, with remission for exceptional circumstances under section 58.

Division 4 of Part 5 contains the statutory lien regime. Under section 59, where a service charge in respect of an aircraft is unpaid by the due date and any part of the charge or late payment penalty remains unpaid, an authorised employee may direct the Registrar to make an entry in the Register; on entry, a statutory lien on the aircraft vests in AA covering the charge, future penalties on the charge, and any further outstanding amounts in respect of the aircraft. Section 60 sets the lien's effect: it operates in spite of any encumbrance and any sale, disposition or dealing in the aircraft, and whether or not AA has possession. For priorities, the lien ranks after security interests created before its registration to the extent they cover pre-registration debts (excluding circulating-asset security interests within the Personal Property Securities Act 2009), and before all other security interests. Section 60(3A) imports section 73(2) of the PPSA so that priority between the lien and a security interest under the PPSA is determined by the Air Services Act, not the PPSA. The Cape Town Convention (the Convention on International Interests in Mobile Equipment, given force of law by the International Interests in Mobile Equipment (Cape Town Convention) Act 2013) recognises the lien as a non-consensual right or interest.

Section 61 lets prescribed persons obtain a certificate from an authorised employee about whether a lien applies and what amounts are outstanding; the lien does not cover charges or penalties payable but unspecified at the certificate time. Section 62 lists the only ways a lien ceases (full payment, sale under section 67, or written direction by an authorised employee). Section 63 requires Gazette notice and reasonable steps to serve the prescribed persons. Section 64 establishes the Register of Statutory Liens, open to public inspection.

Subdivision B of Division 4 of Part 5 covers seizure and sale. Section 65 lets an authorised employee seize the aircraft if the outstanding amount remains unpaid for nine months after it became outstanding or after registration of the lien (whichever is later), with notice to security holders, owners, operators, lessees, hirers, charterers and pilots in command. Section 66 requires AA to insure the seized aircraft, recoverable from the person liable. Section 67 lets AA sell the aircraft after the same nine-month threshold and execute documents giving title free of encumbrances, leases and contracts of hire. Section 68 sends the proceeds to the regulations. Section 69 applies any payments in the order in which the outstanding amounts became payable.

Subdivision C of Division 4 of Part 5 contains the only criminal offences. Section 70 makes it an offence punishable by imprisonment for 3 years for a person who knows that a statutory lien is in effect to remove the aircraft from Australian territory without prior approval of an authorised employee. Section 71 imposes 2 years' imprisonment for detaching parts or equipment from such an aircraft without prior approval. Both sections deem knowledge where the person ought reasonably to have known of the lien having regard to the person's abilities, experience, qualifications and other attributes and all the circumstances. The defendant bears an evidential burden under subsection 13.3(3) of the Criminal Code on the approval defence.

Section 72 protects AA, its employees and agents from legal action for loss of or damage to seized aircraft or any economic loss suffered as a result of seizure, except where the loss is wilfully or negligently caused. Section 76 covers conduct of bodies corporate: the state of mind of a director, servant or agent within the scope of actual or apparent authority is taken to be the state of mind of the corporation, with a due diligence defence; conduct attribution applies to individuals and their servants and agents on similar lines, with a no-imprisonment safeguard in section 76(5) where the conviction depended on the deeming.

Section 77 lets regulations impose penalties not exceeding 50 penalty units for contraventions. Regulations made under section 77 may specify functions, powers (including giving instructions and directions in relation to air traffic services, coordinating rescue and fire fighting, requisitioning aircraft, taking charge of operations), compensation for requisitioned aircraft, immunities, publication of Aeronautical Information Publications and Notices to Airmen, environmental regulation of Commonwealth jurisdiction aircraft, and supply of maintenance records for aircraft under statutory liens.

Service charges are set by Board determination under section 53 with 30 days' Ministerial gatekeeping under section 54. The Part VIIA Competition and Consumer Act 2010 process under section 55 can extend the timetable until the Minister receives the closing notice or report.

Statutory liens vest on Register entry under section 59. Nine months after the outstanding amount becomes due (or after the lien is registered, whichever is later), the seizure power under section 65 and the sale power under section 67 are activated. Section 73 gives a person affected by a decision under sections 58, 59(1), 65(2), 67(2) or 62(1)(c) a right to apply to AA in writing to reconsider within 28 days of the decision being notified, with a further 28 day decision deadline on AA. Decisions affirmed or varied under section 73(4) can be reviewed by the Administrative Review Tribunal under section 73(6).

Corporate plans run on the Public Governance, Performance and Accountability Act 2013 framework. Section 13 lists matters the members must consider when preparing a corporate plan under section 35 of that Act. Section 14 lets the Minister direct variation in financial targets and performance indicators within 60 days of receiving the plan, with a 28 day return for a revised plan. Section 15 requires tabling within 15 sitting days. Section 16 directions, section 17 strategic notices, section 18 ministerial nominee directions, section 46 dividend directions, section 47 interim dividend directions, and section 54 service charge notices are all subject to tabling under section 74.

Dividends sit in section 46 (final, recommended within 4 months of year end, payable within 8 months of year end) and section 47 (interim, recommended before 1 March, payable by 15 June). Section 49 lets AA give security over its assets for money raising or for guarantee reimbursements. Section 50 governs hedging through approved contracts subject to Ministerial guidelines. Section 51 obliges AA to include in its annual report an assessment of the adverse effect (if any) of meeting non-commercial commitments. Section 52 lets AA stand outside section 50-25 of the Income Tax Assessment Act 1997, free of State or Territory taxes other than payroll tax.

The Act sits in a busy aviation patch. CASA is established by the Civil Aviation Act 1988 (section 3 definition; section 44 capital). The Air Navigation Act 1920 carries the Chicago Convention (section 3 definition). The Aviation Transport Security Act 2004 is referenced in section 8(1)(f) (any functions conferred on AA under that Act). The Transport Safety Investigation Act 2003 is named in section 8(1)(c) (cooperation with the Australian Transport Safety Bureau). The Public Governance, Performance and Accountability Act 2013 governs reporting, accountable authority duties, application of government policy (section 22 of that Act, preserved by section 16(6)), and corporate plans (sections 35 and 46 of that Act).

The Personal Property Securities Act 2009 is engaged through section 60(3) and section 60(3A), with the Cape Town Convention engaged through the International Interests in Mobile Equipment (Cape Town Convention) Act 2013 (section 60 note 2). The Competition and Consumer Act 2010 Part VIIA is engaged through section 55. The Income Tax Assessment Act 1997 (section 50-25) and the Acts Interpretation Act 1901 (sections 19A, 33A) and the Lands Acquisition Act 1989 (section 75 disapplication) are all named.

The Crimes Act 1914 (section 6) and the Criminal Code (Chapter 2 generally, sections 11.1, 11.4, 11.5 and 13.3(3)) frame ancillary liability and evidential burdens. The Civil Aviation Legislation Amendment Act 1995 carried the original transition from the Civil Aviation Authority to AA and CASA. The Airports Act 1996 governs airport master plans, the planning period, and the Australian Noise Exposure Forecast definition in its section 5: a Ministerial direction under section 16 of the Air Services Act about endorsing forecasts does not in itself produce a forecast "endorsed in the manner approved by the Minister" within the meaning of the Airports Act unless and until the Minister administering that Act approves the manner.

The statutory lien regime in sections 59 to 71 is unusually strong. It vests automatically on Register entry, operates against the world (including against aircraft owners and lessors who never agreed to the charges), and ranks ahead of post-registration security interests. Lessors of aircraft on lease to insolvent operators have repeatedly paid out lien amounts attributable to the lessee's debts to clear the lien. The constitutional validity of equivalent provisions in the predecessor Civil Aviation Act 1988 was litigated to the High Court and the lien regime survived.

The section 9(2) environmental obligation is "as far as is practicable" and is subordinate to the section 9(1) safety priority. It does not require AA to verify the underlying assumptions of every technical document it endorses; it directs how AA performs its functions in the round, not each individual activity.

The section 16 Ministerial direction power requires written form, must be tabled under section 74, and gives rise to a financial detriment reimbursement claim under section 16(4) except for environmental functions under section 8(1)(d) and (e). A Ministerial direction under the Air Services Act does not automatically engage definitions and processes in other Acts (such as the Airports Act).

Section 11(3) lets AA provide services and facilities itself, in cooperation with another person (including the Commonwealth), or by arranging for another person to do so on its behalf. That third arrangement matters for outsourcing analysis under the section 53 charging regime.

The section 19 immunity from State and Territory land use laws operates only to the extent the laws relate to the use or proposed use of land or premises or the environmental consequences of that use, and only where the property, transaction, act or thing is not wholly unconnected with AA's section 8(1)(a) functions.

A regional airline goes into liquidation owing AA a series of unpaid en route charges. AA registers a statutory lien under section 59 against the airline's leased aircraft. The lessor (which had nothing to do with the unpaid charges) cannot remove the aircraft from Australian territory without an authorised employee's prior approval (section 70, three years imprisonment). After nine months without payment under sections 65 and 67, AA can seize and sell the aircraft and give effective title free of encumbrances, leases and contracts of hire, applying the proceeds in the order the outstanding amounts became payable under section 69.

A land developer challenges AA's endorsement of an Australian Noise Exposure Forecast for an airport. The endorsement is performed under a section 16 Ministerial direction directed to section 8(1)(d) and section 9(2). The endorsement does not by itself become a forecast "endorsed in the manner approved by the Minister" under section 5 of the Airports Act 1996 because the Minister administering that Act has not approved the manner of endorsement. AA's section 9(2) obligation is read in the round, not as a duty to verify every assumption in the underlying technical document.

A pre-existing tortfeasor seeks contribution from AA for an injury suffered by a CAA employee before the assets and liabilities transferred under section 9 of the Civil Aviation Legislation Amendment Act 1995. The contribution claim engages federal jurisdiction under section 39B of the Judiciary Act 1903, but its existence depends on whether the State contribution Act is "picked up" in light of the Commonwealth Compensation Act and AA's status as a Commonwealth authority that is not part of the executive government of the Commonwealth.