Explanatory Statement
Civil Aviation Safety Regulations 1998
AD/GA8/9 Amdt 1 – Wing Strut and Wing Strut Fittings – Inspection and Replacement
Legislation
Under section 98 of the Civil Aviation Act 1988 (the Act), the Governor-General may make regulations for the purpose of carrying out and giving effect to the provisions of the Convention on International Civil Aviation relating to safety, amongst other things. Under regulation 39.001 of the Civil Aviation Safety Regulations 1998 (CASR), CASA may issue an airworthiness directive (AD) for a kind of aircraft or aeronautical product. Under subsections 98 (5B) and (5BA) of the Act, an AD is a legislative instrument unless it is expressed to apply in relation to a particular person, a particular aircraft or a particular aeronautical product.
Under Annex 8 to the Convention on International Civil Aviation, the State of Design has overall responsibility for continuing airworthiness of an aircraft type, and must provide any information necessary to ensure the continuing airworthiness of a type to appropriate States of Registry. ADs (and their equivalents) are the most common form of continuing airworthiness information, and are issued by most International Civil Aviation Organization Contracting States.
The State of Registry of an individual aircraft is responsible for its continuing airworthiness. Under Annex 8, the State of Registry must develop or adopt requirements to ensure the continuing airworthiness of aircraft.
CASA issued AD/GA8/9 to mandate a conservative time in service life limit for certain GippsAero GA8 wing struts and wing strut fittings, consistent with the requirements of a Service Bulletin (the Service Bulletin) published by the aircraft manufacturer for the aircraft type.
The aircraft manufacturer has revised the time in service thresholds for replacement of certain parts with the publication of “Issue 2” of the Service Bulletin, dated 23 May 2018. Accordingly, CASA has issued the complementary AD/GA8/9 Amdt 1 (the legislative instrument) so that the time in service thresholds for replacement of parts in the AD and the manufacturer’s requirements are again aligned. To the extent that the thresholds have been changed, they are less onerous than the thresholds mandated in the original AD and Issue 1 of the Service Bulletin.
As Australia is the State of Design for the type, CASA is required under the International Convention on Civil Aviation, 1944 (Chicago Convention) to develop, and to transmit to other States of Registry, an AD to address the issue.
A manufacturing quality escape resulted in wing strut fittings in the effective serial number range to be manufactured with incorrect grain orientation. The fatigue implications of the incorrect grain are not well understood. Therefore, CASA has mandated a conservative factored fatigue life limit based on the known fleet data of the affected aircraft. CASA will continue to gather data for the purposes of managing the fleet removal of these fittings from service.
The Service Bulletin states the manufacturer’s inspection and maintenance requirements for the wing struts and strut fittings of the aircraft type. The Service Bulletin is incorporated into the legislative instrument as it exists as Issue 2 dated 23 May 2018, and is freely available from the following internet address:
http://www.mahindraaerospace.com/mapl-pdf/SB-GA8-2017-174%20Issue%201.pdf.
Retrospective operation of the legislative instrument
The legislative instrument was made on 29 May 2018 for commencement on 8 June 2018.
Shortly after it was made, CASA communicated the legislative instrument to foreign national aviation authorities (NAAs) in accordance with Australia’s Chicago Convention obligations as the State of Design for the aircraft type.
The terms of the legislative instrument were also communicated to Australian operators of the relevant aircraft type, published on the CASA website, and emailed to the US NAA, the aircraft manufacturer and people who subscribe to CASA’s “Certification and Airworthiness” distribution list. CASA also understands that the manufacturer has communicated the Service Bulletin to persons registered with the manufacturer as an operator of the relevant aircraft type.
Australia is the State of Design for the relevant aircraft type, and therefore takes primary responsibility for prescribing continuing airworthiness matters. These prescriptions are relied upon by the NAAs of foreign States of Registry of the aircraft type to make ADs that regulate maintenance on relevant aircraft operated overseas.
Accordingly, under foreign laws such as those in the European Union and Canada, the legislative instrument is given effect according to the terms of the legislative instrument as made, which includes the stated commencement date of 8 June 2018.
CASA subsequently realised that, due to an administrative oversight, the legislative instrument was not lodged for registration before the commencement date.
It is therefore necessary to lodge the legislative instrument with retrospective effect from 8 June 2018 to regularise its legal status for the purposes of relevant NAAs.
Subsection 12 (2) of the Legislation Act 2003 (LA) operates to prevent the commencement of a provision before the day the instrument containing the provision is registered to the extent that as a result:
(a) a person’s rights as at the day of registration would be affected so as to disadvantage the person; or
(b) liabilities would be imposed on the person in respect of anything done or omitted to be done before the day of registration.
Subsection 12 (3) of the LA provides that, subject to subsection 12 (2), a legislative instrument may provide that a provision of the instrument commences before the day the instrument is registered.
In some respects, as mentioned above, the substance of the legislative instrument provides for less onerous obligations than the original AD/GA8/9, insofar as it relaxes the time in service threshold for replacement of certain parts. Since the original AD would otherwise have remained in force, this retrospective instrument, where it does not relax the time in service thresholds, does not change any rights or impose any liabilities that would not otherwise have existed or been imposed under original AD/GA8/9.
On the basis of the beneficial effect of the legislative instrument, CASA is satisfied for the purpose of subsection 12 (2) of the LA that the retrospective operation of the legislative instrument would not affect any person’s rights so as to disadvantage the person, and would not impose any liabilities on a person in respect of anything done or omitted to be done prior to registration.
This explanatory statement has been approved by the rule maker for the legislative instrument.
CASA has changed its procedures for the registration of ADs to reduce the risk of future administrative errors.
Consultation
As this legislative instrument is of a minor or machinery nature and does not substantially alter existing arrangements apart from relaxing certain part replacement thresholds and thereby reducing burden on industry, it is CASA’s view that it was not necessary or appropriate to undertake any further consultation under section 17 of the LA.
Regulation Impact Statement
A Regulation Impact Statement (RIS) is not required because ADs are covered by a standing agreement between CASA and the Office of Best Practice Regulation under which a RIS is not required for ADs (OBPR id. 14507).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The legislative instrument has been made by a delegate of CASA relying on the power of delegation under sub regulation 11.260 (1) of CASR and subsection 94 (1) of the Act.
The instrument commences on 8 June 2018.
[Instrument number AD/GA8/9 Amdt 1]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
AD/GA8/9 Amdt 1 – Wing Strut and Wing Strut Fittings – Inspection and Replacement
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The legislative instrument is an airworthiness directive (AD). AD/GA8/9 Amdt 1 has been issued to amend certain part replacement times which were recently mandated by AD/GA8/9.
As Australia is the State of Design for the type, CASA is required to develop, and to transmit to other States of Registry, an AD to correct the problem. The AD sets out required remedial action to replace certain GippsAero GA8 wing struts and wing strut fittings within specified timeframes in response to a manufacturing quality escape which resulted in wing strut fittings in the effective serial number range to be manufactured with incorrect grain orientation.
Due to an administrative oversight, the legislative instrument was not registered before the stated commencement date. The legislative instrument has been registered with retrospective effect because: (1) it relaxes existing requirements and does not impose new requirements; (2) it forms the basis for foreign laws that apply to the relevant type of aircraft in overseas jurisdictions; (3) the requirements of the legislative instrument and associated manufacturer’s service bulletin have been well publicised to aircraft operators; and (4) CASA is satisfied that no person’s rights are adversely affected by, and no liabilities are imposed by, the retrospective effect of the legislative instrument from 8 June 2018.
Human rights implications
This legislative instrument potentially engages with the prohibition on the retrospective operation of criminal laws, because the requirements of the instrument are caught by the offence provision in regulation 39.003 of the Civil Aviation Safety Regulations 1998. However, the instrument relaxes existing requirements and CASA is satisfied that no person is placed in breach of the offence provision by the retrospective effect of the legislative instrument. CASA concludes that the instrument is therefore compatible with the listed human rights.
Conclusion
This legislative instrument is compatible with the listed human rights.
Civil Aviation Safety Authority