EXPLANATORY STATEMENT
CIVIL AVIATION REGULATIONS 1988
EXEMPTION — REFUELLING WITH PASSENGERS ON BOARD
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.
Subregulation 235 (7) of the Civil Aviation Regulations 1988 (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.
Directions under subregulation 235 (7) are contained in Civil Aviation Order 20.9 (CAO 20.9). Section 4 of CAO 20.9 sets out particular directions for loading fuel on aircraft. Paragraph 4.2.3 provides 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.
Subregulation 235 (11) of the CAR 1988 provides that CASA may exempt an aircraft from any of the requirements imposed by regulation 235.
Lloyd Aviation Jet Charter Pty Ltd, trading as Pearl Air International (the operator), operates the Dassault Falcon 900 aircraft with nationality and registration marks VH-PPD (the aircraft). The aircraft, though certified for less than 20 passengers, carries a cabin attendant on all operations.
The operator’s AOC authorises world-wide operations and consequently the aircraft operates over long distances. These operations often require intermediate landings for the sole purpose of refuelling. On certain occasions, refuelling must occur in countries where security may be an issue because of the high profile of the passengers usually carried. The ability to refuel while passengers remain on board would enhance their security and minimise turnaround time at these locations.
Under paragraph 4.2.2 of CAO 20.9, passengers on aircraft with a maximum seating capacity of 20 or more are allowed to remain on board during refuelling if certain conditions are satisfied. These conditions are contained in subparagraphs 4.2.1, 4.2.2 and 4.2.5 of CAO 20.9. The operator’s operations manual contains procedures that meet all of the requirements of these subparagraphs.
The operator has been significantly affected by the requirements of paragraph 4.2.3 that passengers may not remain on board during refuelling. The operator has, therefore, requested an exemption from the requirements of paragraph 4.2.3.
In light of these matters, and taking account of the safety of air navigation, CASA has issued the exemption subject to certain conditions. For example, while passengers may remain on board when fuel is being loaded, they must not board or exit the aircraft. They must be told that fuel is being loaded, that their seat belts must be unfastened, and that there must be no smoking, use of electrical equipment or action that could ignite fuel vapour. They must be told the location of the emergency exits. The cabin door must be open and the aircraft and fuelling equipment connected to an earth point. At least 1 cabin attendant must be on duty in the aircraft and the pilot in command must be in the aircraft loading area. The “fasten seat belt” signs must be off. The loading of fuel must stop immediately if fuel vapour is found in the aircraft or if, for any reason, continuation of the loading is not safe.
Legislative Instruments Act
Because the exemption affects the operation of paragraph 4.2.3 of CAO 20.9, 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 because the exemption has been specifically requested by the operator and a similar exemption would be issued to any appropriate operator who could meet its conditions.
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 on the Federal Register of Legislative Instruments and stops having effect at the end of July 2008.
[Instrument number CASA EX27/05]
Overview
The Civil Aviation Regulations 1988 were enacted to ensure the safety of air navigation and provide regulations for the operation of aircraft in Australia. The Civil Aviation Regulations 1988 Exemption — Refuelling with Passengers on Board aims to address the specific operational challenges faced by Lloyd Aviation Jet Charter Pty Ltd, trading as Pearl Air International, in conducting international flights that require intermediate refuelling, especially in high-security environments. This exemption, issued by the Civil Aviation Safety Authority (CASA), allows the operator to refuel its Dassault Falcon 900 aircraft while passengers remain on board, provided that stringent safety conditions are met. These conditions include restrictions on passenger movement, the use of electrical equipment, and the presence of cabin attendants and the pilot in command during refuelling. The exemption is subject to disallowance by the Parliament and is valid until the end of July 2008.
Scope and Application
The Civil Aviation Regulations 1988 provide a framework for the regulation of civil aviation in Australia, with a focus on ensuring the safety of air navigation. The exemption issued under the Civil Aviation Regulations 1988 by the Civil Aviation Safety Authority (CASA) applies specifically to the operations of Lloyd Aviation Jet Charter Pty Ltd, trading as Pearl Air International, and its Dassault Falcon 900 aircraft registered as VH-PPD. This exemption pertains to the refuelling of aircraft with passengers on board, an operation that is generally prohibited for aircraft with a maximum seating capacity of less than 20 under the Civil Aviation Order 20.9 (CAO 20.9). The exemption is granted to accommodate the operator's need to refuel while maintaining passenger security and operational efficiency, especially during international flights where security concerns may be heightened. The exemption allows passengers to remain on board during refuelling under stringent conditions, such as the prohibition of boarding or exiting the aircraft, the requirement for cabin attendants to be present, and the adherence to safety protocols to prevent fuel ignition risks. The exemption is declared to be a disallowable instrument under the Legislative Instruments Act 2003 and is subject to the disallowance process in Parliament. This specific exemption was issued in response to a request by the operator and is contingent on the operator meeting the conditions outlined in the exemption.
Key Provisions
The Civil Aviation Regulations 1988 (CAR 1988) under the Civil Aviation Act 1988 (section 98(1)) have been amended to allow a specific exemption for the refuelling of an aircraft with passengers on board. This exemption was issued by the Civil Aviation Safety Authority (CASA) to Pearl Air International, trading as Lloyd Aviation Jet Charter Pty Ltd, for its Dassault Falcon 900 aircraft (VH-PPD) (Subregulation 235(11) of the CAR 1988). This exemption is in place to allow the operator to refuel the aircraft while passengers are on board, which is not generally permitted under paragraph 4.2.3 of Civil Aviation Order 20.9 (CAO 20.9). This change is intended to enhance passenger security and reduce turnaround times during refuelling, particularly in high-risk security environments. However, the exemption is subject to stringent conditions to ensure the safety of air navigation.
The exemption mandates that certain safety conditions must be met during refuelling while passengers are on board. For example, passengers must remain seated and must be informed that fuel is being loaded, that their seat belts must be unfastened, and that there must be no smoking, use of electrical equipment, or any action that could ignite fuel vapour. Passengers must also be informed of the location of emergency exits. The cabin door must remain open, and the aircraft must be connected to an earth point. At least one cabin attendant must be present in the aircraft, and the pilot in command must be in the aircraft loading area. The "fasten seat belt" signs must be turned off. The loading of fuel must cease immediately if fuel vapour is detected in the aircraft or if it is unsafe for any reason to continue the loading process.
The exemption is subject to the Legislative Instruments Act 2003 (LIA), and as such, it is considered a disallowable instrument under regulation 5A of the CAR 1988. As a legislative instrument, it is required to be tabled and can be subject to disallowance in the Parliament under sections 38 and 42 of the LIA. However, consultation under section 17 of the LIA was not undertaken in this case because the exemption was specifically requested by the operator, and a similar exemption would be issued to any appropriate operator meeting the specified conditions. The exemption was issued by a delegate of CASA appointed under regulation 7 of the CAR 1988 and will remain in effect until the end of July 2008, starting the day after it is registered on the Federal Register of Legislative Instruments.
Breach of the conditions set out in this exemption could have serious consequences. While the Civil Aviation Regulations 1988 do not specify particular penalties for non-compliance with this exemption, general aviation safety laws apply. Violation of safety regulations can result in civil or criminal penalties, including fines and imprisonment. Under the Civil Aviation Act 1988, an individual found guilty of an offence may face penalties of up to $275,000 for a corporation and $55,000 for an individual, along with potential imprisonment terms. Furthermore, CASA may impose additional administrative penalties or revoke the operator’s licence if safety standards are not upheld.