Explanatory Statement
Civil Aviation Regulations 1988
Exemption under regulation 308 of CAR 1988 — carriage of cockpit voice recorders and flight data recorders
Section 98 of the Civil Aviation Act 1988 empowers the Governor-General to make regulations for the safety of air navigation.
Legislation
Subregulation 207 (2) of the Civil Aviation Regulations 1988 (CAR 1988) provides that a person must not use an Australian aircraft in any class of operations unless it is fitted with such instruments, and is fitted with or carries such equipment, as the Civil Aviation Safety Authority (CASA) approves or directs. Under regulation 5 (1) of CAR 1988, where CASA may issue directions under CAR 1988, it may do so in the form of Civil Aviation Orders (CAOs).
Civil Aviation Order 20.18 (CAO 20.18) sets out instruments and equipment required for Australian aircraft engaged in certain classes of operations.
Paragraph 6.1 of CAO 20.18 provides that certain aircraft referred to in the paragraph must not be flown unless equipped with an approved flight data recorder system and an approved cockpit voice recorder system. Paragraph 6.2 of CAO 20.18 requires these systems to meet standards specified in CAO 103.19 and CAO 103.20 and makes the approval subject to a condition relating to replay (subparagraph 6.2 (b) of CAO 20.18).
These requirements are considered too restrictive. The standards set out in the CAOs, which date from the 1960s, have been superseded by new standards issued in the United States of America and Europe. In addition, approval by CASA of the individual instruments in accordance with subparagraph 6.2 (b) of CAO 20.18 is no longer required.
The exemption, therefore, exempts the specified aircraft from compliance with paragraphs 6.1 and 6.2 of CAO 20.18, if they meet standards at least equivalent to the requirements mentioned in paragraph 6.2, that have been determined by the type certificating authority for the aircraft, or are requirements acceptable to CASA.
Background
The instrument is a re-issue of an exemption in the same terms issued in 2007 (CASA EX16/07) which expired in April 2010. It was originally proposed to amend CAO 20.18 to incorporate the new recording systems standards but this was deferred because it was considered that new regulations would supercede the CAO. However, finalisation of the new regulations is not yet complete.
The majority of commercial air transport aircraft currently operating in Australia are fitted with equipment meeting the newer standards. Strictly speaking they cannot comply with the older standard in paragraph 6.2 of CAO 20.18. It is necessary, therefore, to re-issue the exemption for a further period to accommodate this circumstance. Aircraft which comply with the existing standard are not affected by the exemption.
Legislative Instruments Act
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.
Subregulation 308 (4) of CAR 1988 declares an exemption under regulation 308 to be a disallowable instrument. 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 instrument is a re-issue of an expired exemption which is of beneficial effect to those operators who may continue to take advantage of it.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The exemption commences on the day after it is registered and stops having effect at the end of 31 January 2013.
[Instrument number CASA EX12/11]