Explanatory Statement
Civil Aviation Regulations 1988
Exemption — Refuelling with patients on board
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation.
Under subregulation 235 (11) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may exempt an aircraft from any of the requirements imposed by regulation 235.
Subregulation 235 (7) of 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 20.9 (CAO 20.9) is made under subregulation 235 (7) and sets out CASA’s directions for loading fuel on aircraft. Paragraph 4.2.3 states that the operator of an aircraft with a maximum seating capacity of less than 20 must ensure that fuel is not loaded on to the aircraft while passengers are on board, or entering or leaving, the aircraft. For certain aircraft operated by Pearl Aviation Australia Pty Ltd to comply with paragraph 4.2.3, critically ill patients on board an aircraft would have to be taken off the aircraft before it could be refuelled. CASA does not consider that such action is necessary to ensure the safety of air navigation.
CASA has, therefore, issued an exemption from paragraph 4.2.3 for the refuelling of certain Pearl Aviation Australia Pty Ltd aircraft while passengers are on board. The exemption is subject to conditions. For example, the operator must ensure that when fuel is being loaded no passenger is on board unless the requirements set out in Schedule 2 to the exemption are met. The requirements include information that has to be given, before refuelling, to passengers who are capable of understanding; the location of the aircraft’s operating crew and medical staff while fuel is being loaded; and connection of the aircraft and fuelling equipment to an earth point while fuel is being loaded.
Because the exemption affects the operation of paragraph 4.2.3 of section 20.9 of the CAOs, it is declared to be a disallowable instrument under regulation 5A of CAR 1988. 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.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation under section 17 of the LIA has not been undertaken in this case.
The exemption has been issued, at the request of the operator, to permit the refuelling of aircraft in a manner consistent with medical requirements and subject to safeguards. Previous exemptions have been issued for the same purpose to the named operator and to others. The only change in the current exemption is the removal of an aircraft from the list of aircraft mentioned in the schedule and the addition of another aircraft.
The exemption has been issued by a delegate of CASA appointed under regulation 7 of CAR 1988.
The exemption commences on the day after it is registered and stops having effect at the end of April 2007.
[Instrument number CASA EX18/06]
Overview
The Civil Aviation Regulations 1988, enacted by the Australian Government, aim to ensure the safety of air navigation and provide a regulatory framework governing civil aviation activities in Australia. The exemption under discussion pertains to the refuelling of certain aircraft operated by Pearl Aviation Australia Pty Ltd while patients are on board, as detailed in the explanatory statement for the instrument F2006L01278. This exemption was introduced to address a specific operational challenge faced by the operator, which involved the need to refuel aircraft without requiring critically ill patients to disembark, a requirement that CASA deemed unnecessary for ensuring the safety of air navigation. The exemption was issued by the Civil Aviation Safety Authority (CASA), as a delegate of the Minister for Transport and Regional Services, under the authority granted by regulation 7 of the Civil Aviation Regulations 1988. The exemption is subject to conditions that aim to ensure safety during refuelling, including requirements for passenger information and grounding procedures. The exemption is also a legislative instrument subject to parliamentary disallowance, as declared under the Legislative Instruments Act 2003.
Scope and Application
The Civil Aviation Regulations 1988, under the Civil Aviation Act 1988, provide a comprehensive framework governing the safety of air navigation in Australia. Pursuant to these regulations, the Civil Aviation Safety Authority (CASA) has the authority to issue exemptions and directions to ensure the safety of air navigation, including the method of loading persons and goods on aircraft. Specifically, subregulation 235(7) of the Civil Aviation Regulations 1988 empowers CASA to give directions for loading fuel on aircraft, with paragraph 4.2.3 of Civil Aviation Order 20.9 stipulating that fuel should not be loaded on an aircraft with a maximum seating capacity of less than 20 while passengers are on board. However, CASA has issued an exemption to this rule for certain aircraft operated by Pearl Aviation Australia Pty Ltd, recognising that removing critically ill patients to refuel could compromise their medical care. This exemption is conditional, requiring the operator to adhere to specific safety measures when refuelling while passengers are on board. Notably, this exemption applies only to the named operator and specific aircraft, as outlined in the schedule, and is subject to disallowance by the Parliament. It is important for practitioners to note that this exemption does not require consultation under the Legislative Instruments Act 2003 and represents a minor variation from previous exemptions.
Key Provisions
The primary provisions of the Civil Aviation Regulations 1988 (CAR 1988) relevant to this exemption relate to the safety of air navigation and the method of loading persons and goods, including fuel, onto aircraft. Specifically, section 98(1) of the Civil Aviation Act 1988 allows the Governor-General to make regulations for the Act, while subregulation 235(11) of CAR 1988 provides that the Civil Aviation Safety Authority (CASA) may exempt an aircraft from any regulatory requirements. Furthermore, subregulation 235(7) of CAR 1988 empowers CASA to issue directions regarding the loading of persons and goods on aircraft for safety purposes. Paragraph 4.2.3 of Civil Aviation Order 20.9 (CAO 20.9) stipulates that fuel must not be loaded onto aircraft with a seating capacity of less than 20 while passengers are on board. However, this exemption allows for deviations from this rule under specific conditions.
The exemption issued by CASA imposes several obligations on Pearl Aviation Australia Pty Ltd. Primarily, the operator must ensure that no passengers are on board when fuel is being loaded, unless certain conditions are met. These conditions include providing passengers with information they can understand, ensuring the aircraft's operating crew and medical staff are in specified locations, and connecting the aircraft and fuelling equipment to an earth point during refuelling. These measures are intended to mitigate any potential risks associated with refuelling while passengers are on board.
Failure to comply with the conditions of this exemption may have legal consequences. Although specific offences and penalties are not detailed in the exemption itself, breaches of safety regulations under the Civil Aviation Act 1988 or Civil Aviation Regulations 1988 could result in substantial penalties. For instance, violations of these regulations could lead to fines and, in severe cases, imprisonment. Additionally, CASA has the authority to issue directives, suspend or revoke permits, and take other regulatory actions against non-compliant operators.
The exemption, being a legislative instrument, is subject to disallowance by the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (LIA). It is classified as a disallowable instrument because it affects the operation of CAO 20.9. Although consultation under section 17 of the LIA was not undertaken in this instance, the exemption has been issued in response to the operator's request to accommodate medical needs while maintaining safety standards. This exemption is part of a series of similar exemptions issued for the same purpose, with minor changes to the list of affected aircraft.