Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
CASA EX47/21 — Carrying Out and Supervising Maintenance (Ex-Armed Forces, Historic and Replicas of Class B Aircraft) Instrument 2021
Purpose
The instrument continues to enable a particular class of persons to carry out, or supervise, maintenance on certain aircraft (relevant class B aircraft) if related circumstances mentioned in the instrument exist and related conditions mentioned in the instrument have been met. The class of persons, circumstances and conditions are described in more detail under the headings “Overview of Instrument” and “Content of instrument”.
The instrument continues to be necessary because of the unique nature and maintenance requirements of ex-armed forces, historic and replica aircraft. To ensure that those maintenance requirements continue to be met, the instrument is required to remain in force until the proposed Part 43 of the Civil Aviation Safety Regulations 1998 (CASR) commences.
The Civil Aviation Safety Authority (CASA) intends proposed Part 43 of CASR to cover the content of this instrument. CASA has prepared related drafting instructions and is currently awaiting the allocation of drafting resources by the Office of Parliamentary Counsel. CASA is optimistic that proposed Part 43 of CASR may be drafted this year and commence in 2022, subject to availability of drafting resources. CASA will repeal the instrument if, when it is made, Part 43 of CASR includes content that:
(a) has the same effect as the instrument as a whole; and
(b) commences before the repeal date of the instrument.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made CASR and the Civil Aviation Regulations 1988 (CAR).
CAR and the Act
Regulation 33B of CAR relates to airworthiness authorities. Under paragraph 33B (1) (a) of CAR, CASA may, in writing and in accordance with the Civil Aviation Orders, issue authorities to carry out maintenance on aircraft. Under subregulation 33B (2) of CAR, an airworthiness authority may be issued subject to conditions specified in the airworthiness authority, in Civil Aviation Orders or in both. Subregulations 33B (4) and (5) of CAR provide, respectively, that a person must not contravene a condition to which an airworthiness authority is subject and that an offence against subregulation (4) is an offence of strict liability.
Regulation 33I of CAR relates to conditions of aircraft welding authorities. Under subregulation 33I (1) of CAR, an aircraft welding authority is subject to any conditions that CASA considers necessary to impose in the interests of the safety of air navigation. Subregulation 33I (2) of CAR provides that a condition must be set out in the aircraft welding authority. Subregulations 33I (3) and (4) of CAR provide, respectively, that the holder of an aircraft welding authority must not contravene a condition set out in the authority and that an offence against subregulation (3) is an offence of strict liability.
Regulation 42ZC of CAR, which relates to the maintenance of Australian aircraft in Australian territory, operates by reference to class A aircraft and class B aircraft.
Under subregulation 2 (1) of CAR, a class A aircraft is defined to mean an Australian aircraft, other than a balloon, that satisfies either or both of the following paragraphs:
(a) the aircraft is certificated as a transport category aircraft;
(b) the aircraft is being used, or is to be used, by the holder of an Air Operator’s Certificate (AOC) for the commercial purpose referred to in paragraph 206 (1) (c) of CAR.
Under the same subregulation, a class B aircraft is defined to mean an Australian aircraft that is not a class A aircraft.
Subregulation 206 (1) of CAR prescribes commercial purposes for which an AOC is required for certain aircraft operations. It includes, in paragraph (c), the purpose of transporting persons generally, or transporting cargo for persons generally, for hire or reward in accordance with fixed schedules to and from fixed terminals over specific routes with or without intermediate stopping places between terminals.
Under paragraph 42ZC (4) (e) of CAR, a person may carry out maintenance on a class B aircraft in Australian territory if the person is authorised by CASA under subregulation 42ZC (6) of CAR to carry out the maintenance and the maintenance is carried out in accordance with any conditions subject to which the authorisation is given.
Under subregulation 42ZC (6) of CAR, CASA may, in writing, authorise a person for the purposes of paragraph 42ZC (4) (e).
Under subregulation 42ZC (8) of CAR, an authorisation issued under subregulation 42ZC (6) is subject to any conditions that:
(a) CASA considers are necessary in the interests of air navigation; and
(b) are included in the authorisation.
In addition, regulation 11.015 of CASR provides that an authorisation of that kind is an authorisation under Part 11 of CASR. Therefore, Subpart 11.BA of CASR applies to the authorisation.
Regulation 11.055 sets out criteria that apply to CASA when granting an authorisation. Regulation 11.056 provides that an authorisation may be granted subject to any condition that CASA is satisfied is necessary in the interests of the safety of air navigation. Under regulation 11.077, a person commits an offence of strict liability if the person breaches a condition of an authorisation.
CASR
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from compliance with a provision of the regulations.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.175 (4) of CASR, in deciding whether to renew an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to renew an exemption on its own initiative.
Regulation 11.205 provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Civil Aviation Order 100.24
Civil Aviation Order (CAO) 100.24 is composed of provisions related to the application for and issue of a maintenance authority. Subsection 1 of CAO 100.24 sets out the requirements for issue of a maintenance authority that an applicant must meet.
Under paragraph 3.2 of CAO 100.24, a maintenance authority may be issued in respect of a maintenance function to be performed and certified on a particular aircraft, or a type, series or group of aircraft, engine, systems or installations.
Background
The instrument renews CASA EX50/18 — Carrying Out and Supervising Maintenance (Ex‑armed Forces, Historic and Replicas of Class B Aircraft) Instrument 2018 (CASA EX50/18), which was made in substantially similar terms. In particular, the instrument retains the authorisation and the related exemptions in CASA EX50/18. Like CASA EX50/18, the instrument authorises a person to carry out maintenance on aircraft defined as relevant class B aircraft if the person carrying out the maintenance is supervised by the holder of:
(a) an airworthiness authority covering the maintenance; or
(b) an aircraft welding authority covering the maintenance; or
(c) an authorisation under subregulation 42ZC (6) of CAR covering the maintenance.
The authorisation and the related exemptions for supervisors who hold an aircraft welding authority or an airworthiness authority have been in effect for 14 years with no adverse effect on aviation safety. The authorisation and the related exemption for supervisors who hold an authorisation under subregulation 42ZC (6) of CAR were included for the first time in CASA EX50/18.
Overview of instrument
The instrument, which replaces CASA EX50/18, continues to authorise a person to carry out maintenance on certain aircraft (relevant class B aircraft) if the maintenance is carried out under the supervision of a person (a supervisor) on the basis that the supervisor holds:
(a) an aircraft welding authority covering the maintenance; or
(b) an airworthiness authority covering the maintenance; or
(c) an authorisation under subregulation 42ZC (6) of CAR covering the maintenance.
The instrument also continues to:
(a) exempt a supervisor who holds an aircraft welding authority, or an airworthiness authority, covering the maintenance from compliance with, respectively, subregulation 33I (3) of CAR and subregulation 33B (4) of CAR. The supervisor is exempt only to the extent that the related subregulation requires the supervisor to meet a condition in the aircraft welding authority or the airworthiness authority that prohibits them from supervising the carrying out of maintenance on a relevant class B aircraft. The exemption for the supervisor who holds an airworthiness authority is subject to a condition which is required because it applies to a supervisor who holds an airworthiness authority of a particular kind; and
(b) exempt a supervisor from compliance with subregulation 42ZC (8) of CAR, if the supervisor holds an authorisation issued under subregulation 42ZC (6) of CAR that authorises the supervisor to carry out maintenance on a relevant class B aircraft in Australian territory. The supervisor is exempt only to the extent that the related subregulation requires the supervisor to meet a condition in the authorisation that prohibits them from supervising the carrying out of maintenance by a person authorised under subsection 4 (1) of the instrument.
CASA has assessed that continuing each of those authorisations and exemptions will not have an adverse effect on aviation safety. Also, to ensure that the unique maintenance requirements of ex‑armed forces, historic and replica aircraft continue to be met, the instrument is required to remain in force until the proposed Part 43 of CASR commences.
Content of instrument
Section 1 names the instrument.
Section 2 sets out the duration of the instrument.
Section 3 contains definitions. In particular, the following provisions signpost several definitions located in the Act, CAR or CASR:
(a) the note below the heading of section 3;
(b) the definition of carrying out maintenance on an aircraft;
(c) the definition of supervising, in relation to maintenance being carried out.
Consistent with paragraph 13 (1) (b) of the Legislation Act 2003 (the LA) and the definitions of enabling legislation and primary law in the LA, each of those definitions has the same meaning as in the Act, CAR or CASR (whichever applies), as in force from time to time.
Subsection 4 (1) authorises, for subregulation 42ZC (6) of CAR, a person to carry out maintenance on a relevant class B aircraft in Australian territory if the maintenance is carried out under the supervision of a supervisor who holds:
(a) an aircraft welding authority covering the maintenance; or
(b) an airworthiness authority covering the maintenance; or
(c) an authorisation under subregulation 42ZC (6) of CAR covering the maintenance.
Subsection 4 (2) describes, for paragraph 4 (1) (a), when an aircraft welding authority covers the maintenance.
The note located immediately below section 4 is intended to assist the reader by describing the operation of paragraph 33D (6) (a) of CAR.
Subsection 5 (1) provides that section 5 applies to a person (the supervisor) who supervises the carrying out of maintenance by a person authorised under subsection 4 (1), on the basis of holding an aircraft welding authority covering the maintenance.
Subsection 5 (2) exempts the supervisor from compliance with subregulation 33I (3) of CAR, to the extent that the subregulation requires the supervisor to meet a condition set out in the aircraft welding authority that prohibits them from supervising the carrying out of maintenance by a person authorised under subsection 4 (1).
Subsection 6 (1) provides that section 6 applies to a person (the supervisor) who supervises the carrying out of maintenance by a person authorised under subsection 4 (1), on the basis of holding an airworthiness authority covering the maintenance.
Subsection 6 (2) exempts the supervisor from compliance with subregulation 33B (4) of CAR, to the extent that the subregulation requires the supervisor to meet a condition in the airworthiness authority that prohibits them from supervising the carrying out of maintenance by a person authorised under subsection 4 (1).
Subsection 6 (3) describes the kind of supervisor to which the condition mentioned in subsection 6 (4) applies. In particular, subsection 6 (3) mentions a supervisor who holds an airworthiness authority issued in accordance with paragraph 3.2 of CAO 100.24. Paragraph 3.2 of CAO 100.24 provides that a maintenance authority may be issued in respect of a maintenance function to be performed and certified on a particular aircraft, or a type, series or group of aircraft, engine, systems or installations. Although not expressly stated, subsection 6 (3) of the instrument refers to a supervisor who holds an airworthiness authority issued in accordance with paragraph 3.2 of CAO 100.24, as that paragraph is in force or existing from time to time. CAO 100.24 is a legislative instrument, freely available on the Federal Register of Legislation.
Subsection 6 (4) provides that a supervisor who holds a particular kind of airworthiness authority must not supervise the carrying out of maintenance by a person authorised, under subsection 4 (1), unless the person is performing a maintenance function on:
(a) a particular relevant class B aircraft, in respect of which the airworthiness authority was issued to the supervisor; or
(b) a type, series or group of relevant class B aircraft, in respect of which the airworthiness authority was issued to the supervisor; or
(c) an engine, system or installation of a relevant class B aircraft, in respect of which the airworthiness authority was issued to the supervisor.
The note located immediately below section 6 is intended to assist the reader by describing the operation of subregulation 33B (2) of CAR.
Subsection 7 (1) provides that section 7 applies to a person (the supervisor) who supervises the carrying out of maintenance by a person authorised under subsection 4 (1), on the basis of holding an authorisation under subregulation 42ZC (6) of CAR covering the maintenance.
Subsection 7 (2) exempts the supervisor from compliance with subregulation 42ZC (8) of CAR, to the extent that the subregulation requires the supervisor to meet a condition in the authorisation that prohibits them from supervising the carrying out of maintenance by a person authorised under subsection 4 (1).
Legislation Act 2003
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation or the maintenance of aircraft. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument exempts a class of persons from complying with subregulations 33B (4), 33I (3) and 42ZC (8) of CAR. The class of persons is composed of persons (supervisors) who supervise the carrying out of maintenance by a person authorised under subsection 4 (1) of the instrument, on the basis of holding an authority or authorisation of a particular kind. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Although CASA has not consulted on the instrument, CASA has consulted with the relevant section of the aviation industry about the proposed Part 43 of CASR and CASA EX75/15, Authorisation — to carry out maintenance on WHR aircraft; Exemption — to allow supervision of maintenance on WHR aircraft (CASA EX75/15). CASA EX75/15 was made after CASA received representations from a section of the aviation industry involved in the maintenance of those aircraft to issue an instrument that relaxes the related restrictions. The instrument replaces a previous instrument which expires at the end of 30 April 2021 (CASA EX50/18) and is made in substantially similar terms as CASA EX50/18 and CASA EX75/15.
The authorisation and the exemptions in the instrument are beneficial to industry and are intended to maintain the status quo until the proposed Part 43 of CASR replaces the need for the instrument. In those circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any consultation under section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on 1 May 2021 and is repealed at the end of 30 April 2024.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX47/21 — Carrying Out and Supervising Maintenance (Ex-Armed Forces,
Historic and Replicas of Class B Aircraft) Instrument 2021
This legislative instrument is compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The instrument facilitates the carrying out of maintenance on ex‑armed forces aircraft, historic aircraft and replicas of class B aircraft. The instrument is in substantially similar terms to an instrument that was previously made (CASA EX50/18 — Carrying Out and Supervising Maintenance (Ex‑armed Forces, Historic and Replicas of Class B Aircraft) Instrument 2018). The operation of aircraft to which the instrument applies is subject to special operating rules and CASA holds the view that continuing the authorisations and the related exemptions in the instrument is appropriate.
The instrument continues to enable a particular class of persons to carry out, or supervise, maintenance on certain aircraft (relevant class B aircraft) if related circumstances mentioned in the instrument exist and related conditions mentioned in the instrument have been met.
The instrument continues to be necessary because of the unique nature and maintenance requirements of ex‑armed forces, historic and replica aircraft. To ensure that those maintenance requirements continue to be met, the instrument is required to remain in force until the proposed Part 43 of the Civil Aviation Safety Regulations 1998 commences.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority