Explanatory Statement
Civil Aviation Regulations 1988
Directions – for determining maximum weight – Fugro Airborne Surveys
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation.
An aircraft’s certificate of airworthiness (CofA) or flight manual sets out its maximum take‑off weight (MTOW) or maximum landing weight (MLW). Under subregulation 235 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may give directions for estimating the gross weight of an aircraft, including passengers, cargo and fuel. For the safety of air navigation, CASA may give directions setting out the manner of determining, for an aircraft flight, the maximum weight, less than the MTOW or MLW, that the gross weight is not to exceed. Under subregulations 235 (4) and (6) of CAR 1988, it is an offence for the pilot in command to allow an aircraft to take off or land if its gross weight exceeds its MTOW or MLW.
For specified aeroplanes above 5 700 kg, CASA has given detailed directions in Civil Aviation Order 20.7.1B (CAO 20.7.1B). For certain aircraft not above 5 700 kg, CASA has given directions in Civil Aviation Order 20.7.4 (CAO 20.7.4).
Instrument
Fugro Airborne Surveys Pty Ltd (the operator) operates a SC-7 Skyvan VH-WGT and a CASA 212 VH-TEM (the aircraft). When equipped for aerial survey work, each aircraft is above 5 700 kg. In that configuration, each aircraft is unable to comply with the weight limitations determined under CAO 20.7.1B.
Amendments to CAO 20.7.1B, in effect on and from 11 June 2005, removed the aircraft from the scope of CAO 20.7.1B which no longer applied to an aircraft with a CofA in the special or restricted category. Since the aircraft are both above 5 700 kg, CAO 20.7.4 also does not apply. However, CASA considers that it is necessary, in the interests of safety, to regulate the operations of these aircraft and has issued the operator with this instrument regarding the 2 aircraft.
CASA considers that it is safe for each aircraft to operate in compliance with CAO 20.7.4 in certain circumstances, but not, generally, in other adverse circumstances. The adverse circumstances are at night and below 1 000 feet in certain situations.
The instrument, therefore, directs that if a flight, landing or take-off (an operation) includes, or is likely to include, an adverse circumstance, the operation must, in effect, comply with CAO 20.7.1B. If an operation does not include, or is not likely to include, an adverse circumstance, the operation must, in effect, comply with CAO 20.7.4.
Specifically, there are 3 adverse circumstances: flight outside daylight; a take-off whose flight path involves flight below 1 000 feet AGL for more than 3 km over a city, town, populous or industrial area, or industrial plant (a restricted area); and a landing (except an emergency one) whose flight path involves flight below 1 000 feet AGL for more than 3 km over a restricted area.
There may be some circumstances where CASA considers that safety is not compromised by low-level flight for greater than 3 km over a restricted area. In such a case, CASA may approve the operation.
The instrument applies only when the aircraft are operated by the operator.
Legislative Instruments Act
Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA.
Under regulation 5A of CAR 1988, if CASA has issued a Civil Aviation Order (CAO), and CASA later issues a direction that affects the operation of that CAO, the later document is declared to be a disallowable instrument. This instrument affects the operation of both CAO 20.7.1B and CAO 20.7.4 in that the operator’s aircraft would not normally be required to either comply with CAO 20.7.1B or CAO 20.7.4, but under the direction would be required to comply with either CAO depending on the existence of an adverse circumstance. Therefore, the instrument is a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
At the request of the operator, this instrument renews a previous instrument, CASA 351/11, which expired at the end of July 2014 and was issued for the same purpose. Given that the instrument applies to a particular operator and particular aircraft, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required (OBPR id: 14507).
Making and commencement
The direction has been made by a delegate of CASA relying on the power of delegation in subregulation 11.260 (1) of the Civil Aviation Safety Regulations 1998.
The direction commences on 1 August 2014 and expires at the end of July 2016, as if it had been repealed by another instrument.
[Instrument number CASA 152/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Direction – for determining maximum weight – Fugro Airborne Surveys
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
This legislative instrument directs that Fugro Airborne Surveys Pty Ltd (the operator), when operating 2 specified aircraft in the instrument, comply with Civil Aviation Order 20.7.1B or Civil Aviation Order 20.7.4 depending on the kind of operation being conducted by the operator.
The purpose of this legislative instrument is to ensure the operator’s aircraft comply with appropriate safety conditions regarding an aircraft’s maximum take-off weight.
Human rights implications
This legislative 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