Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — Boeing 717 flight data recorder systems (National Jet Systems)
Legislation
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Civil Aviation Act 1988 (the Act), CASA may grant an exemption from a provision of the regulations, including 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, an exemption must be published on the Internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 3 years).
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Paragraph 6.3 of Civil Aviation Order 20.18 (CAO 20.18) states:
Where an aircraft is required to be so equipped by this section, the flight data recorder system shall be operated continuously from the moment when the aircraft commences to taxi under its own power for the purpose of flight until the conclusion of taxiing after landing.
This instrument applies to Boeing 717 aircraft operated by National Jet Systems Pty Ltd, trading as Cobham Aviation Services Australia – Airline Services (the operator). Boeing 717 aircraft are designed in such a way that application of the parking brake discontinues the operation of the flight data recorder (FDR), and the operation of the FDR will not recommence until after the parking brake is released.
To this extent, the aircraft is not compliant with all the requirements contained within paragraph 6.3 of CAO 20.18.
The exemption, therefore, exempts Boeing 717 aircraft operated by the operator, from compliance with paragraph 6.3 of CAO 20.18 for the continuous operation of the FDR system, but only to the extent that the FDR system would otherwise be required to operate while the aeroplane’s parking brake is applied. There is nothing inherently dangerous or unsafe about this design, and the aircraft complies with FDR requirements in the United States, where the aircraft is manufactured.
A condition of the instrument is that the operator must ensure compliance with paragraph 6.3 of CAO 20.18, apart from the exemption, to ensure continuous operation of the FDR system at all relevant times other than when the parking brake is applied.
The aircraft could be modified to make it compliant. However, this would incur high costs relative to the marginal benefits of having FDR system data for those relatively short periods during manoeuvering on the ground for take-off or for arrival at the terminal, when the parking brake is applied.
CASA considers that given the small numbers of aircraft involved, and that the industry is broadly aware of the limitation, there is no risk to safety in exempting the operator’s Boeing 717 aircraft from the requirement in paragraph 6.3 of CAO 20.18 for continuous operation of the FDR system when the parking brake is applied.
The instrument repeals and replaces an earlier exemption (CASA EX91/11) which expires at the end of July 2014.
Legislative Instruments Act
Under regulation 5A of CAR 1988, if CASA has issued a CAO, and CASA later issues an exemption that affects the operation of that CAO, the later document is declared to be a disallowable instrument. This instrument affects the operation of paragraph 6.3 of CAO 20.18 and is, therefore, declared to be a disallowable instrument.
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 exemption, therefore, is subject to tabling and disallowance in the Parliament, under sections 24, 38 and 42 of the LIA.
Consultation
Given that the instrument applies to the particular operator and is the continuation of an existing exemption, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
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 (OBPR id: 14507).
Making and Commencement
The exemption has been made by a delegate of CASA relying on the power of delegation in subregulation 11.260 (1) of CASR 1998. The exemption commences on 1 August 2014 and expires at the end of July 2017, as if it had been repealed by another instrument.
[Instrument number CASA EX82/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — Boeing 717 flight data recorder system (National Jet Systems)
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 Boeing 717 aircraft operated by the National Jet Systems, trading as Cobham Aviation Services Australia – Airline Services (the operator) from the requirements of paragraph 6.3 of Civil Aviation Order 20.18, allowing the operator to stop the operation of a Boeing 717 aircraft’s flight data recorder when the parking brake is applied.
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