Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — refuelling in Ordinance Loading Areas at Tindal
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation.
Subregulation 235 (7) of the Civil Aviation Regulations 1988 (CAR 1988) provides that CASA may, for the purposes of ensuring the safety of air navigation, give directions with respect to the method of loading persons and goods (including fuel) on aircraft.
Subsection 4 of Civil Aviation Order 20.9 (CAO 20.9) is made under subregulation 235 (7) of CAR 1988 and sets out CASA’s directions for loading fuel on aircraft. Subparagraph 4.1.1 (d) of CAO 20.9 states that during fuelling operations for an aircraft with a maximum take-off weight in excess of 5 700 kg, the aircraft and ground fuelling equipment must be so located that no fuel tank filling points or vent outlets lie within 15 metres of any unsealed building.
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 CAR 1988. Under subregulation 11.170 (3) of CASR 1998, in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety.
The instrument exempts Pel-Air Aviation Pty Limited (Pel-Air) from compliance with subparagraph 4.1.1 (d) of CAO 20.9 during its aircraft fuelling operations at the Royal Australia Air Force base at Tindal. The fuelling at Tindal air base is carried out in Ordinance Loading Areas (OLAs) which are open-ended hangars used by the Australian Defence Force (ADF) to refuel and rearm its aircraft. Pel-Air Westwind aircraft are used in ADF support operations to, and from, Tindal. For these operations, an exemption is needed from subparagraph 4.1.1 (d) to allow fuelling of the specified Pel-Air aircraft to take place in OLAs.
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.
The exemption is subject to conditions. The aircraft have to be engaged in ADF support operations and refuelling has to be carried out by trained ADF personnel in accordance with established procedures for fuelling in OLAs. The equipment installed in OLAs, to ensure the safety of fuelling operations, must be serviceable.
Legislative Instruments Act
Exemptions issued under regulation 11.160 of CASR 1998 are issued under subsection 98 (5A) of the Act. Subsection 98 (5AA) of the Act states that an instrument issued under paragraph (5A) (a) is a legislative instrument if it applies to a class of persons or a class of aircraft. This exemption applies to a class of aircraft and so is 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
The exemption has been issued at the request of Pel-Air to permit the refuelling of aircraft in accordance with the mentioned conditions and replaces an existing instrument CASA 106/10, which expires at the end of 30 November 2011. No further consultation under section 17 of the LIA has been undertaken in this case.
Under subregulation 11.230 (1) of CASR 1998, 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. The exemption commences on 1 December 2011 and stops having effect at the end of 30 November 2014.
The exemption has been issued by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX129/11]