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.
Coolfare Contracts Pty Ltd (Coolfare) operates the Bombardier BD 700 Global Express aircraft (BD 700). Coolfare’s BD 700 aircraft, though certified for less than 20 passengers, carries a flight attendant on all operations. Coolfare 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, Coolfare 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 2006.
[Instrument number CASA EX14/2005]