Explanatory Statement
Civil Aviation Regulations 1988
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 the safety of air navigation.
Under subregulation 257 (1) of the Civil Aviation Regulations 1988 (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 237/10. The minima are also set out in AIP En Route 1.5, sections 4.3 and 4.4. 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.
Under subregulation 308 (1) of CAR 1988, 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. Under subregulation 308 (2), before making an exemption, CASA must take into account any relevant considerations relating to the interests of safety. Under subregulation 308 (3), CASA may make an exemption subject to any condition specified in the exemption as being necessary in the interests of safety. Under subregulation 308 (3A), it is an offence to contravene a condition of an exemption that is otherwise being relied upon for an operation.
CASA had issued an instrument (CASA EX67/10) exempting Boeing 737 aircraft operated by Express Freighters Australia Pty Ltd (the operator) from the standard meteorological minima for take-off and landing. This instrument revokes and replaces that exemption. The main differences between this instrument and CASA EX67/10 are that this instrument also applies to Boeing 767 aircraft and to low visibility landings. This instrument mirrors the conditions and standards that apply to Qantas Airways Limited as set out in CASA EX20/11.
Among other conditions, 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 the low visibility operations (LVOs) conducted under the exemption. 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
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. Under subregulation 308 (4) of CAR 1988, an exemption is a disallowable instrument. 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
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument is required by the operator to enable low visibility take-offs and CAT II and CAT III 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. The instrument has been requested by the operator and replaces instrument CASA 67/10, which also related to LVOs.
Office of Best Practice Regulation (OBPR)
The exemption would be of beneficial effect to the operator. The 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.
Making and commencement
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance sections 73 and 82 of the Act.
The instrument commences on the day after registration. It stops having effect at the end of April 2013.
[Instrument number CASA EX53/11]
Overview
The Civil Aviation Regulations 1988 (CAR 1988) were enacted to establish regulations for civil aviation operations in Australia, ensuring safety and compliance. Section 98 of the Civil Aviation Act 1988 empowers the Governor-General to make regulations concerning the Act and the safety of air navigation. Under subregulation 257, the Civil Aviation Safety Authority (CASA) is authorised to determine meteorological minima for landing and take-off at aerodromes, which must be published in the Aeronautical Information Publication (AIP) or Notices to Airmen (NOTAMS). These minima establish the minimum visibility requirements for safe operations, with standard minima set at 550 metres for take-off and 800 metres or 550 metres runway visual range for landing under certain conditions. An exemption is necessary for operations in lesser visibility conditions. CASA has the authority to exempt aircraft or persons associated with aircraft operations from specified provisions of CAR 1988, provided it does not compromise safety. This legislative framework was designed to address the need for standardised safety measures in civil aviation while allowing for exemptions where necessary to accommodate specific operational requirements.
Scope and Application
The Civil Aviation Regulations 1988, as amended, provide for the safety of air navigation in Australia, with specific provisions for the standard meteorological minima required for take-off and landing at aerodromes. These minima, which were established under instrument CASA 237/10, mandate a minimum visibility of 550 metres for take-off and 800 metres or 550 metres runway visual range for landing, both inside and outside Australian territory, unless an exemption applies. Under the authority granted by Section 98 of the Civil Aviation Act 1988, the Civil Aviation Safety Authority (CASA) can issue exemptions from these standard minima, subject to safety considerations. This specific exemption, CASA EX53/11, applies to Boeing 737 and 767 aircraft operated by Express Freighters Australia Pty Ltd, allowing them to perform take-offs and landings at reduced visibility, provided certain conditions are met. These conditions include compliance with specified visibility standards, the use of appropriately equipped aerodromes, adherence to stringent flight crew training and aircraft maintenance requirements, and the acquisition of necessary foreign approvals. The exemption is a disallowable instrument under the Legislative Instruments Act 2003 and must be tabled and can be disallowed by the Parliament. Although consultation under the Legislative Instruments Act was not undertaken, the exemption has been requested by the operator and replaces a previous exemption, CASA EX67/10, with expanded applicability to include Boeing 767 aircraft and low visibility landings.
Key Provisions
The Civil Aviation Regulations 1988 (CAR 1988) under the Civil Aviation Act 1988 (section 98) empower the Civil Aviation Safety Authority (CASA) to establish the meteorological minima for take-off and landing at aerodromes (subregulation 257(1)). These minima are specified in instrument CASA 237/10 and in the Aeronautical Information Publication (AIP) En Route 1.5, sections 4.3 and 4.4, where the minimum visibility for take-off is 550 metres and for landing is 800 metres or 550 metres runway visual range, provided certain conditions are met. Any deviation from these standards without an appropriate exemption is an offence (subregulation 257(3) and (4)).
Under subregulation 308(1) of CAR 1988, CASA can grant exemptions from specified provisions of the regulations, provided that any exemption made is in the interests of safety (subregulation 308(2)). Such exemptions can be subject to conditions necessary for safety (subregulation 308(3)). The exemption for Boeing 737 and 767 aircraft operated by Express Freighters Australia Pty Ltd, issued under CASA EX53/11, allows for operations in lower visibility conditions than the standard minima. However, this exemption is subject to stringent conditions, including maintaining specified visibility standards, ensuring that the aircraft and crew meet certain benchmarks, adhering to operational restrictions, obtaining necessary approvals, and carrying required documentation.
Failure to comply with the conditions of the exemption is an offence under subregulation 308(3A) of CAR 1988, which carries potential civil or criminal penalties, depending on the severity of the breach. The exemption is considered a disallowable instrument under the Legislative Instruments Act 2003 (subparagraph 6(d)(i)) and, as such, must be tabled and can be subject to disallowance in Parliament (sections 38 and 42 of the LIA).
Consultation under section 17 of the LIA was not undertaken for this exemption, as it was requested by the operator to enable low visibility operations (LVOs) consistent with specified standards, which are not deemed prejudicial to safety. The Office of Best Practice Regulation (OBPR) has determined that this exemption will have a nil to low impact on business compliance costs, and therefore, a Regulation Impact Statement is not required. The exemption was made by the Director of Aviation Safety on behalf of CASA, in accordance with sections 73 and 82 of the Act, and it will come into effect the day after registration, ceasing to have effect at the end of April 2013.