EXPLANATORY STATEMENT
CIVIL AVIATION REGULATIONS 1988
EXEMPTION — REFUELLING WITH PATIENTS ON BOARD
PEARL AVIATION AUSTRALIA PTY LTD
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in the interests of the safety of air navigation.
Under subregulation 235 (11) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may exempt an aircraft from any of the requirements imposed by regulation 235.
Subregulation 235 (7) of CAR 1988 provides that CASA may, for the purposes of ensuring the safety of air navigation, give directions with respect to the method of loading persons and goods (including fuel) on aircraft.
Subsection 4 of section 20.9 of the Civil Aviation Orders (the CAOs) is made under subregulation 235 (7) and sets out CASA’s directions in relation to the loading of fuel on aircraft. Paragraph 4.2.3 states that the operator of an aircraft with a maximum seating capacity of less than 20 must ensure that fuel is not loaded on to the aircraft while passengers are on board, or entering or leaving, the aircraft. For certain aircraft operated by Pearl Aviation Australia Pty Ltd to comply with paragraph 4.2.3, critically ill patients on board an aircraft would have to be taken off the aircraft before it could be refuelled. CASA does not consider that such action is necessary to ensure the safety of air navigation.
CASA has, therefore, issued an exemption from paragraph 4.2.3 for the refuelling of certain Pearl Aviation Australia Pty Ltd aircraft while passengers are on board. The exemption is subject to conditions. For example, the operator must ensure that when fuel is being loaded no passenger is on board unless the requirements set out in Schedule 1 to the exemption are met. The requirements include information that has to be given, before refuelling, to passengers who are capable of understanding; the location of the aircraft’s operating crew and medical staff while fuel is being loaded; and connection of the aircraft and fuelling equipment to an earth point while fuel is being loaded.
Because the exemption affects the operation of paragraph 4.2.3 of section 20.9 of the CAOs, it is declared to be a disallowable instrument under regulation 5A of CAR 1988. 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.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation under section 17 of the LIA has not been undertaken in this case.
The exemption has been issued, at the request of the operator, to permit the refuelling of aircraft in a manner consistent with medical requirements and subject to safeguards. Previous exemptions have been issued for the same purpose to the named operator and to others.
The exemption has been issued by a delegate of CASA appointed under regulation 7 of CAR 1988.
The exemption commences on the day after it is registered on the Federal Register of Legislative Instruments and stops having effect at the end of April 2006.
[Instrument number CASA EX12/2005]
Overview
The Civil Aviation Regulations 1988 were enacted to provide a comprehensive framework for the regulation of civil aviation in Australia, ensuring the safety of air navigation. The Act was introduced to address the need for a robust legislative basis to govern the myriad aspects of civil aviation operations, including aircraft operations, airworthiness, and personnel licensing. The Civil Aviation Regulations 1988 were enacted by the Australian Government under the authority of the Civil Aviation Act 1988, with the primary policy objective being to ensure the safety and efficiency of civil aviation in Australia. The explanatory statement outlines a specific exemption issued by the Civil Aviation Safety Authority (CASA) to Pearl Aviation Australia Pty Ltd, allowing the refuelling of certain aircraft while patients are on board, subject to specified conditions. This exemption addresses a particular operational challenge faced by the operator, balancing safety requirements with medical necessities, and is subject to disallowance by the Parliament under the Legislative Instruments Act 2003.
Scope and Application
The Civil Aviation Regulations 1988, as amended, govern various aspects of civil aviation in Australia, with a particular focus on safety. In this context, the exemption concerning the refuelling of certain aircraft operated by Pearl Aviation Australia Pty Ltd while patients are on board serves to balance medical necessity with aviation safety. This exemption, issued under the authority of the Civil Aviation Act 1988 and the Civil Aviation Regulations 1988, specifically targets the operational needs of Pearl Aviation Australia Pty Ltd to ensure that critically ill patients can remain on board during refuelling without compromising safety standards. The exemption is subject to stringent conditions designed to mitigate any potential risks, including the requirement to inform passengers capable of understanding about the refuelling process and ensuring that the aircraft and fuelling equipment are appropriately grounded. This exemption applies solely to Pearl Aviation Australia Pty Ltd and is limited in its geographic and jurisdictional reach to Australia, administered by the Civil Aviation Safety Authority (CASA). The exemption is also subject to disallowance in the Parliament as it is classified as a legislative instrument under the Legislative Instruments Act 2003.
Key Provisions
The main provisions of the Civil Aviation Regulations 1988, as amended by this exemption, pertain to the refuelling of certain aircraft while passengers are on board. Specifically, subregulation 235(11) of the CAR 1988 allows the Civil Aviation Safety Authority (CASA) to exempt an aircraft from any requirement imposed by regulation 235, subject to ensuring the safety of air navigation. Paragraph 4.2.3 of section 20.9 of the Civil Aviation Orders (CAO) generally prohibits refuelling while passengers are on board, but CASA has issued an exemption for certain aircraft operated by Pearl Aviation Australia Pty Ltd, permitting refuelling under certain conditions.
The exemption imposes several obligations on Pearl Aviation Australia Pty Ltd. These obligations include ensuring that no passenger is on board the aircraft while fuel is being loaded, unless specific conditions are met. These conditions include providing information to passengers who are capable of understanding, ensuring the location of the operating crew and medical staff while fuel is being loaded, and connecting the aircraft and fuelling equipment to an earth point during the refuelling process. These measures are designed to ensure that the refuelling process does not compromise the safety of passengers on board.
There are no specific offences or penalties mentioned for breaching the conditions of this exemption. However, the exemption is a disallowable instrument under regulation 5A of the CAR 1988, and therefore, it is subject to tabling and disallowance in Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (LIA). Failure to comply with the conditions set out in the exemption could potentially lead to the exemption being disallowed by Parliament, which would invalidate the exemption and require the operator to adhere to the original regulation prohibiting refuelling while passengers are on board.