Explanatory Statement
Civil Aviation Safety Regulations 1998
Maintenance on warbird and historic and replica aircraft (WHR) — directions and licence conditions
Purpose
The purpose of this instrument is, for particular aircraft, to place a person or organisation (a COA holder) holding a certificate of approval under regulation 30 of the Civil Aviation Regulations 1988 (CAR 1988) for maintenance of the aircraft, in a similar position to that of an approved maintenance organisation (an AMO) under Part 145 of the Civil Aviation Safety Regulations 1998 (CASR 1998). The particular aircraft are warbirds, and historic and replica aircraft (WHR). For the extended privileges to apply, the COA holder must meet a range of Part 145-like safety conditions and requirements with respect to the training, qualifications, experience and authorisation of persons who carry out maintenance.
Under Part 145 of CASR 1998, AMOs already have the facilities to train and authorise specialist maintainers. However, existing maintenance organisations who are not AMOs, but who are COA holders under CAR 1988, have not previously been able to use similar training, authorising and maintaining opportunities for WHR purposes.
WHR are aircraft which give rise to particular maintenance and safety issues for which standard aircraft maintenance engineer licence training does not cater. Additional special training, the acquisition of special skills, and the conduct of relevant maintenance in a structured organisational environment, are considered by CASA to be essential to the safety of operations in these aircraft. As such, the requirements of the instrument call for relevant maintenance personnel to be provided with additional training and authorisation by the relevant maintenance organisations carrying out maintenance on these aircraft.
The instrument complements the contemporaneous Civil Aviation Order (CAO) 104.0 Amendment Instrument 2015 (No. 1) (the CAO amendment). It repeals and replaces a previous instrument issued for the same purpose. Changes are described below.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation. Under subsection 98 (5A) of the Act, the regulations may empower CASA to issue instruments in relation to (among other things) the maintenance of aircraft. Section 3 of the Act defines a civil aviation authorisation (a CAA) as an authorisation under the Act or the regulations to undertake a particular activity (for example, a permission, authority or licence).
Under subsection 33 (3) of the Acts Interpretation Act 1901 (the AIA), where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Licence conditions
Under subregulation 11.068 (1) of CASR 1998, for subsection 98 (5A) of the Act, CASA may issue a legislative instrument that imposes a condition on a specified class of authorisations. (Under regulation 11.015, an authorisation is defined as including most forms of a CAA and thus includes various maintenance authorisations and licences.)
Under subregulation 11.068 (2) of CASR 1998, the class of authorisations may include authorisations granted before the imposition of the condition. Under subregulation 11.068 (3), a condition imposed by a legislative instrument issued under subregulation (1) is taken to be a condition of every authorisation of the class mentioned in the instrument.
Directions
Under subregulation 11.245 (1) of CASR 1998, for subsection 98 (5A) of the Act, CASA may issue an instrument about any matter affecting (among other things) the maintenance of aircraft.
Under subregulation 11.245 (2) of CASR 1998, an instrument may only be issued if it is reasonably necessary for the safe navigation and operation, or maintenance, of aircraft, is not inconsistent with the Act and is for the purposes of CASA’s functions.
Under regulation 11.250 of CASR 1998, an instrument ceases to be in force on the day specified in the instrument, or if no day is specified, 1 year after the instrument commenced.
Background
WHR (generally ex-military, historic and replica aircraft) often present maintenance issues which require special maintenance, and specialist maintenance training and skills. Most of these aircraft are not type rated under the aircraft engineer licence (AEL) requirements of Part 66 of CASR 1998 and generally there is, therefore, no specific training requirement associated with the exercise of AEL privileges. However, the aircraft systems are different from those taught during category training, giving rise to a need for specific training and authorisation before Part 66 licence privileges can safely be exercised for such aircraft.
The instrument works in tandem with CAO 104.0, as amended contemporaneously with the issue of this instrument. Together, these 2 instruments are designed to place a COA holder for maintenance of aircraft in a similar position to that of an approved maintenance organisation (AMO) under Part 145 of CASR 1998 for the maintenance of WHR — provided a generally similar range of safety conditions and requirements are met with respect to the training, qualifications, experience and authorisation of persons who carry out the maintenance for the COA holder.
Safety requires that some of the larger or technologically varied WHR should only be maintained within the structured environment of a COA holder’s organisation. The instrument lists aircraft types in a 2-part Schedule, and maintenance on aircraft mentioned in the first Part not only usually requires special prescribed training over and above the more usual aircraft engineer licence training requirements but, in addition, all scheduled maintenance may only be carried out by a COA holder and not by an independent engineer.
It is anticipated that the requirements for WHR set out in both the instrument and the related CAO amendment will, in due course, be codified in regulatory amendments to CASR 1998.
Details of some instrument provisions
Details of some instrument provisions are set out in Appendix 1.
Changes to the previous instrument
Under the new instrument, the requirement to hold a qualification to perform maintenance on an unlisted WHR aircraft (being a warbird or a historic or replica aircraft that is not mentioned in Part 1 of Schedule 1 of the instrument) applies only if it is a turbine-powered WHR aircraft. Other unlisted piston engined WHR aircraft are treated as being in Part 2 of Schedule 1. The requirements for training, authorisation and carrying out maintenance on Part 2 aircraft are less demanding.
Other amendments include the placing of new types in Part 2 of Schedule 1 and alterations of a drafting nature to clarify certain provisions.
Consultation
Changes to instrument CASA 197/13 in line with the CAO amendments were notified on the CASA website as Project MS 13/23 on 23 July 2013. Consultation on the instrument was carried out in tandem with consultation on the CAO amendment. The proposals were well received and constructive feedback was provided. As well as notifying industry via the standard consultation method, CASA interacted directly with the affected warbird, historic and replica aircraft operators and maintainers in finalising the amendment proposals.
Office of Best Practice Regulation (OBPR)
OBPR assessed that the proposed instrument is minor in nature and that no further analysis in the form of a Regulation Impact Statement was required (OBPR ID: 17498).
Legislative Instruments Act 2003 (the LIA)
Under paragraph 98 (5A) (a) of the Act, the regulations may empower CASA to issue instruments in relation to matters affecting the maintenance of aircraft. Under subregulation 11.245 (1) of CASR 1998, for subsection 98 (5A) of the Act, CASA may issue an instrument about any matter affecting the maintenance of aircraft. Under subsection 98 (5AA) of the Act, if a maintenance instrument (such as this instrument) is expressed to apply to a class of persons or aircraft, the instrument is a legislative instrument. The instrument is expressed to apply to WHR, which constitutes a class of aircraft for this purpose, and to COA holders and independent engineers, who constitute classes of persons.
Subregulation 11.068 (1) of CASR 1998 expressly provides that the imposition of conditions on a class of authorisations may be by means of a legislative instrument and the instrument imposes conditions on authorisations, namely the licences of independent engineers.
The instrument and conditions, therefore, constitute a legislative instrument and are subject to registration, and tabling and disallowance in the Parliament, under sections 24, and 38 and 42, of the LIA.
Statement of Compatibility with Human Rights
The Statement in Appendix 2 is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and are compatible with human rights, as they do not raise any human rights issues.
Commencement, making and taking effect
The instrument commences on the day of registration.
However, under subsection 1 (2) of the instrument, the instrument only takes effect for a COA holder immediately after subsection 8 of CAO 104.0 takes effect for the holder. Under subsection 1 (3) of the instrument, the instrument takes effect for each of the COA holder’s employed authority or type rating holders and WHR employees immediately after the instrument takes effect for the COA holder.
Under subsection 1 (4) of the instrument, the instrument expires at the end of November 2016, as if it had been repealed by another instrument.
The instrument has been made by a delegate of CASA relying on the power of delegation in subregulation 11.260 (1) of CASR 1998.
[Instrument number CASA 03/15]
Appendix 1
Details of some instrument provisions
Section 4 of the instrument makes it clear that the instrument does not affect certain maintenance arrangements.
First, the instrument does not affect the operation of regulation 42G of CAR 1998. As an accompanying Note explains, regulation 42G of CAR 1988 concerns who may be qualified as an “appropriate person” to conduct the independent inspection that is required when an aircraft flight control system is assembled, adjusted, repaired, modified or replaced in the course of maintenance on the aircraft.
Secondly, with 1 qualification, the instrument does not affect the operation of paragraph 42ZC (4) (b) of CAR 1988 in respect of a class B aircraft. Paragraph 42ZC (4) (b) of CAR 1988 concerns maintenance on a class B aircraft (other than as mentioned in Schedule 7 of CAR 1988) carried out by an independent engineer not engaged by a COA holder, or carried out by a person employed by such an engineer. The qualification is that the AEL of an independent engineer is subject to the condition imposed on it by section 8.
Thirdly, the instrument does not affect the operation of paragraph 42ZC (4) (d) of CAR 1988 in respect of a WHR. Paragraph 42ZC (4) (d) of CAR 1988 concerns maintenance, specified in Schedule 8 of CAR 1988, that may be carried out by a pilot on a class B aircraft. A WHR is a class B aircraft.
Fourthly, the instrument does not affect a category B1 licence holder, or a category B2 licence holder (under Part 66 of CASR 1998), who is authorised to carry out the maintenance mentioned in Schedule 8 of CAR 1988. Under instrument CASA 155/11, for paragraph 42ZC (4) (e) of CAR 1988, each category B1 licence holder, or category B2 licence holder, is authorised to carry out the maintenance mentioned in Schedule 8 of CAR 1988 on any class B aircraft, including a WHR.
To avoid doubt, the instrument does not affect anything done for or under Part 145 of CASR 1998. Under Part 145 of CASR 1998, an AMO under Part 145, and AEL holders employed by an AMO, already have their own regulatory arrangements for the kinds of special authorisations and maintenance described in this instrument. Currently, Part 145 of CASR 1998 applies only for aircraft engaged in regular public transport (RPT) operations. These are class A aircraft and the instrument relates only to WHR which are class B aircraft. However, the avoidance of doubt provision is for clarity and it prevents uncertainty arising should this position change before the instrument expires in 2016.
Under subsection 5 (1) of the instrument, a COA holder may carry out Part 1 WHR maintenance only if the maintenance is carried out either by a trained WHR employee, who holds a Part 1 WHR licence, or by an employed authority or type rating holder, who holds a current certification authorisation.
To complement subsection 5 (1) of the instrument, under subsection 5 (2), a person may not carry out Part 1 WHR maintenance unless the maintenance is carried out under a COA holder, and the person is a trained WHR employee who holds a Part 1 licence for the WHR and who holds a current certification authorisation, or is an employed authority or type rating holder, who holds a current certification authorisation.
Under subsections 6 (1) and 6 (2) of the instrument, but subject to section 8 and the privileges of independent engineers as defined, a person may not carry out Part 2 WHR maintenance unless the maintenance is carried out under a COA holder, and the person is a WHR employee who holds a Part 2 WHR licence (whether or not a trained WHR employee and whether or not holding a certification authorisation), or is an employed authority or type rating holder (whether or not holding a certification authorisation).
Under section 7 of the instrument, for a WHR that is not mentioned in Part 1 or 2 of Schedule 1 (an unlisted turbine-powered WHR), a COA holder may only carry out maintenance on the WHR as if it were Part 1 WHR maintenance and as if subsection 4 (1) applied to the holder for the WHR.
A Note explains that, over time, where, on the basis of analysis and experience, CASA is satisfied that it is safe to do so, CASA may amend the instrument by adding other WHR to Part 1 or Part 2 of Schedule 1, as appropriate.
An independent engineer is defined in the instrument as a licensed aircraft maintenance engineer, who may perform maintenance certification for maintenance on a class B aircraft under paragraph 42ZC (4) (b) of CAR 1988, or an authority or type rating holder mentioned in paragraph (a), (b) or (c) of the definition of authority or type rating holder. An independent engineer is not a COA holder, or an employee of a COA holder.
Under section 8 of the instrument, it is a condition, under regulation 11.068 of CASR 1998, on the licence, or the airworthiness authority or the aircraft welding authority, of the independent engineer that, for Part 1 WHR maintenance, he or she may only perform maintenance certification for unscheduled maintenance that is not maintenance mentioned in Schedule 7 of CAR 1988.
Appendix 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Civil Aviation Regulations 1988
Maintenance on warbird and historic and replica aircraft (WHR) —
directions and licence conditions
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 purpose of this instrument is to place a person or organisation holding a certificate of approval under regulation 30 of the Civil Aviation Regulations 1988 for maintenance of aircraft, in a similar position to that of an approved maintenance organisation (an AMO) under the more recent Part 145 of the Civil Aviation Safety Regulations 1998 (CASR 1998), specifically for the maintenance of warbirds, and historic and replica aircraft — provided a generally similar range of safety conditions and requirements are met with respect to the training, qualifications, experience and authorisation of persons who carry out the maintenance. Under Part 145 of CASR 1998, AMOs already have the facility to train and authorise specialist maintainers. However, existing maintenance organisations, who are not AMOs but who are certificate holders, have not been able, under those regulations, to have access to similar training, authorising and maintenance opportunities.
The instrument complements the contemporaneous Civil Aviation Order 104.0 Amendment Instrument 2015 (No. 1) setting out the specific conditions under which a certificate holder may carry out maintenance on those special kinds of aircraft.
Warbirds, and historic and replica aircraft, are aircraft which give rise to particular maintenance and safety issues for which standard aircraft maintenance engineer licence training does not cater. Additional special training, the acquisition of special skills, and the conduct of relevant maintenance in a structured organisational environment, are considered by CASA to be essential to the safety of operations in these aircraft. As such, the requirements of the instrument call for relevant maintenance personnel to be provided with additional training and authorisation by the relevant maintenance organisations carrying out maintenance on these aircraft.
The instrument restricts to lower level “unscheduled maintenance” the maintenance that may be carried out by an independent engineer who does not hold a certificate of approval to carry out maintenance. A range of safety requirements must be met to qualify for a certificate of approval. To this extent, the instrument may engage the right to work under the International Covenant on Economic, Social and Cultural Rights (ICESCR). However, such a restriction is considered a necessary part of the aviation safety regulatory system. As a regulated sector, individuals who participate in the sector are deemed to have accepted certain reasonable and proportionate conditions, controls and restrictions where these are necessary to manage public safety risks and maintain the integrity of the aviation safety system.
Human rights implications
The instrument is otherwise 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. The instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority