EXPLANATORY STATEMENT
CIVIL AVIATION REGULATIONS 1988
REFUELLING WITH PATIENTS ON BOARD — ROYAL FLYING DOCTOR SERVICE (QUEENSLAND SECTION)
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in the interests of the safety of air navigation.
Under subregulation 235 (11) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may exempt an aircraft from any of the requirements imposed by regulation 235. Subregulation 235 (7) of CAR 1988 provides that CASA may, for the purposes of ensuring the safety of air navigation, give directions with respect to the method of loading persons and goods (including fuel) on aircraft.
Subsection 4 of section 20.9 of the Civil Aviation Orders (the CAOs) is made under subregulation 235 (7) and sets out CASA’s directions in relation to the loading of fuel on aircraft. Paragraph 4.2.3 states that the operator of an aircraft with a maximum seating capacity of less than 20 must ensure that fuel is not loaded on to the aircraft while passengers are on board, or entering or leaving, the aircraft. For certain aircraft operated by the Royal Flying Doctor Service of Australia (Queensland Section) to comply with paragraph 4.2.3, critically ill patients on board an aircraft would have to be taken off the aircraft before it could be refuelled. CASA does not consider that such action is necessary to ensure the safety of air navigation.
CASA has, therefore, issued an exemption from paragraph 4.2.3 for the refuelling of certain RFDS aircraft while passengers are on board. The exemption is subject to conditions. For example, the operator must ensure that when fuel is being loaded no passenger is on board unless the requirements set out in Schedule 1 to the exemption are met. The requirements include information that has to be given, before refuelling, to passengers who are capable of understanding; the location of the aircraft’s operating crew and medical staff while fuel is being loaded; and connection of the aircraft and fuelling equipment to an earth point while fuel is being loaded.
Because this approval affects the operation of paragraph 4.2.3 of section 20.9 of the CAOs, it is declared to be a disallowable instrument under regulation 5A of CAR 1988. 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.
As a legislative instrument, it is 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 undertaken in this case.
The exemption has been issued, at the request of the operator, to permit the refuelling of aircraft in a manner consistent with medical requirements and subject to safeguards. Previous exemptions have been issued for the same purpose to the named operator and to others.
The exemption has been issued by a delegate of CASA appointed under regulation 7 of CAR 1988.
The exemption takes effect at the start of the day after it is registered on the Federal Register of Legislative Instruments and stops having effect at the end of April 2008.
[Instrument number CASA EX10/2005]
Overview
The Civil Aviation Regulations 1988, enacted by the Australian Parliament, were designed to ensure the safety of air navigation through various regulatory measures. A specific gap that these regulations were introduced to address was the potential conflict between safety requirements for aircraft refuelling and the operational needs of medical services, particularly in remote areas. The Royal Flying Doctor Service (Queensland Section) encountered a situation where complying with certain refuelling restrictions would have necessitated removing critically ill patients from the aircraft, thus impacting the medical service's effectiveness. To balance safety and operational needs, the Civil Aviation Safety Authority (CASA) issued exemptions under the Civil Aviation Orders, allowing the refuelling of certain aircraft while patients were on board, provided specific safety conditions were met. This exemption was subject to parliamentary disallowance and was issued in accordance with the Legislative Instruments Act 2003, ensuring that the legislative process was followed for its implementation.
Scope and Application
The Civil Aviation Regulations 1988 (CAR 1988) govern various aspects of civil aviation in Australia, including the refuelling of aircraft while passengers are on board. Specifically, subregulation 235(7) of CAR 1988 empowers the Civil Aviation Safety Authority (CASA) to direct the method of loading persons and goods, including fuel, on aircraft. In this context, CASA issued an exemption for certain aircraft operated by the Royal Flying Doctor Service of Australia (Queensland Section) from the requirement that fuel must not be loaded while passengers are on board. This exemption, subject to conditions outlined in Schedule 1, allows for the refuelling of aircraft while critically ill patients are on board, thereby accommodating the medical needs of passengers. The exemption is applicable to aircraft with a maximum seating capacity of less than 20 and is subject to stringent conditions to ensure safety, such as ensuring that passengers are informed, crew and medical staff are in specific locations, and that the aircraft and fuelling equipment are properly grounded during refuelling. This exemption has been issued under the authority granted by the Civil Aviation Act 1988 and is declared a disallowable instrument under regulation 5A of CAR 1988, subject to potential disallowance by the Parliament. The exemption is in effect from the day after its registration on the Federal Register of Legislative Instruments until the end of April 2008.
Key Provisions
The Civil Aviation Regulations 1988 (CAR 1988) include provisions that establish the rules for the safe loading of persons and goods on aircraft, including fuel. Specifically, subregulation 235(11) of CAR 1988 allows the Civil Aviation Safety Authority (CASA) to exempt an aircraft from certain requirements, while subregulation 235(7) empowers CASA to give directions to ensure the safety of air navigation, including the method of loading fuel on aircraft. Section 20.9 of the Civil Aviation Orders (CAOs) outlines CASA’s directions, stating that fuel must not be loaded onto an aircraft with a maximum seating capacity of less than 20 while passengers are on board or entering or leaving the aircraft. However, CASA has issued an exemption from this requirement for certain aircraft operated by the Royal Flying Doctor Service of Australia (Queensland Section), allowing these aircraft to be refuelled while passengers are on board, provided specific conditions are met.
The obligations imposed on the parties governed by these regulations are stringent, aimed at ensuring the safety of air navigation while accommodating the unique operational needs of the Royal Flying Doctor Service. Operators must ensure that when fuel is being loaded, no passenger is on board unless certain conditions are satisfied. These conditions include providing information to passengers who are capable of understanding, ensuring the operating crew and medical staff are in a safe location, and connecting the aircraft and fuelling equipment to an earth point while the fuel is being loaded. This exemption has been issued to allow these specific aircraft to refuel in a manner that is consistent with medical requirements and includes safeguards to maintain safety standards.
There are no explicit offences or penalties mentioned in the text for breach of these regulations, but the exemption is subject to disallowance under section 38 of the Legislative Instruments Act 2003 (LIA). This means that the exemption can be reviewed and potentially disallowed by Parliament if deemed necessary. The issuance of the exemption follows a process where consultation under section 17 of the LIA has not been undertaken, although previous exemptions have been issued for the same purpose. The exemption is issued by a delegate of CASA appointed under regulation 7 of CAR 1988 and is effective from the day after it is registered on the Federal Register of Legislative Instruments until the end of April 2008.