Explanatory Statement
Civil Aviation Regulations 1988
Exemption — from standard take-off minima – Virgin Blue
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Legislation
Under subregulation 257 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may determine the meteorological minima, that is the visibility requirements, for landing or take-off at an aerodrome. Under subregulation 257 (2), the determination must be published in AIP or NOTAMS. Under subregulation 257 (3), it is an offence for an aircraft to take off if an element of the meteorological minima for that operation is less than that determined for the aircraft at the aerodrome.
The determination of standard meteorological minima for take-off and landing was made in instrument CASA 146/08. The minima are also set out in AIP En Route 1.5, sections 4.3 and 4.4. If conditions are met, the minimum visibility for take-off inside or outside Australian territory is 500 metres (proposed to become 550 metres). An exemption would be required to operate in lesser minimum visibility.
Under subregulation 308 (1) of CAR 1988, CASA may exempt aircraft, or persons in, on, or otherwise associated with the operation of, the aircraft, from compliance with specified provisions of CAR 1988. Under subregulation 308 (2), before making an exemption, CASA must take into account any relevant considerations relating to the interests of safety. Under subregulation 308 (3), CASA may make an exemption subject to any condition specified in the exemption as being necessary in the interests of safety. Under subregulation 308 (3A), it is an offence to contravene a condition of an exemption that is otherwise being relied upon for an operation.
CASA has issued an instrument exempting various aeroplanes operated by Virgin Blue Airlines Pty Limited (Virgin Blue) from the standard meteorological minima for take‑off. Following the approval of Melbourne airport for Category II and Category III operations, which enables operations to be conducted to lower minima than was previously permitted under those exemptions, as well as the intended upgrade of other Australian aerodromes, a review of the rules governing low visibility operations was conducted. The exemption revokes the previous instrument and states the lower minima for the various aeroplanes, as well as the conditions for their use. For instance, the use of the lower minima will require a higher standard of runway lighting (see clause 10 in Schedule 2).
In essence, the operator must ensure that specified visibility standards are met for take-offs that may be performed only at aerodromes properly equipped to support them. Flight crew training, experience, recency and competency must meet specified benchmarks. Aircraft equipment must be maintained. Operational restrictions and limitations must be observed. Appropriate foreign approvals for the operations must be obtained. A range of documents for inspection must be carried on board the aircraft.
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 subregulation 308 (4) of CAR 1988, an exemption is a disallowable instrument. The 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.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument is required by Virgin Blue to enable low visibility take-offs inside and outside Australian territory consistent with the standards and requirements specified in the instrument which are not considered prejudicial to the interests of safety.
Office of Best Practice Regulation
The exemption would be of beneficial effect to the operator. The Office of Best Practice Regulation does not require preparation of a Regulation Impact Statement in this case because a preliminary assessment of business compliance costs in the context of the nature of the instrument indicates that it will have only a nil to low impact on business.
Making and commencement
The exemption has been made by the Acting Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument comes into effect on the day after it is registered. It stops having effect at the end of 31 March 2012.
[Instrument number CASA EX21/10]
Overview
The Civil Aviation Regulations 1988, enacted to ensure the safety of air navigation, establish various standards and requirements for aircraft operations, including meteorological minima for take-off and landing. These regulations empower the Civil Aviation Safety Authority (CASA) to determine these standards, which must be adhered to for safe operations. However, CASA can issue exemptions from these standard minima under certain conditions to ensure safety is not compromised. This is particularly relevant for low visibility operations, which require stringent conditions to be met to maintain safety. In this context, CASA has issued an exemption for various aeroplanes operated by Virgin Blue Airlines, allowing them to take off in lower visibility conditions than the standard minima, provided specific safety conditions are met.
The exemption, issued under Section 98 of the Civil Aviation Act 1988, follows the approval of Melbourne Airport for Category II and III operations and aims to align with the evolving standards of low visibility operations at Australian aerodromes. The exemption specifies lower minima for take-offs, provided that the aircraft meet stringent requirements, including higher standards of runway lighting, flight crew training, aircraft maintenance, and operational restrictions. This instrument is subject to tabling and disallowance in the Parliament, as per the Legislative Instruments Act 2003, and although consultation under the Legislative Instruments Act has not been undertaken, the Office of Best Practice Regulation has assessed the impact on business compliance costs as nil to low. The exemption is effective from the day after registration and will cease on 31 March 2012.
Scope and Application
The Civil Aviation Regulations 1988, under the Civil Aviation Act 1988, allow the Civil Aviation Safety Authority (CASA) to establish and enforce meteorological minima for aircraft take-off and landing operations, which are detailed in the Aeronautical Information Publication (AIP) and Notice to Air Missions (NOTAMS). These minima establish the minimum visibility requirements for safe operations and are currently set at 500 metres, with a proposed increase to 550 metres. CASA can issue exemptions from these standard minima, provided it does not compromise safety, and these exemptions are subject to specified conditions. Such exemptions are legislative instruments and must be tabled and may be disallowed by Parliament. An exemption has been made for various aeroplanes operated by Virgin Blue Airlines, allowing them to operate under lower visibility conditions than the standard minima at certain aerodromes, provided the aircraft meet specified visibility standards, the flight crew meet specified training and experience benchmarks, the aircraft are properly equipped and maintained, and operational restrictions are observed. This exemption is beneficial to the operator and is not expected to significantly impact business compliance costs.
Key Provisions
The Civil Aviation Regulations 1988 (CAR 1988) provide a framework for the regulation of civil aviation safety in Australia, with specific provisions concerning the meteorological minima for take-off and landing, as stipulated in subregulation 257(1) and 257(2). The Civil Aviation Safety Authority (CASA) is empowered to determine these minima, which must be published in the Aeronautical Information Publication (AIP) or Notice to Airmen System (NOTAMS). Currently, the standard minimum visibility for take-off is set at 500 metres, with a proposed increase to 550 metres. Any aircraft taking off under conditions that do not meet these specified minima is considered an offence, as outlined in subregulation 257(3).
The obligations imposed by the CAR 1988 on operators such as Virgin Blue Airlines require adherence to the determined meteorological minima unless an exemption is granted. Subregulation 308(1) allows CASA to exempt certain aircraft or personnel from complying with specific provisions of the CAR 1988, provided the exemption is made with safety as a primary consideration, as stated in subregulation 308(2). Additionally, any exemption may be subject to conditions necessary for safety, as per subregulation 308(3). These conditions include maintaining higher standards of runway lighting, ensuring flight crew meet specified training and experience benchmarks, and adhering to operational restrictions and limitations.
In the context of the exemption for Virgin Blue, failure to comply with the conditions set forth in the exemption would result in an offence, as detailed in subregulation 308(3A). Such non-compliance could lead to penalties and legal consequences. Furthermore, the exemption itself is considered a legislative instrument under the Legislative Instruments Act 2003 (LIA), and as such, it is subject to tabling and disallowance in the Parliament, as per subparagraph 6(d)(i) of the LIA. This legislative instrument was made by the Acting Director of Aviation Safety on behalf of CASA, in accordance with subsection 73(2) of the Civil Aviation Act 1988, and it comes into effect upon registration, ceasing to have effect by the end of 31 March 2012.