Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
CASA EX50/18 — Carrying Out and Supervising Maintenance (Ex‑armed Forces, Historic and Replicas of Class B Aircraft) Instrument 2018
Purpose
This instrument, which replaces CASA EX75/15, 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 the Civil Aviation Regulations 1988 (CAR) covering the maintenance.
The instrument also continues to 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 him or her 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.
The instrument would add an exemption for a supervisor who 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 instrument also revises the expression of the instrument that most recently continued the approval and exemptions (CASA EX75/15) for consistency with some defined terms in regulation 132.010 of the Civil Aviation Safety Regulations 1998 (CASR) that had not come into force when CASA EX75/15 was made.
CASA proposes to include provisions in a new Subpart 132.M of CASR to give effect to the policy related to the instrument. However, new Subpart 132.M of CASR is not expected to be made before the first quarter of 2020. CASA EX75/15 will self‑repeal on 30 April 2018. Therefore, this instrument is expressed to commence on 1 May 2018 and will be repealed at the end of 30 April 2021.
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 the CASR and CAR.
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 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 subregulations 11.170 (3) and 11.175 (4) of CASR, in deciding whether to grant or renew an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
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.
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 include an Australian aircraft, other than a balloon, that is:
(a) certificated in the transport category; or
(b) used, or to be used, by the holder of an Air Operator’s Certificate 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.
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 (8) of CAR, an authorisation issued under 42ZC (6) is subject to any conditions that CASA considers are necessary in the interests of air navigation.
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.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Background
The authorisation and the related exemptions for supervisors who hold an aircraft welding authority and an airworthiness authority have been in effect for 11 years with no adverse effect on aviation safety. CASA has assessed that continuing the authorisations and exemptions, and adding the exemption under subregulation 42ZC (6) of CAR, will not have an adverse effect on aviation safety.
This instrument continues the authorisation and the related exemptions in CASA EX75/15. CASA EX75/15 authorises a person to carry out maintenance on aircraft mentioned in Schedule 1 of the instrument (comprising warbirds, historic and replica aircraft, described as WHR aircraft), if the person is permitted to carry out the maintenance and 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.
Instrument
Section 1 names the instrument.
Section 2 sets out the duration of the instrument.
Section 3 contains definitions, along with a note that lists certain terms and expressions in the instrument that have the same meaning as they have in the Civil Aviation Act 1988 and the regulations.
Subsection 4 (1) authorises, for the purposes of 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
an authorisation under subregulation 42ZC (6) of CAR covering the maintenance.
Subsection 4 (2) describes, for the purposes of 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 4 applies to a 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 in the aircraft welding authority that prohibits him or her 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 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 him or her from supervising the carrying out of maintenance by a person authorised under subsection 4 (1).
Subsection 6 (3) provides that the exemption is subject to the condition mentioned in subsection (5).
Subsection 6 (4) describes the kind of supervisor to which the condition mentioned in subsection 5 applies.
Subsection 6 (5) 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 airworthiness supervisor; or
(b) a type, series or group of relevant class B aircraft, in respect of which the airworthiness authority was issued to the airworthiness 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 airworthiness supervisor.
The note located immediately below section 6 is intended to assist the reader by describing the operation of subsection 33B (2) of CAR.
Subsection 7 (1) provides that section 7 applies to a 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 him or her from supervising the carrying out of maintenance by a person authorised under subsection 4 (1).
Legislation Act 2003 (the LA)
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 (4) of CAR. 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
CASA has not consulted on the instrument. This instrument replaces a previous instrument which expires at the end of 30 April 2018 (CASA EX75/15) and is made in substantially similar terms. The exemptions are beneficial to industry and maintain the current status quo until regulatory amendments are introduced to replace the need for the exemptions. 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 exemption 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 direction 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 2018 and is repealed at the end of 30 April 2021.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX50/18 — Carrying Out and Supervising Maintenance (Ex-armed Forces,
Historic and Replicas of Class B Aircraft) Instrument 2018
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 legislative 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 EX75/15). That instrument 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 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.
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