Explanatory Statement
Civil Aviation Regulations 1988
Exemption — from standard take-off and landing minima –Air New Zealand
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.
Legislation
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), 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 for take-off and landing was made in instrument CASA 146/08. The minima are also set out in AIP En Route 1.5, sections 4.3 and 4.4. If conditions are met, the minimum visibility for take-off inside or outside Australian territory is 500 metres (proposed to become 550 metres). If conditions are met, the minimum visibility for landing inside or outside Australian territory is 800 metres, or 550 metres RVR. An exemption would be required to operate with lower minimum visibility (low visibility operations or LVO).
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), before making an exemption, CASA must take into account any relevant considerations relating to the interests of safety. Under subregulation 308 (3), CASA may make an exemption subject to any condition specified in the exemption as being necessary in the interests of safety. Under subregulation 308 (3A), it is an offence to contravene a condition of an exemption that is otherwise being relied upon for an operation.
The exemption has been issued for Air New Zealand Ltd (Air New Zealand) for the conduct of LVO in Australia. Following the approval of Melbourne airport for Category II and Category III operations, which enables operations to be conducted to lower minima than was previously permitted under those exemptions, a review of the rules governing low visibility operations was conducted. The exemption states the minima for the various aeroplanes, as well as the conditions for their use. For instance, the use of the lower minima will require a higher standard of runway lighting (see clause 8 in Schedule 2).
In essence, the operator must ensure that specified visibility standards are met for take-offs and landings. These may be performed only at aerodromes properly equipped to support the LVO conducted under the exemption. Air New Zealand must also conduct its operations in accordance with the approval to conduct LVO issued by the New Zealand Civil Aviation Authority.
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 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 Air New Zealand to enable low visibility take-offs and CAT II and CAT III landings inside Australia consistent with the standards and requirements specified in the instrument which are not considered prejudicial to the interests of safety.
Office of Best Practice Regulation
The exemption would be of beneficial effect to the operator. The Office of Best Practice Regulation does not require preparation of a Regulation Impact Statement in this case because a preliminary assessment of business compliance costs in the context of the nature of the instrument indicates that it will have only a nil to low impact on business.
Making and commencement
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument comes into effect on the day after it is registered. It stops having effect at the end of 31 May 2012.
[Instrument number CASA EX38/10]
Overview
The Civil Aviation Regulations 1988 were amended to provide an exemption for Air New Zealand in relation to standard take-off and landing minima, allowing the airline to conduct low visibility operations (LVO) within Australia. Enacted by the Civil Aviation Safety Authority (CASA) under the Civil Aviation Act 1988, this exemption aims to facilitate operations under conditions that previously would have required higher visibility standards, thus addressing the gap in accommodating advanced aviation technologies and operational practices that permit flights under lower visibility conditions when safety standards are met. This exemption allows Air New Zealand to perform operations consistent with New Zealand's approval standards, subject to specified conditions to ensure safety, and is subject to disallowance by the Australian Parliament. The instrument was made without consultation as it is deemed necessary for operational efficiency and does not significantly impact business compliance costs.
Scope and Application
The Civil Aviation Regulations 1988, amended by this exemption, apply to Air New Zealand Ltd (Air New Zealand) and concern their operations within Australia, specifically enabling low visibility operations (LVO) at Melbourne airport. This exemption allows Air New Zealand to conduct LVO with lower visibility minima than the standard set by the Civil Aviation Safety Authority (CASA) provided certain conditions are met. These conditions include adherence to specified visibility standards, operation at aerodromes equipped to support such operations, and compliance with approvals from the New Zealand Civil Aviation Authority. The exemption is limited geographically to operations within Australia and temporally, ceasing to have effect on 31 May 2012. The exemption was made under the authority conferred by the Civil Aviation Act 1988, and as a disallowable instrument, it is subject to tabling and disallowance in the Parliament. It is important to note that no consultation was undertaken for this exemption, as it was deemed necessary to meet Air New Zealand's operational requirements without prejudice to safety. The Office of Best Practice Regulation determined that a Regulation Impact Statement was not necessary due to the minimal impact on business compliance costs.
Key Provisions
The key provisions of this legislation concern the exemption granted to Air New Zealand from standard take-off and landing minima under the Civil Aviation Regulations 1988 (CAR 1988). Under subregulation 257 (1) of CAR 1988, the Civil Aviation Safety Authority (CASA) is empowered to determine the meteorological minima for take-off and landing at aerodromes, which must be published in the Aeronautical Information Publication (AIP) or Notices to Air Missions (NOTAMS). Under subregulation 257 (3), 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. However, under subregulation 308 (1), CASA may exempt aircraft from compliance with specified provisions of CAR 1988, subject to safety considerations and any conditions deemed necessary by CASA. The exemption for Air New Zealand allows the airline to conduct low visibility operations in Australia, with specific minima for various aeroplanes and conditions for their use, including a requirement for higher standard runway lighting.
The obligations imposed on Air New Zealand and other parties governed by the exemption include ensuring that specified visibility standards are met for take-offs and landings. These operations must be conducted at aerodromes properly equipped to support low visibility operations, in accordance with the approval to conduct low visibility operations issued by the New Zealand Civil Aviation Authority. Air New Zealand must adhere to the approval's standards and requirements to ensure the safety of its operations. CASA, as the authority responsible for granting the exemption, must consider any relevant safety considerations before making the exemption and may impose conditions to ensure the safety of the operations.
There are potential consequences for breaching the conditions of the exemption. Under subregulation 308 (3A) of CAR 1988, it is an offence to contravene a condition of an exemption that is otherwise being relied upon for an operation. The maximum penalties for contravening an exemption condition are not specified in the explanatory statement, but the general penalties for aviation offences can include fines and imprisonment. Additionally, the exemption is a disallowable instrument under the Legislative Instruments Act 2003 (LIA), which means it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA. Failure to comply with the terms of the exemption or the conditions specified in it could lead to legal action against Air New Zealand and other affected parties.