Explanatory Statement
Civil Aviation Regulations 1988
Exemption — earth point at fuelling site
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation.
Under subregulation 235 (11) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may exempt an aircraft from any of the requirements imposed by regulation 235.
Subregulation 235 (7) of CAR 1988 provides that CASA may, for the purposes of ensuring the safety of air navigation, give directions with respect to the method of loading persons and goods (including fuel) on aircraft.
Subsection 4 of Civil Aviation Order 20.9 (CAO 20.9) is made under subregulation 235 (7) of CAR 1988 and sets out CASA’s directions for loading fuel on aircraft. Paragraph 4.3.4 of CAO 20.9 states the aircraft and all items of fuelling equipment (including drums, funnels and other loose items of equipment, where used) must be connected in such a way as to ensure that they are of the same electrical potential, and where a suitable earth point is available at the fuelling site, both the aircraft and the equipment must be effectively connected to that point. Qantas Airways Limited (Qantas) has advised that its fuel suppliers have advised that grounding is not permitted during aircraft fuelling operations. Qantas has applied for an exemption against the earthing requirements.
CASA has assessed the documentation and has, therefore, issued an exemption from paragraph 4.3.4 of CAO 20.9 for the fuelling of aircraft operated by Qantas. The exemption is subject to conditions. For example, Qantas must ensure that the aircraft fuelling equipment is bonded together. The fuelling operations must be conducted underwing or Qantas must ensure that fuelling operations uses a body refuelling point.
Legislative Instruments Act
Under regulation 5A of CAR 1988 if CASA has issued a Civil Aviation Order (CAO) that is not an Airworthiness Directive and a prescribed direction or exemption is issued, given or granted and the prescribed direction or exemption has the effect of repealing, amending, or otherwise affecting the operation of anything in the CAO, the prescribed direction or exemption is a disallowable instrument. Because the exemption affects the operation of paragraph 4.3.4 of CAO 20.9, it is declared to be a disallowable instrument under regulation 5A of CAR 1988.
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. 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 re-issues a previous exemption which stops having effect at the end of July 2010. The instrument has been issued at the request of Qantas to permit the refuelling of aircraft to meet the fuelling requirements of their fuel suppliers.
The exemption commences on 1 August 2010 and stops having effect at the end of 31 July 2012.
The exemption has been issued by a delegate of CASA appointed under regulation 7 of CAR 1988.
[Instrument number CASA EX57/10]