Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — flight data recording
Section 98 of the Civil Aviation Act 1988 empowers the Governor-General to make regulations.
Subregulation 207 (2) of the Civil Aviation Regulations 1988 (CAR 1988) provides that an Australian aircraft shall not be used in any class of operations unless it is fitted with such instruments and is fitted with or carries such equipment, including emergency equipment, as the Civil Aviation Safety Authority (CASA) approves or directs.
Subregulation 5 (1) of CAR 1988 provides that whenever CASA is empowered by CAR 1988 to give directions or approvals, it may do so in the Civil Aviation Orders (the CAOs).
Civil Aviation Order 20.18 (CAO 20.18) sets out instruments and equipment required for Australian aircraft engaged in certain classes of operations. Subsection 6 of CAO 20.18 requires installation of flight data recorders (FDRs) on certain kinds of aircraft with maximum take-off weight (MTOW) over 5 700 kg.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including CAR 1988, in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2), 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.
The Federal Aviation Administration (the FAA) of the USA requires installation of FDRs in aircraft on the basis of the operational category and the number of passenger seats.
The Gates Learjet Model 35A S/N 366 registered VH-YPT aircraft was type certificated by the FAA without an FDR, as an FDR is not required in that aircraft under the FAA regulations. While CASA accepts the type design of the aircraft, in the absence of an exemption, an Australian registered Gates Learjet cannot legally fly without being fitted with an FDR in accordance with subparagraph 6.1 (a) of CAO 20.18 as its MTOW is slightly over 5 700 kg.
It is difficult to show that the Australian FDR requirements add significantly to safety over those standards applied in the USA. This is particularly the case if the requirements would require the operator to retrofit an FDR to this kind of aircraft.
CASA intends to review the requirements for FDRs in CAO 20.18. Pending future changes to the CAO, the exemption allows the aircraft to be operated for private and aerial work operations without the installation of an FDR, subject to the conditions mentioned in the instrument.
Legislation for exemption from Regulations
Under subregulation 11.160 (1) of CASR 1998, CASA may grant an exemption from compliance with a provision of CAR 1988. Under subregulation 11.170 (3), in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.210, it is an offence to fail to comply with a condition of an exemption.
Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement), or if no day is specified, 3 years after commencement.
Legislation Act
Under regulation 5A of CAR 1988, if CASA has issued a CAO, and CASA later issues an exemption that in any way affects the operation of the CAO, the later instrument is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Under section 57A of the Legislation Act 2003 (the LA), an instrument is a legislative instrument if it is declared to be a disallowable instrument under legislation in force before the commencement of the LA. The instrument is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Consultation
Consultation under section 17 of the LA has not been undertaken in this case. The instrument recognises the FAA type certification, which did not require an FDR, as providing adequate safety. In addition, the aircraft is only slightly above the MTOW of 5 700 kg at which an FDR has to be provided. The exemption is consistent with exemptions for other aircraft in the same weight category in the similar circumstances.
Commencement and making
The exemption commences on the day after registration and will be repealed at the end of 2 February 2017.
The exemption has been made by a delegate of CASA relying on the power of delegation in subregulation 11.260 (1) of CASR 1998.
[Instrument number CASA EX117/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — flight data recording
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 legislative instrument permits an aircraft with a maximum take-off weight of more than 5 700 kg to operate without a flight data recorder (FDR). The exemption has been granted on the basis that certification by the Federal Aviation Administration of the United States of America did not require an FDR to be fitted.
The primary purpose of the legislative instrument is to allow the aircraft to operate without an FDR, on the basis that the aircraft incorporates satisfactory and contemporary safety features.
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