Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — defect beyond designated rectification interval
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations in relation to the airworthiness of aircraft. Subsection 98 (5A) of the Act states that the regulations may empower CASA to issue an instrument relating to the safe navigation and operation, or the maintenance, of aircraft.
Permissible unserviceabilities and minimum equipment lists
Subregulation 37 (1) of the Civil Aviation Regulations 1988 (CAR 1988) empowers CASA to approve a defect in an Australian aircraft as a permissible unserviceability (PU). Under subregulation 37 (2), CASA may, for the purpose of ensuring the safety of air navigation, direct that the use of an Australian aircraft with a PU is subject to such conditions as are set out in the direction.
The Dictionary in the Civil Aviation Safety Regulations 1998 (CASR 1998) defines a minimum equipment list (MEL) for an aircraft to mean a list of each defect in the aircraft that is approved as a PU under regulation 37 of CAR 1988. The MEL designates a rectification interval for each defect listed in the MEL. The designated rectification interval for a defect will be specified as a Category A, B, C or D rectification interval, depending on the period within which the operation of the aircraft for the flight is permitted with the defect.
Under subregulation 42.030 (1) of CASR 1998, it is an offence for the registered operator of an aircraft to operate the aircraft for a flight, or permit it to be operated for a flight, if a requirement mentioned in subregulation 42.030 (2) is not met for the aircraft before the flight commences.
Paragraph 42.030 (2) (a) requires that that the registered operator has ensured that the requirements mentioned in Division 42.C.2, which includes regulations 42.110 and 42.115 described below, are met for the aircraft. Paragraph 42.030 (2) (e) requires that, if there is a defect in the aircraft, at least 1 of several circumstances must exist. One of those circumstances is that the operation of the aircraft for the flight with the defect is permitted by the MEL for the aircraft. Another circumstance is that the rectification of the defect is deferred in accordance with Subdivision 42.D.6.1, which includes regulation 42.360 described below.
Under subregulation 42.110 of CASR 1998, it is an offence if the person responsible for continuing airworthiness for an aircraft does not comply with regulation 42.115 in relation to the aircraft. Under subregulation 42.115 (1), if the person responsible for continuing airworthiness for an aircraft becomes aware that there is a defect in the aircraft, the person is generally required to ensure that the defect is rectified before the aircraft is next operated for flight. However, that requirement does not apply if operation of the aircraft for a flight with the defect is permitted by the MEL for the aircraft.
Under subregulation 42.360 (2) of CASR 1998, a qualified individual commits an offence if he or she defers the rectification of a defect in an aircraft and the deferral is not permitted by subregulation 42.360 (3). Subregulation 42.360 (3) permits the deferral of the rectification of a defect if at least 1 of several circumstances exists. One of those circumstances is that the operation of the aircraft for a flight with the defect is permitted by the MEL for the aircraft.
Exemptions
Subregulation 11.160 (1) of CASR 1998 provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of CASR 1998 or CAR 1988 in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2) of CASR 1998, 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.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation.
Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet.
Under subregulation 11.230 (1) of CASR 1998, an exemption ceases on the day specified within it (but no longer than 3 years after its commencement) or, if no day is specified, 3 years after commencement.
Instrument
CASA can approve the MEL for an aircraft. The current practice is that, where an operator wishes to operate an aircraft for flight with a defect after the expiration of the designated rectification interval for the defect in the MEL, the operator may seek approval by CASA of the defect as a PU for that occurrence (a once only PU).
A question has been raised about whether the operation of an aircraft with a defect that has been approved as a once only PU is the same as the operation of the aircraft with a defect that is permitted by the MEL for the aircraft. That is, a question has been raised about whether a once only PU forms part of the MEL for the purposes of paragraphs 42.030 (2) (a) and (e), and regulations 42.115 and 42.360. This potential ambiguity raises doubt about whether the requirements in paragraphs 42.030 (2) (a) and (e), and regulations 42.115 and 42.360, are met if the operation of the aircraft with a defect has been approved as a once only PU.
This instrument has been made to overcome this potential ambiguity in the requirements of paragraphs 42.030 (2) (a) and (e), and regulations 42.115 and 42.360. It clarifies that a contravention of those provisions will not occur if the approval of a PU permits the operation of the aircraft beyond the designated rectification interval for the defect, and the aircraft is used in accordance with all conditions set out in any direction relating to the defect. It does so by exempting the registered operator from the requirements of paragraphs 42.030 (2) (a) and (e), the person responsible for the continuing airworthiness for the aircraft from the requirements of regulation 42.115, and a qualified individual from the requirements of regulation 42.360, in those circumstances.
CASA has delegated its power to approve a defect as a PU to officers of CASA and other delegates, including named individuals employed by aircraft operators. The condition in clause 2 of Schedule 1 specifies the types of defects that can only be approved as a PU by an officer of CASA, thus limiting the types of defects that can be approved by other delegates as a PU.
Legislative Instruments Act
Exemptions issued under regulation 11.160 of CASR 1998 are issued under subsection 98 (5A) of the Act. Subsection (5AA) of the Act states that an instrument issued under paragraph (5A) (a) is a legislative instrument if it applies to a class of persons or aircraft. This exemption applies to classes of persons and so is a legislative instrument. The instrument is, therefore, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
CASA considers the instrument is minor and machinery in nature and consultation with the public and industry under section 17 of the LIA is not necessary or appropriate for the following reasons.
The instrument fixes a perceived deficiency or ambiguity in the operation of Part 42 of CASR 1998 which generally prevents operators from flying their aircraft with certain defects covered by the MEL for the aircraft, if the rectification period for the defect mentioned in the MEL has ended.
The instrument only affects the regular public transport (RPT) operators that have transitioned into Part 42 of CASR 1998. The instrument does not affect non-RPT operators.
Without the instrument, the RPT operators may be subject to significant constraint in that they may be concerned that they should ground their aircraft if they are unable to source parts to rectify a defect within the time mentioned in the MEL.
The ability to extend the rectification interval under the instrument is consistent with the existing practice for aircraft operated under CAR 1988. In this regard, the RPT operators will not gain any additional privilege under the instrument compared to the arrangements that applied to RPT operators under CAR 1988 before 27 June 2011.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the proposal is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Commencement and making
The exemption commences on the day of registration and stops having effect at the end of 31 May 2016, as if it had been repealed by another instrument.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX71/13]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — defect beyond designated rectification interval
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
This legislative instrument exempts specified people, who have obligations relating to the continuing airworthiness of aircraft, from those obligations. The exemption is subject to conditions imposed in the interests of aviation safety. The instrument confirms that an aircraft may be operated with a defect if the defect is approved by CASA as a permissible unserviceability and the aircraft is used in accordance with conditions directed by CASA relating to the defect.
The purpose of this legislative instrument is to overcome a potential ambiguity in the interpretation of some of the regulations contained in the Civil Aviation Safety Regulations 1998 that relate to the continuing airworthiness requirements for aircraft.
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