Explanatory Statement
Civil Aviation Safety Regulations 1998
Repeal — exemption from standard take-off and landing minima (Air New Zealand)
Legislation
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.
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. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. An instrument issued under paragraph 98 (5A) (a) of the Act is not a legislative instrument if the instrument is expressed to apply to a particular person or aircraft.
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 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), 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.
Under subsection 33 (3) of the Acts Interpretation Act 1901 (AIA), where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Instrument
On 25 May 2012, CASA issued Air New Zealand Ltd (the operator) with an exemption from standard take-off and landing minima, commencing on 1 June 2012 (CASA EX82/12 refers). The exemption applied to the operator’s A320-232, B737-300, B747-400, B767-300 and B777-300 aircraft and allowed the conduct of low-visibility take-offs and CAT II and CAT III landings, in accordance with the operator’s Civil Aviation Authority of New Zealand approval.
The operator subsequently requested a reissue of the exemption to apply to B787-9 aircraft, while removing reference to B737-300 and B747-400 aircraft which had ceased service. Before the request for reissue was made, CASA conducted an internal review that determined that exemptions from regulation 257 of CAR 1988 did not concern a class of aircraft, since these exemptions are issued to, and applicable to, individual operators and are, therefore, not required to be legislative instruments. As a result of the internal review, for the purposes of the operator’s request, a new, separate non-legislative instrument of exemption for the operator’s A320-232, B767-300, B777-200, B777-300 and B787-9 aircraft will be issued and instrument CASA EX82/12 is repealed by this instrument.
Legislative Instruments Act
Instrument CASA EX129/14 repeals CASA EX82/12 which is an existing legislative instrument. Under subsection 33 (3) of the AIA, the relevant power of making for instrument CASA EX129/14 must be exercisable in a like manner to the instrument being repealed. Instrument CASA EX129/14 is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
The operator requested that CASA EX82/12 be amended to include B787-9 aircraft while removing B737-300 and B747-400 aircraft, which had retired from service. Accordingly, this instrument repeals CASA EX82/12 and, at the operator’s request, CASA will issue a separate non-legislative instrument covering the operator’s in-service A320-232, B767-300, B777‑200, B777-300 and B787-9 aircraft. CASA considers that no further consultation under section 17 of the LIA is appropriate or necessary.
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 the day of registration. It expires the day after registration, as if it had been repealed by another instrument.
[Instrument number CASA EX129/14]
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 take-off and landing minima (Air New Zealand)
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 EX82/12, being an exemption for Air New Zealand Ltd (the operator) to use minima lower than the standard take-off and landing meteorological visibility minima determined by CASA.
CASA will issue a separate non-legislative instrument of exemption for the operator to undertake low-visibility take-offs and CAT II and CAT III landings in prescribed classes of aircraft.
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