Explanatory Statement
Civil Aviation Safety Regulations 1998
Directions — Qantas Airways Limited
Legislation
Subsection 9 (1) of the Civil Aviation Act 1988 (the Act) provides that CASA has the function of conducting the safety regulation, in accordance with the Act and the regulations, of civil air operations in Australian territory and of the operation of Australian aircraft outside Australian territory.
Section 98 of the Act empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Under subregulation 11.245 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), CASA may issue a direction about any matter affecting the safe navigation and operation, or maintenance, of aircraft.
Under subregulation 11.245 (2) of CASR 1998, a direction may only be issued if it is reasonably necessary for the safe navigation and operation, or maintenance, of aircraft, is not inconsistent with the Act and is for the purposes of CASA’s functions.
Under regulation 11.250 of CASR 1998, a direction may be in force for no longer than 1 year. A direction ceases to be in force on the day specified in it or, if no day is specified, 1 year after it commences.
Under subregulation 11.260 (2) of CASR 1998, the power to issue a direction under regulation 11.245 may only be exercised by the Director of CASA personally.
Under CASR 11.255, contravention of a direction is a strict liability offence.
Background
CASA is not satisfied that Qantas Airways Limited (the operator) has adequate control of its licensed maintenance personnel and their qualifications. This is due to information received by CASA which suggests that some unqualified/unlicensed personnel are certifying and performing maintenance on Australian aircraft operated by the operator.
Instrument of directions
The operator is directed to undertake an audit to identify and verify the currency and validity of the maintenance - and engineering-related authorisations, authorities and approvals held by all its personnel who hold an aircraft maintenance engineer licence issued under regulation 31 of the Civil Aviation Regulations 1988 (CAR 1988) or who hold an airworthiness authority issued under regulation 33B of CAR 1988 or who are authorised to approve the design of a modification or repair of an aircraft or aircraft component under regulation 35 of CAR 1988.
The purpose of this audit is to ensure that all the operator’s maintenance and engineering personnel, who are authorised to certify for the completion of maintenance or to approve a design of a modification or repair under CAR 1988, are properly qualified and authorised under the regulations to do so.
The operator is also directed to provide details of any of the operator’s aircraft, aircraft component or aircraft material certified over the 24-month period preceding the date of this direction by a specified individual.
Legislative Instruments Act 2003 (LIA)
Under subsection 98 (5A) of the Act, regulations may empower CASA to issue a direction in relation to the safe navigation and operation, or maintenance, of aircraft. Under subsection 98 (5B) of the Act, such a direction is a legislative instrument under the LIA. The direction 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 carried out because the instrument is required as a matter of urgency in the interest of aviation safety.
The directions have been made personally by the Director of Aviation Safety in accordance with subregulation 11.260 (2) of CASR 1998.
[Instrument number CASA 82/09]
Overview
The Civil Aviation Safety Regulations 1998 (CASR 1998), enacted by the Australian Government, outline the safety regulations governing civil aviation operations within and outside Australian territory, with a focus on ensuring the safe navigation, operation, and maintenance of aircraft. These regulations empower the Civil Aviation Safety Authority (CASA) to issue directions as necessary for maintaining safety standards. The Civil Aviation Act 1988 (the Act) empowers CASA to conduct safety regulation in line with the Act and the regulations, with the Governor-General having the authority to make regulations for the Act and the safety of air navigation. These legislative instruments are designed to address issues such as inadequate control of licensed maintenance personnel and their qualifications, as observed in Qantas Airways Limited. The policy objective is to ensure all maintenance and engineering personnel authorised to certify maintenance completion or approve design modifications or repairs are properly qualified and authorised under the regulations. The urgency and necessity of these directions were such that consultation was waived, and they were issued by the Director of Aviation Safety under the authority of the CASR 1998.
Scope and Application
The Civil Aviation Safety Regulations 1998, as amended, provide the framework for ensuring the safety of civil aviation in Australia, with the Civil Aviation Safety Authority (CASA) playing a pivotal role in the regulation of these operations. Specifically, the authority to issue directions under the Civil Aviation Act 1988 is exercised to address safety concerns when necessary. The Act applies to Qantas Airways Limited, focusing on the qualifications and authorisations of maintenance personnel involved in the operation of Australian aircraft both within and outside Australian territory. The geographic reach of the Act is thus both national and international, covering any Australian aircraft wherever they are located. The directions issued under this legislation are not subject to exclusions or exemptions and are intended to be strictly enforced, with contravention being a strict liability offence. Any subordinate instruments that extend or further detail the application of the Act are subject to the Legislative Instruments Act 2003, which includes provisions for tabling and disallowance in Parliament. In this instance, the urgency of the safety concerns led to the issuance of the directions without the usual consultation process, as mandated by the Legislative Instruments Act.
Key Provisions
The Civil Aviation Safety Regulations 1998 (CASR 1998) empower the Civil Aviation Safety Authority (CASA) to issue directions regarding the safe navigation and operation of aircraft. Section 98 of the Civil Aviation Act 1988 (the Act) provides the legal basis for CASA to issue such directions, which must be reasonably necessary for safety, not inconsistent with the Act, and aligned with CASA’s functions. Subregulation 11.245(1) of the CASR 1998 specifies that CASA can issue these directions about any matter affecting aircraft safety, while subregulation 11.245(2) mandates that a direction can only be issued if it is for the purpose of ensuring safe navigation and operation, or maintenance, of aircraft. Additionally, subregulation 11.260(2) of the CASR 1998 stipulates that only the Director of CASA can exercise the power to issue such a direction.
The obligations imposed on Qantas Airways Limited by these directions are specific and focused on ensuring the qualifications and authorisations of its maintenance personnel. According to the directions, Qantas must conduct a comprehensive audit to verify the currency and validity of the maintenance- and engineering-related authorisations, authorities, and approvals held by all its personnel who hold an aircraft maintenance engineer licence, an airworthiness authority, or who are authorised to approve the design of a modification or repair of an aircraft or aircraft component. Furthermore, Qantas is required to provide detailed information on any aircraft, aircraft component, or aircraft material certified by a specified individual over the preceding 24-month period.
The consequences of non-compliance with the directions are significant. Under CASR 11.255, contravention of a direction is a strict liability offence, meaning that the burden of proof does not rest on the prosecution. This implies that Qantas could face penalties without the need to demonstrate intent or negligence on their part. The maximum penalties for such offences are not specified in the provided text, but typically, strict liability offences under aviation safety regulations can result in substantial fines and other legal repercussions. Additionally, the directions are legislative instruments under the Legislative Instruments Act 2003 (LIA), meaning they are subject to tabling and disallowance in the Parliament. This underscores the seriousness of the regulatory action taken by CASA.