Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — operations without an approved digital flight data recorder
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations. Under subsection 98 (5A) of the Act, the regulations may empower the Civil Aviation Safety Authority (CASA) to issue instruments in relation to matters affecting the safe navigation and operation, maintenance, and airworthiness of aircraft, and design standards for aircraft.
Subregulation 207 (2) of the Civil Aviation Regulations 1988 (CAR 1988) provides that an Australian aircraft must not be used in any class of operations unless it is fitted with such instruments and is fitted with or carries such equipment, including emergency equipment, as CASA approves or directs.
Subregulation 5 (1) of CAR 1988 provides that whenever CASA is empowered by CAR 1988 to give directions or approvals, it may do so in Civil Aviation Orders (the CAOs).
Civil Aviation Order 20.18 (CAO 20.18) sets out instruments and equipment required for Australian aircraft engaged in certain classes of operations. Subsection 6 of CAO 20.18 requires installation of flight data recorders (FDRs) on certain types of aircraft and that FDRs must comply with the requirements of Civil Aviation Order 103.19 (CAO 103.19). Appendix I of CAO 103.19 sets out the parameters, ranges, accuracy and recording intervals for FDRs.
Before it was repealed on 27 June 2011, subregulation 21A (1) of CAR 1988 allowed CASA to issue a design standard for an aircraft component for which no appropriate design standard was in force. CAO 103.19 was made under subregulation 21A (1) of CAR 1988 before 27 June 2011. By operation of subregulation 202.049A of the Civil Aviation Safety Regulations 1998 (CASR 1998), from 27 June 2011 onwards, CAO 103.19 is taken to be an applicable airworthiness standard for regulation 21.017 of CASR 1998.
Exemption
Subregulation 11.160 (1) of CASR 1998 allows CASA to grant an exemption from compliance with a provision of CAR 1988, CASR 1998 or the CAOs in relation to a matter mentioned in subsection 98 (5A) of the Act.
National Jet Express Pty Ltd, trading as Cobham Aviation Services Australia – Regional Services (the operator), operates aircraft which do not fully comply with CASA regulations because the aircraft had only to comply with United Kingdom regulations at the time of manufacture. At certain altitudes, the FDR records at 2 second intervals, instead of 1 second intervals as required by CAO 103.19. CASA has issued an exemption as the operator and manufacturer of the aircraft cannot provide viable service bulletins and kits to modify the aircraft. In addition to the CAO requirements, this instrument mandates compliance with the United Kingdom Civil Aviation Authority FDR standard as current at the time of aircraft manufacture.
Legislative Instruments Act
Under regulation 5A of CAR 1988, if CASA has issued a direction in the form of a CAO and later issues another direction or an exemption which has the effect of amending, repealing, or otherwise affecting the operation of, anything in the CAOs, the later instrument is a disallowable instrument. This instrument affects the operation of subsection 6 of CAO 20.18 and Appendix I of CAO 103.19.
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations or the CAOs. 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 instrument applies to a class of aircraft. As a legislative instrument, this instrument is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
No consultation under section 17 of the LIA was undertaken in relation to this instrument as it remakes instrument CASA EX71/11 for which consultation was previously undertaken. The instrument is for a particular operator and mandates compliance with the recording of additional parameters in lieu of the standard published in CAO 103.19.
Compatibility with human rights and freedoms
This instrument does not engage any of the applicable rights or freedoms. It is compatible with human rights as it does not raise any human rights issues.
Commencement and making
The instrument commences on 1 October 2012 and stops having effect at the end of 30 September 2015.
The instrument has been issued by a delegate of CASA under subregulation 11.260 (1) of CASR 1998.
[Instrument number CASA EX144/12]