Opinion Number. 1494

Subject

Foreign Aircraft aviation: foreign aircraft: carriage of passengers or goods for hire or reward within Commonwealth: whether requirement to register aircraft in australia would be consistent with air navigation convention: imposition of conditions of airworthiness etc upon such use in commonwealth

Key Legislation

INTERNATIONAL CONVENTION RELATIVE TO AIR NAVIGATION done at Paris on 13 October 1919 [1922] ATS 6 arts 7, 8: AIR NAVIGATION REGULATIONS Parts IV, V, VII, reg 5

Date
Client
The Secretary, Department of Defence

The Secretary, Department of Defence, has forwarded the following memorandum for advice:

I am to request your opinion as to whether an aircraft brought into the Commonwealth or the Territories whilst registered in, and in possession of a Certificate of Airworthiness issued by a country party to the International Convention for Air Navigation, can continue to operate for the carriage of passengers or goods for hire or reward within the Commonwealth, or whether it is necessary, under the Air Navigation Regulations, for such aircraft to be issued with Commonwealth Certificates of Registration and Airworthiness.

Although it has been felt that such foreign certificates were sufficient for a machine passing through the Commonwealth, it is considered desirable that any aircraft owned and operated within the Commonwealth should be registered and covered by a Certificate of Airworthiness issued by the Commonwealth and, if the existing regulations do not so require, I am to ask that you suggest an amendment to the regulations to meet this requirement.

I forward herewith copy of the Convention relating to the regulation of aerial navigation which has, perhaps, some bearing upon the subject. A copy of the Air Navigation Regulations amended to date was forwarded with my AS 35/2/3002 of 9/7/31 relative to a proposed amendment of Regulation 29.

Regulation 5 of the Air Navigation Regulations provides as follows:

5. The provisions of Parts IV., V., and VII. of these Regulations shall not apply to foreign aircraft:

Provided that no foreign military aircraft shall fly over or land in the Commonwealth or the Territories except on the express invitation or with the express permission of the Minister or a Department of the Government of the Commonwealth; but any such aircraft so flying over or landing in the Commonwealth or the Territories shall be exempt from these Regulations to such extent and on such conditions as are specified in the invitation or permission;

Provided further that where any foreign aircraft, after landing in the Commonwealth or the Territories flies over any part thereof, except in such manner as is necessary in order to proceed to a foreign destination, all the provisions of these Regulations shall apply to that aircraft, unless there are carried in the aircraft and produced for inspection as and when required by the Minister, certificates, licences and log books, issued by the responsible authority in the country to which the aircraft belongs, complying substantially with the provisions of these Regulations, and unless (in the case of passenger aircraft) the condition of the aircraft, having regard to the safety of the passengers and personnel, corresponds substantially with the particulars contained in the certificate produced.

Parts IV, V and VII of the Regulations relate to the registration and inspection of aircraft, the licensing of the personnel of aircraft, and the carrying and keeping of log-books.

Regulation 5 exempts foreign aircraft from the regulations relating to registration and airworthiness so long as the conditions specified in the second proviso to the regulation are observed. This proviso requires that certificates, licences and log-books issued by a responsible authority of the country in which it is registered, and substantially in accordance with the provisions of the regulations, shall be carried and produced for inspection when required, and that the condition of the aircraft shall correspond substantially with the particulars contained in the certificate produced.

Subject to these conditions, foreign aircraft could, I think, carry passengers and goods for hire or reward within the Commonwealth without obtaining Certificates of Registration and Airworthiness in the Commonwealth.

With regard to paragraph 2 of the above memorandum, it should be noted that Article 7 of the Convention relating to the Regulation of Aerial Navigation provides that no aircraft shall be entered on the register of one of the contracting States unless it belongs wholly to nationals of that State, and, in the case of a company, it is provided that the President or Chairman and at least two-thirds of the directors must possess such nationality. It appears unlikely, therefore, that aircraft owned in Australia would be registered in any other country which is a party to the Convention, though it might be possible in the case of a company.

In view of Article 8 of the Convention, which provides that an aircraft cannot be validly registered in more than one State, and Article 7 (referred to above), I think that any regulation requiring foreign aircraft to become registered in Australia would be inconsistent with the Convention.

In my opinion, however, it would be possible to impose conditions in regard to other matters, such as permits, airworthiness, etc., upon the use of foreign aircraft for the carriage of passengers or goods for hire or reward within the Commonwealth.

If, upon consideration of the matter in the light of this Opinion, it is desired to amend the regulations, I shall be pleased to prepare such draft amendments as are required.

[Vol. 25, p. 268]