Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — extended diversion time operation (Qantas B747 and A380)
Legislation
Subsection 98 (4A) of the Civil Aviation Act 1988 (the Act) empowers CASA to issue Civil Aviation Orders (the CAOs) not inconsistent with the Act or regulations made under the Act. Subsection 98 (5A) of the Act empowers CASA to issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft.
Section 28BA of the Act deals with general conditions that apply to an Air Operator’s Certificate (AOC). One of these conditions, as specified in paragraph 28BA (1) (b), is that the AOC is subject to any conditions specified in the regulations or CAOs.
Civil Aviation Order 82.0 Instrument 2014 (also referred to as CAO 82.0) is issued under subsection 98 (4A) and paragraph 28BA (1) (b) of the Act and sets out conditions applicable to AOCs authorising aerial work operations, charter operations and regular public transport operations. Among other things, subsection 3BC of CAO 82.0 sets out distance limitations for turbine-engined aeroplanes certified to carry more than 19 passengers or having a payload capacity exceeding 3 410 kg. Paragraph 3BC.3 states that the holder of an AOC may only conduct an extended diversion time operation (EDTO) if the operator has been approved in writing by CASA in accordance with Appendix 4, and the AOC holder complies with the requirements of Appendix 5.
Appendix 4 of CAO 82.0 requires an AOC holder to apply to CASA for EDTO approval and sets out the application requirements such as details of the area of operations, a list of EDTO alternate aerodromes en route and the AOC holder’s fuel and oil policy. Appendix 5 of CAO 82.0 sets out the general conditions for EDTO, including the carriage of minimum fuel, flight crew training and evaluation, and EDTO alternate aerodrome planning minima.
Paragraph 3BC.4 of CAO 82.0 states that the AOC holder may operate an aeroplane with more than 2 turbine engines in passenger-carrying operations on a route containing a point more than 180 minutes from an adequate aerodrome at the approved all engines operating cruise speed only if the aeroplane is operated in accordance with EDTO requirements under paragraph 3BC.3. Under Subparagraphs 1D (a) and (b) of CAO 82.0, the requirement to comply with paragraph 3BC.4 and the revised definition of threshold time take effect on 1 July 2015 (CAO 82.0 Amendment Instrument 2014 (No. 2) refers). Essentially, from 1 July 2015, paragraphs 3BC.3 and 3BC.4 require 3 or 4 turbine-engined aircraft, in the event of having 1 engine malfunction, to land at the nearest aerodrome instead of pre-1 July 2015 arrangements which allow the aircraft to continue on to its planned 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 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
Qantas Airways Limited (the operator) has sought relief from EDTO requirements for its B747 and A380 aircraft and submitted a safety case to CASA in June 2015. The risks and hazards with respect to the operator’s international operations are not materially changed since B747 and A380 aircraft are capable of safely conducting long flights with 1 engine malfunction. The operator is the only Australian airline operator affected by the EDTO changes on 1 July 2015.
CASA decided to issue a short-term exemption (6 months) to allow the operator to continue to conduct international operations with B747 and A380 aircraft without complying with EDTO requirements while a complete appraisal of the operator’s safety case would be conducted. CASA EX111/15 is an exemption that commenced on 1 July 2015 for the purpose of the operator’s B747 and A380 regular public transport operations. However, the operator has since requested that CASA reissue the exemption to extend the application of the instrument to charter operations, which are also conducted in B747 and A380 aircraft.
CASA EX177/15 is an instrument that exempts the operator from complying with the requirements of subsection 3BC of CAO 82.0 for the operator’s regular public transport operations and charter operations in B747 and A380 aircraft. The exemption is subject to the condition that the operator must include a copy of the instrument in the operator’s operations manual.
Legislative Instruments Act 2003 (the LIA)
Under regulation 5A of the Civil Aviation Regulations 1988 (CAR 1988), if CASA has issued a Civil Aviation Order (CAO), and CASA later issues an exemption that affects the operation of the CAO, the later document is declared to be a disallowable instrument. Under subparagraph 6 (d) (i) of 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. CAR 1988 was in force before the commencement of the LIA.
This instrument affects the operation of subsection 3BC of CAO 82.0 and is, therefore, a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The exemption has been reissued at the request of the operator. It is of beneficial effect to the operator’s business. In these circumstances, 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 instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument commences on the day of registration and expires, as if it had been repealed by another instrument, at the end of January 2016.
[Instrument number CASA EX177/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — extended diversion time operation (Qantas B747 and A380)
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 exempts Qantas Airways Limited (the operator) from compliance with extended diversion time operation (EDTO) requirements in paragraph 3BC of Civil Aviation Order 82.0 for its B747 and A380 aircraft. The operator will, effectively, maintain the status quo for its B747 and A380 international regular public transport, and charter, operations despite the new EDTO requirements that came into effect on 1 July 2015. The short-term exemption will allow CASA to conduct a full assessment of the operator’s safety case for a longer term arrangement regarding the operator’s EDTO compliance.
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