Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Authorisation — to carry out maintenance on WHR aircraft
Exemption —to allow supervision of maintenance on WHR aircraft
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 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 these Regulations (including CAR 1988) or a provision of the Civil Aviation Orders (the CAOs) 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.
Carrying out maintenance on ex-military aircraft
This instrument revokes and replaces CASA EX65/07. CASA EX65/07 authorised persons to carry out maintenance on aircraft mentioned in subparagraph 21.189 (1) (a) (ii) of the Civil Aviation Safety Regulations 1998 (ex-military aircraft, described as warbirds), if they were supervised by the holder of an airworthiness authority covering the maintenance and permitted by paragraph 42ZC (4) (a), (b) or (e) of CAR 1988 to carry out the maintenance.
This instrument extends the ambit of CASA EX65/07 to allow persons to carry out maintenance on aircraft mentioned in Schedule 1 of the instrument (now comprising warbirds, historic and replica aircraft, described as WHR aircraft), if they are supervised by the holder of an airworthiness authority or a welding authority covering the maintenance, or an authorisation under subregulation 42ZC (6) of CAR 1988. The person must also be permitted by paragraph 42ZC (4) (a), (b) or (e) of CAR 1988 to carry out 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 WHR aircraft under the supervision of a person referred to in clause 1 of Schedule 2.
Exemption under subregulation11.160 (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 and welding 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.
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 the 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. This exemption applies to a class of persons consisting of the holders of an airworthiness authority, a welding authority or an authorisation under subregulation 42ZC (6) of CAR 1988.
The exemption is, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (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 representations received from a section of the aviation industry concerned with the maintenance of WHR aircraft. 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.
No further consultation was considered necessary. The instrument was requested by a section of the aviation industry to facilitate the maintenance of WHR aircraft, which are subject to special operating rules. Apart from the changes described above, the instrument is identical to a previous instrument issued for substantially the same purpose and for the same class of people.
The instrument commences immediately after the commencement of the Civil Aviation Order 104.0 Amendment Instrument 2015 (No. 2).
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 for subordinate instruments of this kind (OBPR id: 14507).
Making and commencement
The exemption has been made by a delegate of CASA relying on the power of delegation under regulation 11.260 of CASR 1998.
The instrument commences immediately after the commencement of Civil Aviation Order 104.0 Amendment Instrument 2015 (No. 2). It expires at the end of April 2018, as if it had been repealed by another instrument.
[Instrument number CASA EX75/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Authorisation — to carry out maintenance on WHR aircraft
Exemption — to allow supervision of maintenance on WHR aircraft
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 facilitates the carrying out of maintenance on Warbirds and Historic and Replica aircraft. CASA received representations from a section of the aviation industry involved in the maintenance of those aircraft to issue the instrument that relaxes restrictions contained in a previous instrument. The operation of aircraft, to which the instrument applies, is subject to special operating rules and CASA believes that the changes are appropriate.
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