Explanatory Statement
Exemption — take-off minima inside and outside Australian territory
Legislation
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.
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) of CAR 1988, 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 was made in instrument CASA 146/08. The minima are set out in AIP En Route 1.5, section 4. The minimum visibility for take-off inside Australian territory at an aerodrome with runway edge lighting (spaced not more than 60 metres apart) and either runway centreline lighting or centreline marking, is 500 metres. An exemption would be required to operate in lesser visibility.
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) of CAR 1988, before making an exemption CASA must take into account any relevant considerations relating to the interests of safety.
Under subregulation 308 (3) of CAR 1988, CASA may make an exemption subject to any condition specified in the exemption as being necessary in the interests of safety.
Instrument
The instrument, in effect, exempts only Boeing 737-800 aeroplanes, operated by Pacific Blue Airlines (NZ) Ltd (the operator) inside and outside Australian territory, from the minimum visibility requirements of instrument CASA 146/08. Under the instrument the minimum runway visibility may be reduced to 300 metres. The instrument revokes and replaces a previous instrument issued to the same operator that was due to expire at the end of 30 June 2008.
Conditions
To ensure the safety of air navigation, the exemption is subject to conditions.
For example, low visibility take-offs may only be conducted when related air traffic control procedures are in place. The requirements of the operator’s operations manual (the manual) for the procedure must be followed. Minimum runway visibility conditions are prescribed which depend on the quality and extent of runway edge and centreline lighting or markings.
Each pilot must have completed approved low visibility take-off simulator training. He or she must also demonstrate competency in low visibility operations to a check pilot within the previous 6 months. If visibility is less than 500 metres, the aeroplane must not take off from a runway that requires particular turning manoeuvres soon after take-off.
In take-off operations outside Australian territory, the aircraft must conform to the requirements of the State of the aerodrome if they are more restrictive than those in the instrument. If the requirements of the State of the aerodrome are less restrictive than those in the instrument, those in the instrument must be adhered to. Thus, the requirement is that the higher standard of safety is to be observed in each case.
A copy of the instrument is to be kept in the operator’s manual.
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 declared to be 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 the operator to enable low visibility take-offs inside and outside Australian territory consistent with existing practice which is not considered prejudicial to the interests of safety. A similar instrument would be issued to any appropriate operator who requested it and could meet its safety conditions.
The instrument commences on the day after it is registered and stops having effect at the end of 30 June 2010.
The exemption has been made by a delegate of CASA in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX36/08]