Explanatory Statement
Civil Aviation Safety Regulations 1998
Revocation of exemption
Legislation
Subsection 98 (1) 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.
Validation flights for terminal instrument flight procedures
Under subregulation 173.095 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), a certified designer must ensure that each terminal instrument flight procedure (TIFP) designed under the designer’s procedure design certificate (PDC) is validated by a CASA pilot in accordance with any applicable standards set out in the Manual of Standards Part 173 — Standards Applicable to Instrument Flight Procedure Design (the MOS).
Under paragraph (a) of the definition of CASA pilot in subregulation 173.095 (2) of CASR 1998, a CASA pilot means a pilot who is an officer of CASA. Under paragraph (b) of the definition, the CASA pilot must be someone who meets the standards in the MOS for carrying out a validation flight check (VFC).
Under paragraph 6.1.2.4 of the MOS, CASA must arrange for a CASA officer, who is a qualified validation pilot, to conduct the flight validation. Under paragraph 7.1.5.3 of the MOS, the type of aircraft to be used for the flight validation of a TIFP is to be approved by the CASA validation pilot. Under paragraph 6.1.2.5 of the MOS, the certified designer must provide an aircraft of a type approved by the CASA officer conducting the flight validation.
Exemption from CASR 1998
Under subregulation 11.160 (1) of CASR 1998, CASA may grant an exemption from compliance with a provision of CASR 1998. Under regulation 11.160 (3), CASA may grant an exemption of its own initiative. Under subregulation 11.170 (3), in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety. Under subregulation 11.205 (1), CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.210, it is an offence to fail to comply with a condition of an exemption.
Under regulation 11.225 of CASR 1998, an exemption must be published on the World Wide Web. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 2 years after its commencement), or if no day is specified, 2 years after commencement.
Hart Aviation Services Pty Ltd
Hart Aviation Services Pty Ltd (Hart Aviation), based in Melbourne, was granted an exemption from the requirements to have its TIFP validated by a CASA pilot because CASA does not have readily available sufficient CASA officers with appropriate flying qualifications to carry out required TIFP VFCs. Hart Aviation design certificate has been withdrawn so the exemption has been revoked.
Legislative Instruments Act
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. Regulation 11.215 of CASR 1998 declares an exemption of this kind to be a disallowable instrument. The revocation of the exemption is, therefore, a legislative instrument and it is 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. The instrument revokes an exemption granted to Hart Aviation because its certificate has been withdrawn.
The instrument commences on the day after it is registered.
The exemption has been made by a delegate of CASA in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX10/09]
Overview
The Civil Aviation Safety Regulations 1998 (CASR 1998) were enacted to regulate the safety of air navigation in Australia, in line with the Civil Aviation Act 1988. These regulations address the need for ensuring that terminal instrument flight procedures (TIFP) are validated by a CASA pilot to meet safety standards. The Australian Parliament, through the Civil Aviation Act 1988, grants the Civil Aviation Safety Authority (CASA) the power to make regulations, including exemptions, to ensure an acceptable level of safety. The policy objective is to maintain stringent safety standards while allowing for necessary flexibility through exemptions where appropriate. The revocation of an exemption for Hart Aviation Services Pty Ltd, following the withdrawal of their design certificate, exemplifies CASA's commitment to preserving safety standards. This revocation is a legislative instrument subject to the Legislative Instruments Act 2003, ensuring oversight and transparency in the regulatory process.
Scope and Application
The Civil Aviation Safety Regulations 1998 (CASR 1998) applies to aviation safety, including the validation of terminal instrument flight procedures (TIFP) by CASA pilots. Specifically, it mandates that a certified designer must ensure that each TIFP is validated by a CASA pilot in accordance with standards set out in the Manual of Standards Part 173. Exemptions from these requirements may be granted by the Civil Aviation Safety Authority (CASA) under certain conditions, such as when CASA does not have sufficient qualified officers available. However, these exemptions are subject to the paramount consideration of maintaining an acceptable level of safety and must be published and are typically limited to a period of two years. The revocation of exemptions, as in the case of Hart Aviation Services Pty Ltd, is a legislative instrument subject to tabling and disallowance in Parliament, although consultation is not always required in every instance. The revocation of such exemptions is effective from the day after registration, and the instrument is made by a delegate of CASA in accordance with the Civil Aviation Act 1988.
Key Provisions
The Civil Aviation Safety Regulations 1998 (CASR 1998) outline the requirements for the validation of terminal instrument flight procedures (TIFP) by a CASA pilot, as stipulated in subregulation 173.095(1). According to this subregulation, a certified designer must ensure that each TIFP designed under their procedure design certificate (PDC) is validated by a CASA pilot in compliance with any applicable standards set out in the Manual of Standards Part 173. The CASA pilot, defined in subregulation 173.095(2) of CASR 1998, must be either an officer of CASA or meet the standards in the MOS for conducting a validation flight check (VFC). This requirement ensures that the procedures meet the necessary safety standards before being implemented.
Under the Civil Aviation Safety Regulations 1998, CASA has the authority to grant exemptions from compliance with certain regulations if it is necessary to preserve an acceptable level of safety, as outlined in subregulation 11.160(1) and 11.170(3). Such exemptions can be granted either at the request of the party seeking the exemption or on CASA’s own initiative. When granting an exemption, CASA may impose conditions to ensure safety, and failure to comply with these conditions constitutes an offence, as stated in regulation 11.210. Exemptions must be published on the World Wide Web, as required by regulation 11.225, and they cease to be in effect after two years unless a specific termination date is specified, as indicated in subregulation 11.230(1).
The revocation of exemptions falls under the purview of the Legislative Instruments Act 2003 (LIA). According to subparagraph 6(d)(i) of the LIA, an instrument is considered a legislative instrument if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. In this case, regulation 11.215 of CASR 1998 declares the exemption to be a disallowable instrument, making the revocation of the exemption a legislative instrument. This instrument is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA. However, consultation under section 17 of the LIA has not been undertaken in this instance because the exemption was revoked due to the withdrawal of Hart Aviation Services Pty Ltd’s design certificate.
In summary, the Civil Aviation Safety Regulations 1998 mandate the validation of TIFP by a CASA pilot to ensure safety standards are met. CASA has the authority to grant exemptions from these requirements under certain conditions, but these exemptions are subject to revocation if the conditions for their grant are no longer met. The revocation of such exemptions is regulated under the Legislative Instruments Act 2003, making it a legislative instrument that must be tabled and potentially disallowed in Parliament. The revocation of Hart Aviation Services Pty Ltd’s exemption is a legislative instrument that has been enacted without consultation under the LIA, given that it was due to the withdrawal of the company’s design certificate.