Explanatory Statement
Civil Aviation Regulations 1988
Exemption — flight data recording
Section 98 of the Civil Aviation Act 1988 empowers the Governor-General to make regulations.
Subregulation 207 (2) of the Civil Aviation Regulations 1988 (CAR 1988) provides that an Australian aircraft shall not be used in any class of operations unless it is fitted with such instruments and is fitted with or carries such equipment, including emergency equipment, as the Civil Aviation Safety Authority (CASA) approves or directs.
Subregulation 5 (1) of CAR 1988 provides that whenever CASA is empowered by CAR 1988 to give directions or approvals, it may do so in Civil Aviation Orders (the CAOs).
Civil Aviation Order 20.18 (CAO 20.18) sets out instruments and equipment required for Australian aircraft engaged in certain classes of operations. Subsection 6 of CAO 20.18 requires installation of flight data recorders (FDRs) on certain kinds of aircraft with maximum take-off weight (MTOW) over 5 700 kg.
The Federal Aviation Administration (FAA) of the USA requires installation of FDRs in aircraft on the basis of the operational category and the number of passenger seats.
The Cessna aircraft model 525B was type certificated by the FAA without an FDR, as an FDR is not required under the FAA regulations. The aircraft is of a new design which incorporates the innovations and safety enhancements that are available on the current generation of aircraft. While CASA accepts the type design of the aircraft, Australian registered Cessna aircraft model 525B cannot legally fly without being fitted with an FDR as its MTOW is slightly over 5 700 kg.
It is difficult to show that the Australian FDR requirements add significantly to safety over those applying in the USA. This is particularly the case for the requirement to retrofit an FDR to a Cessna aircraft model 525B.
CASA intends to review the requirements for FDRs in CAO 20.18. Pending future changes to the CAO, the exemption allows the Cessna aircraft model 525B to be flown without the installation of a flight data recorder for private operations.
Legislative Instruments Act
Under regulation 5A of CAR 1988, if CASA has issued a direction in the form of a CAO, and CASA later issues another direction that in any way affects the operation of the CAO, the later instrument is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
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 instrument 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 of a minor or machinery nature.
The exemption has been issued by a delegate of CASA appointed under regulation 7 of CAR 1988.
The exemption comes into effect a day after it is registered and stops having effect at the end of 30 September 2009.
[Instrument number CASA EX44/06]
Overview
The Civil Aviation Regulations 1988, enacted to ensure the safety and efficiency of civil aviation in Australia, address a gap in regulatory standards concerning flight data recorders (FDRs) for certain aircraft models. Specifically, the Civil Aviation Order 20.18 requires FDRs on aircraft with a maximum take-off weight over 5,700 kg, but some aircraft certified by the Federal Aviation Administration (FAA) of the USA without such requirements, such as the Cessna model 525B, face legal issues under Australian regulations. This discrepancy led to the need for a regulatory exemption to allow the operation of such aircraft in Australia without an FDR, pending further review by the Civil Aviation Safety Authority (CASA). The exemption was issued under the authority granted to CASA by Section 98 of the Civil Aviation Act 1988 and is subject to parliamentary scrutiny and potential disallowance under the Legislative Instruments Act 2003. The exemption is designed to facilitate the use of the Cessna 525B for private operations until CASA completes its review of FDR requirements.
Scope and Application
The Civil Aviation Regulations 1988, as amended, provide the framework for ensuring the safety and efficiency of civil aviation in Australia. Specifically, Subregulation 207(2) of the Civil Aviation Regulations mandates that Australian aircraft must be equipped with approved instruments and emergency equipment before being used in any operations. The Civil Aviation Safety Authority (CASA) has the authority to approve or direct the installation of such equipment, with detailed requirements outlined in Civil Aviation Orders (CAOs). For instance, CAO 20.18 requires flight data recorders (FDRs) on certain aircraft with a maximum take-off weight exceeding 5,700 kg. However, the Explanatory Statement for Instrument Number CASA EX44/06 indicates an exemption for the Cessna model 525B, which, despite its design and safety enhancements, was type certificated by the Federal Aviation Administration (FAA) without an FDR due to differing regulatory requirements in the USA. Given the minimal additional safety benefit of retrofitting an FDR for this aircraft model, CASA has granted an exemption allowing the aircraft to operate without an FDR for private operations. This exemption is in effect until 30 September 2009 and is subject to the provisions of the Legislative Instruments Act 2003, which mandates the tabling and potential disallowance of the instrument in Parliament. Importantly, this exemption is a legislative instrument and is subject to disallowance procedures under the Acts Interpretation Act 1901.
Key Provisions
The main provisions of this legislation pertain to the exemption of the Cessna aircraft model 525B from the requirement to install a flight data recorder (FDR) for certain operations under the Civil Aviation Regulations 1988 (CAR 1988). Under subregulation 207(2) of CAR 1988, Australian aircraft must be equipped with instruments and equipment approved or directed by the Civil Aviation Safety Authority (CASA). Subregulation 5(1) allows CASA to provide such approvals or directions through Civil Aviation Orders (CAOs). Specifically, CAO 20.18 requires FDRs on certain aircraft based on maximum take-off weight (MTOW), including those over 5700 kg, which applies to the Cessna model 525B. However, this legislation exempts the Cessna 525B from the FDR requirement for private operations until 30 September 2009.
The Act imposes obligations on CASA to ensure that Australian aircraft meet safety standards, including the installation of FDRs where required by CAO 20.18. The exemption allows the Cessna 525B to be operated without an FDR, provided it is for private operations and within the specified timeframe. CASA is required to review the FDR requirements in CAO 20.18, as indicated in the explanatory statement, which suggests ongoing oversight and potential future amendments to the regulations.
Breaching the requirements set out in CAR 1988 and CAO 20.18 without the appropriate exemption could result in penalties. Under CAR 1988, non-compliance with the regulations can lead to enforcement actions by CASA, including fines and potential grounding of the aircraft. The maximum penalties for non-compliance with civil aviation regulations can include fines up to $165,200 for individuals and $826,000 for corporations, as prescribed under section 31 of the Civil Aviation Act 1988. The exemption itself is subject to disallowance by Parliament under the Legislative Instruments Act 2003, which provides a mechanism for parliamentary scrutiny of the instrument's validity and effect.