Explanatory Statement
Civil Aviation Regulations 1988
Direction — for determining maximum take-off weight
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.
Legislation
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) 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 CAO 20.7.4.
The operator
Fugro Airborne Surveys Pty Ltd (the operator) operates SC-7 Skyvan VH-WGT (the Skyvan) and CASA 212 VH-TEM (the 212). When equipped with an external loop antenna (antenna) for aerial survey work, each aircraft is above 5 700 kg. However, in that configuration, each aircraft is unable to comply with the weight limitations determined under CAO 20.7.1B. However, each aircraft can comply with the weight limitations determined under CAO 20.7.4.
The Skyvan
Until 11 June 2005, the Skyvan was subject to CAO 20.7.1B, but exempted from its requirements by instrument CASA EX42/2004 which expires at the end of December 2005. However, amendments to CAO 20.7.1B in effect on and from 11 June 2005, removed the Skyvan from the scope of CAO 20.7.1B which no longer applied to an aircraft with a CofA in the special category. The exemption therefore lapsed, CAO 20.7.1B no longer applied and, the aircraft being above 5 700 kg with the antenna, CAO 20.7.4 did not apply. However, it is necessary in the interests of safety, to regulate the Skyvan’s operations.
The 212
For similar reasons, CAO 20.7.1B no longer applied to the 212, also certificated in the special category and, the aircraft being above 5 700 kg even without the antenna, CAO 20.7.4 does not apply. However, it is necessary in the interests of safety, also to regulate the 212’s operations.
The instrument
CASA considers that it is safe for each aircraft to operate with the antenna in compliance with CAO 20.7.4 in certain circumstances, but not, generally, in other adverse circumstances. The adverse circumstance 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: firstly, flight outside daylight; secondly, 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) or thirdly, 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, and in such a case CASA may approve the operation.
The instrument applies only when the aircraft are operated by the operator and are equipped with the antenna. Although it probably lapsed on 11 June 2005 when amendments were made to CAO 20.7.1B, to avoid doubt the instrument also revokes instrument CASA EX42/2004.
Legislative Instruments Act
Under subsection 5 (1) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is of a legislative character and made in exercise of a power delegated by the Parliament. The directions are made under a delegated power and are regarded as legislative in nature. The instrument is, therefore, a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA. Consultation under section 17 of the LIA has not been considered necessary in this case because of the specific and technical nature of the instrument, requested by a particular operator.
The exemption commences on the day after it is registered and ceases to have effect at the end of 31 December 2006.
The instrument has been made by the General Manager Manufacturing, Certification and New Technologies Office, a delegate of CASA, under subregulation 7 (1) of CAR 1988.
[Instrument number CASA 577/05]