Explanatory Statement
Civil Aviation Regulations 1988
Exemption — design of modification or repair for an aircraft that is to be operated under a special flight permit
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations.
Under subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), CASA may grant an exemption from compliance with a provision of CASR 1998. Under regulation 11.165, a person may apply for an exemption.
Under subregulation 11.170 (3) of CASR 1998, in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety. 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 subregulation 21.009 (2) of CASR 1998, an approved design organisation (ADO), or an authorised person, must approve the technical data for a modification or repair design approval if, among other things, the design complies with the applicable airworthiness standards for the design.
Under regulation 21.437 of CASR 1998, an authorised person, or an ADO, must approve an application for a modification or repair design approval if, among other things, the design complies with the applicable airworthiness standards for the design.
Authorised persons and ADOs are often faced with applications to approve temporary modifications and repairs, for example, ferry tank installations, which will allow an aircraft to fly under the special flight permit provisions in regulation 21.197 of CASR 1998. Special flight permits may only be issued for limited purposes.
CASA recognises that it is often not possible or practicable for an operator to demonstrate strict compliance with all applicable airworthiness standards in the case of temporary modifications or repairs associated with operations under a special flight permit. Furthermore, regulation 21.197 of CASR 1988 specifically provides that a special flight permit may be issued for an aircraft that may not currently meet the applicable airworthiness requirements, but can reasonably be expected to be capable of safe flight for the intended purpose.
The exemption allows an authorised person, or ADO, to approve the design of a modification or repair which does not fully comply with all the applicable airworthiness standards. It is a condition that an authorised person, or ADO, must take into account any relevant consideration relating to the safe operation of the intended flight, including all hazards and risks, before approving the design of temporary modifications or repairs. Also, any aircraft fitted with such a modification or repair may only fly under a special flight permit.
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 Civil Aviation Orders. 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 a class of aircraft. The exemption applies to a class of persons, being authorised persons and ADOs. The exemption is, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2000 (the LIA).
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The exemption is a re-issue of that part of CASA EX84/11 which dealt with special flight permits. CASA EX84/11 expired at the end of June.
CASA EX84/11 also covered approvals associated with an experimental certificate for research and development or showing compliance with the regulations. Those approvals are now provided for by CASA EX180/12. There have been no substantial changes to the effect of the superseded exemptions in either case.
Human Rights Compatibility
A Statement of Compatibility with Human Rights is at Attachment 1.
Commencement and making
The instrument commences on the day of registration and expires at the end of June 2016, as if it had been repealed by another instrument.
The direction has been issued by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
[Instrument number CASA EX58/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption – design of modification or repair for an aircraft
that is to be operated under a special flight permit
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 exemption allows an authorised person, or approved design organisation (ADO), to approve the design of a modification or repair of an aircraft, which does not fully comply with all the applicable airworthiness standards, to be operated under a special flight permit, subject to the condition that the safety of air navigation is not compromised. It is a condition that an authorised person, or ADO, must take into account any relevant consideration relating to the safe operation of the intended flight, including all hazards and risks, before approving the design of temporary modifications or repairs. Any aircraft fitted with such a modification or repair may only fly under a special flight permit.
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