Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — defect beyond designated rectification interval
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations in relation to the airworthiness of aircraft. Subsection 98 (5A) of the Act states that the regulations may empower CASA to issue an instrument relating to the safe navigation and operation, or the maintenance, of aircraft.
Permissible unserviceabilities and minimum equipment lists
Subregulation 37 (1) of the Civil Aviation Regulations 1988 (CAR 1988) empowers CASA to approve a defect in an Australian aircraft as a permissible unserviceability (PU). Under subregulation 37 (2), CASA may, for the purpose of ensuring the safety of air navigation, direct that the use of an Australian aircraft with a PU is subject to such conditions as are set out in the direction.
The Dictionary in the Civil Aviation Safety Regulations 1998 (CASR 1998) defines a minimum equipment list (MEL) for an aircraft to mean a list of each defect in the aircraft that is approved as a PU under regulation 37 of CAR 1988. The MEL designates a rectification interval for each defect listed in the MEL. The designated rectification interval for a defect will be specified as a Category A, B, C or D rectification interval, depending on the period within which the operation of the aircraft for the flight is permitted with the defect.
Under subregulation 42.030 (1) of CASR 1998, it is an offence for the registered operator of an aircraft to operate the aircraft for a flight, or permit it to be operated for a flight, if a requirement mentioned in subregulation 42.030 (2) is not met for the aircraft before the flight commences.
Paragraph 42.030 (2) (a) requires that the registered operator has ensured that the requirements mentioned in Division 42.C.2, which include regulations 42.110 and 42.115 described below, are met for the aircraft. Where there is a defect in the aircraft, paragraph 42.030 (2) (e) requires at least 1 of the several requirements listed under that paragraph to be met. Among other matters, these requirements include the circumstances where the operation of the aircraft for the flight with the defect is permitted by the MEL for the aircraft. These requirements also include the circumstance where the rectification of the defect is deferred in accordance with Subdivision 42.D.6.1, which includes regulation 42.360 described below.
Under subregulation 42.110 of CASR 1998, it is an offence if the person responsible for continuing airworthiness for an aircraft does not comply with regulation 42.115 in relation to the aircraft. Under subregulation 42.115 (1), if the person responsible for continuing airworthiness for an aircraft becomes aware that there is a defect in the aircraft, the person is generally required to ensure that the defect is rectified before the aircraft is next operated for flight. However, that requirement does not apply if operation of the aircraft for a flight with the defect is permitted by the MEL for the aircraft.
Under subregulation 42.360 (2) of CASR 1998, a qualified individual commits an offence if he or she defers the rectification of a defect in an aircraft and the deferral is not permitted by subregulation 42.360 (3). Subregulation 42.360 (3) permits the deferral of the rectification of a defect if at least 1 of the criteria prescribed under that subregulation is fulfilled.
Among other matters, these circumstances include the situation where the operation of the aircraft for a flight with the defect is permitted by the MEL for the aircraft.
Exemptions
Subregulation 11.160 (1) of CASR 1998 provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of CASR 1998 or CAR 1988 in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2) of CASR 1998, an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Regulation 11.205 provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition.
Regulation 11.225 of CASR 1998 requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Instrument
CASA can approve the MEL for an aircraft. Under current practice, where an operator wishes to operate an aircraft for flight with a defect after the expiration of the designated rectification interval for the defect in the MEL, the operator may seek approval by CASA of the defect as a PU for that occurrence (a once-only PU) under subregulation 37 (1) of CAR 1988.
A potential ambiguity has arisen in regards to whether the operation of an aircraft with a defect that has been approved as a once-only PU is the same as the operation of the aircraft with a defect that is permitted by the MEL for the aircraft. Similarly, this gives rise to the question regarding whether a once-only PU forms part of the MEL for the purposes of paragraphs 42.030 (2) (a) and (e), and regulations 42.115 and 42.360. This potential ambiguity raises doubt about whether the requirements in paragraphs 42.030 (2) (a) and (e), and regulations 42.115 and 42.360, are met if the operation of the aircraft with a defect has been approved as a once-only PU.
This instrument has been made to overcome this potential ambiguity in the requirements of paragraphs 42.030 (2) (a) and (e), and regulations 42.115 and 42.360. It clarifies that a contravention of those provisions will not occur if the approval of a PU permits the operation of the aircraft beyond the designated rectification interval for the defect, and the aircraft is used in accordance with all conditions set out in any direction relating to the defect. It does so by exempting the registered operator from the requirements of paragraphs 42.030 (2) (a) and (e), the person responsible for the continuing airworthiness for the aircraft from the requirements of regulation 42.115, and a qualified individual from the requirements of regulation 42.360, in those circumstances.
CASA has delegated its power to approve a defect as a PU to officers of CASA and other delegates, including named individuals employed by aircraft operators. The condition in clause 2 of Schedule 1 specifies the types of defects that can only be approved as a PU by an officer of CASA, thus limiting the types of defects that can be approved by other delegates as a PU.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation or the maintenance of aircraft.
Under subsection 98 (5AA), an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply to a class of persons or a class of aircraft.
The instrument applies to a class of persons and is, therefore, a legislative instrument. Accordingly, the instrument is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Part 42 generally prevents operators involved in regular public transport (RPT) from flying their aircraft with certain defects covered by the MEL for the aircraft if the rectification period for the defect mentioned in the MEL has ended. Without the instrument, the RPT operators may be subject to significant constraint if they are unable to source parts to rectify a defect within the time mentioned in the MEL, and take the decision to ground their aircraft.
Accordingly, the instrument continues the exemption previously provided under instrument CASA EX71/13, and addresses the perceived deficiency or ambiguity in the operation of Part 42 of CASR 1998.
The ability to extend the rectification interval under the instrument is consistent with the existing practice for aircraft operated under CAR 1988. In this regard, the RPT operators will not gain any additional privilege under the instrument compared to the arrangements that applied to RPT operators under CAR 1988 before 27 June 2011.
The policy supporting the exemption remains unchanged since the issue of CASA EX71/13, and CASA is currently in the process of considering regulatory amendments that would prescribe the intent of this exemption within the regulations.
Having regard to these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the proposal is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The exemption has been made by a delegate of CASA, relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The exemption commences on the day of registration and is repealed at the end of 31 May 2018.
[Instrument number CASA EX100/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — defect beyond designated rectification interval
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The purpose of this legislative instrument is to overcome a potential ambiguity in the interpretation of some of the regulations contained in the Civil Aviation Safety Regulations 1998 that relate to the continuing airworthiness requirements for aircraft involved in regular public transport operations.
The instrument provides specified people with exemptions from their obligations relating to management of aircraft defects, where the rectification period for the defect mentioned in the minimum equipment list for the aircraft has expired. The instrument further clarifies that these aircraft may only be operated with a defect if the defect is approved by CASA as a permissible unserviceability, and the aircraft is used in accordance with conditions directed by CASA relating to the defect.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority