Explanatory Statement
Civil Aviation Regulations 1988 and Civil Aviation Safety Regulations 1998
Repeal — Directions, Exemptions and Civil Aviation Orders
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 (5) of the Act, the regulations may provide that CASA may issue a Civil Aviation Order (CAO) containing a direction, instruction or notification.
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.
CASA 990/96 and CASA 991/96
Under paragraphs 5.1 and 5.2 of CAO 20.2, an operator and pilot in command of an aircraft are required to check for any significant quantity of water in that aircraft’s fuel system and to remove all traces of water before further flight. Regulation 43 of the Civil Aviation Regulations 1988 (CAR 1988) concerns maintenance releases in respect of Australian aircraft and regulation 244 prescribes safety precautions that a pilot in command must take before take-off. Instrument CASA 990/96 exempted any Qantas aircraft operating in extreme cold weather conditions from having its fuel system tested for the presence of water where the cold conditions temporarily rendered the aircraft’s fuel drains inoperative. The instrument was made in response to Qantas operations in Northern Japan during winter and other extreme cold climates where the requirement to comply with paragraph 5.2 of CAO 20.2 may damage an aircraft’s fuel drains.
Under paragraphs 4.2 and 4.3 of CAO 20.9, no Australian aircraft can be fuelled while passengers are on board unless the fuel is aviation grade turbine fuel that contains an anti‑static additive and the aircraft and the fuelling system have the same electric potential (that is, both connected to an earth point). CAO 20.9 was made under regulation 38 of CAR 1988, which provides that CASA may give directions relating to the maintenance of Australian aircraft for the purpose of ensuring safety of air navigation. Instrument CASA 991/96 commenced on 2 October 1996, permitting Qantas aircraft to refuel with passengers on board if the aircraft and its fuelling system were connected to an earth point.
Instruments CASA 990/96 and CASA 991/96 are no longer relevant to Qantas’s operations and, therefore, both instruments are repealed.
CASA EX15/12
Subregulation 173.095 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) requires a certified designer of instrument flight procedures to ensure that each terminal instrument flight procedure designed under the designer’s procedure design certificate is validated by a CASA pilot in accordance with applicable standards set out in the Manual of Standards for Part 173 of CASR 1998. CASA has approved Airservices Australia as a certified designer of terminal instrument flight procedures (CASA 122/13 refers).
CASA does not have sufficient CASA officers readily available with appropriate flying qualifications to carry out required validation flight checks. Instrument CASA EX15/12 was issued to exempt Airservices Australia from CASA validation flight checks, on condition that validation be conducted by Radiola Aerospace Pty Ltd, with whom CASA had a service agreement which expired on 31 January 2014.
CASA EX15/12 has stopped having effect and is repealed.
CASA EX123/12
Regulation 172.022 of CASR 1998 allows CASA to issue a Manual of Standards prescribing standards that must be met by air traffic service providers. Under regulation 172.060 of CASR 1998, an ATS provider must maintain an operations manual that complies with the Manual of Standards. For these purposes, CASA issued Manual of Standards Part 172 — Air Traffic Services. Subsection 10.8.3 of the Manual of Standards deals with lateral separation navigation tolerances used to determine the possible position of an aircraft relative to other aircraft. In particular, paragraph 10.8.3.9 provides circular error of position (CEP) and cross track tolerances applicable to aircraft with long range navigation systems. One such tolerance is 7 nautical miles CEP.
In consultation with Airservices Australia, CASA determined that a 1 nautical mile cross track navigation tolerance would be safe for capable aircraft. Instrument CASA EX123/12 was, therefore, issued by CASA to exempt Airservices Australia, when controlling capable aircraft, from the requirement to comply with paragraph 10.8.3.9 of the Manual of Standards for a 7 nautical mile CEP.
Instrument CASA EX123/12 is no longer required since the Manual of Standards Part 172 Amendment Instrument 2013 (No. 1) amended subsection 10.8.3 of Part 172 of the Manual of Standards such that the substantive content of CASA EX123/12 has been incorporated into the Manual of Standards.
CASA EX14/13
On 27 June 2011, Part 145 of CASR 1998 came into force. It was envisaged that maintenance organisations approved under Part 145 would concentrate exclusively on the maintenance of regular public transport (RPT) aircraft and associated aeronautical products. However, some Part 145 organisations were also holders of certificates of approval for carrying out maintenance on non-RPT aircraft. As a result, these organisations were required to operate under 2 different procedural safety regimes, which was unnecessary and which ultimately created the anomaly of Part 145 organisations not being able to issue certificates of completion of maintenance for non-RPT aircraft.
Instrument CASA EX14/13 commenced on 23 April 2013 and rectified this situation by allowing a person to install an aircraft component (or a component incorporated in an aircraft component) on a non-RPT aircraft where maintenance on the component has been carried out by a Part 145 organisation. With the commencement of the Civil Aviation Legislation Amendment (Maintenance and Other Matters) Regulation 2013 (the Amending Regulation) on 18 December 2013, the exemption provided by CASA EX14/13 is no longer necessary. The Amending Regulation inserts regulation 336 of CAR 1988, which provides that a reference to completion of maintenance being certified in accordance with regulations 42ZE and 42ZN of CASR 1998 is taken to include reference to a certificate of release to service for maintenance and, for all intents and purposes, has the same operative effect as CASA EX14/13.
CASA EX67/13
Part 4A of CAR 1988 and Part 42 of CASR 1998 deal with the continuing requirements for maintenance of Australian aircraft, including maintenance schedules, maintenance systems, modifications and repairs of approved designs and certification of completion of maintenance. Aircraft subject to Part 42 requirements are required to comply with standards equivalent to Part 4A, but there are different means of compliance. Instrument CASA EX67/13 provided an exemption for persons operating under Part 42 from also having to comply with Part 4A maintenance provisions. CASA EX67/13 also provided an exemption from paragraph 139 (1) (c) of CAR 1988 regarding the maintenance release of Part 42 aircraft, as well as an exemption from subregulation 214 (1) of CAR 1988 regarding the training of maintenance personnel.
With the commencement of the Amending Regulation on 18 December 2013, the exemption provided by CASA EX67/13 is no longer necessary. The Amending Regulation inserts regulation 328 of CAR 1988, which states that Part 4A does not apply to an aircraft to which Part 42 applies. The Amending Regulation also inserts regulation 337 of CAR 1988 and amends paragraph 139 (1) (c) of CAR 1988, which respectively reflect the operative effect of the CASA EX67/13 exemption on regulation 214 and paragraph 139 (1) (c) of CAR 1988.
CASA EX74/13
Regulation 42.301 of CASR 1998 provides that the carrying out of maintenance on an Australian aircraft outside Australian territory is only permitted by an organisation that has been approved by the national airworthiness authority (NAA) of a foreign country. The foreign country must be specified by CASA in the Part 42 Manual of Standards and there must be an arrangement between CASA and the NAA that permits the organisation to carry out the maintenance. Under Subpart 42.H of CASR 1998, a certificate of release to service (CRS) may only be issued by an approved maintenance organisation or an independent maintainer. A foreign approved maintenance organisation is unable to issue a CRS that complies with subregulation 42.760 (1) of CASR 1998.
Instrument CASA EX74/13 exempted the registered operator of an aircraft from the requirement for a CRS to be issued for that aircraft if maintenance was carried out by a foreign approved maintenance organisation permitted by regulation 42.301 of CASR 1998.
With the commencement of the Amending Regulation on 18 December 2013, the exemption provided by CASA EX74/13 is no longer necessary. The Amending Regulation amends paragraph 42.030 (2) (b) of CASR 1998 by allowing a CRS or an equivalent document issued in accordance with an NAA arrangement mentioned in regulation 42.301 of CASR 1998 to be issued for an aircraft in relation to maintenance.
CAO 103.3, CAO 103.5, CAO 103.24, CAO 103.25, CAO 103.26, CAO 103.27, CAO 103.28 and CAO 108.50
Under regulation 5 of CAR 1988, wherever CASA is empowered or required under CAR 1988 to issue any direction, instruction or notification, CASA may generally do so in CAOs.
Regulations 21 and 21A of CAR 1998, prior to their repeal on 27 June 2011, provided that CASA may, among other things, issue a design standard for an aircraft or an aircraft component for which no appropriate design standard is in force. CAO 103.3, CAO 103.5, CAO 103.24, CAO 103.25, CAO 103.26, CAO 103.27 and CAO 103.28 set out the required standards for aircraft equipment, ranging from Very High Frequency transmitting equipment to navigation equipment.
Regulation 196 of CAR 1988 requires, among other things, that the operator and pilot in command of an aeroplane in flight must ensure that prescribed navigation lights and anti‑collision lights are displayed on the aeroplane. CAO 108.50 prescribes the specification of anti-collision lights required to be installed on an aeroplane in flight or operating on the manoeuvring area of a land aerodrome.
Each CAO is no longer required following the repeal of regulations 21 and 21A of CAR 1998 in 2011 and the commencement of Subparts 21.K and 21.N of CASR 1998, which deal with the approval of aircraft parts and appliances. Additionally, each of the CAOs is considered obsolete since they have not been subject to periodic review in comparison to industry avionics equipment design standards.
To avoid doubt, the instrument used to issue each CAO is also repealed.
Legislative Instruments Act
The instruments being repealed are all registered on the Federal Register of Legislative Instruments (FRLI). Under subsection 5 (3) of the Legislative Instruments Act 2003 (LIA), they are taken to be legislative instruments. By repealing the legislative instruments, this instrument is also itself a legislative instrument under section 5 of the LIA and subject to registration, tabling and disallowance in the Parliament under sections 24, 38 and 42 of the LIA.
Consultation
CASA undertook appropriate consultations with industry and with individual operators, where required, for the making of the above directions, exemptions and CAOs. As a result of representation from industry or on CASA’s own initiative as part of the ongoing internal regulatory review process, CASA has determined that these instruments no longer meet current standards or operational processes and are no longer required. In these circumstances, 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 repeal instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act and under the relevant parts and provisions of CAR 1988 and CASR 1998 as specified in this Explanatory Statement.
The instrument commences on the day of registration. It expires on the day after the last repeal date specified in Schedule 1 of the instrument, as if it had been repealed by another instrument.
[Instrument number CASA 26/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Repeal — Directions, Exemptions and Civil Aviation Orders
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 legislative instrument repeals 15 legislative instruments: CASA 990/96, CASA 991/96, CASA EX15/12, CASA EX123/12, CASA EX14/13, CASA EX67/13, CASA EX74/13, Civil Aviation Order (CAO) 103.3, CAO 103.5, CAO 103.24, CAO 103.25, CAO 103.26, CAO 103.27, CAO 103.28 and CAO 108.50.
The legislative instrument also repeals the 8 corresponding instruments used to issue the CAOs listed above.
These legislative instruments, some which are applicable to particular operators and others which are applicable to the wider industry, are no longer required due to the changed operational processes of individual operators or the incorporation of the substance of these legislative instruments into civil aviation regulations and Manual of Standards by way of amending legislation.
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