CASA EX12/11 – Exemption under regulation 308 of CAR 1988 – carriage of cockpit voice recorders and flight data recorders

Overview

The Civil Aviation Regulations 1988, as amended, include provisions for the carriage of cockpit voice recorders and flight data recorders on Australian aircraft, which were enacted to ensure the safety of air navigation. Section 98 of the Civil Aviation Act 1988 empowers the Governor-General to make regulations for this purpose, and regulation 308 provides for exemptions to be granted under certain conditions. The exemption under discussion was introduced to address the outdated standards for these recorders, which are now superseded by newer standards in the United States and Europe. The Civil Aviation Safety Authority (CASA) originally proposed to amend the relevant Civil Aviation Orders (CAOs) but deferred this due to pending regulatory updates. Consequently, the exemption was reissued to allow aircraft meeting the newer standards to continue operating without having to comply with the older requirements. This exemption applies to aircraft that meet or exceed the new standards, allowing them to operate until the new regulations are finalised.

Scope and Application

The Civil Aviation Regulations 1988 (CAR 1988) under the Civil Aviation Act 1988 mandate that certain Australian aircraft must be equipped with approved flight data recorder systems and cockpit voice recorder systems to ensure safety in air navigation. However, recognising that some aircraft might already comply with more recent international standards, subregulation 308(2) of the CAR 1988 allows for exemptions from these requirements if the aircraft meet equivalent standards determined by the type certificating authority or acceptable to the Civil Aviation Safety Authority (CASA). The exemption, which was re-issued in 2011 after its previous iteration expired in 2010, applies to aircraft that cannot comply with the older standards specified in Civil Aviation Order (CAO) 20.18, and allows these aircraft to continue operations until the new regulations are finalised. This exemption does not affect aircraft that already meet the existing standards. The instrument is a legislative instrument subject to tabling and disallowance in Parliament, as declared by subregulation 308(4) of CAR 1988, though no new consultation was undertaken for this re-issuance.

Key Provisions

The Civil Aviation Regulations 1988 (CAR 1988) include provisions that govern the use of Australian aircraft in specific operations, as outlined in subregulation 207(2). These regulations mandate that aircraft must be equipped with instruments and equipment approved by the Civil Aviation Safety Authority (CASA). Furthermore, regulation 5(1) of CAR 1988 allows CASA to issue directions in the form of Civil Aviation Orders (CAOs). In this context, Civil Aviation Order 20.18 (CAO 20.18) specifies the instruments and equipment required for certain classes of Australian aircraft. Notably, paragraph 6.1 of CAO 20.18 states that certain aircraft must not be flown unless they are equipped with an approved flight data recorder system and an approved cockpit voice recorder system. These systems must meet the standards outlined in CAO 103.19 and CAO 103.20, with CASA’s approval contingent on a condition relating to replay, as specified in subparagraph 6.2(b) of CAO 20.18. However, these requirements have been deemed overly restrictive and outdated, given the newer standards developed in the United States and Europe. The primary obligation imposed by the Civil Aviation Regulations 1988 is that aircraft operators must ensure their aircraft are equipped with approved flight data recorders and cockpit voice recorders that meet the specified standards. This is further complicated by the fact that CASA’s approval of individual instruments is no longer mandatory, provided the aircraft meet standards equivalent to those outlined in paragraph 6.2 of CAO 20.18. This exemption allows aircraft to be exempt from compliance with paragraphs 6.1 and 6.2 of CAO 20.18, provided they meet standards determined by the type certificating authority or are acceptable to CASA. This exemption is particularly significant because most commercial air transport aircraft in Australia are currently equipped with newer standards, which do not align with the older standards set forth in CAO 20.18. Breach of the Civil Aviation Regulations 1988 can lead to significant consequences. Under the Civil Aviation Act 1988, any non-compliance with the regulations can result in civil or criminal penalties. The specific penalties can vary, but they may include fines or imprisonment, depending on the severity of the breach. Additionally, CASA has the authority to issue directions under regulation 5(1) of CAR 1988, which can include the imposition of further penalties or corrective measures to ensure compliance with safety standards. The Legislative Instruments Act 2003 further stipulates that exemptions such as these are subject to tabling and disallowance in Parliament, ensuring that the exemption remains within the scope of legislative oversight.