EXPLANATORY STATEMENT
CIVIL AVIATION ACT 1988
CIVIL AVIATION REGULATIONS 1988
EXEMPTION UNDER SUBREGULATION 235 (11) RELATING TO LOADING OF FUEL ON CERTAIN AIRCRAFT USED BY THE ROYAL FLYING DOCTOR SERVICE
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in the interests of 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 section 20.9 of the Civil Aviation Orders (CAOs) is made under subregulation 235 (7) and sets out CASA’s directions in relation to the loading of fuel on aircraft. Paragraph 4.2 of subsection 4 sets out requirements, regarding the loading of fuel on aircraft with less than 20 passenger seats while passengers are on board the aircraft, which are inappropriate for certain aircraft operated by the Royal Flying Doctor Service of Australia (Central Operations) Incorporated (Aviation Reference Number 038517) (RFDS). To comply with the requirements, 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 for the fuelling of certain RFDS aircraft while passengers are on board, 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 are met. The requirements include the information to be given prior to fuelling 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.
Under regulation 5A of CAR 1988, if CASA has issued a Civil Aviation Order (CAO) and then issues an exemption that has the effect of repealing, amending or affecting the operation of anything in the CAO, the exemption is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
The exemption has been issued by a delegate of CASA appointed under regulation 7 of CAR 1988.
The exemption took effect on gazettal and stops having effect at the end of July 2006.
[Instrument number CASA EX25/2004]
Overview
The Civil Aviation Act 1988 was enacted to regulate civil aviation in Australia, ensuring the safety and efficiency of air navigation. This legislation empowers the Governor-General to make regulations for the purposes of the Act, with a primary focus on maintaining the safety of air navigation. The Civil Aviation Regulations 1988, made under the Act, provide further detail and are designed to ensure that civil aviation operations are conducted safely. One such regulation, subregulation 235(11), allows the Civil Aviation Safety Authority (CASA) to exempt aircraft from specific regulatory requirements, provided such exemptions do not compromise safety. In response to a particular operational challenge faced by the Royal Flying Doctor Service (RFDS), CASA issued an exemption allowing certain RFDS aircraft to be refuelled while passengers are on board, subject to stringent conditions to maintain safety. This exemption, issued under the authority delegated by CASA, addresses the impracticality of removing critically ill patients from the aircraft for refuelling, which is not deemed necessary for ensuring the safety of air navigation.
Scope and Application
The Civil Aviation Act 1988, as amended and regulated by the Civil Aviation Regulations 1988, governs the safety and operation of aircraft within Australian airspace. This legislation provides the authority for the Civil Aviation Safety Authority (CASA) to issue regulations and exemptions necessary for ensuring the safety of air navigation. Specifically, under subregulation 235(11) of the Civil Aviation Regulations 1988, CASA has the power to exempt certain aircraft from specific regulatory requirements, such as those concerning the loading of fuel. This exemption applies to certain aircraft used by the Royal Flying Doctor Service of Australia (Central Operations) Incorporated, allowing these aircraft to be refuelled while passengers, including critically ill patients, remain on board under specific conditions. These conditions ensure that safety measures are in place, such as providing information to passengers, ensuring the location of crew and medical staff is known, and connecting the aircraft to an earth point during fuelling. The exemption is a disallowable instrument, subject to parliamentary review, and was issued by a delegate of CASA, taking effect upon gazettal and expiring at the end of July 2006.
Key Provisions
The key operative sections of this legislation pertain to the exemption granted by the Civil Aviation Safety Authority (CASA) under subregulation 235(11) of the Civil Aviation Regulations 1988 (CAR 1988). This exemption allows for certain aircraft operated by the Royal Flying Doctor Service of Australia (Central Operations) Incorporated (RFDS) to refuel while passengers are on board, subject to specific conditions (subregulation 235(11)). These conditions include ensuring that passengers who are capable of understanding must be informed prior to refuelling, the operating crew and medical staff must be located in a specified area while fuel is being loaded, and the aircraft and fuelling equipment must be connected to an earth point during refuelling (subsection 4 of section 20.9 of the Civil Aviation Orders (CAOs)). The exemption is intended to maintain the safety of air navigation while accommodating the operational needs of RFDS in emergency medical transport scenarios.
The Act imposes obligations on the parties it governs, particularly on RFDS as the operator of the exempted aircraft. RFDS must ensure compliance with the conditions set out in the exemption, such as providing necessary information to passengers, maintaining specified staff locations, and ensuring proper grounding of aircraft and fuelling equipment. CASA, as the regulator, has the responsibility to issue such exemptions and to monitor compliance with the conditions imposed. The obligations extend to ensuring that the exemption does not compromise the safety of air navigation and that all necessary precautions are taken during the refuelling process.
Breach of the conditions specified in the exemption can lead to civil and criminal consequences. The Act does not explicitly state the penalties for non-compliance with the exemption conditions. However, given the critical nature of air navigation safety, severe breaches could potentially result in significant penalties under the Civil Aviation Act 1988 and the Civil Aviation Regulations 1988. These could include fines, suspension or revocation of the aircraft's operating certificate, and potential criminal charges for endangering safety. The precise penalties would depend on the severity and impact of the breach, as determined by CASA and in accordance with relevant aviation laws.