Explanatory Statement
Civil Aviation Regulations 1988
Exemption — from period that maintenance release is in force
Under subsection 98 (1) of the Civil Aviation Act 1988 (the Act) the Governor-General may make regulations for the Act and the safety of air navigation.
Legislation
Under subregulation 43 (5) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may give directions specifying the period or the maximum period that a maintenance release of a kind specified in the direction is to be expressed to remain in force. Under paragraph 43 (11A) (a) of CAR 1988, a person must not contravene a direction.
Paragraph 7.2 of Civil Aviation Order 100.5 (CAO 100.5) sets out CASA’s directions for the duration of a maintenance release for a class B aerial work aircraft. Subject to known maintenance failure or similar risks to safety mentioned in regulation 47 of CAR 1988, the maintenance release remains in force for the shorter of 12 months or the period identified by the certificate of registration holder in the aircraft’s log book statement.
Under subregulation 41 (1), the holder of the certificate of registration for a class B aircraft (taken to be the registered operator under subregulation 202.222 of the Civil Aviation Safety Regulations 1998) must ensure that all maintenance required to be carried out on the aircraft by the aircraft’s maintenance schedule is carried out when required by that schedule. Under subregulation 42B (1), the registered operator can elect to use the CASA maintenance schedule.
Under the CASA maintenance schedule in Schedule 5 of CAR 1988, the registered operator must ensure that the aircraft is subject to periodic inspection at the earlier of 12 months from the date of issue of the certificate of airworthiness or the last general maintenance inspection, or after the aircraft has been in service for 100 hours.
Under subregulation 308 (1) of CAR 1988, CASA may exempt an aircraft, and persons in it or associated with its operation, from compliance with specified provisions of CAR 1988. Under subregulation 308 (2), before CASA decides to give an exemption, CASA must take into account all relevant considerations relating to the interests of safety. Subregulation 308 (3) provides that an exemption may be made subject to any conditions necessary in the interests of safety. Under these provisions, it is possible to relax certain aviation rules and provide conditional alternatives if it is safe to do so.
Under subregulation 42ZR (1) of CAR 1988 (operating in conjunction with the definitions in regulation 42ZQ), a person may apply in writing for an exemption from a requirement of regulation 41 of CAR 1988 mentioned above. Under subregulation 42ZS (1) of CAR 1988, CASA must grant the exemption if satisfied that it would not adversely affect the safety of air navigation. Where a regulation of CAR 1988 makes express provision for an exemption from itself or another regulation, there is some doubt whether regulation 308 of CAR 1988 may be used instead to exempt from that regulation. Therefore, to avoid doubt, the exemptions in the instrument rely on both regulation 42ZS (specifically for regulation 41) and regulation 308.
The City of Wollongong Aerial Patrol Inc.
The City of Wollongong Aerial Patrol Inc. (the registered operator) operates a Piper Navajo Chieftain aircraft for search and rescue operations (SAR). The registered operator’s log book identifies that the maintenance release expires at the earlier of 12 months or 100 hours.
For the purposes of its SAR operations, the registered operator required recertification of its crew to be carried out by the Australian Maritime Safety Authority (AMSA). The AMSA recertification process commenced in the week beginning 9 January 2006 and at that time the registered operator had sufficient unexpired flying time on its aircraft maintenance release for the flying operations needed to complete the recertification.
However, on Friday 13 January 2006, the aircraft was called out for emergency operations at Port Macquarie with the result that when these emergency operations were completed, it had insufficient time left on its maintenance release to finalise the SAR recertifications. The estimated lack of time was 1.5 hours in excess of the 100 hour maintenance release limitation.
Because of the unexpected circumstances of the call-out and its consequences for the SAR recertification program, the registered operator requested CASA to exempt it from its maintenance and maintenance release requirements for this period of time. The alternative to an exemption would be a lengthy, and for safety reasons unnecessary, grounding of the aircraft following the expiry of a maintenance release, and
rescheduling of the AMSA recertification process during which the aircraft would not be available for SAR operations.
Prior to the imminent expiry of the maintenance release on Friday 13 January 2006, and having taken into account all relevant considerations relating to the interests of safety, CASA took, and conveyed to the operator, an in-principle decision to exempt it retrospectively from compliance with the directions concerning the period during which the maintenance release is in force.
The exemption
Applying only for Friday, 13 January 2006 and Saturday, 14 January 2006 (the days on either of which the 1.5 hours of flying time could be needed), the instrument exempts the registered operator from compliance with subregulation 41 (1) of CAR 1988 to a limited extent. The exemption has the effect that the registered operator may operate the aircraft for 1.5 hours after expiry of its maintenance release, and without carrying out any maintenance that might be required to be carried out by the maintenance schedule on the expiry of a maintenance release.
In addition, and also applying only for the 2 days mentioned above, the instrument exempts the registered operator and the pilot in command from compliance with paragraph 43 (11A) (a) of CAR 1988, to the extent that they respectively operated or flew the aircraft for a period of 1.5 hours after the expiry of the aircraft’s maintenance release.
Legislative Instruments Act
As noted above, the exemption will affect the operation of paragraph 7.2 of CAO 100.5. Under subregulation 5 (1) of CAR 1988, if an instrument affects the operation of anything in a CAO, it is declared to be a disallowable instrument.
Under regulation 308 of CAR 1988, an exemption is declared to be a disallowable instrument. Under paragraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument if it is declared to be a disallowable instrument by legislation in force before the LIA.
The instrument is, therefore, a legislative instrument and as such is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation has not been considered necessary because the instrument has been specifically requested by the registered operator to deal with emergency circumstances.
The instrument commences on the day after it is registered and is taken to have effect retrospectively for Friday 13 January 2006 and Saturday 14 January 2006, some days before registration. Under subsection 12 (2) of the LIA, a legislative instrument has no effect if it would take effect before registration, and thereby prejudicially affect the rights of a person other than the Commonwealth, or if it would impose liabilities on a person, other than the Commonwealth, for anything done or omitted before registration.
The instrument is regarded as being wholly beneficial for the registered operator who has requested it. It is, therefore, considered to comply with the requirements of subsection 12 (2) of the LIA for a retrospective instrument to be effective.
The instrument has been issued by a delegate of CASA under subregulation 7 (2) of CAR 1988.
[Instrument number CASA EX05/06]