Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — carriage of passengers on EADS CASA 212-400 aircraft within Antarctica
Legislation
Under subsection 98 (1) of the Civil Aviation Act 1988 (the Act), the Governor-General may make regulations for the Act and in the interests of the safety of air navigation.
Under subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), CASA may grant an exemption from compliance with a provision of CASR 1998. Under subregulation 11.160 (3), CASA may grant an exemption on its own initiative. 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 regulation 11.225, an exemption must be published on the internet.
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.
Skytraders Pty Ltd (the operator) operates 2 CASA 212-400 aircraft manufactured by the European aircraft manufacturing company Construcciones Aeronáuticas SA (CASA), a subsidiary of the European Aeronautic Defence and Space Company (EADS), on operations in Antarctica. The aircraft are used to transport passengers and cargo within Antarctica for the Australian Antarctic Division (AAD) of the Department of the Environment and Water Resources. The aircraft have been subject to modifications to permit them to operate in the conditions prevailing in Antarctica and have been issued with restricted category certificates of airworthiness. Restricted category aircraft are prohibited under subregulation 262AL (3) of the Civil Aviation Regulations 1988 (CAR 1988) from engaging in charter operations involving the carriage of passengers and cargo. CASA is, however, satisfied that the aircraft, as modified for the conditions, are able to carry passengers and cargo safely for the purposes of the AAD. However, this would only be on the basis that the aircraft are limited to a maximum take‑off weight of 8 470 kg.
The exemption allows the CASA 212-400 aircraft operated by the operator to be used for that purpose under a contract entered into with the AAD. The exemption applies only to operations within Antarctica. The aircraft will not be used for the transport of persons or cargo under charter from Australia to Antarctica.
Legislative Instruments Act
Exemptions issued under regulation 11.160 of CASR 1998 are issued under subsection 98 (5A) of the Act. Paragraph 98 (5A) (a) states that the regulations may empower CASA to issue an instrument relating to the safe navigation and operation, or the maintenance, of aircraft. Subsection 98 (5AA) of the Act states that an instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if it applies to a class of persons. This exemption is, accordingly, a legislative instrument.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument is a remake of previous instruments, the latest being CASA EX87/10, issued to the operator which ceased to have effect at the end of March 2011.
This instrument commences on the day after registration and stops having effect at the end of March 2012.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX123/11]