CASA EX165/14 - Exemption — refuelling in Ordnance Loading Areas (Pel-Air Aviation)

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2014L01623 Not in force Legislative Instrument

Legislation content

Explanatory Statement

Civil Aviation Safety Regulations 1998

Exemption — refuelling in Ordnance 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) previously held an exemption from compliance with subparagraph 4.1.1 (d) of CAO 20.9 that was 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, which commenced on 19 November 2014, repealed CASA EX129/11 and exempted Pel-Air from compliance with subparagraph 4.1.1 (d) of CAO 20.9 during its Westwind or Learjet aircraft fuelling operations at any Royal Australia Air Force air base in Australia.

 

CASA EX149/14 incorrectly referred to fuelling being carried out in Ordinance Loading Areas. The correct terminology is Ordnance Loading Areas (OLAs), which are open‑ended hangars used by the Australian Defence Force (ADF) to refuel and rearm its aircraft.

 

CASA EX165/14 therefore repeals CASA EX149/14 and remakes the exemption with the correct terminology. The substantive content of the instrument has not otherwise changed.

 

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 EX165/14]

 

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 Ordnance 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 Ordnance 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

 

Overview

The Civil Aviation Safety Regulations 1998 were enacted to ensure the safety of air navigation in Australia, with the Civil Aviation Act 1988 providing the overarching legislative framework. The Act empowers the Governor-General to make regulations for air navigation safety, while the Civil Aviation Safety Authority (CASA) issues directions and orders to further this objective. The Civil Aviation Safety Regulations 1998 allow CASA to grant exemptions from certain Civil Aviation Orders, such as CAO 20.9, which mandates specific procedures during aircraft refuelling to prevent fire hazards. This particular exemption, CASA EX165/14, addresses a legislative error in a previous exemption granted to Pel-Air Aviation Pty Limited, correcting the terminology from "Ordnance Loading Areas" to "Ordnance Loading Areas" and ensuring the safety conditions remain unchanged. The exemption is subject to conditions ensuring the safety of the refuelling operations and is declared a disallowable instrument under the Legislative Instruments Act 2003, thus subject to tabling and disallowance in Parliament. The policy objective of CASA EX165/14 is to maintain an equivalent level of safety while allowing Pel-Air to refuel its aircraft in Ordnance Loading Areas at Royal Australian Air Force air bases. CASA has assessed the operator's proposal and determined that the exemption will not compromise aviation safety. The exemption is accompanied by a Statement of Compatibility with Human Rights, confirming that it does not engage any of the applicable rights or freedoms under the international instruments listed in the Human Rights (Parliamentary Scrutiny) Act 2011. This legislative instrument aims to correct a prior error and ensure compliance with aviation safety standards.

Scope and Application

The Civil Aviation Safety Regulations 1998 (CASR 1998) empower the Civil Aviation Safety Authority (CASA) to grant exemptions from certain provisions of the Civil Aviation Orders (CAO) to ensure the safety of air navigation, as provided under Section 98 of the Civil Aviation Act 1988. Specifically, the exemption in question, CASA EX165/14, pertains to Pel-Air Aviation Pty Limited, allowing them to refuel their Westwind and Learjet aircraft in Ordnance Loading Areas (OLAs) at any Royal Australian Air Force air base in Australia, provided certain conditions are met. These conditions include that the aircraft must be engaged in Defence Force support operations and refuelling must be conducted by trained Defence personnel following established procedures, ensuring the safety of the operations. The exemption, declared a disallowable instrument under the Legislative Instruments Act 2003, was made without the need for a Regulation Impact Statement as per an existing agreement between CASA and the Office of Best Practice Regulation. The exemption is set to expire at the end of October 2017 unless further extended.

Key Provisions

The key operative sections of this legislation are sections 98 of the Civil Aviation Act 1988 (the Act) and subregulation 11.160(1) of the Civil Aviation Safety Regulations 1998 (CASR 1998). Section 98 of the Act empowers the Governor-General to make regulations for the safety of air navigation, while subregulation 11.160(1) of the CASR 1998 provides that the Civil Aviation Safety Authority (CASA) may grant an exemption from a provision of the Civil Aviation Orders (CAO) if it is necessary in the interests of the safety of air navigation. This specific exemption concerns refuelling operations in Ordnance Loading Areas (OLAs) for Pel-Air Aviation, which operates aircraft on behalf of the Royal Australian Air Force (RAAF). The obligations and requirements imposed by this Act primarily revolve around ensuring the safety of air navigation. Under subregulation 11.160(2) of the CASR 1998, the exemption may be granted to a person or a class of persons, with the exemption specifying the class by reference to membership of a specified body or any other characteristic. Moreover, under subregulation 11.205(1), CASA may impose conditions on the exemption if this is necessary in the interests of the safety of air navigation. The exemption is also subject to conditions that ensure the safety of the fuelling operations, such as refuelling being carried out by trained ADF personnel in accordance with established procedures for fuelling in an OLA and the equipment installed in an OLA must be serviceable. There are no explicit offences, penalties, or civil/criminal consequences mentioned for breach of this legislation. However, the exemption is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA). As a disallowable instrument, it can be subject to parliamentary scrutiny and potentially disallowed if found not to be in accordance with the law. The instrument is also subject to the general regulatory requirements and oversight by CASA to ensure compliance with the conditions set out in the exemption.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.