EXPLANATORY STATEMENT
CIVIL AVIATION REGULATIONS 1988
EXEMPTION — FROM TAKE-OFF MINIMA OUTSIDE 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 subregulation 257 (3) 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. Standard meteorological minima were determined in CASA 477/03 and are set out in AIP En Route 1.5, section 4.
Subregulation 257 (3) makes it 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 exemption from these minima applies to B737 aircraft operated by Qantas Airways Limited (the operator) in take-off operations outside Australian territory at aerodromes where air traffic control has advised that low visibility procedures are in use.
The exemption is subject to safety 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 senior 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 outside Australian territory consistent with acceptable safety standards. A similar instrument would be issued to any appropriate operator who requested it and could meet its safety conditions.
Commencement and registration
The instrument came into effect on 1 October 2005. It was subsequently registered on the Federal Register of Legislative Instruments. It stops having effect at the end of July 2008.
As a result of an administrative oversight, the instrument was not registered before it was to come into effect. However, the instrument is entirely beneficial for the operator and this retrospectivity is, therefore, consistent with that permitted under subsection 12 (2) of the LIA. In the circumstances, it is necessary for the instrument to have retrospective effect to ensure the legality of the operator’s operations during the period before the instrument was registered. Procedures have been put in place to avoid a repeat of the administrative oversight.
The exemption has been made by the Acting Group General Manager, Air Transport Operations, a delegate of CASA, in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX46/05]