Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — use of mobile phones and other electronic devices when loading fuel
Legislation
Under subsection 98 (1) of the Civil Aviation Act 1988 (the Act), the Governor-General may make regulations for the Act and the safety of air navigation. Under subsection 98 (5A) of the Act, the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation, maintenance and airworthiness of aircraft, and design standards for aircraft.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including the Civil Aviation Regulations 1988 (CAR 1988), in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic. Subregulation 11.205 (1) provides that an exemption may be made subject to any conditions necessary in the interests of the safety of air navigation.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Under subregulation 235 (7) of CAR 1988, to ensure safety, CASA may give directions about loading fuel on aircraft. Some of these directions are set out in Civil Aviation Order 20.9 (CAO 20.9).
Subsection 4 of CAO 20.9 sets out CASA’s directions under subregulation 235 (7) of CAR 1988 for loading fuel on aircraft. Under paragraph 4.2.2 of CAO 20.9, the operator of an aircraft that has an underwing fuelling system must ensure that fuel is not loaded while passengers are on board, or entering or leaving, the aircraft unless certain conditions are met. One condition, in sub‑subparagraph 4.2.2 (a) (iii), is that passengers must be told that they may not use any electrical equipment (as this might cause fuel vapours to ignite). Under subparagraph 4.2.2 (b), passengers must obey this instruction.
Under subparagraph 4.4.3 (b) of CAO 20.9, a person must not, and the pilot in command and the operator must take reasonable steps to ensure that the person does not, operate electrical equipment within 15 metres of the aircraft’s fuel tank filling points, vent outlets or ground fuelling equipment unless the equipment has been inspected and complies with Appendix I of CAO 20.9.
Instrument
The exemption applies only to a turbine engine aircraft that is either a passenger aircraft with a maximum seating capacity of at least 20 or a cargo aircraft with a payload capacity of more than 3 410 kg, during refuelling (the aircraft), and to the operator, operations personnel, crew and passengers of such aircraft. The exemption exempts these persons from certain provisions of CAO 20.9 which would otherwise prevent the use of certain electronic devices in the cabin of, or outside, the aircraft. The devices are defined as digital mobile telephones, hand-held personal digital assistants, devices that transmit using only IEEE 802.11 wireless standard technology and any portable electronic devices not designed to produce a radio frequency emission.
The exemption is subject to conditions inside the cabin and outside the cabin so that a device may only be used in restricted circumstances. Outside the cabin, these restrictions are based on the concept of a fuelling zone within which the devices must not be used. The fuelling zone is defined in the instrument as the area that is within 3 metres radially from fuel filling and venting points, fuelling equipment and, if applicable, the hydrant valve in use for fuelling.
Inside the cabin
The conditions provide that a person may only use a device in the cabin of the aircraft if the person complies with the conditions. The pilot in command must give permission for the use and the use must stop if the permission is withdrawn. The pilot in command may only give permission if all doors within the fuelling zone are closed and if the aircraft operator has already ensured that radio frequency emissions will not affect aircraft systems, or if they may do so, the effects are corrected by established procedures before the engines start.
Outside the cabin
The conditions also provide that only a designated member of the aircraft operator’s operations personnel (a designated operations person) may use a device outside the cabin of the aircraft and then only subject to restrictions.
The person may only use a device outside the cabin of the aircraft if it is used outside the 3 metre fuelling zone. The aircraft operator must have trained the person how to identify the fuelling zones associated with relevant aircraft, not to use a device within those zones, to be aware of risks associated with distraction when using a device and how to mitigate those risks. The aircraft operator must have already ensured for the operation or a class of operations, including the operation, that radio frequency emissions will not affect the aircraft’s systems or that procedures are established that will correct any effect the emissions may have before the engines are started.
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 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 aircraft. The exemption applies to a class of aircraft, being turbine engine aircraft, as well as a class of persons, being the operator, the operator’s personnel, the crew or the passengers of the aircraft.
The exemption also affects the operation of sub-subparagraph 4.2.2 (a) (iii), subparagraph 4.2.2 (b) and subparagraph 4.4.3 (b) of CAO 20.9. Under subregulation 5A (1) of CAR 1988, if an exemption affects the operation of a CAO, it is declared to be a disallowable instrument. Under paragraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument if it is declared to be a disallowable instrument by legislation in force before the LIA.
The instrument is, therefore, a legislative instrument and as such is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
This instrument renews a current exemption, CASA EX96/11, which expired at the end of August 2014. Industry has operated with the understanding that this exemption would continue. It is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required (OBPR id: 14507).
Making and commencement
The exemption has been issued by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on 1 August 2014. It expires at the end of July 2017, as if it had been repealed by another instrument.
[Instrument number CASA EX66/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — use of mobile phones and other electronic devices when loading fuel
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 legislative instrument exempts Qantas Airways Limited (the operator), the operator’s personnel, the flight crew and passengers from certain provisions of Civil Aviation Order 20.9 which would otherwise prevent the use of certain electronic devices in the cabin of, or outside, the aircraft. Electronic devices include digital mobile telephones, handheld personal digital assistants, devices that transmit using only IEEE 802.11 wireless standard technology and any portable electronic devices not designed to produce a radio frequency emission.
The exemption is subject to conditions imposed by CASA in the interest of air safety.
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