CASA EX126/18 — Fuel Requirements Exemption 2018

Explanatory Statement

Civil Aviation Safety Regulations 1988

CASA EX126/18 — Fuel Requirements Exemption 2018

Purpose

The purpose of this legislative instrument is to temporarily exempt specified aircraft operators and their pilots from new requirements relating to fuel for aircraft that commence on 8 November 2018, if they comply with the requirements that applied before that date.

Legislation

Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR) and the Civil Aviation Regulations 1988 (CAR).

Paragraph 98 (5A) (a) of the Act provides that the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft.

Subsection 98 (5D) of the Act provides that a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing at a particular time, or from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.

Certificates

Section 27 of the Act empowers CASA to issue Air Operators’ Certificates (AOCs) for the purpose of its functions. Such AOCs are required by aircraft operators to be authorised to conduct operations for prescribed purposes, including regular public transport, charter and aerial work operations. An AOC may also authorise the holder to conduct a Part 142 activity, being Part 142 flight training, contracted recurrent training or contracted checking. Generally, Part 142 flight training is integrated and multi-crew flight training.

Regulation 141.060 of CASR empowers CASA to issue a Part 141 certificate to a person. A Part 141 certificate authorises the holder of the certificate to conduct the Part 141 flight training specified in the certificate. Generally, Part 141 flight training is recreational, private and commercial pilot flight training, other than certain integrated training courses.

Regulation 234 of CAR

Regulation 234 of CAR relates to fuel requirements for aircraft. Under subregulation 234 (1), the pilot in command of an aircraft must not commence a flight within Australian territory, or to or from Australian territory, if he or she has not taken reasonable steps to ensure that the aircraft carries sufficient fuel and oil to enable the proposed flight to be undertaken in safety. Under subregulation 234 (2), an operator of an aircraft must take reasonable steps to ensure that an aircraft does not commence a flight as part of the operator’s operations if the aircraft is not carrying sufficient fuel and oil to enable the proposed flight to be undertaken in safety. An offence against subregulation 234 (1) or (2) is an offence of strict liability, with a maximum penalty of 50 penalty units.

Subregulation 234 (3) sets out matters that a court must take into account when determining whether fuel and oil carried on an aircraft in respect of a particular flight was sufficient within the meaning of subregulations (1) and (2). Those matters include the distance to be travelled, the meteorological conditions and any guidelines issued from time to time by CASA for the purposes of regulation 234.

The Civil Aviation Amendment (Fuel and Oil Requirements) Regulations 2018 [FRL ref: F2018L00599] (the Amendment Regulations) will substitute a new regulation 234 of CAR when it commences on 8 November 2018. New regulation 234 of CAR will empower CASA, for subregulation 98 (5A) of the Act, to issue a legislative instrument that prescribes fuel related requirements. New regulation 234 of CAR will include strict liability offences for both the operator and the pilot in command of an aircraft if a requirement under the instrument is not complied with.

CASA has made CASA 29/18 — Civil Aviation (Fuel Requirements) Instrument 2018 [FRL ref: F2018L00644] (CASA 29/18). CASA 29/18 prescribes requirements relating to fuel for aircraft. That instrument commences immediately after the commencement of the Amendment Regulations and is made under regulation 234 of CAR as in effect after it is amended by the Amendment Regulations.

CASA 29/18 prescribes requirements relating to fuel for aircraft including:

• matters that must be considered when determining whether an aircraft has sufficient fuel to complete a flight safely;
• the amounts of fuel that must be carried on board an aircraft for a flight;
• procedures for monitoring amounts of fuel during a flight; and
• procedures to be followed if fuel reaches specified amounts during a flight.

Under new regulation 234A of CAR, the operator and the pilot in command of an aircraft for a flight each commit an offence of strict liability if, when the aircraft begins the flight, the aircraft is not carrying sufficient oil to complete the flight safely.

Civil Aviation Order (CAO) 82.0

Paragraph 3A.1 of CAO 82.0 applies to each AOC authorising regular public transport or charter operations for the carriage of passengers, or medical transport operations, in an aeroplane.

Subparagraph 3A.1 (g) provides that the AOC is subject to the condition that a passenger must not be carried on a flight to a remote island unless, when the flight commences, the aeroplane is carrying not less than the “minimum safe fuel” for the flight. The remote islands are defined as Christmas Island, the Cocos (Keeling) Islands, Lord Howe Island and Norfolk Island. The term minimum safe fuel is currently defined in paragraphs 2.3 to 2.4.1 of CAO 82.0.

Under subparagraph 3A.1 (h), the AOC is also subject to the condition that a passenger must not be carried on a flight to a remote island unless, during the flight, the pilot in command carries out in-flight fuel management to ensure that the aeroplane is always carrying sufficient fuel to enable it to reach its destination aerodrome as planned, or its nominated alternate aerodrome if necessary, with the required minimum fuel reserves intact.

From 8 November 2018, section 10 of CASA 29/18 will define the amount of fuel that is the minimum safe fuel for an aeroplane undertaking a flight to a remote island. CASA 29/18 will also adequately regulate in-flight fuel management. CASA intends to make a consequential amendment to CAO 82.0 to omit paragraphs 2.3 to 2.4.1 and subparagraph 3A.1 (h) of CAO 82.0 from 8 November 2018.

Exemptions

Subpart 11.F of the CASR provides for the granting of exemptions from particular legislative provisions. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of CAR or CASR or a CAO.

Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons and may specify the class by reference to membership of a specified body or any other characteristic.

Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.

Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption on application, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant an exemption on its own initiative.

Regulation 11.205 of CASR provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition.

Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.

Background

In the past, CASA has published guidance material that provides information and guidance on fuel requirements for aircraft for the purposes of regulation 234 of CAR. The current guidance material is Civil Aviation Advisory Publication (CAAP) 234-1(1), titled Guidelines for Aircraft Fuel Requirements. Also, CAAP 215-1(2), titled Guide to the preparation of Operations Manuals, provides guidance on the preparation and contents of an operations manual, including an operator’s fuel policy.

CASA 29/18 largely takes the place of the guidance material in CAAP 234-1(1).

CASA has decided to allow certain operators some additional time to comply with the requirements of the new regulations 234 and 234A of CAR and the related requirements in CASA 29/18, including requirements that involve updating an operator’s operations manual. This instrument gives effect to that policy decision.

Overview of instrument

Section 1 of the instrument provides that the name of the instrument is CASA EX126/18 — Fuel Requirements Exemption 2018.

Section 2 of the instrument specifies the duration of the instrument. It commences on 8 November 2018 and is repealed at the end of 28 February 2019.

Section 3 of the instrument specifies the persons to whom the instrument applies. Subsection 3 (1) provides that the instrument applies to a person that, immediately before 8 November 2018, held an AOC or a Part 141 certificate. These persons are known, for the purposes of this instrument, as “affected operators”.

Subsection 3 (2) of the instrument states that the instrument also applies to the pilot in command of an aircraft in an operation authorised by an AOC or a Part 141 certificate held by an affected operator. Therefore, pilots engaged by an operator that held an AOC or a Part 141 certificate immediately before 8 November 2018 are also covered by this instrument.

Subsection 4 (1) of the instrument grants an exemption to an affected operator and the pilot in command from compliance with the requirements in new regulations 234 and 234A of CAR.

Under subsection 4 (2), the exemption in subsection 4 (1) is subject to the condition that the affected operator and the pilot in command must comply with regulation 234 of CAR, as it was in force on 7 November 2018. The operator and pilot are also required to comply with subparagraph 3A.1 (h) of CAO 82.0, as it was in force on 7 November 2018.

A note under subsection 4 (2) states that, when assessing compliance with regulation 234 of CAR as in force on 7 November 2018, a court is expected to take into account CAAP 215‑1(2) and CAAP 234-1(1), as existing on 7 November 2018. It is likely that those CAAPs will be replaced or amended from 8 November 2018 to take into account changes introduced by the Amendment Regulations and CASA 29/18. The purpose of the note is to guide a court to the appropriate guidelines issued by CASA that should be taken into account in determining whether fuel and oil carried on an aircraft was sufficient to enable a flight to be undertaken in safety.

Subsection 5 (1) of the instrument grants an exemption to an affected operator from compliance with subparagraph 3A.1 (g) of CAO 82.0.

Under subsection 5 (2), the exemption in subsection 5 (1) is subject to the condition that the affected operator must comply with subparagraph 3A.1 (g) of CAO 82.0 using the definition of minimum safe fuel in paragraphs 2.3 to 2.4.1 of CAO 82.0, as in force on 7 November 2018. Therefore, the overall effect of section 5 is that the affected operator is required to comply with subparagraph 3A.1 (g) of CAO 82.0, but may use the definition of minimum safe fuel in paragraphs 2.3 to 2.4.1 of CAO 82.0 as in force on 7 November 2018, rather than the definition of that term in section 10 of CASA 29/18.

Subsections 4 (2) and 5 (2) of the instrument impose conditions on the exemption under regulation 11.205 of CASR. These provisions require operators and pilots that take advantage of the exemption to continue to comply with the requirements that existed before the commencement of the Amendment Regulations.

Incorporation by reference

The instrument applies, adopts or incorporates matters contained in instruments or other writing. In accordance with subsection 98 (5D) of the Act, the instruments and other writing are incorporated as in force or existing at a particular time.

In accordance with paragraph 15J (2) (c) of the Legislation Act 2003 (the LA), the following table contains a description of the documents incorporated by reference into the legislative instrument, the organisation responsible for each document and how they may be obtained.

The CAAPs and the relevant provisions of CAO 82.0 are incorporated as existing or in force on 7 November 2018, that is, immediately before the commencement of the Amendment Regulations.

Legislation Act 2003

Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument applies to classes of persons, being certain holders of an AOC or a Part 141 certificate, and certain pilots in command of aircraft in operations authorised by such certificates. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.

Consultation

Before the making of CASA 29/18, CASA consulted with the Operations Standards Subcommittee and Standards Consultative Committee (SCC), which were forums of aviation community and CASA participants, between 12 and 26 August 2015. On 20 January 2016, CASA published a draft instrument and a summary of the key changes introduced by the instrument (ref: CD 1508OS – Fuel and oil quantity requirements). CASA invited responses from the public by 16 March 2016. The SCC and public consultation resulted in 63 responses. CASA took all the responses into account in finalising CASA 29/18.

This legislative instrument provides an exemption that allows specified aircraft operators to choose to delay the application of CASA 29/18 to their operations, subject to compliance with previous requirements that will have been repealed. The instrument is therefore beneficial to those operators.

In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.

Office of Best Practice Regulation (OBPR)

A Regulation Impact Statement (RIS) is not required in this case, as the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).

Statement of Compatibility with Human Rights

A Statement of Compatibility with Human Rights is at Attachment 1.

Making and commencement

The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.

The instrument commences on 8 November 2018 and ceases when it is repealed at the end of 28 February 2019.

Attachment 1

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011

CASA EX126/18 — Fuel Requirements Exemption 2018

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 provides a temporary exemption for specified aircraft operators and their pilots from new requirements relating to fuel for aircraft that commence on 8 November 2018, provided they comply with the requirements that applied before that date.

The Civil Aviation Amendment (Fuel and Oil Requirements) Regulations 2018 [FRL ref: F2018L00599] (the Amendment Regulations) will substitute a new regulation 234 of the Civil Aviation Regulations 1988 (CAR) when it commences on 8 November 2018. New regulation 234 of CAR will empower CASA to issue a legislative instrument that prescribes fuel related requirements and make it an offence for the operator and pilot in command of an aircraft to fail to comply with any requirement to which they are subject in that legislative instrument.

For the purposes of new regulation 234 of CAR, CASA has made CASA 29/18 — Civil Aviation (Fuel Requirements) Instrument 2018 (CASA 29/18) [FRL ref: F2018L00644], which prescribes requirements relating to fuel for aircraft and commences on 8 November 2018. It contains several requirements that may require an aircraft operator to amend its operations manual.

This legislative instrument applies to aircraft operators that held an Air Operator’s Certificate (AOC) or a Part 141 certificate before 8 November 2018 and their pilots. It provides an exemption from the new regulation 234 of CAR (and therefore from the requirements in CASA 29/18) from 8 November 2018 to 28 February 2019, subject to compliance with regulation 234 of CAR (and related provisions of a Civil Aviation Order) as in force or existing on 7 November 2018.

Human rights implications

The legislative instrument engages the following rights:

• the right to work in Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR);
• the rights in work in Article 7 (b) of the ICESCR.

Right to work

The right to work, contained in Article 6 (1) of ICESCR, includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept. CASA has assessed that some aircraft operators will not be ready for the full implementation of the requirements of CASA 29/18 by 8 November 2018. The right to work is promoted by this instrument as it provides greater flexibility for aircraft operators and their pilots to continue to conduct commercial operations without having implemented the new requirements of CASA 29/18. It promotes the right to work to the extent that it provides more opportunities for some persons to participate in work involving aviation activities that would otherwise be prohibited.

Rights in work

Rights in work, set out in Article 7 of ICESCR, include safe and healthy working conditions. Aviation safety promotes the right to safe and healthy working conditions, especially for people working in the aviation industry.

In the context of aircraft operations to which this instrument applies, CASA 29/18 addresses risks to the life and health of passengers, pilots, cabin crew and people on the ground that could arise from aviation accidents and incidents. It does this by establishing appropriate safety requirements to be met relating to the carriage of fuel, and procedures to be followed when the amount of fuel on an aircraft in flight falls below specified levels.

This legislative instrument allows certain operators to delay compliance with the new safety requirements and procedures in CASA 29/18 for approximately 4 months. It therefore delays the measures that promote rights in work. The purpose of allowing a delay in implementing the requirements in CASA 29/18 is to allow a more orderly transition by the aviation industry, with the assistance of CASA, to meeting those requirements. For example, it allows an aircraft operator more time to prepare amendments to the fuel policy in its operations manual to comply with CASA 29/18. Therefore, the limitation on rights in work is reasonable, and it is necessary in order to promote the right to work as discussed above.

The limitation on rights in work is proportionate in that the exemption in the instrument only applies to aircraft operators that have an AOC or a Part 141 certificate before 8 November 2018 and pilots operating under those certificates. These operators would already have operations manuals with fuel policies that have been accepted by CASA as satisfactory.

The limitation on rights in work is also proportionate in that the exemption is for a period of less than 4 months. CASA is preparing guidance material for aircraft operators on how to amend their operations manuals to comply with CASA 29/18 during that period.

Other rights and freedoms

The legislative instrument does not engage any of the other applicable rights or freedoms.

Conclusion

This legislative instrument is compatible with human rights as, to the extent that it limits applicable rights and freedoms, it is reasonable, necessary and proportionate.

Civil Aviation Safety Authority