Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
CASA EX29/21 — CASA EX10/19 and CASA EX78/19 (Repeal Dates) Amendment Instrument 2021
Purpose
The purpose of CASA EX29/21 — CASA EX10/19 and CASA EX78/19 (Repeal Dates) Amendment Instrument 2021 (the instrument) is to extend by a period of not more than 12 months the duration of 2 exemptions that would otherwise expire at the end of 24 March 2021.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR) and the Civil Aviation Regulations 1988 (CAR).
Subregulation 207 (2) of CAR requires that a person must not use an Australian aircraft in a class of operation if the aircraft is not fitted with instruments, and fitted with, or carrying, equipment, including emergency equipment, that Civil Aviation Safety Authority (CASA) has approved and directed.
Subregulation 207 (3) of CAR requires that where CASA approves or directs that an instrument or item of equipment be fitted or carried on an aircraft, a person must fit, carry or use the instrument or item of equipment on the aircraft only in accordance with the directions (if any) of CASA.
Subregulation 217 (1) of CAR requires that the operator of a regular public transport service, the operator of any aircraft with a maximum take-weight of more than 5 700 kg, or any operator that CASA specifies, must provide a training and checking organisation.
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations in relation to a matter mentioned in that subsection, which includes matters affecting the safe navigation and operation, or the maintenance, of aircraft.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.175 (4) of CASR, in deciding whether to reissue an exemption, on application by a person, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Under subsection 33 (3) of the Acts Interpretation Act 1901, a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by‑laws) includes a power exercisable in the like manner and subject to the like conditions to repeal, rescind, revoke, amend, or vary any such instrument. That power applies to the grant of an exemption under subregulation 11.160 (1).
CASA is satisfied that the amendments in the instrument comply with subregulation 11.175 (4).
Background
The instrument extends the duration of the 2 exemptions titled CASA EX10/19 — Carriage of cockpit voice recorders and flight data recorders exemption 2019 (instrument CASA EX10/19) and CASA EX78/19 — Aerial Application Operations (Training and Checking Organisation) Exemption 2019 (instrument CASA EX78/19).
Instrument CASA EX10/19 exempts the operator and pilot in command of certain aircraft with a maximum take-off weight in excess of 5 700 kg from requirements under regulation 207 of CAR that apply to the operator or pilot in command in relation to the fitting, carrying or use of an approved flight data recorder system or an approved cockpit voice recorder system on the aircraft that comply with standards mentioned in paragraph 6.2 of Civil Aviation Order 20.18 (Aircraft equipment — basic operational requirements) Instrument 2014. The equivalent standards have been cancelled by the Federal Aviation Administration of the United States of America.
Instrument CASA EX78/19 exempts aerial work operators, who conduct aerial application operations in certain aeroplanes, from compliance with subregulation 217 (1) of CAR which requires them to have a training and checking organisation. The exemption applies in relation to single-engine aeroplanes that have a maximum take-off weight of more than 5 700 kg.
These exemptions are intended to expire just before the commencement of the Civil Aviation Safety Amendment (Part 91) Regulations 2018. At the time of the making of the exemptions, the commencement date of those regulations was 25 March 2021. The commencement date of the regulations has subsequently been amended to be 2 December 2021. This instrument will extend their duration by up to a maximum of 12 months. If the Civil Aviation Safety Amendment (Part 91) Regulations 2018 come into effect before the expiry of the 12-month period, the exemptions will be repealed, under their extended duration provisions, on that commencement. The amendments will not cause the exemptions to exceed the statutory maximum duration for exemptions, under regulation 11.230 of CASR, which is no longer than 3 years after making.
The instrument is automatically repealed in accordance with section 48A of the Legislation Act 2003 (the LA).
No other changes have been made to either exemption.
Instrument
Section 1 specifies the name by which the instrument may be cited.
Section 2 states that the instrument commences on the day after it is registered.
Section 3 states that Schedule 1 amends instrument CASA EX10/19.
Section 4 states that Schedule 2 amends instrument CASA EX78/19.
Schedule 1 contains 2 amendments of instrument CASA EX10/19.
Item [1] extends the duration of the instrument so that it would expire at the earlier of: (a) the commencement of the Civil Aviation Safety Amendment (Part 91) Regulations 2018; and (b) the end of 31 January 2022.
Item [2] omits the note at the end of section 2, which is no longer correct.
Schedule 2 contains an amendment of instrument CASA EX78/19.
The amendment extends the duration of the instrument so that it would expire at the earlier of: (a) the commencement of the Civil Aviation Safety Amendment (Part 91) Regulations 2018; and (b) the end of 24 March 2022.
Overview of instrument
Both exemptions will continue in force subject to their existing conditions.
Legislation Act 2003
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or maintenance, of aircraft. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. Both exemptions apply to classes of persons. The instrument is, therefore, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Consultation under section 17 of the LA has not been undertaken in this case. The instrument extends the operation of 2 current exemptions for a period of not more than 12 months. This is due to the postponement of commencement of amendments of the regulations which would make the exemptions unnecessary. The extension of the exemptions will have no effect on the manner in which the aviation industry currently operates. In these circumstances, CASA is satisfied that no consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
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.
The instrument commences on the day after it is registered.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX29/21 — CASA EX10/19 and CASA EX78/19 (Repeal Dates) Amendment Instrument 2021
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 instrument extends the duration of 2 previously issued exemptions. Instrument CASA EX10/19 — Carriage of cockpit voice recorders and flight data recorders exemption 2019 (instrument CASA EX10/19) exempts the pilots and operators of certain aircraft from the need to comply with outmoded standards in Civil Aviation Order 20.18 (Aircraft equipment — basic operational requirements) Instrument 2014. Instrument CASA EX78/19 — Aerial Application Operations (Training and Checking Organisation) Exemption 2019 (instrument CASA EX78/19) exempts aerial work aircraft operators using large aerial work aircraft with a maximum take-off weight that exceeds 5 700 kg from compliance with the requirement to have training and checking organisations under subregulation 217 (1) of the Civil Aviation Regulations 1988.
Human rights implications
Indirectly, this instrument may engage the right to life, under the International Covenant on Civil and Political Rights. This is because instrument CASA EX78/19 which has its duration extended exempts aerial application operators from the requirement to have a separate training and checking organisation, which could endanger aircraft operations. However, the operators remain subject to the regime in Subpart 137.N of the Civil Aviation Safety Regulations 1998, which requires the operator to conduct an annual proficiency check of pilots the operator employs.
Instrument CASA EX10/19, which is also extended, promotes safety by removing the need to comply with outdated standards.
Conclusion
This legislative instrument is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable and proportionate.
Civil Aviation Safety Authority