Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — operations without an approved digital flight data recorder
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations. Under subsection 98 (5A) of the Act, the regulations may empower the Civil Aviation Safety Authority (CASA) to issue instruments in relation to matters affecting the safe navigation and operation, maintenance, or airworthiness of aircraft, or design standards for aircraft.
Subregulation 207 (2) of the Civil Aviation Regulations 1988 (CAR 1988) provides that an Australian aircraft must not be used in any class of operations unless it is fitted with such instruments and is fitted with or carries such equipment, including emergency equipment, as CASA approves or directs.
Subregulation 5 (1) of CAR 1988 provides that, whenever CASA is empowered by CAR 1988 to give directions or approvals, it may do so in Civil Aviation Orders (the CAOs).
Civil Aviation Order 20.18 (CAO 20.18) sets out instruments and equipment required for Australian aircraft engaged in certain classes of operations. Subsection 6 of CAO 20.18 requires installation of flight data recorders (FDRs) on certain types of aircraft and provides that FDRs must comply with the requirements of Civil Aviation Order 103.19 (CAO 103.19). Appendix I of CAO 103.19 sets out the parameters, ranges, accuracy and recording intervals for FDRs.
Before it was repealed on 27 June 2011, subregulation 21A (1) of CAR 1988 allowed CASA to issue a design standard for an aircraft component for which no appropriate design standard was in force. CAO 103.19 was made under subregulation 21A (1) of CAR 1988 before 27 June 2011. By operation of subregulation 202.049A of the Civil Aviation Safety Regulations 1998 (CASR 1998), from 27 June 2011 onwards, CAO 103.19 is taken to be an applicable airworthiness standard for regulation 21.017 of CASR 1998.
Exemption
The instrument is made under subregulation 11.160 (1) of CASR 1998. Subregulation 11.160 (1) of CASR 1998 allows CASA to grant an exemption from compliance with a provision of CAR 1988, CASR 1998 or the CAOs in relation to a matter mentioned in subsection 98 (5A) of the Act.
National Jet Express Pty Ltd, trading as Cobham Aviation Services Australia – Regional Services (the operator), operates aircraft which do not fully comply with CASA regulations. The aircraft complied with United Kingdom regulations at the time of manufacture. At certain altitudes, the FDR records at 2 second intervals, instead of 1 second intervals as required by CAO 103.19.
CASA has issued the instrument to allow the operator to continue to operate the aircraft for a 12 month period until they are modified to fully comply.
The instrument exempts the operator from compliance with the requirement that the FDR has a maximum interval of 1 second between recorded readings of altitude. Conditions on the exemption include requiring:
- that the FDR records readings of altitude at a maximum recording interval of 2 seconds at specified altitudes only, but otherwise in accordance with CAO 20.18 and CAO 103.19
- compliance with the United Kingdom Civil Aviation Authority FDR standard current at the time of aircraft manufacture
- serviceability of the FDR
- provision of a plan for modifying the aircraft to comply with subsection 6 of CAO 20.18 and CAO 103.19 before the instrument expires.
This instrument is made to replace CASA EX144/12 which stops having effect on 30 September 2015. The instrument formally repeals CASA EX144/12.
Legislative Instruments Act 2003 (the LIA)
This instrument affects the operation of subsection 6 of CAO 20.18 and CAO 103.19. Under regulation 5A of CAR 1988, if CASA has issued a direction in the form of a CAO and later issues another direction or an exemption which affects the operation of anything in the CAO, the later instrument is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. Section 6 of the LIA provides that such an instrument made in the exercise of a power delegated by the Parliament before 1 January 2005 is a legislative instrument.
As a legislative instrument, this instrument is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The operator has requested this instrument. Consultation was undertaken in relation to this instrument with the Australian Transport Safety Bureau, which has agreed to the issue of this exemption. The instrument is for a particular operator and mandates compliance with the recording of additional parameters in lieu of the standard published in CAO 103.19. Consequently, CASA considers that no further consultation is necessary or appropriate.
Related documents
The instrument requires compliance with aspects of the following documents:
- Specification 10, Flight Data Recorder Systems, published by the United Kingdom Civil Aviation Authority, dated 1 May 1974, available from: www.caa.co.uk
- CASA Advisory Circular 21-24 Flight recorder and underwater locating device maintenance, as in force from time to time, available from: www.casa.gov.au.
Subsection 98 (5D) of the Act provides that, despite section 14 of the LIA, a legislative instrument made under CASR 1998 may apply, adopt or incorporate any matter contained in any instrument or other writing as in force at a particular time or as in force from time to time.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The instrument has been issued by a delegate of CASA under a delegation instrument made under subregulation 11.260 (1) of CASR 1998.
The instrument commences on 1 October 2015 and expires at the end of September 2016.
[Instrument number CASA EX166/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — operations without an approved digital flight data recorder
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
National Jet Express Pty Ltd, trading as Cobham Aviation Services Australia – Regional Services (the operator), operates aircraft which do not fully comply with a requirement under Civil Aviation Order 20.18 (CAO 20.18) and Civil Aviation Order 103.19 (CAO 103.19).
CASA has issued the legislative instrument to allow the operator to continue to operate the aircraft for a 12 month period until they are modified to fully comply. The instrument exempts the operator from compliance with the requirement that the flight data recorder (FDR) has a maximum interval of 1 second between recorded readings of altitude. Conditions on the exemption include requiring:
- that the FDR records readings of altitude at a maximum recording interval of 2 seconds at specified altitudes only, but otherwise in accordance with CAO 20.18 and CAO 103.19
- compliance with the United Kingdom Civil Aviation Authority FDR standard current at the time of aircraft manufacture
- serviceability of the FDR
- provision of a plan for modifying the aircraft to comply with the relevant provisions of CAO 20.18 and CAO 103.19 before the instrument expires.
This instrument is made to replace CASA EX144/12 which expires on 30 September 2015.
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