Explanatory Statement
Civil Aviation Regulations 1988
Exemption — flight and navigation equipment
Section 98 of the Civil Aviation Act 1988 empowers the Governor-General to make regulations.
Subregulation 207 (2) of the Civil Aviation Regulations 1988 (CAR 1988) provides that an Australian aircraft must not be used in any class of operation unless it is fitted with instruments and is fitted with, or carrying, such equipment, including emergency equipment, as the Civil Aviation Safety Authority (CASA) approves or directs.
Subregulation 5 (1) of CAR 1988 provides that whenever CASA is empowered by CAR 1988 to give directions or approvals, it may do so in Civil Aviation Orders (the CAOs).
Civil Aviation Order 20.18 (CAO 20.18) requires that aircraft operating in Australia must be fitted with certain flight and navigation instruments. However, type designs of new generation aircraft have significant safety enhancements that are not recognised by the current basic aircraft equipment requirements.
For example, Cessna 680 aircraft design features provide an equivalent level of safety (ELOS) to that intended by the regulation FAR 25.1303 — Flight and Navigation Instruments. Cessna has also eliminated the non-stabilised magnetic compass referred to in the design standard. The FAA has accepted the ELOS provided in the Cessna aircraft.
While CASA accepts type designs with approved ELOS findings of aircraft certificated by the recognised countries, Australian registered aircraft cannot legally fly without being fitted with equipment required by CAO 20.18. Consequently, operators have to seek exemption from CASA against the requirements of the CAOs.
It is proposed to amend CAO 20.18. However, pending amendment of CAO 20.18, this instrument provides a general exemption against flight and navigation instrument requirements of the CAOs. The exemption is subject to a condition that the aircraft must only be operated if the flight and navigation equipment requirements of CAO 20.18 have been met by an alternative means of compliance which has the equivalent level of safety as determined by the type certificating authority for the aircraft taking into consideration its intended operation.
Legislative Instruments Act
Under regulation 5A of CAR 1988, if CASA has issued a direction in the form of a CAO and CASA later issues another direction, that in any way affects the operation of the CAO, the later instrument is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. 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.
The instrument 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 of a minor or machinery nature. It also renews a previous instrument which expires at the end of 30 September 2009.
The exemption has been issued by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 84A (2) of the Act.
The exemption comes into effect on 1 October 2009 and stops having effect at the end of 30 September 2011.
[Instrument number CASA EX77/09]