EXPLANATORY STATEMENT
CIVIL AVIATION ACT 1988
CIVIL AVIATION REGULATIONS
REQUIREMENT FOR A PROVING TEST UNDER SUBREGULATION 222 (1)
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in the interests of the safety of air navigation.
Under regulation 5 of the Civil Aviation Regulations (the Regulations), if CASA is empowered or required to issue any direction, instruction or notification or to give any permission, approval or authority, CASA may, subject to any contrary intention, issue the direction or notification or give the permission, approval or authority in Civil Aviation Orders (CAOs) or otherwise in writing. Under regulation 5A of the Regulations, if CASA has issued a CAO and CASA issues a later direction, instruction, notification, permission, approval or authority that is not a CAO and that in any way affects the operation of the CAO, the later document is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Subregulation 222 (1) of the Regulations provides that a new type of aircraft must not be used to carry passengers in a public transport service unless it has passed proving tests in accordance with CASA’s requirements.
Paragraph 15.1 of section 20.11 of the Civil Aviation Orders (the Orders) sets out CASA’s proving test requirements in relation to emergency evacuation demonstrations. Under subparagraph 15.1.3 of section 20.11, an emergency evacuation demonstration is not required if such a demonstration was carried out in accordance with the requirements of the United States Federal Aviation Regulations and, among other things, a CASA-appointed observer was present at the demonstration and was satisfied with the outcome.
Nauru Air Corporation has applied for an Australian Air Operator’s Certificate and intends to apply to have the Boeing B737-400 (4L7) aircraft currently operated by the Corporation transferred to the Australian register.
As a new Australian operator, the Corporation is required to comply with the requirements of sub-section 15 of section 20.11.
CASA is not aware whether the observer referred to in subparagraph 15.1.3 of section 20.11 was present when the relevant demonstration for the Boeing B737-400 (4L7) aircraft was carried out in June 1988. The original type certification demonstration had a passenger complement in excess of 180 passengers.
The internal configuration of the Boeing B737-400 aircraft on which the certification evacuation demonstration was carried out is different to the aircraft operated by the Nauru Air Corporation. The number of passengers carried in the Nauru Air Corporation aircraft will not exceed 130. Moreover, the internal configuration of the aircraft to be operated by Nauru Air Corporation is the same as that in other Boeing B737-400 aircraft already operated by Qantas.
CASA is conscious of the high risk of injury to participants in emergency evacuation demonstrations. In these circumstances, CASA considers that safety will not be compromised if only the proving test now required in the schedule to the exemption is undertaken rather than requiring the operator to comply with the full emergency evacuation demonstration.
The test must be conducted in accordance with the requirements set out in Appendix I of section 20.11 of the Orders, other than those requirements that relate to the evacuation of passengers.
The direction has been issued by District Flight Operations Manager, Melbourne, as a delegate of CASA.
The direction took effect on gazettal.
[EXEMPTION NUMBER: CASA 17/1997]
Overview
The Civil Aviation Act 1988, enacted by the Australian Parliament, is designed to ensure the safety and efficiency of civil aviation in Australia. This Act provides the legislative framework for the regulation of civil aviation and empowers the Civil Aviation Safety Authority (CASA) to make regulations for the safety of air navigation. In this context, the Civil Aviation Act 1988 addresses the need for stringent safety standards and regulatory oversight in the operation of aircraft, particularly in relation to passenger safety during emergency situations. The policy objective of the Act is to maintain the highest possible level of safety in civil aviation, encompassing all aspects from aircraft operations to personnel licensing. The Act's broad scope allows for the creation of detailed regulations and orders, such as those found in the Civil Aviation Regulations and Civil Aviation Orders, which further specify operational standards and requirements.
Scope and Application
The Civil Aviation Regulations 1998, as amended, under the Civil Aviation Act 1988, apply to entities and individuals involved in the operation of aircraft within Australia and its territories. The Act and its associated regulations are designed to ensure the safety of air navigation and the integrity of the Australian aviation industry. The Act applies to any aircraft registered in Australia, foreign aircraft operating within Australian airspace, and any person or entity involved in the operation, maintenance, or certification of such aircraft. The Civil Aviation Regulations cover a wide array of activities including aircraft registration, airworthiness, and the conduct of proving tests for new aircraft types. The regulations are enforceable by the Civil Aviation Safety Authority (CASA), which has the authority to issue directions, instructions, and notifications to ensure compliance with the Act and its regulations. The scope of these regulations is extended through subordinate instruments such as Civil Aviation Orders (CAOs), which provide detailed requirements and procedures for specific aviation activities. Exclusions and exemptions from certain requirements may apply under specific conditions, such as when an aircraft has previously undergone proving tests in accordance with the regulations of another jurisdiction, provided that certain conditions are met, such as the presence of a CASA-appointed observer. In the case of Nauru Air Corporation, CASA has issued a direction exempting the Boeing B737-400 (4L7) aircraft from the full emergency evacuation demonstration, based on prior testing and configuration similarities with other aircraft. This decision is aimed at balancing safety considerations with the practicalities of conducting such demonstrations.
Key Provisions
The Civil Aviation Act 1988 (section 98(1)) allows the Governor-General to make regulations for the safety of air navigation, with the Civil Aviation Regulations (regulation 5) enabling the Civil Aviation Safety Authority (CASA) to issue directions, instructions, notifications, permissions, approvals, or authorities through Civil Aviation Orders (CAOs) or written documents. Regulation 5A of the Regulations specifies that any subsequent document affecting a CAO is a disallowable instrument. Subregulation 222(1) mandates that a new aircraft type must pass proving tests before being used for public transport. Paragraph 15.1 of section 20.11 of the Orders outlines CASA’s proving test requirements for emergency evacuation demonstrations, which may be waived if conducted under US Federal Aviation Regulations and approved by a CASA-appointed observer.
The obligations imposed by these provisions on parties such as the Nauru Air Corporation include ensuring compliance with the proving test requirements as stipulated under the Civil Aviation Regulations. For Nauru Air Corporation, this means the Boeing B737-400 (4L7) must undergo the proving test outlined in the exemption issued by CASA. The operator must also ensure that any emergency evacuation demonstration is either carried out under the specified conditions or approved by CASA, especially given the differences in internal configuration and passenger numbers compared to previous demonstrations.
The consequences of non-compliance with these requirements can be severe. If the Nauru Air Corporation fails to adhere to the proving test requirements, CASA may take enforcement actions. Potential penalties or consequences include the revocation of the Air Operator’s Certificate, which could halt operations. Furthermore, failure to conduct the required proving test or comply with the emergency evacuation demonstration requirements could result in legal action under the Civil Aviation Act 1988, leading to fines or imprisonment. The exact penalties would depend on the severity of the breach and any subsequent judicial determinations.