Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption – from standard take-off and landing minima – Japan Airlines
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.
Legislation
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 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 with lower minimum visibility (low visibility operations or LVO).
Subregulation 11.160(1) of the Civil Aviation Safety Regulations 1998 (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.
The exemption has been issued for Japan Airlines Co. Ltd (the operator), an airline based in Japan, for the conduct of LVO in Australia. The exemption states the minima for Boeing 767‑300ER, 777-200ER and 777-300ER aeroplanes, as well as the conditions for their use.
Legislative Instruments Act
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 aircraft employed by the operator. The exemption is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
Before the instrument commenced, the operator’s business was adversely affected by diversions from Sydney Airport when visibility was low. The operator has approval from the Japanese Civil Aviation Bureau (JCAB) to conduct LVO.
The instrument has been prepared at the request of the operator. Before the operator applied for the exemption, consultation took place between CASA and the operator about the effect of an exemption on the operator’s business and CASA’s requirements for the granting of an exemption.
The instrument reflects the exemption sought by the operator and the conditions assessed and approved by the JCAB. The instrument is in similar terms to many instruments issued to foreign operators for the same purpose.
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 the day of registration. It expires at the end of April 2016 as if it had been repealed by another instrument.
[Instrument number CASA EX53/13]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption under regulation 11.160 – from standard take-off and landing minima – Japan Airlines
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 Japan Airlines Co. Ltd (the operator) to use minima lower than the standard take-off and landing meteorological visibility 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 aircraft operated by the 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