Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA 21/19 — Temporary Prohibition of Operations (Boeing 737 MAX Aircraft) Direction 2019
Purpose
The purpose of this instrument is to prohibit air transport operators and other persons from operating Boeing 737-8 and Boeing 737-9 aircraft (B737 MAX aircraft) within Australian territory for a period of 6 months. The prohibition is due to concerns regarding the safety of B737 MAX aircraft.
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 the Civil Aviation Safety Regulations 1998 (CASR) and Civil Aviation Regulations 1988 (CAR).
Subpart 11.G of CASR provides for the Civil Aviation Safety Authority (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.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255 it is an offence of strict liability for a person to contravene a direction under regulation 11.245.
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.
Background
On 29 October 2018, Lion Air Flight 610 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 Federal Aviation Administration of the United States of America (FAA) issued emergency Airworthiness Directive (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 states: “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’s 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 direction, advised at the time that he would review the terms of the direction 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 two 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.
Given the seriousness of these accidents, the similarities between them, and the absence of verified measures to prevent occurrence of similar accidents in the future, CASA has now decided that all operations of B737 MAX aircraft should be prohibited in Australia as a precaution.
Overview of instrument
The instrument is a direction under regulation 11.245 of CASR that prohibits a person from operating a B737 MAX aircraft in Australian territory.
The concept of “operate” covers both an actual flight of an aircraft by a pilot and the organisation of a flight of an aircraft by a person. A person may be either a natural person or a corporate entity.
CASA has assessed the impact the instrument will have on aviation safety and is satisfied that it will protect aviation safety as it prohibits the operation of aircraft that may be unsafe.
The prohibition direction is for 6 months, but may be repealed earlier if CASA is satisfied the operation of B737 MAX aircraft does not pose a risk to the safety of air navigation. In addition, CASA will consider the grant of individual exemptions from the restrictions of the direction, in appropriate circumstances and if the interests of safety permit.
Content of instrument
Section 1 of the instrument sets out the name of the instrument.
Section 2 of the instrument sets out the duration of the instrument. The instrument commenced on the day it was registered and is repealed at the end of 6 months from the day it was registered. A note to the section explains that, for regulation 11.250 of CASR, the direction ceases to be in force on the day the instrument is repealed.
Section 3 sets out a direction. The direction is that a person must not operate a Boeing 737-8 or 737-9 model aircraft in Australian territory. A note under this section points out that Australian territory has the meaning as defined in section 3 of the Act.
Section 3 of the Act defines Australian territory as meaning the territory of Australia and of every external Territory, the territorial sea of Australia and of every external Territory and the airspace over any such territory or sea.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument is a direction, made for subsection 98 (5A) of the Act, prohibiting all persons from operating B737 MAX aircraft in Australian territory. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Consultation would not be appropriate in this instance given the seriousness of the concerns that have given rise to the urgent precautionary action taken by CASA in issuing this instrument. There are also challenges in identifying members of the relevant communities, given that no B737 MAX aircraft are currently operating in Australia but foreign aircraft are, in some circumstances, allowed under the Act to fly in Australian territory. 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 exemption 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 the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument commenced on the day it was registered and is repealed at the end of 6 months after the day it was registered.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA 21/19 — Temporary Prohibition of Operations (Boeing 737 MAX Aircraft) Direction 2019
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 is a direction under regulation 11.245 of CASR that prohibits a person from operating a Boeing 737-8 or 737-9 aircraft (B737 MAX aircraft) in Australian territory.
Human rights implications
The instrument potentially engages negatively with the right to work, as by prohibiting B737 MAX aircraft from being operated in Australian territory it has the effect of preventing Australians working on or in such aircraft, whether as crew members or ground crew. However, at present there are no Australian-registered B737 MAX aircraft that would have this effect. The instrument also engages positively with rights at work by ensuring that no person works in Australia as a crew member on aircraft that may be unsafe, on the basis of recent fatal accidents involving B737 MAX aircraft. Any limitation on human rights is reasonable, necessary and proportionate given the need to protect the safety of air navigation, prevent aircraft accidents and protect human life.
Conclusion
This legislative instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
Civil Aviation Safety Authority