CASA EX16/10 – Exemption – flight data recording

Overview

The Civil Aviation Regulations 1988 were enacted to establish and maintain high standards of safety and efficiency in civil aviation within Australia. The Civil Aviation (Flight Data Recording) Exemption Instrument 2010, made under the authority of Section 98 of the Civil Aviation Act 1988, addresses a specific issue encountered by Virgin Blue Airlines Pty Limited, where their Flight Data Recorder did not meet the prescribed standards outlined in Appendix 1 of Civil Aviation Order 103.19 and paragraph 6.2 of Civil Aviation Order 20.18. The exemption provided by this instrument allows the operator to continue operations while they address the identified issue with the Flight Data Recorder, specifically exempting them from certain requirements to record the "press to talk" function for High Frequency Radio System number 2. This measure was enacted to ensure compliance with regulatory standards without unduly impeding the airline's operations, while still upholding the overarching policy objective of maintaining safety and operational efficiency within Australian civil aviation.

Scope and Application

The Civil Aviation Regulations 1988, as amended, provide the framework for ensuring the safety and efficiency of civil aviation in Australia. Specifically, the exemption concerning flight data recording applies to Virgin Blue Airlines Pty Limited, permitting deviation from certain regulatory requirements related to Flight Data Recorders (FDRs). This exemption, established under the authority granted by Section 98 of the Civil Aviation Act 1988, allows Virgin Blue Airlines to operate without fully adhering to the FDR specifications outlined in Appendix 1 of Civil Aviation Order 103.19 and paragraph 6.2 of Civil Aviation Order 20.18, but only to the extent of not recording the “press to talk” function for High Frequency Radio System number 2. The exemption is confined to this specific operator and is effective from the day after its registration until the end of September 2010. It is a disallowable instrument under the Legislative Instruments Act 2003, subject to parliamentary scrutiny and potential disallowance. Notably, consultation under the Legislative Instruments Act was not undertaken as the exemption pertains to a particular operator and a limited period to address a specific issue.

Key Provisions

The Civil Aviation Regulations 1988 (CAR 1988) contain a number of key provisions that are relevant to flight data recording. Subregulation 207(2) mandates that Australian aircraft must be equipped with instruments and equipment approved or directed by the Civil Aviation Safety Authority (CASA) for use in certain operations (CAR 1988, Subregulation 207(2)). Subregulation 5(1) further clarifies that CASA may issue directions and approvals through Civil Aviation Orders (CAO) (CAR 1988, Subregulation 5(1)). The specific requirements for Flight Data Recorders (FDR) are outlined in Appendix 1 of Civil Aviation Order 103.19 (CAO 103.19) and in section 6 of Civil Aviation Order 20.18 (CAO 20.18), which sets out the instruments and equipment required for Australian aircraft in certain classes of operations (CAO 103.19, Appendix 1; CAO 20.18, Section 6). Under these provisions, the operator of an Australian aircraft must ensure that it is equipped with FDRs that meet the standards set out in the relevant CAOs. This includes adhering to the parameters, ranges, accuracy, and recording intervals specified in Appendix 1 of CAO 103.19 and ensuring that FDRs are installed in accordance with the requirements of section 6 of CAO 20.18. The obligations imposed on the operator include ensuring that the FDRs are properly calibrated, maintained, and functioning correctly at all times. Failure to comply with these requirements could result in the aircraft being deemed unfit for operation, which could have serious safety implications. There are also consequences for non-compliance with the FDR requirements. Under subregulation 308(4) of CAR 1988, exemptions from the FDR requirements are considered disallowable instruments under the Legislative Instruments Act 2003 (LIA) (CAR 1988, Subregulation 308(4)). This means that any exemptions granted under the CAR 1988 are subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA. In this case, the exemption granted to Virgin Blue Airlines Pty Limited exempts the operator from the FDR requirements only to the extent of recording the “press to talk” function for High Frequency Radio System number 2. The exemption is limited in scope and duration, and it applies only to the specified operator for a limited period to allow the operator additional time to rectify an identified problem. It is important to note that consultation under section 17 of the LIA has not been undertaken in this case, as the exemption is for a particular operator and for a limited period. In summary, the CAR 1988 sets out a number of requirements for FDRs in Australian aircraft. The operator of an aircraft must ensure that it is equipped with FDRs that meet the standards set out in the relevant CAOs. Failure to comply with these requirements could result in serious safety implications, and non-compliance with the FDR requirements may result in the aircraft being deemed unfit for operation. Exemptions from the FDR requirements are considered disallowable instruments under the LIA, and they are subject to tabling and disallowance in the Parliament. In this case, the exemption granted to Virgin Blue Airlines Pty Limited is limited in scope and duration, and it applies only to the specified operator for a limited period to allow the operator additional time to rectify an identified problem.