Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — refuelling in Ordinance Loading Areas (Pel-Air Aviation)
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the safety of air navigation.
Subregulation 235 (7) of the Civil Aviation Regulations 1988 (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 Civil Aviation Order (CAO) 20.9 is made under subregulation 235 (7) of CAR 1988 and sets out CASA’s directions for loading fuel on aircraft. Subparagraph 4.1.1 (d) of CAO 20.9 states that during fuelling operations for an aircraft with a maximum take-off weight in excess of 5 700 kg, the aircraft and ground fuelling equipment must be so located that no fuel tank filling points or vent outlets lie within 15 metres of any unsealed building. This legislative requirement is designed to ensure that fuel vapours expunged from an aircraft during refuelling procedures are prevented from accumulating and becoming a fire hazard in an enclosed space.
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 CAOs. 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.
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, 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
Pel-Air Aviation Pty Limited (Pel-Air) currently holds an exemption from compliance with subparagraph 4.1.1 (d) of CAO 20.9 that is limited to Tindal air base and limited to Pel‑Air’s Westwind aircraft (CASA EX129/11 refers). The latest arrangement between the ADF and Pel-Air involves the use of Pel-Air’s Westwind and Learjet type aircraft in expanded ADF support operations. CASA EX149/14 therefore repeals CASA EX129/11 and exempts Pel-Air from compliance with subparagraph 4.1.1 (d) of CAO 20.9 during its aircraft fuelling operations at any Royal Australia Air Force air base in Australia. The fuelling is to be carried out in Ordinance Loading Areas (OLAs) which are open-ended hangars used by the Australian Defence Force (ADF) to refuel and rearm its aircraft.
The exemption is subject to conditions. The aircraft must be engaged in ADF support operations and refuelling must be carried out by trained ADF personnel in accordance with established procedures for fuelling in an OLA. To ensure the safety of fuelling operations, the equipment installed in an OLA must be serviceable.
Legislative Instruments Act
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.
Under regulation 5A of CAR 1988, if CASA has issued a CAO, and CASA later issues an exemption that affects the operation of that CAO, the later document is declared to be a disallowable instrument. This instrument affects the operation of paragraph 4.1.1 (d) of CAO 20.9 and is therefore declared to be a disallowable instrument.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
The operator has applied for this exemption. CASA has assessed the operator’s proposal and is satisfied that the operator will maintain an equivalent level of safety while refuelling in an OLA. It is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
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 (OBPR id: 14507).
Making and Commencement
The exemption has been issued by the Acting Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The exemption commences on the day of registration and expires at the end of October 2017, as if it had been repealed by another instrument.
[Instrument number CASA EX149/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — refuelling in Ordinance Loading Areas (Pel-Air Aviation)
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
This legislative instrument exempts an aircraft operated by Pel-Air Aviation Pty Limited (Pel-Air) from compliance with requirements in the Civil Aviation Regulations 1988 and Civil Aviation Order 20.9 regarding the proximity of an aircraft to an unsealed building during refuelling operations. Pel-Air is contracted by the Royal Australian Air Force (RAAF) to provide support operations and the exemption allows Pel-Air to conduct fuelling operations in an Ordinance Loading Area at a RAAF air base.
The exemption is subject to conditions that CASA considers necessary in the interests of aviation safety.
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