International Air Services Commission Regulations 2018

The instrument relies heavily on definitions from the Act, which are noted in s 5: Australian carrier, available capacity, bilateral arrangement, capacity, Commission, operational decision, and Secretary. The central concept is “capacity” , the right to carry passengers or freight on a route under a bilateral air services agreement between Australia and another country. “Available capacity” is capacity not yet allocated to any carrier. “Operational decision” means a decision by the Secretary (not the Commission) about how allocated capacity may be used day-to-day, as opposed to a determination allocating capacity. The instrument prescribes a specific circumstance for such decisions: they must relate to an existing operational decision about particular capacity, and must make only a temporary and minor change to that decision, to meet seasonal, temporary or unusual demand. The change can be using the allocated capacity in a different manner (if not inconsistent with the original determination) or using available capacity, and the bilateral arrangement must permit the use (s 6). This is a narrow delegation: it does not allow the Secretary to create new allocations or make substantive changes. Another key concept is the “allocation of capacity” via a determination by the Commission. The instrument sets out when the Commission must invite submissions before making an allocation , a safeguard against unopposed or problematic allocations (s 7). The concept of “variation of a determination” appears in the delegation table: the Commission can delegate the power to review and vary a determination under s 21 of the Act only if no submissions oppose the allocation or the Commission considers none would (item 3 of s 10 table). The concept of “witness allowance” is defined in s 11: a person summoned to appear at a hearing may claim compensation for loss of earnings, travel, and accommodation/meals, at amounts the Commission considers reasonable. Allowances are payable by the Commonwealth, not by the carrier or applicant. The concept of “delegation” is central to the instrument’s governance structure: the Commission (a statutory body) can delegate its determination-making power to a member or staff member only when the allocation is uncontested (no opposition or only one application). This preserves the Commission’s role in contested matters. Finally, the concept of “not fully used capacity” appears in s 9: if a bilateral arrangement does not restrict the total amount of capacity (i.e., it is “free sale” or unlimited), the Commission is not required to impose a use-it-or-lose-it condition on a determination.

The regulations directly affect Australian carriers , airlines that hold an Australian air operator’s certificate and are eligible to apply for international capacity allocations under bilateral air services agreements. These carriers are the primary users of the Commission’s allocation processes, and they are the ones who may apply for new allocations, variations, or for operational decisions to temporarily use capacity differently. The regulations also affect the International Air Services Commission itself, which must follow the procedural rules when inviting submissions (s 7), receiving applications at the prescribed address (s 8), and deciding on delegation (s 10). The Secretary of the Department of Infrastructure, Transport, Regional Development, Communications and the Arts (or equivalent) is affected as the official who can make operational decisions in the prescribed circumstance (s 6). The Secretary’s powers are limited to temporary and minor changes; they cannot allocate new capacity or make permanent changes. The regulations affect witnesses summoned to appear at Commission hearings: they are entitled to allowances for loss of earnings, travel, accommodation and meals, but the amounts are at the Commission’s discretion (s 11). Applicants for capacity allocation are affected by the submission invitation rules: if there is more than one applicant, or if the Commission has concerns about the carrier’s ability to use the capacity, the Commission must invite submissions, which can delay the process and increase administrative cost. The Administrative Review Tribunal is affected as the review body for witness allowance decisions (s 11(2)). The Competition and Consumer Act 2010 is indirectly affected: the Commission must consider whether allocating capacity to a carrier might trigger a restriction under that Act, which could prevent use of the capacity (s 7(b)(i)). This potentially involves the Australian Competition and Consumer Commission in capacity allocation decisions. Foreign carriers are not directly affected because the regulations only concern Australian carriers. The public is affected only insofar as greater capacity allocation may affect airfares and service availability, but that is indirect and not addressed in the instrument. The transitional provisions (s 12) affect carriers and the Commission by continuing existing operational decisions and delegations made under the 1992 regulations, ensuring no gap in administration.

The regulations impose few direct duties on private parties; most duties fall on the Commission. The Commission’s key duty is to invite submissions about an allocation of capacity in any of the three circumstances listed in s 7: more than one application, potential competition law restriction, or doubt about the carrier’s ability to use the capacity. This duty is not discretionary; if any of those conditions are met, the Commission must invite submissions. The Commission also has a duty to accept applications at the prescribed addresses (s 8). The Commission may delegate certain powers only in the limited circumstances set out in the table (s 10). The Commission has a duty to pay witness allowances as prescribed, and to give a witness written notice of a decision on an allowance including a statement about review rights (s 11(3)). The Secretary has a right to make operational decisions in the narrow circumstance defined in s 6, but no duty to do so. A carrier has a right to apply for an allocation of available capacity (under s 7 of the Act, referenced in the delegation table), and a right to apply for a variation of a determination (under s 21 of the Act, also referenced in the delegation table). A carrier also has a right to have its application considered without the Commission delegating the decision to a single member or staff if the application is contested, because delegation is only allowed when no submissions oppose or when the Commission considers none would. This provides a procedural protection: contested applications must be decided by the full Commission (or as the Act otherwise provides). A witness summoned to appear has a right to be paid allowances for loss of earnings, transport, accommodation and meals, but the amount is at the Commission’s discretion (subject to reasonableness). If the Commission decides an allowance, the witness has a right to apply to the Administrative Review Tribunal for review (s 11(2)). The regulations do not create any private rights of action. Carriers have no right to insist on an operational decision or an allocation; those remain at the discretion of the Secretary or Commission respectively. There is no duty on a carrier to use allocated capacity fully if the bilateral arrangement is unrestricted (s 9 , the determination need not include a use-it-or-lose-it condition), but the Act may still impose conditions; the regulations merely remove a mandatory condition requirement in that circumstance.

The regulations do not themselves create any penalties or enforcement mechanisms. Any penalties for non-compliance with the Act or with conditions on a determination would be found in the International Air Services Commission Act 1992, not in these regulations. There is no penalty for a carrier that fails to use allocated capacity, except as may be provided in the Act or in the determination itself. The regulations do not refer to any offence provisions. The only enforcement mechanism that appears directly is the Commission’s power to revoke or vary a determination if conditions are not met, but that power is in the Act, not in the regulations. Witness allowance decisions are reviewable by the Administrative Review Tribunal (s 11(2)), which provides a form of quasi-judicial enforcement of the right to allowance. If the Commission fails to invite submissions when required under s 7, that could be grounds for judicial review under the Administrative Decisions (Judicial Review) Act 1977 or similar, but that is not specified in the regulations. The delegation limitations in s 10 may be enforceable: if a decision is made under a delegated power outside the permitted circumstances, it could be invalid. However, the regulations do not say what consequence flows from an improper delegation. The transitional provision (s 12) continues in force operational decisions and delegations from the 1992 regulations; there is no penalty for non-compliance with the repealed regulations. Overall, the regulations are procedural and administrative, not punitive. Enforcement is indirect: parties who believe the Commission has not followed the regulations can challenge decisions through the Act’s merits review (for certain decisions) or through judicial review. The regulations do not empower the Commission to impose fines, suspend licences, or impose any other sanction. The only financial element is the payment of witness allowances, and that is a benefit to the witness, not a penalty.

The regulations explicitly reference two other pieces of Australian legislation. First, s 7(b)(i) refers to the Competition and Consumer Act 2010. This means that when the Commission is considering an allocation of capacity, it must consider whether that allocation could lead to a restriction being imposed on the carrier under competition law. This typically arises where the carrier might obtain substantial market power on a route, raising concerns under the merger or anti-competitive conduct provisions of the Competition and Consumer Act. The Commission must invite submissions in that circumstance, effectively triggering a consultation process that may involve the Australian Competition and Consumer Commission. This interaction imposes a procedural hurdle on allocations that might otherwise proceed without submission. Second, s 11(2) and (3) refer to the Administrative Review Tribunal Act 2024 (which replaced the former Administrative Appeals Tribunal Act 1975). This means decisions on witness allowances are reviewable on their merits by the Tribunal, a standard administrative law safeguard. The regulations also interact with the International Air Services Commission Act 1992, which is the primary statute. The regulations are made under that Act and fill in details left to regulation. For example, the Act provides that the Commission must invite submissions in circumstances prescribed by regulation, and s 7 of the regulations does that. The Act allows delegation under s 27AB, and s 10 of the regulations restricts that delegation. The Act provides for operational decisions, and s 6 of the regulations prescribes a circumstance for those decisions. The regulations do not interact with any state or territory legislation. They also interact with bilateral air services agreements between Australia and other countries, because “bilateral arrangement” is a term used throughout (see s 5 note). The regulations do not set the content of those agreements, but they determine how capacity under those agreements is allocated and used domestically. For example, s 6(2)(c) requires that the bilateral arrangement permit the use of capacity for the operational decision to be valid. This gives international agreements direct domestic legal effect through the regulations. The regulations do not interact with taxation law, corporations law, or employment law (except indirectly for witness allowance compensation for loss of earnings). The interaction with the repealed 1992 regulations is addressed via transitional provisions (s 12), which ensure continuity of decisions and delegations.

The source text of the International Air Services Commission Regulations 2018 does not contain any amendment history within itself. It is the original instrument as made, commencing on 1 October 2018 (see notes to ss 12, 13, 14). The instrument repealed and replaced the International Air Services Commission Regulations 1992 (s 12). The transitional provisions show that the new regulations were intended to carry forward existing operational decisions and delegations without interruption, indicating a deliberate policy of continuity rather than substantive reform. The instrument appears to have been made to update the regulatory framework in line with changes to the Act (the Act was amended by the Tribunals Amalgamation Act 2015 and other acts; the new regulations reference the Administrative Review Tribunal Act 2024, which post-dates the original 2018 commencement , this suggests the regulations have been amended at some point to update the reference from the former Administrative Appeals Tribunal to the new Administrative Review Tribunal, but the source text as provided includes “Administrative Review Tribunal Act 2024” which would be a later amendment or version. The user provided the text as current; we must assume it is the current version. The instrument itself does not list amendment history, so we cannot detail specific amending instruments. The regulations only have four parts, and no schedules. The brevity suggests limited changes from the 1992 regulations. Based on the source, there is no public record of amendments within the provided text. Practitioners should check the Federal Register of Legislation for the latest compilation. The regulations appear stable, with only the witness allowance review body reference likely updated. The instrument’s commencement date (1 October 2018) suggests it was made shortly after amendments to the Act, but the regulations are not major in scope. The transitional provisions indicate the repeal of the 1992 regulations was intended to be a complete replacement, not just an amendment. Any future amendments would appear as separate instruments.

The source text does not cite any cases or litigation history. There are no references to court decisions, tribunal decisions, or any legal challenges. The instrument itself is procedural and has likely been the subject of little litigation. The narrow scope of the regulations , mostly setting out when the Commission must invite submissions, how delegation works, and witness allowances , means that disputes would more likely arise under the Act itself (e.g., review of a determination allocating capacity) rather than under the regulations. The only review mechanism specifically mentioned is for witness allowance decisions under s 11(2) to the Administrative Review Tribunal. There may have been some applications to the Tribunal contesting the amount of allowances, but no information is provided. No judicial review cases under the ADJR Act are referenced. The delegation limitations in s 10 could potentially be litigated if a carrier argues that a delegated decision was invalid because it was made outside the prescribed circumstances. But again, no cases are mentioned. The operational decision power in s 6 could be challenged if a carrier disputes whether a change was truly “temporary and minor” or whether the bilateral arrangement permits the use. But again, no litigation is cited. Given that the instrument has been in force since 2018 (or later, with amendments), and the air services industry is highly legalistic, it is plausible that some disputes have arisen, but the source does not confirm this. The analyst cannot invent cases. The absence of cited litigation does not mean there has been none; it means the instrument does not refer to any. Practitioners should search case law databases for decisions under the International Air Services Commission Act and regulations, particularly in the Administrative Review Tribunal (formerly the Administrative Appeals Tribunal) and the Federal Court. The regulations themselves are unlikely to be the subject of direct challenge because they are procedural rules made by the Governor-General; any challenge would likely target the Commission’s application of them in a particular case.

Several provisions contain traps for the unwary. First, s 6(2)(b) requires an operational decision to make only a “temporary and minor change” to an existing operational decision. The terms “temporary” and “minor” are not defined. A carrier who assumes that any short-term change qualifies may be wrong if the Commission later views it as substantive. The bilateral arrangement must also permit the use (s 6(2)(c)); if the arrangement does not allow, say, code-share usage of the capacity, an operational decision cannot override it. Second, s 7 requires the Commission to invite submissions if it considers that a restriction could be imposed under the Competition and Consumer Act 2010. This could catch carriers who are unaware of competition law risk. Even if the carrier believes it can use the capacity without issue, the Commission may still trigger a submission process, adding delay and cost. Third, s 9 says that a determination need not include a condition that capacity be fully used if available capacity is not restricted by the bilateral arrangement. This sounds permissive, but it applies only when the arrangement does not restrict available capacity (i.e., it is “free sale”). If the arrangement caps capacity at a certain number of flights per week, the exception does not apply, and the determination must include a use condition. Carriers often prefer no use condition so they can hold capacity without penalty; they should check whether the bilateral arrangement is unrestricted. Fourth, the delegation rules in s 10 are narrow. Item 1 allows delegation to make a determination only if no more than one application has been made and no submissions oppose (or the Commission considers none would). If there is even one opposing submission, the determination cannot be delegated; it must be made by the full Commission. This means carriers may face longer decision times if their application is contested. Similarly, items 2 and 3 (fresh determinations and variations) allow delegation only if no submissions are received opposing. A single objection can force the matter to the Commission. Fifth, witness allowances under s 11 are at the Commission’s discretion as to amount, but the Commission must pay “an amount the Commission considers reasonable”. Witnesses who expect standard government rates may be surprised by a lower assessment. The witness must also be given written notice of the decision and review rights; failure to give notice could extend time for review. Sixth, the address for applications is strict (s 8). If an application is sent to a different email address or post box, it may be deemed not received. The regulations do not provide for alternative service. Seventh, the transitional provisions (s 12) continue operational decisions and delegations from the 1992 regulations. A carrier relying on a decision made before 1 October 2018 should confirm that it meets the new instrument’s requirements; the instrument does not automatically validate decisions that were invalid under the old law. Eighth, s 13 applies s 9 to determinations made before commencement, meaning that old determinations may now be interpreted as not requiring full use even if they originally contained such a condition. Carriers with pre-2018 determinations should review whether they now have more flexibility. Finally, s 14 applies s 11 to hearings on or after commencement even if the hearing started before. This could create inconsistent treatment of witnesses within the same hearing, with some days of attendance covered by the old allowance regime and others by the new.

Compliance obligations under these regulations fall primarily on the International Air Services Commission and, to a lesser extent, on Australian carriers applying for capacity and on the Secretary. For carriers, the main compliance steps are procedural. When applying for an allocation of capacity, a carrier must ensure the application is sent to the correct address: GPO Box 630, Canberra ACT 2601 by post, or IASC@infrastructure.gov.au by email (s 8). Any other address may render the application invalid for the purposes of the Act. The carrier should also be prepared for the possibility that the Commission will invite submissions under s 7. If more than one application is made for the same capacity, or if the Commission suspects a competition law issue or doubts the carrier’s ability to use the capacity, submissions will be invited. The carrier should consider whether it has any arguments to rebut those concerns and should respond promptly if invited to make submissions. To avoid triggering the submission requirement, a carrier might try to demonstrate in its application that the allocation will not raise competition concerns and that it has all necessary approvals and licences. If a carrier wants to use allocated capacity in a temporary, minor way that differs from the existing operational decision (e.g., changing aircraft type, increasing frequency for a peak period), it should apply to the Secretary for an operational decision under s 6. The application should clearly show that the change is temporary and minor, that it is needed to meet seasonal, temporary or unusual demand, and that the bilateral arrangement permits the use. The carrier should retain evidence of the bilateral arrangement text and the original operational decision. Carriers should also monitor whether the bilateral arrangement is unrestricted in terms of capacity frequency, because if it is unrestricted, the carrier may not be required to fully use the capacity (s 9). This can be advantageous: the carrier can hold the allocation without penalty. However, the Commission may still impose other conditions. If a carrier obtains a determination with no use condition, it must still comply with any other conditions (e.g., designation requirements). For variations of a determination (under s 21 of the Act), the carrier should note that the Commission can delegate the variation decision to a single member only if no submissions oppose. If the carrier expects opposition, it should prepare for a full Commission hearing. Witnesses who are summoned to a Commission hearing should claim allowances promptly. The Commission may decide on the amount, but the witness can seek review from the Administrative Review Tribunal. The witness should keep detailed records of lost earnings and expenses to support a claim for a “reasonable” amount. The Commission itself must comply with the delegation limits in s 10 strictly. It should not delegate a determination-making power if there is more than one applicant or if any submissions oppose. It should also ensure that any delegation made under the 1992 regulations that continued in force under s 12 is still within the scope of the new instrument’s delegation table. The Commission should also maintain records of when submissions are invited and ensure it does so in the three prescribed circumstances. The Secretary should only make operational decisions that meet the s 6 criteria; any decision that goes beyond temporary and minor changes will be beyond power. For legal practitioners advising carriers, the key compliance document is the application form and any supporting arguments about competition or capacity. The regulations themselves are short, but they intersect with the Act and bilateral arrangements, so practitioners must read all three together.