Explanatory Statement
Civil Aviation Safety Regulations 1998
Repeal of exemption – standard take-off and landing minima – Royal Brunei Airlines
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Under subregulation 257 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may determine the meteorological minima, that is, the visibility requirements for landing or take‑off at an aerodrome. Under subregulation 257 (2), the determination must be published in AIP or NOTAMS. Under subregulations 257 (3) and (4), it is an offence for an aircraft to take-off or land if an element of the meteorological minima for that operation is less than that determined for the aircraft at the aerodrome.
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 regulations, including CAR 1988, in relation to a matter mentioned in that subsection. 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. 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. An instrument issued under paragraph 98 (5A) (a) of the Act is not a legislative instrument if the instrument is expressed to apply to a particular person or aircraft.
Under subsection 33 (3) of the Acts Interpretation Act 1901 (AIA), 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
Instrument CASA EX40/13 was registered on 12 April 2013 and commenced on the day of registration. Instrument CASA EX40/13 exempted Royal Brunei Airlines SDN BHD of Bandar Seri Begawan, Brunei Darussalam (the operator) from compliance with the standard take-off and landing minima determined by CASA under subregulation 257 (1) of CAR 1988. The exemption applied to the operator and allowed each B777-200ER aircraft operated by the operator to conduct low visibility take‑offs and CAT II and CAT III landings, subject to a number of conditions regarding approach bans, required visual references and cross-wind restrictions.
In drafting instrument CASA EX40/13, CASA determined that the instrument was relevant to the operator’s class of B777-200ER aircraft and, therefore, drafted that exemption as a legislative instrument. After an internal review by CASA, it has been determined that exemptions from subregulation 257 of CAR 1988 apply to a particular operator, allowing the operator to then employ the exemption on the class or classes of aircraft prescribed in the exemption. Since instrument CASA EX40/13 applies specifically to the operator, allowing the operator’s B777-200ER aircraft to conduct low visibility take‑offs and CAT II and CAT III landings, the exemption is not a legislative instrument. Consequently, instrument CASA 15/14 repeals instrument CASA EX40/13.
CASA will separately issue a new non-legislative instrument exempting the operator from standard take-off and landing minima for the operator’s aircraft.
Legislative Instruments Act
Instrument CASA 15/14 repeals an existing legislative instrument and, under subsection 33 (3) of the AIA, is exercisable in the like manner to instrument CASA EX40/13 which is being repealed. Instrument CASA 15/14 is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003.
Consultation
The operator has requested the addition of the operator’s B787-8 aircraft to their exemption from subregulation 257 of CAR 1988. CASA is taking the opportunity to repeal CASA EX40/13 and issue a new non-legislative instrument covering the operator’s B777‑200ER and B787-8 aircraft. CASA considers that no further consultation is appropriate or necessary as the instrument applies only to this aircraft operator.
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 for exemptions (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 1998.
The instrument commences on the day of registration. It expires on the day after registration, as if it had been repealed by another instrument.
[Instrument number CASA EX15/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Repeal of exemption – standard take-off and landing minima – Royal Brunei Airlines
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 legislative instrument repeals instrument CASA EX40/13, being an exemption for Royal Brunei Airlines SDN BHD of Bandar Seri Begawan, Brunei Darussalam (the operator) to use minima lower than the standard take-off and landing meteorological visibility minima determined by CASA.
CASA will issue a new non-legislative instrument of exemption for the operator to undertake low visibility take‑offs and CAT II and CAT III landings in prescribed classes of 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