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]
Overview
The Civil Aviation Regulations 1988, enacted in 1988, aim to ensure the safety of air navigation by providing a regulatory framework that governs all aspects of civil aviation in Australia. This legislative instrument, F2010L03221, issued in 2010 by the Civil Aviation Safety Authority (CASA) under the Civil Aviation Act 1988, seeks to address a specific operational need by exempting Pel-Air Aviation Pty Limited from certain refuelling requirements in Ordinance Loading Areas at the Royal Australian Air Force base at Tindal. This exemption allows for the refuelling of specified aircraft used in Australian Defence Force (ADF) support operations, provided that stringent safety conditions are met, including the use of trained ADF personnel and serviceable equipment. The exemption is subject to disallowance by the Parliament and is valid until the end of 30 November 2011, reflecting a targeted and temporary measure to facilitate necessary military operations while maintaining safety standards.
Scope and Application
The Civil Aviation Regulations 1988, specifically under subsection 98(1) of the Civil Aviation Act 1988, empower the Governor-General to make regulations that govern civil aviation and ensure the safety of air navigation. Pursuant to this authority, the Civil Aviation Safety Authority (CASA) can exempt particular aircraft or categories of aircraft from compliance with specified regulations, provided such exemptions are subject to safety conditions as outlined in subregulation 308(3) of the Civil Aviation Regulations 1988. This particular exemption applies to Pel-Air Aviation Pty Limited (Pel-Air) concerning its aircraft refuelling operations at the Royal Australian Air Force base at Tindal. The exemption relieves Pel-Air from the requirement to comply with paragraph 4.1.1 of Civil Aviation Order 20.9, which mandates specific distances between aircraft fuel tanks, filling points, vent outlets, and various structures or public areas during refuelling operations. The exemption is conditional upon the aircraft being used for ADF support operations and refuelling being conducted by trained ADF personnel following established safety procedures. Additionally, the exemption is subject to the equipment installed in the Ordinance Loading Areas being serviceable. The exemption is a legislative instrument subject to tabling and disallowance in Parliament under the Legislative Instruments Act 2003. It is effective from the day after registration and expires on 30 November 2011.
Key Provisions
The main operative sections of the legislation concern the exemption granted to Pel-Air Aviation Pty Limited (Pel-Air) for refuelling operations at the Royal Australian Air Force base at Tindal, specifically within the Ordinance Loading Areas (OLAs). Under subsection 98(1) of the Civil Aviation Act 1988, the Governor-General may make regulations for the Act and the safety of air navigation. The Civil Aviation Regulations 1988 (CAR 1988) further provide that the Civil Aviation Safety Authority (CASA) can exempt specific aircraft or types of aircraft from compliance with the regulations, as per subregulation 308(1). This exemption is contingent on the aircraft meeting any specified conditions deemed necessary for safety, as outlined in subregulation 308(3). Additionally, subregulation 235(7) of CAR 1988 allows CASA to issue directions for the loading of fuel on aircraft, with further specifics given in Civil Aviation Order 20.9 (CAO 20.9), paragraph 4.1.1.
Pel-Air is obligated to ensure that its Westwind aircraft refuelling operations at Tindal are carried out in strict adherence to the conditions specified in the exemption. This includes ensuring that the refuelling is conducted by trained Australian Defence Force (ADF) personnel following established procedures. Furthermore, any equipment installed in the OLAs to ensure the safety of refuelling operations must be serviceable. The exemption stipulates that refuelling operations must be part of ADF support operations, which inherently involves compliance with these stringent conditions to mitigate any potential safety risks.
The legislation outlines specific consequences for non-compliance with the exemption conditions. As per subregulation 308(4) of CAR 1988, any exemption granted by CASA is considered a disallowable instrument under the Legislative Instruments Act 2003 (LIA). Consequently, the exemption is subject to tabling and potential disallowance in the Parliament, as per sections 38 and 42 of the LIA. While consultation under section 17 of the LIA has not been undertaken for this exemption, the issuance of the exemption follows a request by Pel-Air. The exemption is effective from the day after its registration and ceases to have effect by 30 November 2011. It is issued by a delegate of CASA under regulation 7 of CAR 1988.