Explanatory Statement
Civil Aviation Regulations 1988
Exemption — from standard take-off minima – Virgin Blue
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Under subregulation 257 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may determine the meteorological minima, that is the visibility requirements, for landing or take-off at an aerodrome. Under subregulation 257 (2), the determination must be published in AIP or NOTAMS. Under subregulation 257 (3), it is an offence for an aircraft to take off if an element of the meteorological minima for that operation is less than that determined for the aircraft at the aerodrome.
The determination of standard meteorological minima for take-off and landing was made in instrument CASA 237/10. The minima are also set out in AIP En Route 1.5, sections 4.3 and 4.4. If conditions are met, the minimum visibility for take-off inside or outside Australian territory is 550 metres. An exemption would be required to operate in lesser minimum visibility.
Under subregulation 308 (1) of 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. Under subregulation 308 (2), before making an exemption, CASA must take into account any relevant considerations relating to the interests of safety. Under subregulation 308 (3), CASA may make an exemption subject to any condition specified in the exemption as being necessary in the interests of safety. Under subregulation 308 (3A), it is an offence to contravene a condition of an exemption that is otherwise being relied upon for an operation.
CASA had issued an instrument (CASA EX21/10) exempting various aeroplanes operated by Virgin Blue Airlines Pty Limited (Virgin Blue) from the standard meteorological minima for take‑off. This exemption revokes and replaces the previous instrument. There has been only 1 change made to the terms of the previous exemption. The need to use high intensity runway edge lighting (HIRL) as opposed to ordinary runway edge lighting, mentioned in Schedule 2, clause 10, applies only to runways with less than 350 metres runway visual range. This is in accordance with accepted aviation safety practices. Instrument CASA EX21/10 applied the need for HIRL to all runways.
All other conditions remain unaltered. The operator must ensure that specified visibility standards are met for take-offs, which may be performed only at aerodromes properly equipped to support them. Flight crew training, experience, recency and competency must meet specified benchmarks. Aircraft equipment must be maintained. Operational restrictions and limitations must be observed. Appropriate foreign approvals for the operations must be obtained. A range of documents for inspection must be carried on board the aircraft.
Legislative Instruments Act
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 to be a disallowable instrument under legislation in force before the commencement of the LIA. Under subregulation 308 (4) of CAR 1988, an exemption is a disallowable instrument. The exemption is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument is required by Virgin Blue to enable low visibility take-offs inside and outside Australian territory consistent with the standards and requirements specified in the instrument which are not considered prejudicial to the interests of safety.
Office of Best Practice Regulation (OBPR)
The exemption would be of beneficial effect to the operator. The OBPR does not require preparation of a Regulation Impact Statement in this case because a preliminary assessment of business compliance costs in the context of the nature of the instrument indicates that it will have only a nil to low impact on business.
Making and commencement
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument commences on the day after it is registered. It stops having effect at the end of 31 August 2012.
[Instrument number CASA EX71/10]
Overview
The Civil Aviation Regulations 1988, enacted to ensure the safety of air navigation, include provisions for setting meteorological minima for take-off and landing at aerodromes, as empowered by the Civil Aviation Act 1988. These minima are typically set at 550 metres for visibility, but may be subject to exemptions under certain conditions, as outlined in the Civil Aviation Regulations 1988. The Civil Aviation Safety Authority (CASA) has the authority to exempt specific aircraft or operations from these standards, provided it does not compromise safety. CASA issued an exemption under instrument CASA EX21/10 for Virgin Blue Airlines Pty Limited, allowing them to operate under lower visibility conditions than the standard minima, subject to specific safety requirements and conditions, such as the use of high intensity runway edge lighting on runways with less than 350 metres runway visual range. This exemption is subject to disallowance in the Parliament under the Legislative Instruments Act 2003 and is intended to benefit the operator without adversely affecting safety.
Scope and Application
The Civil Aviation Regulations 1988 Exemption—from standard take-off minima—Virgin Blue applies specifically to Virgin Blue Airlines Pty Limited and its operations. This exemption is designed to allow the airline to conduct take-offs in conditions of lower visibility than the standard minima set out in the Civil Aviation Regulations 1988. The exemption applies to aircraft operated by Virgin Blue and to the flight crew, personnel, and associated operations of the airline. It is pertinent to the conduct of take-offs at designated aerodromes and the transactions related to flight operations within the regulatory framework of the Civil Aviation Act 1988. The exemption has a national jurisdictional reach, applicable both within Australian territory and outside it, wherever Virgin Blue operates. The exemption does not apply to any other entities or airlines unless specifically included in a subsequent legislative instrument. The instrument is subject to the disallowance provisions under the Legislative Instruments Act 2003 and must be tabled in Parliament. While the exemption allows operations under specified conditions, it is strictly regulated to ensure compliance with safety standards, including requirements for aircraft equipment, flight crew qualifications, and operational documentation.
Key Provisions
The Civil Aviation Regulations 1988 (CAR 1988) under the Civil Aviation Act 1988 (the Act) provide a framework for the safety of air navigation. Section 98 of the Act allows the Governor-General to make regulations, and under subregulation 257(1) of CAR 1988, the Civil Aviation Safety Authority (CASA) can determine the meteorological minima for landing and take-off at aerodromes, which must be published in the Aeronautical Information Publication (AIP) or Notice to Airmen (NOTAMS). These standards ensure that the minimum visibility for take-off is 550 metres under normal conditions. However, under subregulation 308(1), CASA can exempt specific aircraft or persons associated with their operation from these provisions if safety considerations are adequately addressed.
This exemption applies to Virgin Blue Airlines Pty Limited (Virgin Blue), allowing them to operate under conditions of lower visibility than the standard 550 metres. The exemption, detailed in instrument CASA EX21/10, requires the use of high intensity runway edge lighting (HIRL) on runways with less than 350 metres runway visual range. It stipulates that flight crew must meet specified training, experience, recency, and competency standards. Aircraft must be properly equipped and maintained, and operational restrictions and limitations must be observed. Appropriate foreign approvals and documentation must also be in place. Any contravention of the exemption conditions is an offence under subregulation 308(3A) of CAR 1988.
Failure to comply with the specified provisions of the exemption or any condition set forth by CASA results in civil and potentially criminal consequences. The exemption is a legislative instrument under the Legislative Instruments Act 2003 (LIA) and must be tabled and can be disallowed by Parliament. Although consultation under section 17 of the LIA was not undertaken, the exemption is deemed necessary for Virgin Blue's operations. The Office of Best Practice Regulation (OBPR) found that the exemption would have a nil to low impact on business, thus not requiring a Regulation Impact Statement. The exemption was made by the Director of Aviation Safety on behalf of CASA and is effective from the day after its registration, expiring on 31 August 2012.