CASA EX62/05 - Exemption – maximum take-off weight and installation of fuel system

Overview

The Civil Aviation Regulations 1988 were amended by the instrument F2005L04258 to address a specific operational need for a Cessna 208B aircraft operated by Dick Smith Adventure Pty Ltd. The aircraft, bearing the registration VH-SHW, requires exemption from certain regulatory requirements to facilitate flights between Bankstown, New South Wales, and New Zealand. This exemption was enacted to allow the aircraft to operate with a temporary fuel system and at a gross weight exceeding its maximum certificated take-off weight, which would otherwise contravene subregulations 235(4) and (5) of the Civil Aviation Regulations 1988 and regulation 42U concerning the design and installation of the fuel system. The instrument was issued under the authority of the Civil Aviation Act 1988, empowering the Governor-General to make regulations, and was subject to the legislative oversight mechanisms established by the Legislative Instruments Act 2003, including the requirement for tabling and potential disallowance in Parliament.

Scope and Application

The Civil Aviation Regulations 1988 (CAR 1988) govern the civil aviation sector in Australia, and under Section 98 of the Civil Aviation Act 1988, the Governor-General has the authority to establish these regulations. Subregulation 308(1) of CAR 1988 empowers the Civil Aviation Safety Authority (CASA) to exempt aircraft, or individuals associated with their operation, from specific provisions of CAR 1988. This particular legislative instrument concerns an exemption for a Cessna 208B aircraft with the registration marks VH-SHW operated by Dick Smith Adventure Pty Ltd for flights between Bankstown, New South Wales, and New Zealand. The exemption allows the aircraft to operate with a temporary fuel system that does not meet the design standards and at a weight exceeding its maximum certificated take-off weight, both of which are normally regulated by subregulations 235(4) and (5) and regulation 42U of CAR 1988. However, this exemption is conditional, requiring adherence to specific engineering and operating instructions to ensure safety during the flights. The exemption is a legislative instrument subject to the Legislative Instruments Act 2003 and is effective from the day after its registration.

Key Provisions

The key operative sections of this legislation include subregulation 308(1) of the Civil Aviation Regulations 1988 (CAR 1988), which empowers the Civil Aviation Safety Authority (CASA) to exempt an aircraft, or persons associated with the operation of the aircraft, from compliance with specified provisions of CAR 1988. Regulation 235 of CAR 1988, which specifies the determination of the maximum take-off weight of an aircraft, is also significant. Subregulations 235(4) and (5) of CAR 1988 state that the pilot in command must not take off if the aircraft's gross weight exceeds its determined maximum weight. The instrument issued under this legislation exempts the Cessna 208B aircraft bearing the nationality and registration marks VH-SHW operated by Dick Smith Adventure Pty Ltd from these requirements, as well as from the requirements of regulation 42U of CAR 1988 concerning the design and installation of the aircraft's fuel system. This legislation imposes specific obligations on the parties involved. The operator, Dick Smith Adventure Pty Ltd, must ensure that the installation of the ferry fuel system is carried out in accordance with Engineering Instruction Sheet No 201/263/EI 1 of Auto Avia Design Pty Ltd. The flight must also be conducted in accordance with Ferry Operating Instructions 201/263/FOS of Auto Avia Design Pty Ltd. These conditions are intended to ensure that the aircraft, as modified, can be operated safely on the proposed flight. Furthermore, the exemption is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (LIA). In terms of consequences for breach, subregulation 308(4) of CAR 1988 declares an exemption to be a disallowable instrument. Under subparagraph 6(d)(i) of 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. The instrument is therefore a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA. It is not specified in the legislation what the maximum penalties are for breach of the conditions set out in the exemption. However, it can be inferred that any breach of the conditions would likely result in the exemption being revoked and the operator being subject to the full requirements of CAR 1988.