CASA EX123/16 - Repeal – exemption – from standard landing minima – Boeing 737 fail passive aircraft – Virgin Australia Airlines Pty Ltd

Overview

The Civil Aviation Safety Regulations 1998, enacted under the Civil Aviation Act 1988, were designed to ensure the safety of air navigation by setting regulations that govern civil aviation in Australia. One such regulation, CASA 270/14, set the standard meteorological minima for take-off and landing at aerodromes, which are published in the Aeronautical Information Publication (AIP) or Notices to Airmen (NOTAMs). However, to accommodate specific operational needs and technological advancements, the Civil Aviation Safety Authority (CASA) was empowered under subregulation 11.160 of the Civil Aviation Safety Regulations 1998 to grant exemptions from these standards, provided it did not compromise aviation safety. CASA EX114/13 was an exemption issued to Virgin Australia Airlines Pty Ltd for operating Boeing 737 Next Generation aircraft with a fail-passive automatic landing system, allowing them to use lower meteorological minima. In response to a request from the operator to extend this exemption to include Boeing 737-700 and 737-800 aircraft with a fail-operational flight control system, CASA decided to repeal CASA EX114/13 and issue a new non-legislative instrument, CASA EX123/16, thus updating the exemption to reflect the current operational requirements. This legislative instrument was made under the authority granted by the Legislation Act 2003 and commenced on 14 August 2016.

Scope and Application

The Civil Aviation Safety Regulations 1998, as amended by instrument CASA EX123/16, pertains specifically to Virgin Australia Airlines Pty Ltd, allowing them to operate Boeing 737 aircraft with certain flight control systems under exemptions from standard landing minima. This legislative instrument applies within the Commonwealth of Australia, as it is administered by the Civil Aviation Safety Authority (CASA), which is a federal body. The instrument is a legislative one, subject to the requirements of the Legislation Act 2003, including tabling and disallowance provisions. The scope of the Act is limited to the specific exemption for Virgin Australia Airlines, and it does not apply to other airlines or aircraft types unless similarly exempted through separate legislative or non-legislative instruments. CASA has determined that further consultation is not necessary as the exemption renewal pertains to the same operator and aircraft type, with no broader implications on aviation safety standards. The instrument repeals the previous exemption, CASA EX114/13, and replaces it with a new non-legislative instrument tailored to the operator’s request. The legislative instrument is deemed compatible with human rights, as it does not engage any of the applicable rights or freedoms.

Key Provisions

The Civil Aviation Safety Regulations 1998 (CASR 1988) and the Civil Aviation Regulations 1988 (CAR 1988) are central to the operation of the aviation safety framework in Australia. Section 98 of the Civil Aviation Act 1988 grants the Governor-General the power to create regulations for aviation safety, and under subregulation 257(1) of CAR 1988, the Civil Aviation Safety Authority (CASA) is authorised to determine meteorological minima for landing and take-off at aerodromes. These determinations must be published in the Aeronautical Information Publication (AIP) or Notices to Airmen (NOTAMs). The standard meteorological minima for take-off and landing are detailed in CASA instrument 270/14 and section 4 of AIP En Route 1.5. Subregulation 11.160(1) of CASR 1988 allows CASA to grant exemptions from regulatory provisions, including CAR 1988, for matters specified in the Act, and these exemptions can be granted to specific individuals or classes of persons as outlined in subregulation 11.160(2). When deciding on an exemption, CASA must prioritise maintaining an acceptable level of aviation safety, as stipulated in subregulation 11.170(3) of CASR 1988. Any exemption granted may include conditions deemed necessary for air navigation safety, as per subregulation 11.205(1), and failure to comply with these conditions is an offence under regulation 11.210. The exemption must be published on the Internet under regulation 11.225, and the maximum duration of any exemption is three years, as outlined in subregulation 11.230(1). The obligations imposed by these regulations and the exemptions granted under them are multifaceted. CASA, as the regulator, must ensure that any exemption granted maintains an acceptable level of aviation safety, taking into account the specific operational needs and capabilities of the aircraft and the airline. The operator, in this case, Virgin Australia Airlines Pty Ltd, must adhere to any conditions imposed on the exemption and ensure that all operations comply with the safety standards set forth by CASA. Furthermore, any failure to comply with the conditions of an exemption is an offence, as stipulated in regulation 11.210 of CASR 1988. Additionally, the exemptions and their conditions must be published on the Internet, ensuring transparency and accessibility for all stakeholders. The Civil Aviation Safety Regulations 1998 impose specific consequences for non-compliance with the regulations and conditions of any exemption granted. Under regulation 11.210, it is an offence to fail to comply with a condition of an exemption, and such non-compliance may result in civil or criminal penalties. Although the exact penalties are not detailed within the text, it is a common legal principle that penalties for aviation-related offences can include fines, imprisonment, or both, depending on the severity of the breach and the discretion of the court. The maximum duration of any exemption is three years, after which CASA may review and potentially renew or revoke the exemption, as per subregulation 11.230(1) of CASR 1988. Overall, the Civil Aviation Safety Regulations 1998 and the Civil Aviation Regulations 1988 provide a robust framework for ensuring aviation safety in Australia, with specific provisions for granting exemptions when necessary. The obligations on CASA and the operators are clear, focusing on maintaining safety while allowing for operational flexibility where appropriate. The consequences for non-compliance are designed to enforce adherence to safety standards and ensure that any exemptions granted do not compromise the overarching safety objectives of the regulatory regime.