Replacement Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA 16/21 — Temporary Prohibition of Operations (Boeing 737 MAX Aircraft) Direction Repeal Instrument 2021
Purpose
The purpose of CASA 16/21 — Temporary Prohibition of Operations (Boeing 737 MAX Aircraft) Direction Repeal Instrument 2021 (the instrument) is to repeal instrument CASA 18/20 — Temporary Prohibition of Operations (Boeing 737 MAX Aircraft) Direction 2020 (CASA 18/20) that prohibited air transport operators and other persons from operating Boeing 737-8 and Boeing 737-9 aircraft (B737 MAX aircraft) within Australian territory, other than for specified flights authorised by the Civil Aviation Safety Authority (CASA).
The repeal of CASA 18/20 will enable the B737 MAX aircraft to return to service in Australia. The lifting of the prohibition follows the rescinding on 18 November 2020 by the Federal Aviation Administration of the United States of America (FAA) of its 13 March 2019 Emergency Order of Prohibition relating to the operation of B737 MAX aircraft. FAA is the national airworthiness authority for the State of Design of the B737 MAX aircraft and has responsibilities to monitor and manage unsafe conditions associated with the aircraft.
Australian registered B737 MAX aircraft operating in Australia will be required to comply with an Airworthiness Directive (AD) issued by the FAA that specifies design changes to be made to the aircraft. This is due to the automatic adoption of foreign State of Design airworthiness directives under Part 39 of the Civil Aviation Safety Regulations 1998 (CASR). B737 MAX flight crew will also be required to comply with B737 MAX training requirements published by the FAA. Foreign registered B737 MAX aircraft that may operate in Australia will also be required to comply with an AD or equivalent issued by their State of registry that prescribe the design changes.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made CASR for the Act.
Subpart 11.G of CASR provides for CASA to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a) of CASR, for subsection 98 (5A) of the Act, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245 (2) of CASR provides that CASA may issue such a direction if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, if the direction is not inconsistent with the Act, and for the purposes of CASA’s functions.
Subsection 26 (2) of the Act, read with section 14 of the Air Navigation Act 1920 (ANA), has effect to permit a person to operate a foreign registered aircraft into Australia, and land in Australia, in a non-scheduled flight. However, in giving effect to the Convention on International Civil Aviation (Chicago Convention), section 14 of the ANA is subject to clause 9 (b) of the Chicago Convention which preserves for Contracting States the right to temporarily prohibit flying over its territory, provided that the prohibition applies without restriction to aircraft of all States.
Under subsection 33 (3) of the Acts Interpretation Act 1901, 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.
Background
On 29 October 2018, Lion Air Flight JT610 operated by Lion Air crashed into the sea off Jakarta, Indonesia. The aircraft operated for this flight was a Boeing 737-8 aircraft on a scheduled domestic flight from Soekarno-Hatta International Airport in Jakarta to Depati Amir Airport in Pangkal Pinang. All 189 passengers and crew were killed in the accident.
On 7 November 2018, the FAA issued emergency AD 2018-23-51 to owners and operators of the B737 MAX aircraft. The AD states that it was “prompted by analysis performed by the manufacturer showing that if an erroneously high single angle of attack (AOA) sensor input is received by the flight control system, there is a potential for repeated nose-down trim commands of the horizontal stabilizer. This condition, if not addressed, could cause the flight crew to have difficulty controlling the airplane, and lead to excessive nose-down attitude, significant altitude loss, and possible impact with terrain.”
The FAA issued the AD because it evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. The AD required revised certificate limitations and operating procedures of the airplane flight manual to provide the flight crew with runaway horizontal stabilizer trim procedures to follow under certain conditions.
The AD stated: “In the event of an uncommanded horizontal stabilizer trim movement, combined with any of the following potential effects or indications resulting from an erroneous Angle of Attack (AOA) input, the flight crew must comply with the Runaway Stabilizer procedure in the Operating Procedures chapter of this manual: …”.
On 10 March 2019, Ethiopian Airlines operated a Boeing 737-8 aircraft on a flight ET302 to Nairobi from Addis Ababa when it crashed shortly after reporting technical problems and seeking permission to turn back. All 157 persons on the aircraft were killed. The cause of the accident has not been established.
On 12 March 2019, CASA issued directions to specified foreign air transport Air Operator Certificate holders conducting flight operations into and out of Australia to cease operations of the Boeing 737-8 aircraft to and from Australia, or within Australian territory. The Director of Aviation Safety, who issued the directions, advised at the time that he would review the terms of the directions after findings into the accidents described above are released.
On 13 March 2019, the investigation of the Ethiopian Airlines ET302 crash identified information from the wreckage suggesting the aircraft’s configuration just after take-off that, taken together with newly-refined data from satellite-based tracking of the aircraft’s flight path, indicates some similarities between the ET302 and JT610 accidents that warrant further investigation of the possibility of a shared cause for the 2 incidents that needs to be better understood and addressed. On the same day the FAA, through an Emergency Order of Prohibition, ordered the grounding of all B737 MAX aircraft by U.S. certificated operators and also prohibited the operation of these aircraft in the territory of the United States.
FAA Emergency Order of Prohibition allowed special flight permits to be issued in accordance with specified U.S. Federal Aviation Regulations, “including to allow non‑passenger carrying flights, as needed, for purposes of flight to a base for storage, production flight testing, repairs, alterations, or maintenance.” These kinds of flights are known in the aviation industry as “ferry flights”. It also allowed for experimental airworthiness certificates to be issued.
On 18 November 2020, the FAA issued a Rescission of Emergency Order of Prohibition that rescinded the FAA Emergency Order of Prohibition issued on 13 March 2019. As the national airworthiness authority for the State of Design of the B737 MAX aircraft, the FAA also published AD 2020-24-02 specifying the design changes that must be made before the B737 MAX can return to service. In addition, the FAA published B737 MAX flight crew training requirements and a Continued Airworthiness Notification to the International Community.
Previous CASA response
Given the seriousness of the accidents involving the B737 MAX, the similarities between them, and the absence of verified measures to prevent occurrence of similar accidents in the future, CASA decided in March 2019 that all operations of B737 MAX aircraft should be prohibited in Australia as a precaution and on 29 March 2019 issued instrument CASA 21/19 — Temporary Prohibition of Operations (Boeing 737 MAX Aircraft) Direction 2019 (CASA 21/19) to give effect to this prohibition.
Instrument CASA 21/19 was issued after the directions CASA issued to individual operators on 12 March 2019. Instrument CASA 21/19 was repealed by instrument CASA 69/19 — Temporary Prohibition of Operations (Boeing 737 MAX Aircraft) Direction 2019 (CASA 69/19). Instrument CASA 69/19 commenced on 24 September 2019 and repealed on 24 March 2020.
Instrument CASA 69/19 continued the prohibition on the operation of B737 MAX aircraft within Australian territory but, consistent with the FAA Prohibition Order, allowed the B737 MAX aircraft to conduct authorised non-passenger carrying, non‑commercial flights to, or for the purposes of a flight to, a base for any of the following purposes relating to the aircraft: storage, production flight testing, repairs, alterations or maintenance. Instrument CASA 18/20 continued this arrangement under which the operation of B737 MAX aircraft is prohibited within Australia, other than for such flights if they are authorised by CASA. Instrument CASA 18/20 was to repeal at the end of 31 March 2021.
Overview of instrument
This instrument repeals instrument CASA 18/20.
CASA has assessed the impact the instrument will have on aviation safety and is satisfied that the operation of B737 MAX aircraft no longer poses an unacceptable risk to the safety of air navigation. In doing so, CASA has taken into consideration the fact the FAA has recertified the B737 MAX to the requirements of Part 25 of the Federal Aviation Regulations, that instruments prohibiting the operation of the B737 MAX have now been rescinded by other national aviation authorities (NAAs) (including the FAA, the European Union Aviation Safety Agency and Transport Canada Civil Aviation), and the FAA has issued an AD specifying design changes that will be automatically adopted by CASA.
Content of instrument
Section 1 names the instrument.
Section 2 states the duration of the instrument. The instrument will commence at the time it is registered and will be repealed in accordance with section 48A of the Legislation Act 2003. Having the instrument commence at the time it is registered will ensure that there is no retrospective approval of the operation of B737 MAX aircraft before that time on the day it is registered.
Section 3 repeals instrument CASA 18/20.
Legislation Act 2003 (the LA)
Paragraph 10 (1) (d) of the LA provides that an instrument will be a legislative instrument if it includes a provision that amends or repeals another legislative instrument. This instrument repeals instrument CASA 18/20 that was registered as a legislative instrument and is, therefore, also a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
CASA did not engage in any consultation for this instrument as it will not negatively impact on aircraft operators, and the lifting of the prohibition on the operation of B737 MAX aircraft in Australian territory follows the lifting of similar prohibitions by other NAAs in relation to the aircraft’s operation in other countries. In these circumstances, CASA is satisfied that no consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for directions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The instrument is compatible with human rights. A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commenced at the time it was registered and will be automatically repealed in accordance with section 48A of the LA.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA 16/21 — Temporary Prohibition of Operations (Boeing 737 MAX Aircraft) Direction Repeal Instrument 2021
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 instrument repeals instrument CASA 18/20 — Temporary Prohibition of Operations (Boeing 737 MAX Aircraft) Direction 2020 that prohibited a person from operating a Boeing 737-8 or 737-9 aircraft (B737 MAX aircraft) in Australian territory, other than for an authorised flight.
Human rights implications
The right to work, contained in Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights, includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept. The right to work is promoted by this instrument as it removes the prohibition on the operation of B737 MAX aircraft in Australian territory other than for authorised flights. This will have the effect of enabling Australians to work in relation to such aircraft, whether as ground crew or, if B737 MAX aircraft are registered in Australia in the future, as crew members.
Safeguards to address any risk to the life and health of persons by removing this prohibition on the operation of B737 MAX aircraft in Australian territory have been addressed by ensuring that Australian registered B737 MAX aircraft may only be flown if design changes are made to the aircraft in compliance with an Airworthiness Directive (AD) issued by the Federal Aviation Administration of the United States of America (FAA). This is due to the automatic adoption of foreign State of Design airworthiness directives under Part 39 of the Civil Aviation Safety Regulations 1998. CASA intends to require B737 MAX flight crew of Australian registered aircraft to also comply with the B737 MAX training requirements published by the FAA. Foreign registered B737 MAX aircraft that may operate in Australia will also be required to comply with an AD or equivalent issued by their State or registry that prescribe the above requirements.
Conclusion
This instrument is compatible with human rights because it promotes the protection of human rights.
Civil Aviation Safety Authority