Explanatory Statement
Civil Aviation Safety Regulations 1998
Repeal – exemption – from standard landing minima – Boeing 737 fail‑passive aircraft – Virgin Australia Airlines Pty Ltd
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Under subregulation 257 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may determine the meteorological minima, that is the visibility requirements, for landing or take‑off at an aerodrome. Under subregulation 257 (2), the determination must be published in AIP or NOTAMs. Under subregulations 257 (3) and (4), it is an offence for an aircraft to take off or land if an element of the meteorological minima for that operation is less than that determined for the aircraft at the aerodrome.
The determination of standard meteorological minima for take-off and landing was made in instrument CASA 270/14. The minima are also set out in AIP En Route 1.5, section 4.
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.
Subregulation 11.170 (3) of CASR 1998 provides that in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of aviation safety. Under subregulation 11.205 (1), 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.
Regulation 11.225 of CASR 1998 requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Instrument
Instrument CASA EX114/13 was registered on 5 November 2013 and commenced on the day of registration. Instrument CASA EX114/13 permitted Virgin Australia Airlines Pty Ltd (the operator) to use minima lower than the standard take-off and landing meteorological visibility minima determined by CASA when operating Boeing 737 Next Generation aircraft with a fail-passive automatic landing system. The exemption was subject to a number of conditions imposed in the interests of aviation safety.
In 2014, CASA conducted an internal review of instruments dealing with low-visibility take-off and landing operations. CASA determined that exemptions from regulation 257 of CAR 1988 did not concern a class of aircraft, since these exemptions are issued to, and are applicable to, individual operators. As exemptions which apply to a particular operator are not legislative instruments, CASA decided that it would issue future exemptions dealing with low-visibility take-off and landing operations for individual operators as non‑legislative instruments.
The operator subsequently requested the extension of the exemption provided under instrument CASA EX114/13 to the operator’s use of Boeing 737-700 and 737-800 aircraft with a fail-operational flight control system. CASA has issued a new, separate non‑legislative instrument of exemption in response to the operator’s request, and this instrument repeals CASA EX114/13.
Legislation Act 2003 (the LA)
Instrument CASA EX123/16 repeals CASA EX114/13, which is an existing legislative instrument. Paragraph 10 (d) of the LA provides that an instrument will be a legislative instrument if it includes a provision that amends or repeals another legislative instrument.
Instrument CASA EX123/16 is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The operator has requested the extension of the exemption provided under CASA EX114/13 to Boeing 737-700 and 737-800 aircraft with a fail-operational flight control system. CASA is satisfied that the operator continues to meet the safety requirements associated with the grant of this exemption, and is taking the opportunity to repeal CASA EX114/13 and issue a new non-legislative instrument to provide the operator with this exemption.
Having regard to these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on 14 August 2016.
[Instrument number CASA EX123/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Repeal – exemption – from standard landing minima – Boeing 737 fail-passive aircraft – Virgin Australia Airlines Pty Ltd
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 repeals instrument CASA EX114/13, being an instrument that permits Virgin Australia Airlines Pty Ltd to use minima lower than the standard take‑off and landing meteorological visibility minima determined by CASA.
CASA has issued a new non-legislative instrument of exemption that replaces the exemption granted under instrument CASA EX114/13.
The purpose of this instrument is to repeal a legislative instrument that is no longer required.
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