Explanatory Statement
Civil Aviation Regulations 1988 — regulation 308
Exemption — flight check system Heli-Aust Pty Ltd
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) of CAR 1988 provides that before making an exemption CASA must take into account any relevant considerations relating to the interests of safety.
Subregulation 308 (3) of CAR 1988 provides that CASA may make an exemption subject to conditions specified in the exemption as being necessary in the interests of safety.
Subregulation 232 (1) of CAR 1988 provides that the operator of an aircraft must establish a flight check system for each type of aircraft, setting out the procedures to be followed by the pilot in command and other crew members prior to and on take‑off, on landing and in emergency situations.
Subregulation 232 (2) of CAR 1988 provides that a flight check system is subject to prior approval of CASA and CASA may, at any time, require the system to be revised in a manner specified by CASA.
Subregulation 232 (5) of CAR 1988 provides that an aircraft must not be flown unless the flight check system has been approved by CASA and, if CASA has required the system to be revised, the system has been revised in a manner specified by CASA.
Heli-Aust Pty Ltd proposes to operate Bell 212 helicopters during the 2005/06 fire season. It has applied for a discrete Air Operator’s Certificate for the operation.
CASA considers that the requirement for the flight check system for this aircraft to be approved involves a significant resource impost on both CASA and the operator with no significant enhancement in safety.
This exemption, therefore, exempts the operator of this aircraft from the requirement to have the flight check system separately approved.
As a condition on the exemption, the operator will be required to have a flight check system that complies with the requirements of the aviation authorities of the countries where the helicopters are registered, i.e. Canada and USA.
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 facilitate firefighting operations. It would be issued to any operator who requested it and could meet its safety conditions.
The instrument commences on the day after it is registered. It stops having effect at the end of 30 June 2006.
The exemption has been made by the Deputy Chief Executive and Chief Operating Officer, a delegate of CASA, in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX50/05]
Overview
The Civil Aviation Regulations 1988, enacted by the Parliament of Australia, provide a framework for ensuring the safety of civil aviation in the country. Specifically, regulation 308 was introduced to address the need for exemptions from certain compliance requirements for the purposes of safety in air navigation. This regulation was enacted under the authority of section 98 of the Civil Aviation Act 1988, which empowers the Governor-General to make regulations for the Act. The policy objective behind this regulation is to balance the enforcement of safety standards with practical considerations, ensuring that the operations of aircraft can proceed with minimal unnecessary administrative burden while still maintaining high safety standards. In this context, the regulation allows the Civil Aviation Safety Authority (CASA) to exempt certain aircraft or associated persons from specified provisions of the Civil Aviation Regulations, subject to safety considerations.
Scope and Application
The Civil Aviation Regulations 1988, specifically regulation 308, grants the Civil Aviation Safety Authority (CASA) the authority to exempt certain aircraft and their operators from compliance with certain provisions of the regulations if it is deemed necessary in the interests of safety. Heli-Aust Pty Ltd, which proposes to operate Bell 212 helicopters during the 2005/06 fire season, has been granted an exemption from the requirement to have their flight check system separately approved by CASA. This exemption acknowledges that while the flight check system must comply with the requirements of the aviation authorities of the countries where the helicopters are registered (Canada and the USA), the separate approval by CASA would involve a significant resource burden without a corresponding enhancement in safety. This exemption applies specifically to Heli-Aust Pty Ltd and its operation of the Bell 212 helicopters during the mentioned fire season, and it is subject to the condition that the flight check system must meet the safety standards set by the relevant authorities in Canada and the USA. The exemption is considered a legislative instrument under the Legislative Instruments Act 2003 and would be subject to tabling and disallowance in the Parliament. The exemption is effective from the day after it is registered and ceases to have effect at the end of 30 June 2006.
Key Provisions
The Civil Aviation Regulations 1988 (CAR 1988) under the Civil Aviation Act 1988 allow the Civil Aviation Safety Authority (CASA) to grant exemptions to aircraft operators from specific regulatory requirements. Regulation 308(1) of CAR 1988 empowers CASA to exempt aircraft or persons associated with their operation from compliance with specified provisions of CAR 1988, provided CASA considers the exemption necessary for safety (subregulation 308(2)). CASA can impose conditions on these exemptions as needed (subregulation 308(3)). Specifically, regulation 232(1) of CAR 1988 mandates that aircraft operators establish a flight check system outlining procedures for pilots and crew members before take-off, during flight, on landing, and in emergencies. This system must be approved by CASA, and operators must revise it as CASA requires (subregulations 232(2) and 232(5)). However, Heli-Aust Pty Ltd, which plans to operate Bell 212 helicopters during the 2005/06 fire season, has applied for an exemption from the flight check system approval requirement. CASA has granted this exemption, deeming it unnecessary for enhancing safety and burdensome in terms of resources.
The obligations imposed by the exemption are significant for Heli-Aust Pty Ltd. As part of the exemption conditions, the operator must ensure that their flight check system complies with the aviation authorities of Canada and the USA, where the helicopters are registered. This compliance requirement ensures that the exemption does not compromise safety standards while potentially easing the regulatory burden. Furthermore, since the exemption is a legislative instrument under the Legislative Instruments Act 2003, it must be tabled and can be disallowed in Parliament. Although consultation with Parliament was not undertaken, the exemption is necessary to facilitate firefighting operations and will be issued to any operator meeting the safety conditions.
The consequences for non-compliance with the terms of this exemption are serious. Any breach of the conditions set by CASA could result in significant penalties under the Civil Aviation Act 1988 and the Civil Aviation Regulations 1988. For example, operating an aircraft without meeting the flight check system requirements or failing to adhere to the conditions of the exemption could lead to substantial fines or imprisonment for individuals, and fines for corporations. Additionally, CASA retains the authority to take enforcement actions such as grounding the aircraft or suspending the operator's certificate, which could have severe repercussions for the operator's business.