Opinion Number. 1799

Subject

AVIATIONCLASSIFICATION OF AIRCRAFT IN AIR NAVIGATION REGULATIONS: MEANING OF ‘PUBLIC TRANSPORT AIRCRAFT’: MEANING OF ‘AERIAL WORK AIRCRAFT’: MEANING OF ‘PRIVATE AIRCRAFT’: CLASSIFICATION OF COMMONWEALTH-OWNED AIRCRAFT FLOWN BY COMMONWEALTH OFFICERS: DISTINCTION BETWEEN CIVIL AIRCRAFT AND STATE AIRCRAFT IN CHICAGO CONVENTION

Key Legislation

AIR NAVIGATION REGULATIONS reg 5: CONVENTION ON INTERNATIONAL CIVIL AVIATION done at Chicago on 7 December 1944 art 3

Date
Client
The Director

The Director-General of Civil Aviation has forwarded for advice the following memorandum:

The holder of a private pilot’s licence has requested permission to fly his own aircraft for the purpose of carrying his own fish regularly from the coast to Melbourne for sale in the city.

I should be grateful if you would advise me whether an aircraft used for this purpose should be classified as a public transport, an aerial work or a private aircraft. It would be appreciated if you would, at the same time, clarify the position generally in respect of aircraft which are used for purposes other than straight out private flying or flying with passengers or goods for whom or which fares or freight chargers are paid.

It is clear that aircraft used for surveys and similar purposes are aerial work aircraft, but there is a wide field of operation in respect of which clarification is desired. This includes aircraft which are flown by the owner for his own transport on business or for carrying goods used in his business, aircraft flown by an employee of the owner for the purpose of carrying the owner and/or other employees on business, aircraft flown by an employee for the purpose of carrying goods used by the owner in his business, and aircraft owned by the Commonwealth and flown by an officer of this Department in the normal course of his duties.

It has been observed that the definition of ‘public transport aircraft’ in the Air Navigation Regulations differs slightly from the I.C.A.N. definition in that a comma has been inserted after the second ‘remuneration’. Advice would be appreciated as to whether this variation affects the sense of the definition and, if so, whether an amendment to the Regulations should be made.

Regulation 5 of the Air Navigation Regulations contains the following definitions of three classes of aircraft:

‘aerial work aircraft’ means aircraft used for an industrial or commercial purpose or any lucrative purpose other than transport of the kind specified in this regulation in the definition of ‘public transport aircraft’;

‘private aircraft’ means aircraft used for purposes other than those specified in this regulation in the definition of ‘aerial work aircraft’ and ‘public transport aircraft’;

‘public transport aircraft’ means all aircraft used for carrying persons or things for a remuneration of no matter what nature, or even without remuneration if the transport is effected by a person engaged in the business of carrying persons or things for hire or reward;

It appears that the aircraft referred to in the first paragraph of the Director-General’s memorandum would not be used for the purpose of carrying fish from the coast to Melbourne for remuneration, i.e. payment for transport of the fish, and the transport would not be effected by a person engaged in the business of carrying persons or things for hire or reward. In my view, the aircraft is not a ‘public transport aircraft’.

As the fish are to be transported for the purpose of sale, it appears that the aircraft will be used for a commercial purpose when transporting fish and if so used, it should, in my opinion, be classified as an ‘aerial work aircraft.’

The Director-General also requests advice as to the position generally with regard to the classification of aircraft used for certain specified purposes. The scheme of classification depends on the definition of ‘public transport aircraft’. It is necessary, in the first place, to determine whether an aircraft is a ‘public transport aircraft’. If it is not, consideration must then be given as to whether it falls within the class of ‘aerial work aircraft’. If an aircraft is not within either of those classes as defined, it is a ‘private aircraft’.

The examples given by the Director-General in paragraph three of his memorandum appear, with the exception of the last-mentioned, to be typical examples of the use of aircraft by an owner as an adjustment of his business. Where an aircraft is flown by the owner, or an employee of his, for the purpose or purposes only of the transport on business of the owner or his employees, or the owner and his employees, or for carrying goods used in the owner’s business, the aircraft should, in my view, be classed as an aerial work aircraft.

If, however, an aircraft, flown for any of the purposes referred to in the last preceding paragraph, were flown for that purpose, or those purposes, only on an isolated or inconsequential number of occasions, and were flown, both before and after such occasions, for purposes bringing it within the classification of ‘public transport aircraft’ and were not clearly set apart from its ordinary use and association with the owner’s regular public transport services, the aircraft would, I think, remain a ‘public transport aircraft’.

One other class of aircraft remains to be considered, namely, aircraft owned by the Commonwealth and flown by an officer of the Department of Civil Aviation in the normal course of his duties. In opinion No. 38 of 1938, the view is expressed by the then Solicitor-General that a Government owned aircraft operated by a Government Medical Officer who did not retain fees for the medical service rendered, should be classed as a ‘private aircraft’. In light of present definitions in the Regulations, I see no reason for disagreeing with this view.

Reference is made in the Opinion mentioned to the inappropriateness of the term ‘private aircraft’ in relation to Government owned aircraft. It may be that a further class should be prescribed. In the Chicago Convention (Article 3), a distinction is made between civil aircraft and state aircraft, the letter being aircraft used in military, customs and policy services. Presumably, aircraft used in other governmental services are civil aircraft for the purposes of the Convention but aircraft so used could doubtless be placed in a special category for the purposes of the Regulations about to be made to give effect to the new Convention. It is suggested that consideration be given to the practicability of prescribing such a category when the new draft Regulations are being prepared.

The above views as to the position generally may assist the Department in applying the definition in particular cases as they arise but I would point out the desirability of obtaining further advice if the facts of a case should not be on all fours with those specified in the Director-General’s memorandum.

In view of the amendments of the Air Navigation Regulations effected by Statutory Rules 1946, No. 51, an answer to the question raised in paragraph 4 of the Director-General’s memorandum now becomes unnecessary.

[Vol. 37, p. 390]