Explanatory Statement
Civil Aviation Safety Regulations 1998
Repeal – exemption – from standard take-off and landing minima – Vietnam Airlines
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations.
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 subregulations 257 (3) and (4), it is an offence for an aircraft to take off or land 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 270/14. The minima are also set out in AIP En Route 1.5, section 4.
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 regulations, including CAR 1988, in relation to a matter mentioned in that subsection. 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 subsection 33 (3) of the Acts Interpretation Act 1901 (the AIA), 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
Instrument CASA EX99/13 was registered on 13 September 2013 and commenced on the day of registration. Instrument CASA EX99/13 permitted Vietnam Airlines of Hanoi, Vietnam (the operator) to use minima lower than the standard take-off and landing meteorological visibility minima determined by CASA. The exemption was subject to conditions.
The operator subsequently requested a reissue of the exemption with inclusion of 2 new aircraft types and changes to the conditions. After CASA EX99/13 was registered, CASA conducted an internal review that determined that instrument CASA EX99/13 was not required to be a legislative instrument since the instrument is expressed to apply to a particular person, in this case, a particular operator.
As a result of the internal review, for the purposes of the operator’s request, a new, separate non‑legislative instrument of exemption has been issued and instrument CASA EX99/13 is repealed by this instrument.
Legislative Instruments Act 2003 (the LIA)
Instrument CASA EX26/16 repeals CASA EX99/13, which is an existing legislative instrument. Instrument CASA EX26/16 is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The operator has requested that the exemption CASA EX99/13 be extended for a further period with inclusion of 2 new aircraft types and changes to the conditions. CASA is taking the opportunity to repeal CASA EX99/13 and issue a new non-legislative instrument to satisfy the operator’s request. CASA considers that no further consultation is appropriate or necessary as the instrument applies only to this particular operator.
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 for exemptions (OBPR id: 14507).
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on the day of registration.
[Instrument number CASA EX26/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Repeal – exemption – from standard take-off and landing minima – Vietnam Airlines
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 repeals instrument CASA EX99/13, being an instrument that permits Vietnam Airlines of Hanoi, Vietnam to use minima lower than the standard take‑off and landing meteorological visibility minima determined by CASA.
CASA has issued a new non-legislative instrument of exemption that replaces instrument CASA EX99/13.
The purpose of this instrument is to repeal a legislative instrument that is no longer required.
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