Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption – from standard take-off and landing minima – Express Freighters Australia Pty Ltd
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.
Subsection 98 (5A) of the Act provides that the Regulations may empower CASA to issue instruments in relation to the following:
(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft; or
(b) the airworthiness of, or design standards for, aircraft.
Subregulation 11.160(1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98(5A), CASA may grant an exemption from a provision of the Regulations, including the Civil Aviation Regulations 1988 (CAR 1988) or a provision of the Civil Aviation Orders, in relation to a matter mentioned in that subsection. Under subregulation 11.160(2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.205(1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230(1), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement) or, if no day is specified, 3 years after commencement.
Under subregulation 257(1) of 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 subregulations 257(3) and (4), it is an offence for an aircraft to take off or land 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 for take-off and landing was made in instrument CASA 70/11. The minima are also set out in AIP En Route 1.5, section 4. If conditions are met, the minimum visibility for take-off inside or outside Australian territory is 550 metres. If conditions are met, the minimum visibility for landing inside or outside Australian territory is 800 metres, or 550 metres runway visual range. An exemption would be required to operate in lesser minimum visibility.
CASA had issued an instrument (CASA EX53/11) exempting Boeing 737 and Boeing 767 aeroplanes operated by Express Freighters Australia Pty Ltd (the operator) from the standard meteorological minima for take‑off and landing. CASA EX53/11 stops having effect at the end of April 2013. This exemption will allow the operator to continue to operate those aircraft in lesser minimum visibility. The same aircraft will be operated under the new exemption.
All conditions remain unaltered. The operator must ensure that specified visibility standards are met for take-offs and landings, which may be performed only at aerodromes properly equipped to support them. Flight crew training, experience, recency and competency must meet specified benchmarks. Aircraft equipment must be maintained. Operational restrictions and limitations must be observed. Appropriate foreign approvals for the operations must be obtained. A range of documents for inspection must be carried on board the aircraft.
Legislative Instruments Act 2003 (the LIA)
Subsection 98(5AA) of the Act states that an instrument issued under paragraph (5A)(a) is a legislative instrument if it applies to a class of persons or a class of aircraft. This exemption applies to classes of aircraft, and so is a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
CASA has consulted the operator about the renewal of the exemption. The operator requested the renewal of the exemption with a minor amendment to clarify clause 21 of Schedule 2, which has been amended in accordance with the request.
No further consultation is considered appropriate as the instrument continues existing arrangements which have been in place without incident. The instrument is required by the operator to enable it to continue to conduct low visibility take-offs and landings inside and outside Australian territory consistent with the standards and requirements specified in the instrument, which are not considered prejudicial to the interests of safety.
Office of Best Practice Regulation (OBPR)
The exemption is of beneficial effect to the operator. OBPR does not require preparation of a Regulation Impact Statement in this case because a preliminary assessment of business compliance costs in the context of the nature of the instrument indicates that it will have only a nil to low impact on business.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260(1) of CASR 1998.
The instrument commences on 1 May 2013 and expires at the end of April 2016 as if it had been repealed by another instrument.
[Instrument number CASA EX51/13]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption – from standard take-off and landing minima – Express Freighters Australia Pty Ltd
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 permits the operator to use minima lower than the standard take‑off and landing minima determined by CASA. The exemption is subject to conditions directed by CASA in the interest of safety.
The primary purpose of the legislative instrument is to allow pilots in command flying for the named operator to land and take-off using reduced visibility minima specified in the exemption. Use of the minima is subject to compliance with the stated conditions.
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