Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — maintenance on limited category and experimental aircraft
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.
Under regulations 21.189 and 21.195A of the Civil Aviation Safety Regulations 1998 (CASR 1998), aircraft are not required to meet design standards in order to qualify for the issue of special certificates of airworthiness in the limited category or experimental certificates.
Regulation 42U of the Civil Aviation Regulations 1988 (CAR 1988) provides that a person may modify or repair an Australian aircraft only if the design of the modification or repair has been approved, or taken to be approved, and the modification or repair is in accordance with that design. Paragraphs 42W (2) (b) and (4) (a) and (c) of CAR 1988 require a replacement component to be designed, manufactured and modified or repaired in compliance with a design standard.
These provisions have created problems for limited category and experimental aircraft. They impose an undue burden on:
(a) CASA or any authorised person asked to approve the design of a modification or repair to 1 of these aircraft for which no design standard applies; and
(b) persons who carry out maintenance on these aircraft, because unless the design of the modification or repair is specified by CASA in an Airworthiness Directive or direction, or is specified in the aircraft’s approved maintenance data, these persons are not permitted to modify or repair the aircraft until the design is approved; and
(c) registered operators because they must obtain approvals before having their aircraft modified or repaired.
Subregulation 11.160 (1) of CASR 1998 provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including CAR 1988, or a provision of the Civil Aviation Orders (the CAOs), 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.
Instrument
The instrument exempts persons carrying out maintenance on limited category or experimental aircraft from compliance with the requirements of regulation 42U and paragraphs 42W (2) (b) and (4) (a) and (c) of CAR 1988. In the interest of aviation safety, the exemption does not apply to particular maintenance activities and is subject to conditions.
The instrument does not apply to:
(a) maintenance of aircraft instruments and equipment specifically required by CASR 1998, CAR 1988 or the CAOs; or
(b) maintenance related to a condition of the special certificate of airworthiness or experimental certificate for the aircraft; or
(c) maintenance specified in an Airworthiness Directive or a direction issued by CASA applicable to the aircraft; or
(d) maintenance related to an instruction specified in the aircraft’s approved maintenance data.
The exemption is subject to the condition that if a modification or repair of an aircraft, or replacement of an aircraft component, is a major design change to the aircraft, as defined, the registered operator must, as soon as possible, provide CASA or an authorised person with details of the design change. Having considered the details, CASA or the authorised person may, if satisfied that the stated requirements are met, inform the registered operator that the modification or repair is acceptable. If they are not satisfied, CASA or the authorised person may issue a new special certificate of airworthiness or, if further flight testing is necessary, an experimental certificate, with appropriate conditions attached.
Legislative Instruments Act 2003 (the LIA)
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations or the CAOs. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The exemption applies to a class of persons. The exemption is, therefore, a legislative instrument and 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 exemption is a reissue of CASA EX180/12 with no change to the substantive content of the instrument. CASA is continuing to work with industry to develop regulatory provisions that resolve the issues caused by the specified paragraphs of regulation 42W of CAR 1988.
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 regulation 11.260 of CASR 1998.
The instrument commences on 1 April 2015. It expires at the end of March 2017, as if it had been repealed by another instrument.
[Instrument number CASA EX51/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — maintenance on limited category and experimental aircraft
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 exempts persons carrying out maintenance on limited category or experimental aircraft from compliance with some of the requirements of the Civil Aviation Regulations 1988 relating to modification and repair of the aircraft and the installation and use of aircraft components. In the interest of safety, the exemption is subject to conditions and its application does not include certain maintenance activities.
The primary effect of the legislative instrument is to avoid the imposition of impractical requirements relating to the maintenance of limited category and experimental aircraft.
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