Explanatory Statement
Civil Aviation Regulations 1988
Exemption — refuelling with passengers on board
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and in the interests of the safety of air navigation.
Subregulation 235 (7) Civil Aviation Regulations 1988 (CAR 1988), provides that to ensure the safety of air navigation CASA may give directions about the method of loading persons and goods (including fuel) on aircraft.
Subsection 4 of Civil Aviation Order 20.9 (CAO 20.9), made under subregulation 235 (7) of CAR 1988, sets out CASA’s directions for loading of fuel on aircraft. Under subregulation 235 (11) of CAR 1988, CASA may exempt an aircraft from any of the requirements imposed by regulation 235, including the directions under paragraph 4.2.3 of CAO 20.9.
Under paragraph 4.2.3 of CAO 20.9, the operator of an aircraft with a maximum seating capacity of less than 20 must ensure that fuel is not loaded on to the aircraft while passengers are on board, or entering or leaving, the aircraft. However, under paragraph 4.2.4, the operator may allow passengers to remain on board if their medical condition is such that they cannot leave the aircraft without assistance, the fuel is not avgas or aviation turbine grade which does not contain an anti-static and the conditions in paragraph 4.2.4 applicable to an over 20 passenger aircraft are observed. These conditions include the presence of cabin attendants. Air National Australia Pty Ltd (the operator) operates a Bombardier Challenger CL600 aircraft with nationality and registration marks VH-LEF (the aircraft), and have requested an exemption to allow refuelling with passengers on board. At some ports passengers have no right of entry to airport terminals and would therefore congregate on a busy ramp area while refuelling. There is a safety risk that passengers may congregate on the apron area.
CASA has, therefore, issued an exemption from paragraph 4.2.3 of CAO 20.9 so that passengers may remain on board the aircraft, operated by the operator, during refuelling.
The exemption is subject to conditions. For example, the operator must ensure that when fuel is being loaded no passenger is on board unless the requirements set out in Schedule 2 to the exemption are met. The requirements include information that has to be given, before refuelling, to passengers who are capable of understanding; the location of the aircraft’s operating crew and medical staff while fuel is being loaded; and connection of the aircraft and fuelling equipment to an earth point while fuel is being loaded.
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. Because this approval affects the operation of paragraph 4.2.3 of CAO 20.9 the instrument is a disallowable instrument under regulation 5A of CAR 1988. It is therefore a legislative instrument. 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 not been undertaken in this case. The exemption has been issued, at the request of the operator, to permit the refuelling of aircraft to minimise risk to passengers and subject to safeguards.
The exemption commences on the day after it is registered and stops having effect at the end of 31 August 2010.
The exemption has been issued by a delegate of CASA under subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX56/08]