Explanatory Statement
Civil Aviation Regulations 1988
Exemption — from standard take-off minima – Jetstar
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). An exemption would be required to operate in lesser minimum 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), 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.
CASA had issued an instrument (CASA EX87/09) exempting A320 and A321 aeroplanes operated by Jetstar Airways Pty Limited (Jetstar) from the standard meteorological minima for take‑off. 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, as well as the possible upgrade of other Australian aerodromes, a review of the rules governing low visibility operations was conducted.
The exemption revokes CASA EX87/09 and states the lower minima for the aeroplanes, as well as the conditions for their use. The operator must ensure that specified visibility standards are met for take-offs that may be performed only at aerodromes properly equipped to support them, including enhanced lighting in accordance with Schedule 2, clause 10. Flight crew training, experience, recency and competency must meet specified benchmarks. Aircraft equipment must be maintained. Operational restrictions and limitations must be observed. Appropriate foreign approvals for the operations must be obtained. A range of documents for inspection must be carried on board the aircraft.
A note in the instrument refers to the separate exemption that applies to both take-offs and landings by Jetstar aircraft and contains additional training requirements for the flight crew.
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 Jetstar to enable low visibility take-offs inside and outside Australian territory consistent with the standards and requirements specified in the instrument which are not considered prejudicial to the interests of safety. Previous instruments have been issued for that purpose to both local and foreign airlines.
Office of Best Practice Regulation
The exemption would be of beneficial effect to the operator. The Office of Best Practice Regulation has previously not required preparation of a Regulation Impact Statement for similar exemptions because a preliminary assessment of business compliance costs in the context of those exemptions indicates that they 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 30 June 2012.
[Instrument number CASA EX47/10]
Overview
The Civil Aviation Regulations 1988, amended by the instrument F2010L01505, were enacted to address the need for specific exemptions concerning meteorological minima for take-off operations at aerodromes, particularly for Jetstar Airways. This legislative instrument, issued under the authority of the Civil Aviation Act 1988 and the Civil Aviation Regulations 1988, aims to facilitate operations in conditions of lower visibility than the standard minima previously set by the Civil Aviation Safety Authority (CASA). The exemptions are designed to align with the advancements in airport infrastructure, such as the approval of Melbourne Airport for Category II and III operations, while ensuring that safety remains the paramount consideration. CASA, in exercising its powers under the Civil Aviation Regulations 1988, has revoked earlier exemptions and introduced new conditions to be met by Jetstar, including stringent requirements for aircraft equipment, flight crew qualifications, and operational standards. The instrument also specifies the conditions under which the exemption operates and is subject to disallowance in the Parliament, as stipulated by the Legislative Instruments Act 2003. This exemption, which does not require consultation under the Legislative Instruments Act 2003, is intended to be beneficial for Jetstar, with minimal impact on business operations as assessed by the Office of Best Practice Regulation.
Scope and Application
The Civil Aviation Regulations 1988 (CAR 1988) establish a framework for the regulation of civil aviation in Australia, with specific provisions allowing the Civil Aviation Safety Authority (CASA) to determine meteorological minima for take-off and landing at aerodromes, which are then published in the Aeronautical Information Publication (AIP) or Notice to Airmen (NOTAMS). The regulation mandates compliance with these specified minima, with violations being subject to legal penalties. However, CASA has the authority under subregulation 308(1) of the CAR 1988 to exempt certain aircraft or individuals associated with their operation from these regulatory provisions, provided that safety considerations are fully taken into account. This exemption, detailed in CASA EX47/10, specifically pertains to A320 and A321 aeroplanes operated by Jetstar Airways, allowing them to operate under lower visibility minima than those generally prescribed, contingent on meeting stringent conditions related to aerodrome equipment, flight crew qualifications, aircraft maintenance, operational restrictions, and documentation requirements. The exemption is subject to disallowance under the Legislative Instruments Act 2003, although no consultation has been undertaken for this particular exemption. The exemption instrument is effective until 30 June 2012, at which point it will cease to have effect.
Key Provisions
The key sections of this instrument under the Civil Aviation Regulations 1988 (CAR 1988) include subregulation 257, which allows the Civil Aviation Safety Authority (CASA) to determine meteorological minima for take-off and landing, and subregulation 308, which permits CASA to exempt aircraft or persons associated with aircraft operations from specified provisions of CAR 1988. The standard meteorological minima for take-off are set at 500 metres, with a proposal to increase this to 550 metres (sections 257(1) and 257(2)). An exemption from these minima can be granted, provided it is made in the interests of safety and any conditions specified in the exemption are complied with (section 308(1) and 308(2)).
This instrument imposes obligations on Jetstar Airways to ensure that specified visibility standards are met, with take-offs permitted only at aerodromes equipped to support such operations. Jetstar must adhere to enhanced lighting requirements, ensure flight crew training, experience, recency and competency meet specified benchmarks, maintain aircraft equipment, observe operational restrictions and limitations, and obtain appropriate foreign approvals for the operations (section 308(3)). Additionally, a range of documents must be carried on board the aircraft for inspection.
Failure to comply with the conditions of the exemption, or to contravene a condition of an exemption that is being relied upon for an operation, is an offence under subregulation 308(3A) of CAR 1988. The maximum penalties for these offences are not specified in the instrument but would generally be determined by the relevant legislation governing civil aviation offences.
The instrument is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (LIA). This exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73(2) of the Civil Aviation Act 1988 (the Act). The instrument comes into effect on the day after it is registered and ceases to have effect at the end of 30 June 2012.