Explanatory Statement
Civil Aviation Regulations 1988
Exemption — carriage of passengers on EADS CASA 212-400 aircraft within Antarctica
Legislation
Under subsection 98 (1) of the Civil Aviation Act 1988 (the Act), the Governor-General may make regulations for the Act and in the interests of the safety of air navigation.
Under regulation 308 of the Civil Aviation Regulations 1988 (CAR 1988), 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 (3) of CAR 1988 provides that CASA can impose conditions necessary in the interests of safety. Subregulation 262AL (3) of CAR 1988 provides that a person must not operate a restricted category aircraft for a purpose mentioned in paragraph 206 (1) (b) or (c). These paragraphs refer to the carriage of passengers or cargo for hire or reward on charter operations.
Skytraders Pty Ltd (the operator) operates 2 CASA 212-400 aircraft manufactured by the European aircraft manufacturing company CASA, a subsidiary of the European Aeronautic Defence and Space Company (EADS), on operations in Antarctica. The aircraft are used to transport passengers and cargo within Antarctica for the Australian Antarctic Division (AAD) of the Department of the Environment and Water Resources. The aircraft have been subject to modifications to permit them to operate in the conditions prevailing in Antarctica and have been issued with restricted category certificates of airworthiness. Restricted category aircraft are prohibited under subregulation 262AL (3) of CAR 1988 from engaging in charter operations involving the carriage of passengers and cargo. CASA is, however, satisfied that the aircraft, as modified for the conditions, are able to carry passengers and cargo safely for the purposes of the AAD. However, this would only be on the basis that the aircraft are limited to a maximum take‑off weight of 8 470 kg.
The exemption allows the CASA 212-400 aircraft operated by the operator to be used for that purpose under a contract entered into with the AAD. The exemption applies only to operations within Antarctica. The aircraft will not be used for the transport of persons or cargo under charter from Australia to Antarctica.
Legislative Instruments Act
The exemption is a legislative instrument for the purposes of section 5 of the Legislative Instruments Act 2003 (the LIA). It is subject to tabling and disallowance in the Parliament under sections 38 and 42 of that Act.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument is a remake of a previous instrument, CASA EX53/07, issued to the operator which ceased to have effect at the end of March 2008. The only difference between the previous instrument is the increase in weight from 8 100 kg to 8 470 kg and the addition of more conditions.
This instrument commences on the day after it is registered and stops having effect at the end of March 2009.
The exemption has been made by a delegate of CASA under subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX67/08]
Overview
The Civil Aviation Regulations 1988, as amended by the legislative instrument F2008L03465, were enacted to address the specific needs of transporting passengers and cargo within Antarctica under controlled conditions. This legislation was introduced to ensure that the modified CASA 212-400 aircraft operated by Skytraders Pty Ltd could be used for the Australian Antarctic Division's purposes, while still adhering to strict safety standards. The Civil Aviation Act 1988 empowers the Governor-General to make regulations for the Act, and the Civil Aviation Regulations 1988 provide the framework for exemptions under certain conditions, with the overarching policy objective of ensuring air navigation safety. The exemption granted under this instrument allows the specified aircraft to operate within Antarctica, subject to a maximum take-off weight limit, and is subject to tabling and disallowance in the Parliament under the Legislative Instruments Act 2003.
Scope and Application
The Civil Aviation Regulations 1988 provide a framework for the safe operation of aircraft, with specific regulations governing the carriage of passengers and cargo. Regulation 308 allows for exemptions from certain provisions of these regulations, subject to conditions that ensure safety. Skytraders Pty Ltd operates two CASA 212-400 aircraft that have been modified for use in Antarctica, specifically for the transport of passengers and cargo within the continent under a contract with the Australian Antarctic Division. This exemption from the restrictions on charter operations for restricted category aircraft applies solely to these aircraft when operating within Antarctica, ensuring that they do not engage in charter flights from Australia to Antarctica. The exemption is contingent on the aircraft not exceeding a maximum take-off weight of 8,470 kg. This exemption is a legislative instrument under the Legislative Instruments Act 2003, which means it is subject to the processes of tabling and disallowance in Parliament. Although consultation has not been undertaken for this particular exemption, it is a remake of a previous instrument that has been updated with increased weight allowance and additional conditions. The exemption is effective from the day after registration until the end of March 2009.
Key Provisions
The primary sections of the Civil Aviation Regulations 1988 (CAR 1988) relevant to this exemption are sections 308 and 262AL, along with subsection 98(1) of the Civil Aviation Act 1988. Section 308(1) allows the Civil Aviation Safety Authority (CASA) to exempt aircraft or persons from compliance with specified provisions of CAR 1988. Section 308(3) further allows CASA to impose conditions on these exemptions as necessary for safety. Section 262AL(3) generally prohibits restricted category aircraft from being used for charter operations involving the carriage of passengers or cargo, except under certain conditions. This exemption is made under the authority of subsection 98(1) of the Civil Aviation Act 1988, which permits the Governor-General to make regulations for the Act in the interests of the safety of air navigation.
Under the exemption, Skytraders Pty Ltd is allowed to operate its CASA 212-400 aircraft for the Australian Antarctic Division (AAD) within Antarctica. This exemption permits the operation of these aircraft for the carriage of passengers and cargo under a specific contract with the AAD, provided the aircraft are modified for Antarctic conditions and are limited to a maximum take-off weight of 8,470 kg. These aircraft must adhere to all other safety conditions imposed by CASA, which include ensuring that the aircraft are maintained in airworthy condition, that all personnel operating the aircraft are suitably qualified, and that all operations are conducted in accordance with CASA's regulations and any additional conditions imposed.
Failure to comply with the conditions of this exemption or with any other requirements of CAR 1988 could result in significant legal consequences. CASA may take enforcement action against Skytraders Pty Ltd or any person involved in the operation of the aircraft. Under CAR 1988, CASA has the authority to impose fines and other penalties for non-compliance. The specific penalties can vary, but they may include substantial fines and potential criminal charges for serious breaches that result in significant harm or endangerment. The severity of the penalty will depend on the nature and extent of the breach, with potential maximum penalties being detailed in the relevant sections of CAR 1988. It is important for all parties involved to strictly adhere to the conditions set forth in the exemption to avoid these consequences.