EXPLANATORY STATEMENT
CIVIL AVIATION ACT 1988
CIVIL AVIATION REGULATIONS 1988
REVOCATION OF EXEMPTION UNDER SUBREGULATION 308 (1)
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the purposes of the Act and in the interests of the safety of air navigation.
Subregulation 235 (2) of the Civil Aviation Regulations 1988 (CAR 1988) provides that the Civil Aviation Safety Authority (CASA) may give directions setting out the manner of determining a maximum weight for an aircraft, in respect of a proposed flight, that the gross weight of an aircraft must not exceed at take-off or landing.
Subregulation 235 (4) provides that an aircraft must not take off, or attempt to take off, if its gross weight is greater than its maximum take-off weight or a lesser weight determined in accordance with subregulation 235 (2).
Subregulation 235 (6) provides that, except in an emergency, an aircraft must not land if its gross weight exceeds its maximum landing weight or a lesser weight determined in accordance with subregulation 235 (2).
Subregulation 215 (2) provides that an operator must ensure that the operations manual of an aircraft must contain information about the safe operation of the aircraft. Subregulation 215 (9) provides that the operations personnel of the operator must comply with the instructions in the operations manual. Regulation 138 provides that the pilot in command of an Australian aircraft must comply with the requirements of the aircraft flight manual. These provisions do not permit use of material not in these manuals.
Under subregulation 308 (1) of CAR 1988, CASA may, among other things, exempt persons from compliance with specified provisions of CAR 1988 while they are in, on, or otherwise associated with the operation of, a specified aircraft or a specified type or category of aircraft. Subregulation 308 (3) provides that such an exemption is subject to the aircraft or persons exempted complying with any conditions specified by CASA as being necessary in the interests of safety.
Under subsection 33 (3) of the Acts Interpretation Act 1901, a statutory power to make an instrument may be construed as including a power to revoke it. The revocation must be made in the same way, and subject to the same conditions, as would be the case for the making of the instrument.
Revocation of CASA EX21/2002
Before its amendment by Civil Aviation Amendment Order (No. 5) 2005, section 20.7.1B of the Civil Aviation Orders (the CAOs) did not adequately make provision for operations on wet and contaminated runways. There was no provision for reduced values for V1 and no provision for appropriate data to be obtained from sources other than the manuals referred to in regulations 138 and 215.
CASA EX21/2002 (the instrument), therefore, contained directions under subregulation 235 (2) to make provision for wet and contaminated runways for regular public transport aircraft with a maximum take-off weight of more than 5 700 kg. The instrument also contained exemptions from regulation 138 and subregulations 215 (2) and (9). The effect of these exemptions was to enable manufacturers’ data manuals and approved foreign flight manuals to be used in certain circumstances as alternatives to manuals under those provisions.
However, these directions and exemptions were made unnecessary by Civil Aviation Amendment Order (No. 5) 2005 which contains provisions of similar effect to those in the instrument. The instrument was, therefore, revoked.
Legislative Instruments Act 2003
Subregulation 308 (4) of CAR 1988 declares an exemption to be a disallowable instrument. 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. An exemption is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA. By the operation of subsection 33 (3) of the Acts Interpretation Act 1901, identical considerations apply to the revocation of an exemption.
Consultation under section 17 of the LIA has not been undertaken in this case. The revocation removes an instrument that has been made redundant by Civil Aviation Amendment Order (No. 5) 2005.
The instrument commences on the day after it is registered on the Federal Register of Legislative Instruments.
The exemption has been made by the Acting Director of Aviation Safety and Chief Executive Officer, on behalf of CASA, in accordance with subsection 84A (2) of the Act.
[Exemption number CASA EX16/2005]