Explanatory Statement
Civil Aviation Regulations 1988
Exemption — from standard take-off and landing minima – Cathay Pacific
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). If conditions are met, the minimum visibility for landing inside or outside Australian territory is 800 metres, or 550 metres RVR. An exemption would be required to operate with lower minimum visibility (low visibility operations or LVO).
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.
The exemption has been issued for Cathay Pacific Airways Ltd of S.A.R. of Hong Kong, People’s Republic of China (Cathay Pacific) for the conduct of LVO in Australia. 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, a review of the rules governing low visibility operations was conducted. The exemption states the 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 8 in Schedule 2).
In essence, the operator must ensure that specified visibility standards are met for take-offs and landings. These may be performed only at aerodromes properly equipped to support the LVO conducted under the exemption. As a foreign aircraft operator, Cathay Pacific must also conduct its operations in accordance with the approval to conduct LVO issued by the Hong Kong Civil Aviation Department.
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 Cathay Pacific to enable low visibility take-offs and CAT II and CAT III landings inside Australia 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 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 of registration. It stops having effect at the end of 30 April 2012.
[Instrument number CASA EX25/10]
Overview
The Civil Aviation Regulations 1988 (CAR 1988) were enacted to establish regulations for the safety of air navigation in Australia, providing a framework for civil aviation operations within the country. One significant issue the regulations address is the establishment of meteorological minima for take-off and landing at aerodromes, ensuring safety through adequate visibility standards. The Civil Aviation Act 1988 empowers the Governor-General to make regulations, and in this context, the Civil Aviation Safety Authority (CASA) is tasked with determining these minima. An exemption under Section 98 of the Act allows specific airlines, like Cathay Pacific, to conduct operations with lower visibility standards under strict conditions to maintain safety. The exemption process is governed by the Legislative Instruments Act 2003, ensuring the exemption is subject to parliamentary oversight and disallowance if necessary. The exemption is tailored to the operational needs of Cathay Pacific, facilitating low visibility take-offs and landings at approved Australian airports while adhering to stringent safety criteria.
Scope and Application
The Civil Aviation Regulations 1988 (CAR 1988) under the Civil Aviation Act 1988, as amended by instrument CASA EX25/10, applies to Cathay Pacific Airways Ltd, a foreign aircraft operator, for the conduct of low visibility operations (LVO) in Australia. This exemption allows Cathay Pacific to conduct LVO under specified conditions that are deemed safe, which include adherence to lower visibility minima at aerodromes approved for such operations, and ensuring compliance with the approval to conduct LVO issued by the Hong Kong Civil Aviation Department. The exemption outlines specific visibility standards and operational conditions for various aircraft types and mandates the use of higher standards of runway lighting to facilitate these operations. The instrument is applicable nationally within Australian territory and is subject to disallowance under the Legislative Instruments Act 2003. The exemption does not extend to any other aircraft operators or aerodromes not listed within its terms and conditions. The instrument became effective from the day of its registration and ceased to have effect by 30 April 2012.
Key Provisions
Section 98 of the Civil Aviation Act 1988 (the Act) provides the authority for the Civil Aviation Safety Authority (CASA) to establish regulations related to the safety of air navigation. Under subregulation 257(1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA is responsible for determining the meteorological minima for take-off and landing at aerodromes. These minima, including visibility requirements, must be published in the Aeronautical Information Publication (AIP) or Notices to Air Missions (NOTAMS) as per subregulation 257(2). Subregulation 257(3) stipulates that it is an offence for an aircraft to take off if any element of the meteorological minima is less than the determined value for that specific aircraft at the aerodrome. According to CASA instrument 146/08, the standard visibility for take-off is 500 metres (proposed to increase to 550 metres) and for landing is 800 metres, or 550 metres RVR, provided conditions are met. These minima are detailed in AIP En Route 1.5, sections 4.3 and 4.4. An exemption is required for operations below these minima.
Subregulation 308(1) of CAR 1988 allows CASA to exempt aircraft, or persons associated with their operation, from certain provisions of CAR 1988. This exemption must be made with safety as the primary consideration, as outlined in subregulation 308(2), and can be subject to specific conditions, as per subregulation 308(3). Contravening these conditions is an offence under subregulation 308(3A). For Cathay Pacific Airways Ltd, the exemption permits low visibility operations (LVO) in Australia, subject to the specified minima and conditions. These conditions include the necessity for higher standards of runway lighting, as noted in clause 8 of Schedule 2. Cathay Pacific must also adhere to the approval from the Hong Kong Civil Aviation Department for conducting LVO.
The exemption for Cathay Pacific is a legislative instrument under the Legislative Instruments Act 2003 (LIA). As per subparagraph 6(d)(i) of the LIA, it is a disallowable instrument and is subject to tabling and disallowance in Parliament under sections 38 and 42 of the LIA. Subregulation 308(4) of CAR 1988 confirms that an exemption is a disallowable instrument. Although consultation under section 17 of the LIA was not conducted, the instrument is deemed necessary by Cathay Pacific for conducting LVO inside Australia in accordance with specified standards that are not considered prejudicial to safety. The Office of Best Practice Regulation has determined that a Regulation Impact Statement is not required due to the minimal impact on business compliance costs.
The exemption was made by the Director of Aviation Safety on behalf of CASA, in accordance with subsection 73(2) of the Act. It comes into effect on the day of registration and ceases to have effect at the end of 30 April 2012. The exemption provides Cathay Pacific with the flexibility to conduct LVO in Australia, while ensuring that safety standards are maintained and that the operations comply with both Australian and Hong Kong regulatory requirements.