Explanatory Statement
Civil Aviation Regulations 1988
Exemption — operations without an approved digital flight data recorder
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations.
Subregulation 207 (2) of the Civil Aviation Regulations 1988 (CAR 1988) provides that an Australian aircraft must not be used in any class of operations unless it is fitted with such instruments and is fitted with or carries such equipment, including emergency equipment, as the Civil Aviation Safety Authority (CASA) approves or directs.
Subregulation 5 (1) of CAR 1988 provides that whenever CASA is empowered by CAR 1988 to give directions or approvals, it may do so in Civil Aviation Orders (the CAOs).
Civil Aviation Order 20.18 (CAO 20.18) sets out instruments and equipment required for Australian aircraft engaged in certain classes of operations. Subsection 6 of CAO 20.18 requires installation of flight data recorders (FDRs) on certain types of aircraft.
Subregulation 21A (1) of CAR 1988 provides that CASA may issue a design standard for an aircraft component for which no appropriate design standard is in force.
Appendix I of Civil Aviation Order 103.19 (CAO 103.19) sets out the parameters, ranges, accuracy and recording intervals for FDRs.
National Jet Express Pty Ltd, trading as Cobham Aviation Services Australia – Regional Services (the operator), operates aircraft which do not fully comply with CASA regulations because the aircraft had only to comply with United Kingdom regulations at the time of manufacture. At certain altitudes, the FDR records at 2 second intervals, instead of 1 second intervals as required by CAO 103.19. CASA has issued an exemption as the operator and manufacturer of the aircraft cannot provide viable service bulletins and kits to modify the aircraft. In addition to the CAO requirements, this instrument mandates compliance with the United Kingdom Civil Aviation Authority FDR standard as current at the time of aircraft manufacture.
Legislative Instruments Act
Under regulation 5A of CAR 1988, if CASA has issued a direction in the form of a CAO and later issues another direction which has the effect of amending, varying or repealing the CAO, the later instrument is a disallowable instrument. The instrument affects the operation of subsection 6 of CAO 20.18 and Appendix I of CAO 103.19.
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. As a legislative instrument, 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 been undertaken with the Australian Transport Safety Bureau, which has agreed to the issue of the exemption. The instrument is for a particular operator and mandates compliance with the recording of additional parameters in lieu of the standard published in CAO 103.19.
The instrument commences on the day after it is registered and stops having effect at the end of 30 September 2012.
The instrument has been issued by the Director of Aviation Safety, on behalf of CASA, in accordance with sections 73 and 82 of the Act.
[Instrument number CASA EX51/11]