CASA EX117/16 - Exemption — flight data recording

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2016L01271 Not in force Legislative Instrument

Legislation content

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

Overview

The Civil Aviation Safety Regulations 1998, as amended by the exemption instrument F2016L01271, address a specific issue related to the installation of flight data recorders (FDRs) on certain aircraft types. The Civil Aviation Act 1988 empowers the Governor-General to make regulations, and under section 98 of this Act, the Civil Aviation Safety Authority (CASA) has the authority to issue regulations governing the safety standards of aircraft. The problem this legislation aims to resolve is the inconsistency between Australian and United States requirements for FDRs on certain aircraft, specifically the Gates Learjet Model 35A S/N 366 registered VH-YPT, which was type certificated by the Federal Aviation Administration (FAA) without an FDR. CASA has determined that the installation of an FDR in this aircraft is not necessary, given the satisfactory safety features already incorporated in its design. The policy objective of the exemption is to allow the aircraft to operate in Australia without an FDR, subject to certain conditions, until further review and potential changes to the Civil Aviation Orders (CAOs) are made by CASA.

Scope and Application

The Civil Aviation Safety Regulations 1998 provide the framework for ensuring the safety of civil aviation in Australia, with the Civil Aviation Safety Authority (CASA) being the central authority responsible for implementing and enforcing these regulations. This legislation applies to Australian aircraft and their operators, ensuring compliance with specified safety standards and equipment requirements. The scope of this legislation extends to the installation and maintenance of flight data recorders (FDRs) on aircraft with a maximum take-off weight (MTOW) exceeding 5,700 kg. However, exemptions can be granted under certain conditions, such as when an aircraft is certified by a foreign authority like the Federal Aviation Administration (FAA) of the USA, which may have different standards for FDR requirements. The exemption allows specific aircraft to operate without an FDR under private and aerial work operations, subject to conditions set by CASA. These conditions are designed to maintain an acceptable level of safety, and failure to comply with these conditions can result in penalties. The exemption is temporary, expiring on the specified date or within three years from its commencement, whichever is later. The legislative instrument is subject to disallowance in Parliament and is compatible with human rights as it does not raise any issues under the applicable international human rights instruments.

Key Provisions

The main operative sections of this legislation (F2016L01271) pertain to granting an exemption for an aircraft with a maximum take-off weight (MTOW) over 5,700 kg to operate without a flight data recorder (FDR). This exemption is grounded in subregulation 11.160(1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), which empowers the Civil Aviation Safety Authority (CASA) to grant such exemptions. Subregulation 11.160(2) further clarifies that these exemptions can apply to specific persons or classes of persons, including aircraft registered under VH-YPT. The exemption is contingent upon the aircraft meeting certain conditions and aligns with the Federal Aviation Administration (FAA) type certification, which did not mandate an FDR. The Act imposes specific obligations and requirements on the parties governed by it. CASA must ensure that any exemption granted is in the paramount interest of preserving an acceptable level of safety, as stipulated under subregulation 11.205(1) of CASR 1998. Additionally, subregulation 11.230(1) mandates that any exemption granted must cease no later than three years from its commencement unless a specific end date is mentioned in the exemption. Any conditions imposed on the exemption must be strictly adhered to, with failure to comply constituting an offence under regulation 11.210. Should there be any breach of the conditions set forth in the exemption, the legislation outlines several potential consequences. Under subregulation 11.210 of CASR 1998, failure to comply with a condition of an exemption is an offence. The maximum penalties for such breaches are not explicitly stated in the text but generally could include fines or other sanctions as per the regulatory framework. Additionally, the exemption is subject to disallowance by Parliament if it affects the operation of any Civil Aviation Order (CAO) as per regulation 5A of the Civil Aviation Regulations 1988 (CAR 1988) and sections 38 and 42 of the Legislation Act 2003. The instrument itself is a legislative instrument and is subject to tabling and disallowance under sections 38 and 42 of the Legislation Act 2003. The exemption is set to commence on the day after registration and will be repealed at the end of 2 February 2017.

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Regulation
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Exemptions & Exclusions
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.