CASA EX128/16 - Repeal – exemption – from standard take-off and landing minima – Japan Airlines

Overview

The Civil Aviation Safety Regulations 1998 (CASR 1998) were enacted to ensure the safety of air navigation and provide a regulatory framework governing civil aviation safety in Australia. The Regulations empower the Civil Aviation Safety Authority (CASA) to make rules regarding various aspects of aviation safety, including meteorological minima for take-off and landing. Instrument CASA EX121/13, which was registered on 11 December 2013 and commenced on the same day, granted Japan Airlines Co. Ltd an exemption from the standard take-off and landing meteorological visibility minima determined by CASA, subject to specific conditions. Following a review of low-visibility take-off and landing operations, CASA decided to issue future exemptions for individual operators as non-legislative instruments. Consequently, CASA EX128/16 was issued to repeal CASA EX121/13 and provide Japan Airlines with a new non-legislative instrument of exemption to reflect the operator’s use of Boeing 787-9 aircraft and expanded use of Boeing 787-8 aircraft. The instrument was made by a delegate of CASA relying on the power of delegation under subregulation 11.260(1) of CASR 1998 and commenced on 21 August 2016. The instrument is compatible with human rights as it does not raise any human rights issues. The Civil Aviation Act 1988 (the Act) was enacted by the Parliament of Australia to provide for the regulation of civil aviation in Australia, including the safety of air navigation. Under section 98 of the Act, the Governor-General is empowered to make regulations for the Act and the safety of air navigation. The Civil Aviation Safety Regulations 1998 (CASR 1998) were made under this power to provide a comprehensive regulatory framework governing civil aviation safety in Australia. The Regulations empower CASA to determine meteorological minima for landing or take-off at an aerodrome and grant exemptions from the provisions of the Regulations, including the Civil Aviation Regulations 1988 (CAR 1988), in relation to a matter mentioned in the Act. The policy objective of the Regulations is to ensure the safety of air navigation and protect the public from the risks associated with civil aviation. The Regulations are subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislation Act 2003.

Scope and Application

The Civil Aviation Safety Regulations 1998 (CASR 1998) empower the Civil Aviation Safety Authority (CASA) to regulate the safety of air navigation, including the determination of meteorological minima for take-off and landing at aerodromes. CASA may grant exemptions from these minima to specific operators under subregulation 11.160 of CASR 1998, with the paramount consideration being the preservation of an acceptable level of aviation safety. Such exemptions are published on the Internet and can last up to three years, as per regulation 11.225 and subregulation 11.230 of CASR 1998. Instrument CASA EX121/13 was a legislative exemption that allowed Japan Airlines Co. Ltd to operate under lower meteorological visibility minima, subject to specific safety conditions. CASA has now repealed this instrument and issued a new non-legislative exemption in response to Japan Airlines’ request to incorporate the Boeing 787-9 aircraft and expand the use of Boeing 787-8 aircraft, reflecting CASA’s internal review that individual operator exemptions are not legislative instruments. This new instrument is subject to tabling and disallowance under the Legislation Act 2003, but CASA has determined that further consultation is unnecessary due to the nature of the exemption and its alignment with existing safety requirements.

Key Provisions

The Civil Aviation Safety Regulations 1998 (CASR 1998) empower the Civil Aviation Safety Authority (CASA) to grant exemptions from certain provisions of the regulations, including the Civil Aviation Regulations 1998 (CAR 1998), when necessary to maintain an acceptable level of aviation safety (section 11.160). The authority to grant such exemptions is paramount for ensuring safety, and CASA can impose conditions on these exemptions to further safeguard air navigation (section 11.205). Exemptions must be published on the internet and have a maximum duration of three years (sections 11.225 and 11.230). Additionally, failure to comply with the conditions of an exemption is an offence (section 11.210). Under the Civil Aviation Act 1988, CASA is responsible for determining the meteorological minima for take-off and landing at aerodromes (section 98). These minima are set out in instrument CASA 270/14 and published in the Aeronautical Information Publication (AIP) and Notices to Airmen (NOTAMs) (sections 257(1)–(4) of CAR 1998). It is an offence for an aircraft to take off or land if the meteorological conditions fall below these minima. CASA has the power to issue exemptions from these standards to individual operators, such as Japan Airlines Co. Ltd, provided that the safety standards are preserved (section 11.160). Instrument CASA EX128/16, which repeals instrument CASA EX121/13, was issued under the authority of the Legislation Act 2003. As it amends another legislative instrument, it is considered a legislative instrument and is subject to tabling and disallowance in Parliament (sections 38 and 42 of the LA). The instrument was made by a delegate of CASA and commenced on 21 August 2016. A Statement of Compatibility with Human Rights is provided, confirming that the instrument does not engage any of the applicable rights or freedoms (Attachment 1). The instrument has been issued in response to Japan Airlines' request to include Boeing 787-9 aircraft and expand the use of Boeing 787-8 aircraft, without requiring additional consultation as CASA is satisfied with the safety requirements. A Regulation Impact Statement is not required under the standing agreement between CASA and the Office of Best Practice Regulation (OBPR). Failure to comply with a condition of an exemption, as stipulated in regulation 11.210 of CASR 1998, is an offence. Although the specific penalties are not detailed in the text, regulatory non-compliance typically incurs civil or criminal penalties, including fines and potential imprisonment, depending on the severity of the breach. The maximum penalties for such offences would be in line with the provisions of the Civil Aviation Act 1988 and the Civil Aviation Safety Regulations 1998.