Explanatory Statement
Civil Aviation Act 1988
Authorisation — to carry out maintenance on class A or class B aircraft
Exemption — to certify maintenance on class A or class B aircraft
Section 98 of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in relation to the safety of air navigation.
Under subregulation 42ZC (1) of the Civil Aviation Regulations 1988 (CAR 1988), the registered operator and the pilot in command of a class A or class B aircraft must not allow maintenance to be carried out on it in Australian territory by anyone other than a person described in regulation 42ZC. Class A aircraft are those certificated in the transport category or for commercial purposes. Class B aircraft are those that are not class A and therefore include various general aviation aircraft.
For class A aircraft, subregulation 42ZC (3) of CAR 1988 describes the persons who may carry out maintenance. Under paragraph 42ZC (3) (b), these include a person who is employed by, or working under an arrangement with, another who holds a certificate of approval covering the maintenance (a CofA), and the maintenance is carried out by the person under the supervision of a person who firstly, holds an aircraft maintenance engineer (AME) licence covering the maintenance, and who secondly, holds a CofA or is employed by, or working under an arrangement with, another who holds a CofA.
For class B aircraft, subregulation 42ZC (4) of CAR 1988 describes the persons who may carry out maintenance. Under paragraph 42ZC (4) (c), these include a person who is supervised by a person who firstly, holds an aircraft maintenance engineer (AME) licence, covering the maintenance, and who secondly, holds a CofA or is employed by, or working under an arrangement with, another who holds a CofA.
For more restricted maintenance, the superviser may be a person who holds an AME licence covering the maintenance, and either operating independently or as an employee of a AME licence, airworthiness authority (AA) or aircraft welding authority (AWA) holder.
Under subregulation 42ZC (6) of CAR 1988, CASA may also authorise a person to carry out maintenance on class A or class B aircraft subject to necessary safety conditions expressed in the authorisation, for example, that the maintenance be supervised.
Under subregulation 33B (1) of CAR 1988, a person may apply for an AA. Under subregulation 33B (2), an AA may be issued subject to the conditions specified in the Civil Aviation Orders (the CAOs). Under CAO 100.23, a person may apply for an AA, which includes a maintenance authority. Under CAO 100.24, a maintenance authority may be issued to an applicant who has the appropriate training and qualifications and who demonstrates to CASA his or her competence to perform the maintenance associated with the privileges endorsed on the maintenance authority.
Under paragraph 42ZE (1) (b) of CAR 1988, a person who carries out maintenance on an Australian aircraft in Australian territory must ensure that completion of the maintenance is certified in accordance with the CASA system of certification of completion of maintenance. Subregulation 2 (1) defines “CASA system of certification of completion of maintenance” as the system set out in Schedule 6 of CAR 1988.
Schedule 6 of CAR 1988
Under Part 2 of Schedule 6 of CAR 1988, the completion of each stage of maintenance must be certified. Part 2 also sets out the requirements for what must be included in a certification.
Under paragraph 2.2, completion of each stage of maintenance may only be certified by the person who performs the maintenance. Under paragraph 1.2, the person who performs maintenance means the person who physically does the maintenance.
It would not be safe to permit a supervised person to certify for his or her own maintenance. Therefore, under paragraph 1.3, maintenance performed by a person who is permitted by paragraph 42ZC (3) (b) or 42ZC (4) (c) of CAR 1988 to carry out that maintenance under the supervision of a person who is an AME licence holder, is taken to have been performed by the superviser who is thus legally able to certify for it as if he or she had carried it out.
However, this provision does not apply to a person who is supervised by a person who holds an AA in the form of a maintenance authority or an AWA covering the maintenance. Nor does it apply to a person who is permitted by a CASA authorisation under subregulation 42ZC (6) to carry out maintenance under specified supervision.
Aircraft polishing
Aircraft polishing on class A and class B aircraft is an inherently low level maintenance activity usually carried out under supervision. However, because of the provisions mentioned above, it may not be carried out, under supervision, by a person authorised under subregulation 42ZC (6).
Authorisation
The instrument is designed to authorise a person (an aircraft polisher) to carry out aircraft polishing on a class A or class B aircraft specifically under the supervision of a person who is the holder of an aircraft maintenance engineer licence, or an airworthiness authority in the form of a maintenance authority covering maintenance on the aircraft (the superviser). Supervision is defined in terms that mean the superviser must closely oversight the aircraft polisher’s performance of the maintenance.
Exemption
The instrument includes an exemption from compliance with paragraph 42ZE (1) (b) of CAR 1988 to the extent that the paragraph requires compliance with the provisions of Schedule 6 of CAR 1988 under which only the person who performs, that is physically does, the maintenance may certify for completion of it.
Thus, under the authorisation, a person is authorised to carry out aircraft polishing on class A or class B aircraft provided the work is closely supervised by a superviser. Under the exemption, the superviser may certify for completion of the aircraft polishing although he or she has only supervised rather than personally done the maintenance.
Conditions
It is a condition of the authorisation that, for class A aircraft, the aircraft polisher is employed by a CofA holder, and that the superviser holds a CofA or is an employee of a CofA holder. This will ensure consistency with the supervised maintenance requirements for class A aircraft in paragraph 42ZC (3) (b).
It is a condition of the authorisation that, for class B aircraft, the aircraft polisher’s superviser holds a CofA or is an employee of a CofA holder, or is not an employee (i.e. is an independent person), or is an employee of another AME licence or AA holder. This will ensure broad consistency with the supervised maintenance requirements for class B aircraft in paragraph 42ZC (4) (c).
It is a condition of the exemption that only the superviser may certify for completion of the maintenance carried out by the aircraft polisher.
Legislative Instruments Act
Under subsection 308 (4) of CAR 1988, an exemption is declared to be a disallowable instrument. Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. Under subsection 5 (4) of the LIA where only some provisions of an instrument are of a legislative character, the whole instrument is a legislative instrument. The authorisation and exemption instrument is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case because of the technical nature of the instrument which is designed to address an unforseen limitation in the operation of CASA authorisations under subregulation 42ZC (6) of CAR 1988.
The instrument commences on the day after it is registered.
The instrument has been made by the Deputy Chief Executive and Chief Operating Officer, a delegate of CASA, under subregulation 7 (1) of CAR 1988.
[Instrument number CASA 579/05]