Explanatory Statement
Civil Aviation Regulations 1988
Exemption — from take-off minima inside Australian territory
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the purposes of the Act and in the interests of the safety of air navigation.
Subregulation 308 (1) of the Civil Aviation Regulations 1988 (CAR 1988) provides that 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.
Subregulation 308 (2) provides that before making an exemption, CASA must take into account any relevant considerations relating to the interests of safety.
Subregulation 308 (3) provides that CASA may make an exemption subject to any condition specified in the exemption as being necessary in the interests of safety.
This exemption is from compliance with subregulations 257 (3) and (4) as follows.
Subregulation 257 (1) provides that CASA may determine the meteorological minima, that is the visibility requirements, for landing or take-off at an aerodrome. Subregulation 257 (2) provides that the determination must be published in AIP or NOTAMS.
Subregulations 257 (3) and (4) make it 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.
Standard meteorological minima were determined in CASA 477/03 and 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 and either centreline lighting or centreline marking is 500 metres.
The exemption from this minima applies to aeroplanes operated by Virgin Blue Airlines Pty Ltd (the operator) in take-off operations inside Australian territory at aerodromes where the minimum runway visibility is reduced to 300 metres.
The instrument replaces CASA EX37/05 which expired at the end of July 2007. 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 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 at regular intervals in the operator’s own recurring training program. At least once a year, competency in adverse low visibility conditions must be demonstrated to a Check Pilot. 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.
Legislative Instruments Act
Subregulation 308 (4) of CAR 1988 declares an exemption to be a disallowable instrument. 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. 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 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 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 August 2009.
The instrument has been made by the Deputy Chief Executive Officer, Strategy and Support, a delegate of CASA, under subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX43/07]
Overview
The Civil Aviation Regulations 1988 were enacted to provide comprehensive regulation of civil aviation in Australia, ensuring safety and efficiency in the industry. Specifically, this legislation addresses the need for regulatory flexibility in exceptional circumstances, such as low visibility conditions during take-off operations. The instrument F2007L03490, issued under the authority of the Civil Aviation Act 1988, allows for exemptions from certain meteorological minima for aircraft operated by Virgin Blue Airlines within Australian territory. This exemption is made possible through subregulation 308(1) of the Civil Aviation Regulations 1988, which empowers the Civil Aviation Safety Authority (CASA) to issue exemptions subject to conditions that must be met to maintain the highest safety standards. The exemption is subject to disallowance under the Legislative Instruments Act 2003, although consultation under this Act was not undertaken in this instance as the exemption is deemed not prejudicial to safety. The instrument is set to expire at the end of August 2009, ensuring that any safety concerns can be addressed within a defined timeframe.
Scope and Application
The Civil Aviation Regulations 1988 (CAR 1988) provide a framework for the safety of air navigation, including the setting of meteorological minima for aircraft operations. Under Section 98 of the Civil Aviation Act 1988, the Civil Aviation Safety Authority (CASA) has the authority to make regulations and exemptions for the safety of air navigation. Specifically, Subregulation 308(1) of CAR 1988 allows CASA to exempt aircraft, or persons associated with the operation of the aircraft, from specified provisions of CAR 1988, provided that the exemption is made with consideration for safety and can be subject to conditions necessary for safety. This exemption pertains to aeroplanes operated by Virgin Blue Airlines Pty Ltd, allowing them to take off inside Australian territory at aerodromes where the minimum runway visibility is reduced to 300 metres, a deviation from the standard 500-metre minima. This exemption is contingent upon stringent conditions to ensure safety, such as adherence to specific air traffic control procedures, completion of approved low visibility take-off simulator training, and demonstration of competency by pilots. The exemption is subject to disallowance under the Legislative Instruments Act 2003, and it was made by a delegate of CASA in accordance with Subregulation 7(1) of CAR 1988. The exemption is effective from the day after its registration until the end of August 2009.
Key Provisions
The key operative sections of the Civil Aviation Regulations 1988 (CAR 1988) that pertain to this exemption are sections 308 and 257. Section 308 allows the Civil Aviation Safety Authority (CASA) to exempt aircraft or persons associated with the operation of aircraft from specified provisions of CAR 1988 if it is in the interests of safety (subsection 308(1)). This exemption must be made with consideration of safety and may include conditions necessary for safety (subsection 308(2) and (3)). Section 257 deals with the determination of meteorological minima for landing or take-off at an aerodrome, including the publication of these minima in the Aeronautical Information Publication (AIP) or Notices to Airmen (NOTAMS) (subsections 257(1) and (2)). Subregulations 257(3) and (257(4) establish the requirement for aircraft to comply with the determined meteorological minima and the penalties for non-compliance.
The obligations imposed on the parties governed by this Act include adherence to the specified conditions of the exemption. Virgin Blue Airlines Pty Ltd must ensure that all take-off operations are conducted in accordance with the safety conditions outlined in the exemption. This includes following air traffic control procedures, adhering to the requirements of the operations manual, and ensuring that pilots have completed approved low visibility take-off simulator training and demonstrate competency regularly. Additionally, Virgin Blue Airlines must ensure that visibility conditions meet the minimum requirements specified and that pilots demonstrate competency in adverse low visibility conditions to a Check Pilot at least once a year.
Failure to comply with the conditions of the exemption or the specified meteorological minima could lead to civil and criminal consequences. Under subregulations 257(3) and (257(4), taking off or landing when the visibility is less than the determined minima is an offence. The penalties for such violations are not explicitly stated in the provided text, but typically, such offences are subject to substantial fines and potential imprisonment under the Civil Aviation Act 1988. The exemption itself, as a legislative instrument, is subject to disallowance in Parliament under sections 38 and 42 of the Legislative Instruments Act 2003, although consultation under section 17 of the LIA has not been undertaken for this specific exemption.