Explanatory Statement
Civil Aviation Regulations 1988
Exemption — from take-off minima inside Australian territory
Legislation
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.
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 was made in instrument CASA 146/08. The minima determined in CASA 146/08 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 (spaced not more than 60 metres apart) and either runway centreline lighting or centreline marking, is 500 metres. An exemption would be required to operate in lesser 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.
Instrument
The instrument exempts A340-500, A340-600 and B777-300ER aeroplanes, operated by Etihad Airways P.J.S.C. of Abu Dhabi, United Arab Emirates (the operator) inside Australian territory, from the minimum visibility requirements of instrument CASA 146/08. Under the instrument, the minimum runway visibility may be reduced to 350 metres.
Conditions
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 (the 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. At least once a year, he or she must also demonstrate competency in low visibility operations to a Category A or Category B 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.
A copy of the exemption is to be kept in the operator’s manual.
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 declared to be 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 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. Similar instruments have been issued to other operators who meet the safety conditions. A previous instrument, CASA EX29/07, which referred only to A340-500 aircraft was issued to the same operator. It expired at the end of May 2009.
The instrument commences on the day after it is registered. It stops having effect at the end of 30 June 2011.
The exemption has been made by a delegate of CASA in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX48/09]
Overview
The Civil Aviation Regulations 1988 were amended in 2009 to allow Etihad Airways to conduct low visibility take-offs inside Australian territory. This was achieved through a legislative instrument issued by the Civil Aviation Safety Authority (CASA) under section 98 of the Civil Aviation Act 1988, which empowers CASA to make regulations for the safety of air navigation. The objective of this exemption was to accommodate the operator's practice of conducting low visibility take-offs in a manner consistent with safety standards. The exemption allows A340-500, A340-600 and B777-300ER aeroplanes operated by Etihad Airways to take off in conditions of 350 metres visibility, subject to specific conditions designed to ensure the safety of air navigation. These conditions include adherence to air traffic control procedures, completion of approved low visibility take-off simulator training by pilots, and annual demonstration of competency in low visibility operations. The exemption is a disallowable instrument under the Legislative Instruments Act 2003 and is subject to tabling and disallowance in the Parliament.
Scope and Application
The Civil Aviation Regulations 1988, as amended, provide the legal framework for aviation safety in Australia and include provisions for exemptions from certain regulatory requirements, including meteorological minima for aircraft take-off. Specifically, the exemption instrument CASA EX48/09 allows A340-500, A340-600, and B777-300ER aeroplanes operated by Etihad Airways to take off in conditions of lower visibility than the standard requirement within Australian territory. This exemption applies to these aircraft types operated by the named airline within the jurisdiction of Australia and is subject to conditions designed to ensure that safety is maintained. These conditions include adherence to specific air traffic control procedures, compliance with the operator’s operations manual, and requirements for pilot training and competency assessments. The exemption is a legislative instrument and is subject to disallowance by Parliament. Notably, this exemption builds on a previous exemption for A340-500 aircraft by the same operator, indicating a precedent for such allowances where safety conditions are met. The exemption is in force from the date of registration until the end of June 2011.
Key Provisions
The key provision of this instrument (CASA EX48/09) is the exemption of A340-500, A340-600 and B777-300ER aeroplanes operated by Etihad Airways P.J.S.C. from the standard minimum visibility requirements for take-off within Australian territory (section 98 of the Civil Aviation Act 1988 (Act) and subregulation 257(1) of the Civil Aviation Regulations 1988 (CAR 1988)). According to the instrument, these aircraft can take off in conditions of 350-metre visibility, rather than the standard 500-metre visibility (subregulation 308(1) and (3) of CAR 1988). This exemption is subject to specific conditions to ensure the safety of air navigation (subregulation 308(2) of CAR 1988).
Under this instrument, Etihad Airways must ensure that the relevant pilots have completed approved low visibility take-off simulator training and demonstrate their competency in low visibility operations to a Category A or Category B check pilot at least once a year (section 10 of the instrument). The exemption also includes conditions relating to the quality and extent of runway edge and centreline lighting or markings and air traffic control procedures. A copy of the exemption must be kept in the operator's manual. The instrument further stipulates that, in the event of visibility less than 500 metres, the aeroplane must not take off from a runway that requires particular turning manoeuvres soon after take-off (section 12 of the instrument).
This instrument imposes several obligations on Etihad Airways to ensure the safety of air navigation. The most significant of these obligations is the requirement for pilots to complete approved low visibility take-off simulator training and demonstrate their competency in low visibility operations to a Category A or Category B check pilot at least once a year (section 10 of the instrument). The instrument also mandates that the operator must adhere to the specific conditions outlined in the exemption, such as the quality and extent of runway edge and centreline lighting or markings and air traffic control procedures (section 11 of the instrument). Etihad Airways must also ensure that a copy of the exemption is kept in the operator's manual (section 13 of the instrument).
The instrument includes provisions for civil and criminal consequences in the event of a breach. Specifically, if an aircraft takes off when an element of the meteorological minima for that operation is less than that determined for the aircraft at the aerodrome, it is an offence under subregulation 257(3) of CAR 1988. The maximum penalty for such an offence is not stated in the instrument but can be found in the Act and the CAR 1988. Additionally, if Etihad Airways fails to comply with the conditions outlined in the exemption, it may be subject to enforcement action by the Civil Aviation Safety Authority (CASA) or other relevant authorities. The instrument also includes provisions for disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (LIA) (subsection 6(d)(i) of the LIA).