Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX141/21 — Recording of Time-in-service (Class A Aircraft) Exemption 2021
Purpose
The purpose of this instrument is to exempt each owner, operator and pilot in command of a class A aircraft from the requirement in subregulation 43B (1) of the Civil Aviation Regulations 1988 (CAR) to record total time‑in‑service of the class A aircraft after each completed day of flying operations. The Civil Aviation Safety Authority (CASA) considers that these requirements are not necessary or appropriate for class A aircraft, the continuing airworthiness requirements for which are managed through the aircraft maintenance control manual.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR) and CAR.
Under subregulation 43B (1) of CAR, it is an offence if, on completion of a day’s flying operations, the owner, operator or pilot in command of the aircraft fails to record on the maintenance release the total time‑in‑service of the aircraft on that day.
Regulation 42ZY of CAR makes provision for the preparation of, and compliance with, a maintenance control manual for class A aircraft. Class A aircraft is defined in regulation 2 of CAR as Australian aircraft certificated in the transport category or used under an Air Operator’s Certificate that authorises regular public transport operations.
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons.
Under subregulation 11.175 (4) of CASR, in deciding whether to reissue an exemption on an application by a person, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA takes the same consideration into account when renewing an exemption on its own initiative.
Under subregulation 11.205 (1) of CASR, CASA may impose conditions on an exemption in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition.
Under regulation 11.225 of CASR, an exemption must be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Background
Operators of class A aircraft are required to have an approved system of maintenance and a maintenance control manual to ensure the management of the continuing airworthiness of the aircraft. In larger operators, maintenance is often managed through computerised systems. In many cases, these systems and manuals do not require the recording of the time‑in‑service of an aircraft on the maintenance release document for the aircraft.
Regulation 43B of CAR is incompatible with the arrangements used for maintenance of most class A aircraft to the extent that the regulation requires the recording of the time‑in‑service of aircraft on the maintenance release.
Further, in the context of the arrangements for managing the continuing airworthiness of class A aircraft, CASA does not consider there to be any safety imperative to requiring the time-in-service of a class A aircraft to be recorded on the maintenance release.
Instrument
Section 4 of the instrument exempts the owner, operator and pilot in command of a class A aircraft from the specific time‑in‑service recording requirements of subregulation 43B (1) of CAR.
Subsection 5 (1) of the instrument imposes a condition on the exemption that requires the operator of the aircraft to include, in its maintenance control manual, procedures relating to the recording of the time-in-service of a class A aircraft. The procedures must be sufficient to ensure that the continuing airworthiness requirements of the aircraft are met, and the time‑in‑service information is kept up to date.
Subsection 5 (2) of the instrument imposes a condition on the exemption that requires the operator of the aircraft to ensure that, at the completion of flying operations on each day that the aircraft is flown, time‑in‑service information for the aircraft is recorded in accordance with the procedures required under subsection (1).
CASA considers that the exemption will preserve a level of safety that is at least acceptable, for the purposes of regulation 11.175 of CASR.
Incorporation by reference
Under subsection 14 (1) of the Legislation Act 2003 (the LA), a legislative instrument may make provision in relation to matters by applying, adopting or incorporating provisions of an Act or disallowable legislative instrument as in force at a particular time or as in force from time to time. A legislative instrument may also make provision in relation to matters by applying, adopting or incorporating any matter contained in any other instrument or writing as in force at, or before, the time the legislative instrument commences. Under subsection 14 (2) of the LA, unless the contrary intention appears, the legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. However, subsection 98 (5D) of the Act provides that, despite section 14 of the LA, a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing (including a non-legislative instrument) does not yet exist when the legislative instrument is made.
In accordance with paragraph 15J (2) (c) of the LA, the instrument incorporates an aircraft operator’s maintenance control manual. In accordance with subsection 98 (5D) of the Act, this manual is incorporated as it exists from time to time. The manual is developed by a specific operator to outline their operations and compliance with applicable legislation. As such, a manual is commercial in confidence and therefore not freely available. CASA does not consider it necessary to make the operator’s manual publicly available as each operator will have access to their manual as necessary for compliance with the instrument. The operator makes their manual available to their operating personnel.
Legislation Act 2003
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations or Civil Aviation Orders. 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. The exemption applies to a class of persons, in respect of a class of aircraft. The exemption is, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
As the instrument relates to aviation safety and is made under CASR and CAR, Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument (item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015).
This instrument will be repealed at the end of 30 November 2024, which will occur before the sunsetting provisions would have repealed the instrument if they had applied. The instrument will be subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA. The exemption from sunsetting does not affect parliamentary oversight of this instrument.
Consultation
Consultation under section 17 of the LA has not been undertaken in this case. The instrument reissues previous instruments on this subject, most recently CASA EX167/18. Previous instruments have been widely accepted by owners, operators and pilots in command of class A aircraft and have not been the subject of adverse feedback. The original instrument of this kind was requested by industry, and the instrument remains beneficial to industry by providing more flexibility to record time‑in‑service for class A aircraft other than on the maintenance release as required under subregulation 43B (1) of CAR.
Subject to other legislative priorities, CASA is progressing amendments to the CAR in 2022 that are intended to render the exemption unnecessary. These amendments have still not been made, due to priority having to be given to other programs including a comprehensive remake of the regulations applicable to flight operations, which involves the making or remaking of several parts of the CASR, and which commence on 2 December 2021. However, the aviation industry has continued to operate satisfactorily under the terms of the iterations of the exemption.
In these circumstances CASA is satisfied that no consultation is appropriate or necessary for this instrument for section 17 of the LA.
Sector risk, economic and cost impact
Subsection 9A (1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A (3) of the Act states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9 (1) (c), CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.
As the instrument grants an exemption with the same provisions and conditions as existed previously for the use of authorised release certificates, there will be no change of economic or cost impact on individuals, businesses or the community.
The degree of economic or cost impact of the instrument has been determined by:
(a) the identification of individuals and businesses affected by the instrument; and
(b) consideration of how the requirements to be imposed on individuals and businesses under the instrument will be different compared to existing requirements; and
(c) a valuation of the impact, in terms of direct costs on individuals and businesses affected by the instrument to comply with the different requirements. This valuation is consistent with the principles of best practice regulation of the Australian Government; and
(d) a valuation of the impact the different requirements would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly; and
(e) consideration of community impacts, beyond those direct impacts on individuals and businesses affected by the instrument, that are relevant if the instrument were to result in flow‑on effects to other aviation businesses, or local non-aviation businesses that experience a change in their activity due to the instrument.
CASA has assessed that the economic and cost impact of the instrument is not significant because it does not have a significant impact on existing practices. As there is no significant economic or cost impact on individuals or businesses, there will be no community impacts.
The exemption is beneficial from an economic and cost aspect. It permits the aviation industry to conduct business in accordance with current practice relating to the recording of time‑in‑service of Class A aircraft.
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
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 (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.
The exemption commences on 1 December 2021 and is repealed at the end of 30 November 2024.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX141/21 — Recording of Time-in-service (Class A Aircraft) Exemption 2021
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 purpose of this instrument is to exempt each owner, operator and pilot in command of a class A aircraft from the requirement in subregulation 43B (1) of the Civil Aviation Regulations 1988 to record total time-in-service of the class A aircraft after each completed day of flying operations. The Civil Aviation Safety Authority (CASA) considers that these requirements are not necessary or appropriate for class A aircraft, the continuing airworthiness requirements for which are managed through the aircraft maintenance control manual.
The instrument is subject to conditions that CASA has imposed in the interests of aviation safety. The conditions ensure that appropriate procedures for the recording of the time‑in‑service of class A aircraft are included in the maintenance control manual, which manual is required to be prepared for such 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