EXPLANATORY STATEMENT
CIVIL AVIATION REGULATIONS 1988
REFUELLING WITH PASSENGERS ON BOARDS
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in the interests of the safety of air navigation.
Under subregulation 235 (11) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may exempt an aircraft from any of the requirements imposed by regulation 235.
Subregulation 235 (7) of 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 section 20.9 of the Civil Aviation Orders (the CAOs) is made under subregulation 235 (7) and sets out CASA’s directions in relation to the loading of fuel on aircraft. Paragraph 4.2.3 of section 20.9 states that the operator of an aircraft with a maximum seating capacity of less than 20 must ensure that fuel is not loaded on to the aircraft while passengers are on board, or entering or leaving, the aircraft.
Gandel Investments Pty Ltd (Gandel) operates the Bombardier BD 700 Global Express aircraft (BD 700). Gandel’s BD 700 aircraft, though certified for less than 20 passengers, carries a flight attendant on all operations. Gandel has been severely affected by the requirements of paragraph 4.2.3 because these provisions do not allow passengers to remain on board during aircraft refuelling. The practice is to load an amount of fuel before the passengers have boarded. Once passengers have boarded, and the maximum weight is known, Gandel is able to increase the fuel load to maximum weight. This practice is necessary to avoid intermediate landings for further fuel loading. The company Operations Manual details procedures that meet all the requirements of subparagraphs 4.2.1, 4.2.2 and 4.2.5 of section 20.9.
CASA has, therefore, issued an exemption from paragraph 4.2.3 for the refuelling the BD 700 aircraft while passengers are on board. The exemption is subject to conditions. For example, the operator must ensure that when fuel is being loaded no passenger is on board unless the requirements set out in Schedule 1 to the exemption are met. The requirements include information that has to be given, before refuelling.
Because the exemption affects the operation of paragraph 4.2.3 of section 20.9 of the CAOs, it is declared to be a disallowable instrument under regulation 5A of CAR 1988. Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation under section 17 of the LIA has not been undertaken in this case because of the nature of the instrument.
The exemption has been issued at the request of the operator.
The exemption has been issued by a delegate of CASA appointed under regulation 7 of CAR 1988.
The exemption commences on 29 April 2005 and stops having effect at the end of April 2008.
[Instrument number CASA EX13/2005]
Overview
The Civil Aviation Regulations 1988, enacted by the Parliament of Australia, serve to establish safety standards for the operation of aircraft, including the loading of passengers and goods such as fuel. The 2005 regulation addresses a specific issue regarding refuelling operations involving aircraft with a maximum seating capacity of less than 20, such as the Bombardier BD 700 Global Express operated by Gandel Investments Pty Ltd, where a flight attendant is present. The primary objective of this regulation is to ensure the safety of air navigation while accommodating operational needs of certain aircraft operators. In this case, the Civil Aviation Safety Authority (CASA) issued an exemption to the existing refuelling requirement, allowing Gandel's BD 700 aircraft to refuel while passengers are on board, subject to specified conditions designed to maintain safety standards. The exemption, which is a legislative instrument under the Legislative Instruments Act 2003, was issued without parliamentary consultation due to its nature and at the request of the aircraft operator.
Scope and Application
The Civil Aviation Regulations 1988, under the authority of the Civil Aviation Act 1988, pertain to the safe operation of aircraft within Australian airspace. Specifically, these regulations govern the loading of persons, goods, and fuel on aircraft to ensure air navigation safety. The Civil Aviation Orders further detail these requirements, with section 20.9 outlining directives for the loading of fuel on aircraft, including the stipulation that for aircraft with a maximum seating capacity of less than 20, fuel should not be loaded while passengers are on board or entering or leaving the aircraft. However, the Civil Aviation (All) Regulations 2005 provides an exemption for Gandel Investments Pty Ltd’s Bombardier BD 700 Global Express aircraft, allowing refuelling while passengers are on board under certain conditions, such as ensuring no passenger is on board while fuel is being loaded unless specific requirements are met. This exemption, declared as a disallowable instrument under the Civil Aviation Regulations, is subject to disallowance by Parliament and is effective from April 2005 until the end of April 2008.
Key Provisions
The Civil Aviation Regulations 1988, as amended, include specific provisions governing the refuelling of aircraft with passengers on board. Section 20.9 of the Civil Aviation Orders (CAOs), which is made under subregulation 235(7) of the Civil Aviation Regulations 1988, stipulates that operators of aircraft with a maximum seating capacity of less than 20 must not load fuel while passengers are on board, or entering or leaving the aircraft (section 20.9, paragraph 4.2.3). This requirement is intended to ensure the safety of air navigation. However, Gandel Investments Pty Ltd, which operates Bombardier BD 700 Global Express aircraft, has been granted an exemption from this provision. The exemption, issued by the Civil Aviation Safety Authority (CASA), allows the BD 700 to be refuelled while passengers are on board, provided certain conditions are met (section 20.9, paragraph 4.2.3, exemption).
The obligations imposed by the exemption on Gandel Investments Pty Ltd include ensuring that no passengers are on board during the refuelling process unless specific conditions are fulfilled, as outlined in Schedule 1 to the exemption (section 20.9, paragraph 4.2.3, exemption). These conditions likely involve providing necessary information and maintaining safety protocols. Gandel must also adhere to the procedures outlined in their Operations Manual, which must meet the requirements of subparagraphs 4.2.1, 4.2.2, and 4.2.5 of section 20.9 of the CAOs (section 20.9, subparagraphs 4.2.1, 4.2.2, and 4.2.5). This ensures that all safety and operational standards are observed during refuelling operations.
Any breach of the provisions outlined in the Civil Aviation Regulations 1988 or the conditions of the exemption could lead to civil or criminal consequences. Specifically, under the Civil Aviation Act 1988, non-compliance with the regulations or conditions of the exemption could result in fines or other penalties as determined by the courts. The exact penalties may vary depending on the nature and severity of the breach. It is also important to note that as a legislative instrument, the exemption is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003, which provides an additional layer of oversight and accountability (section 6(d)(i) of the Legislative Instruments Act 2003). This ensures that the exemption remains within the bounds of legal and regulatory frameworks designed to protect air navigation safety.