Explanatory Statement
Civil Aviation Regulations 1988
Authorisation — to carry out maintenance on warbirds
Exemption — to allow supervision of maintenance
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) enables the Governor-General to make regulations for the Act and the safety of air navigation.
Regulation 42ZC of the Civil Aviation Regulations 1988 (CAR 1988) describes who can perform maintenance on an Australian aircraft in Australian territory.
Subregulation 308 (1) of CAR 1988 provides that CASA may exempt aircraft, or persons in, on, or otherwise associated with the operation of, the aircraft, from compliance with specified provisions of CAR 1988. Subregulation 308 (2) provides that before making an exemption, CASA must take into account any relevant considerations relating to the interests of safety. Subregulation 308 (3) provides that CASA may make an exemption subject to any condition specified in the exemption as being necessary in the interests of safety.
Carrying out maintenance on ex-military aircraft
This instrument authorises persons to carry out maintenance on aircraft mentioned in subparagraph 21.189 (1) (a) (ii) of the Civil Aviation Safety Regulations 1998 (warbirds), if they are supervised by the holder of an airworthiness authority covering the maintenance.
Background
Regulation 42ZC of CAR 1988, which deals with the maintenance of Australian aircraft in Australian territory, operates by reference to Class A and Class B aircraft. Class A aircraft are either type certified in the transport category or used for commercial purposes as specified in paragraph 206 (1) (c) of CAR 1988. Class B aircraft are all aircraft that are not Class A aircraft.
Under paragraph 42ZC (4) (e) of CAR 1988, a person may carry out maintenance on a Class B aircraft if authorised under subregulation 42ZC (6) to do so. This instrument authorises a person to carry out maintenance on a warbird. The instrument provides that the person may be under the supervision of the holder of an airworthiness authority. The term supervision as defined requires the presence of the holder of the authority and his or her immediate availability to answer questions from the supervised person.
Under clause 1 of Schedule 2, the holder of the airworthiness authority must provide supervision only in a situation in which he or she holds an airworthiness authority covering the maintenance and would be permitted to carry out the maintenance under paragraph 42ZC (4) (a) or (b) of CAR 1988.
Exemption under subregulation 308 (1)
Section 5 of the instrument exempts the holder of an airworthiness authority providing supervision from compliance with subregulation 33B (4) of CAR 1988. Subregulation 33B (4) states that the holder must not contravene a condition to which the authority is subject. Airworthiness authorities are subject to a standard condition that prohibits the holder from supervising maintenance work. This exemption allows the holder of an authority to supervise maintenance under the instrument if they meet the conditions in clause 1 of Schedule 2.
The instrument revokes a previous instrument which did not contain an exemption from subregulation 33B (4) of CAR 1988 but was in other respects identical.
Legislative Instruments Act
Subregulation 308 (4) of CAR 1988 provides that an exemption is a disallowable instrument. 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 a disallowable instrument under legislation in force before the commencement of the LIA. Under subsection 5 (4) of the LIA where only some provisions of an instrument are of a legislative character, the whole instrument is a legislative instrument. The authorisation and exemption instrument is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The instrument has been prepared on the basis of a proposal received from a section of the aviation industry concerned with the maintenance of warbirds. CASA considered the proposal and decided to issue the authorisation and exemption to facilitate the maintenance of those aircraft, subject to compliance with appropriate conditions.
The instrument commences on the day after it is registered.
The instrument has been made by a delegate of CASA, in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX65/07]