Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX106/18 — Maintenance Control (Class A Aircraft Used in Private Operations) Exemption 2018
Purpose
The purpose of this instrument is to enable the use of class A aircraft, being larger or more sophisticated aircraft usually used in commercial operations, in private operations without meeting the maintenance controller and maintenance control manual requirements of the Civil Aviation Regulations 1988 (CAR). These requirements are not necessary for class A aircraft used for private purposes, subject to the implementation of other risk mitigators.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR) and CAR.
Regulation 42ZV of CAR provides that the operator of a class A aircraft must appoint a person to be the maintenance controller of the aircraft.
Regulation 42ZY of CAR provides that the operator of a class A aircraft must have a maintenance control manual.
“Class A aircraft” is defined in regulation 2 of CAR to mean an Australian aircraft, other than a balloon, that satisfies either or both of paragraphs (a) and (b) of that definition, being: aircraft certificated as transport category aircraft; and aircraft used, or to be used, by the holder of an Air Operator’s Certificate which authorises the use of the aircraft for a commercial purpose referred to in paragraph 206 (1) (c) of CAR – regular public transport operations.
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons.
Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.175 (4) of CASR, in deciding whether to renew an exemption, on application by a person, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to renew an exemption on its own initiative.
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 requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Background
Regulations 42ZV and 42ZY of CAR principally apply to operators engaged in commercial air transport operations. CASA considers that the application of these provisions to class A aircraft used in private operations is inappropriate. This position is consistent with the law applicable in the United States of America.
CASA has exempted private operators of class A aircraft from these requirements in previous instruments, most recently in instrument CASA EX134/15 that expired on 31 July 2018.
Overview of instrument
The exemption continues previous arrangements that allow aircraft to be operated in private operations without meeting the requirements in CAR for the aircraft to have a maintenance controller and maintenance control manual.
The instrument imposes a condition on the operator of a class A aircraft that prohibits use of the aircraft, while taking advantage of the exemption, in operations other than private operations. The instrument also imposes a condition on the operator of the aircraft to ensure that the aircraft’s approved system of maintenance includes specified matters that, in CASA’s view, adequately mitigate risks associated with the aircraft not having a maintenance controller or maintenance control manual.
CASA considers that granting the exemption does not have any adverse effect on aviation safety in relation to the operation of class A aircraft in private operations.
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. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons.
The instrument exempts a class of persons, being operators of class A aircraft, from complying with the provisions in regulations 42ZV and 42ZY of CAR. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Consultation under section 17 of the LA has not been undertaken in this case. The instrument continues previous arrangements that industry has requested, and that are beneficial to industry, in circumstances where the previous instruments have not been the subject of adverse feedback. In these circumstances CASA is satisfied that no consultation on this instrument is appropriate or necessary for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the exemption 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
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Making and commencement
The direction has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on the day it is registered and is repealed at the end of 31 July 2018.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX106/18 — Maintenance Control (Class A Aircraft Used in Private Operations) Exemption 2018
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
This instrument enables class A aircraft, being larger or more sophisticated aircraft usually used in regular public transport operations, to be used in private operations without meeting the maintenance controller and maintenance control manual requirements of the Civil Aviation Regulations 1988. These requirements are not necessary for class A aircraft used for private purposes, subject to the implementation of other risk mitigators.
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