Explanatory Statement
Civil Aviation Regulations 1988
Exemption — refuelling in Ordinance Loading Areas at Tindal
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.
Subregulation 308 (1) of the Civil Aviation Regulations 1988 (CAR 1988) provides that CASA may, in relation to a particular aircraft or specified type or category of aircraft, exempt that aircraft, type or category from compliance with the regulations. Subregulation 308 (3) provides that the exemption is subject to the aircraft complying with any conditions specified by CASA as being necessary in the interests of safety. Under subregulation 308 (4), the exemption is a disallowable instrument for section 46A of the Acts Interpretation Act 1901.
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 Civil Aviation Order 20.9 (CAO 20.9) is made under subregulation 235 (7) of CAR 1988 and sets out CASA’s directions for loading fuel on aircraft. Paragraph 4.1.1 of CAO 20.9 states that during fuelling operations, the aircraft and ground fuelling equipment must be so located that no fuel tanks, filling points or vent outlets lie within the prescribed distances from any sealed building, unsealed building, other stationary aircraft or exposed public area. A sealed building is defined as one in which all the external part within 15 metres of an aircraft’s fuel tank filling points or vent outlets or ground fuelling equipment is of non-flammable materials and has no openings or all the openings are closed.
The instrument exempts Pel-Air Aviation Pty Limited (Pel-Air) from compliance with paragraph 4.1.1 of CAO 20.9 during its aircraft fuelling operations at the Royal Australia Air Force base at Tindal. The fuelling at Tindal air base is carried out in Ordinance Loading Areas (OLAs) which are open-ended hangers used by the Australian Defence Force (ADF) to refuel and rearm its aircraft. Pel-Air Westwind aircraft are used in ADF support operations to, and from, Tindal. For these operations, an exemption is needed from paragraph 4.1.1 to allow fuelling of the specified Pel-Air aircraft to take place in OLAs.
The exemption is subject to conditions. The aircraft have to be engaged in ADF support operations and refuelling has to be carried out by trained ADF personnel in accordance with established procedures for fuelling in OLAs. The equipment installed in OLAs to ensure the safety of fuelling operations must be serviceable.
Legislative Instruments Act
Subregulation 308 (4) of CAR 1988 declares any exemption to which it applies to be a disallowable instrument. 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. 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 exemption has been issued at the request of Pel-Air to permit the refuelling of aircraft in accordance with the mentioned conditions.
The exemption commences on the day after it is registered and stops having effect at the end of 30 November 2011.
The exemption has been issued by a delegate of CASA under regulation 7 of CAR 1988.
[Instrument number CASA EX106/10]