Explanatory Statement
Civil Aviation Regulations 1988
Exemption — refuelling with passengers on board
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and in the interests of the safety of air navigation.
Subregulation 235 (7) of the Civil Aviation Regulations 1988 (CAR 1988) provides that CASA may, for the purposes of ensuring the safety of air navigation, give directions with respect to the method of loading persons and goods (including fuel) on aircraft.
Directions under subregulation 235 (7) of CAR 1988 are contained in Civil Aviation Order 20.9 (CAO 20.9). Section 4 of CAO 20.9 sets out particular directions for loading fuel on aircraft. Paragraph 4.2.3 of CAO 20.9 provides that the operator of an aircraft with a maximum seating capacity of less than 20 passengers must ensure that fuel is not loaded on to the aircraft while passengers are on board, or entering or leaving, the aircraft.
Subregulation 235 (11) of CAR 1988 provides that CASA may exempt an aircraft from any of the requirements imposed by regulation 235.
The Royal Flying Doctor Service Australia (South Eastern Section) (the operator), operates a number of Beechcraft Kingair aircraft (the aircraft). The aircraft, though certified for less than 20 passengers, carries a cabin attendant on all operations.
At some ports passengers have no right of entry to airport terminals and would therefore congregate on the hard stand while refuelling of the aircraft takes place. The ability to refuel while passengers remain on board would minimise risk.
Under paragraph 4.2.2 of CAO 20.9, passengers on aircraft with a maximum seating capacity of 20 or more are allowed to remain on board during refuelling if certain conditions are satisfied. These conditions are contained in subparagraphs 4.2.1, 4.2.2 and 4.2.5 of CAO 20.9. The operator’s operations manual contains procedures that meet all of the requirements of these subparagraphs.
The operator has been significantly affected by the requirements of paragraph 4.2.3 of CAO 20.9 that passengers may not remain on board during refuelling. The operator has, therefore, requested an exemption from the requirements of paragraph 4.2.3 of CAO 20.9.
In light of these matters, and taking account of the safety of air navigation, CASA has issued the exemption subject to certain conditions. For example, while passengers may remain on board when fuel is being loaded, they must not board or exit the aircraft. They must be told that fuel is being loaded, that their seat belts must be unfastened, and that there must be no smoking, use of electrical equipment or action that could ignite fuel vapour. They must be told the location of the emergency exits. The cabin door must be open and the aircraft and fuelling equipment connected to an earth point. At least 1 cabin attendant must be on duty in the aircraft and the pilot in command must be in the aircraft loading area. The “fasten seat belt” signs must be off. The loading of fuel must stop immediately if fuel vapour is found in the aircraft or if, for any reason, continuation of the loading is not safe.
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. Because this exemption affects the operation of paragraph 4.2.3 of CAO 20.9 the instrument is a disallowable instrument under regulation 5A of CAR 1988. It is therefore a legislative instrument. As a legislative instrument, 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 because this is reissue of a previous instrument. The exemption has been issued, at the request of the operator, to permit the refuelling of aircraft to minimise risk to passengers.
The exemption commences on the day after it is registered and stops having effect at the end of 30 November 2009.
The exemption has been issued by a delegate of CASA under subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX84/2008]
Overview
The Civil Aviation Regulations 1988, enacted by the Australian Parliament, provide the framework for ensuring the safety of air navigation and include provisions for the loading of passengers and goods, including fuel, onto aircraft. One such regulation, subregulation 235(7) of the Civil Aviation Regulations, empowers the Civil Aviation Safety Authority (CASA) to issue directions regarding the loading of fuel on aircraft, with specific rules outlined in Civil Aviation Order 20.9. This legislative framework was established to maintain high safety standards in air navigation. The exemption issued by CASA to the Royal Flying Doctor Service Australia (South Eastern Section) addresses a specific operational challenge faced by the organisation when refuelling aircraft with a maximum seating capacity of less than 20 passengers. Given the nature of their operations, where passengers sometimes have no access to airport terminals and must wait on the hard stand, the current regulation requiring passengers to vacate the aircraft during refuelling poses a significant risk. CASA has granted an exemption to allow refuelling while passengers remain on board, subject to stringent safety conditions, thereby balancing operational needs with safety requirements.
Scope and Application
The Civil Aviation Regulations 1988, as amended, provide the framework for the regulation of civil aviation in Australia, and include provisions allowing for the exemption of certain requirements under specific circumstances to ensure the safety of air navigation. Subregulation 235(11) of the Civil Aviation Regulations 1988 grants the Civil Aviation Safety Authority (CASA) the authority to exempt aircraft from certain regulatory requirements. This authority is exercised under the Civil Aviation Act 1988, which allows the Governor-General to make regulations for the Act, and in this case, for the purposes of ensuring the safety of air navigation. The exemption in question applies to the Royal Flying Doctor Service Australia (South Eastern Section), which operates Beechcraft Kingair aircraft with a maximum seating capacity of less than 20 passengers. Given the operational challenges faced by the operator, particularly in remote locations where passengers may have to remain on the hard stand during refuelling, CASA has granted an exemption from the requirement that fuel must not be loaded while passengers are on board. This exemption is subject to stringent conditions designed to mitigate any safety risks, such as prohibiting passengers from boarding or exiting during refuelling, requiring cabin attendants to inform passengers about safety measures, and ensuring that the cabin door remains open and the aircraft is earthed during the refuelling process. The exemption is in effect until 30 November 2009 and is considered a disallowable instrument under the Legislative Instruments Act 2003, meaning it is subject to tabling and disallowance in the Parliament.
Key Provisions
The Civil Aviation Regulations 1988 (CAR 1988) under the Civil Aviation Act 1988 (the Act) outline various provisions for the safe operation of aircraft, with a specific focus on the loading of fuel and passengers. Subregulation 235(7) of CAR 1988 allows the Civil Aviation Safety Authority (CASA) to issue directions to ensure the safety of air navigation, including the method of loading persons and goods such as fuel on aircraft. These directions are detailed in Civil Aviation Order 20.9 (CAO 20.9), which, under paragraph 4.2.3, mandates that for aircraft with a maximum seating capacity of less than 20 passengers, fuel cannot be loaded while passengers are on board, entering, or leaving the aircraft. However, subregulation 235(11) of CAR 1988 empowers CASA to exempt specific aircraft from these requirements if necessary.
In response to operational challenges faced by the Royal Flying Doctor Service Australia (South Eastern Section), which operates Beechcraft Kingair aircraft with a cabin attendant but certified for fewer than 20 passengers, CASA has issued an exemption from the refuelling restriction outlined in paragraph 4.2.3 of CAO 20.9. This exemption is crucial given that at some locations, passengers have no access to airport terminals and must wait on the hard stand during refuelling. The exemption permits refuelling while passengers remain on board, provided stringent safety conditions are met. These conditions include prohibiting passengers from boarding or exiting during refuelling, informing them of the refuelling process and safety precautions, ensuring the cabin door is open, and that the aircraft and fuelling equipment are grounded. Additionally, the pilot in command must be present in the loading area, and the "fasten seat belt" signs must be turned off.
The exemption, however, does not absolve the operator from certain obligations. Passengers must be informed about the refuelling process and instructed to keep their seat belts unfastened, refrain from smoking, using electrical equipment, or engaging in any activity that could ignite fuel vapour. They must also be made aware of the location of emergency exits. Furthermore, at least one cabin attendant must be present in the aircraft, and the loading of fuel must cease immediately if fuel vapour is detected or if any safety concern arises. Failure to comply with these conditions could potentially lead to safety breaches, which might incur legal consequences under the Act. While the specific penalties for breach are not detailed in the provided text, they would typically involve sanctions under the Civil Aviation Act 1988 and the Civil Aviation Regulations 1988, which could include fines and other regulatory actions.
The issuance of this exemption as a legislative instrument under the Legislative Instruments Act 2003 (LIA) means it is subject to tabling and disallowance in the Parliament. However, given this is a reissue of a previous instrument, consultation under section 17 of the LIA was not undertaken. The exemption is effective from the day after its registration and will cease to have effect by the end of 30 November 2009. It has been issued by a delegate of CASA in accordance with subregulation 7(1) of CAR 1988, ensuring that all regulatory and safety standards are meticulously adhered to while allowing the operator to manage its unique operational challenges.