Explanatory Statement
Civil Aviation Regulations 1988
Amendment of instrument CASA EX79/09 – Exemption – take-off with residual traces of frost and ice
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Legislation
Under paragraph 244 (1) (c) of the Civil Aviation Regulations 1988 (CAR 1988), immediately before taking-off, the pilot in command of an aircraft must ensure that all external surfaces of the aircraft are “completely free from frost and ice”.
Under subregulation 308 (1) of CAR 1988, CASA may exempt aircraft, or persons in, on, or otherwise associated with the operation of the aircraft, from compliance with specified provisions of CAR 1988. Under subregulation 308 (2), before making an exemption, CASA must take into account any relevant considerations relating to the interests of safety. Under subregulation 308 (3), CASA may make an exemption subject to any condition specified in the exemption as being necessary in the interests of safety.
Instrument
Having taken into account all relevant safety considerations, CASA is satisfied that larger aircraft may be able to operate safely on take-off with residual traces of snow, frost and ice, provided the pilot in command complies with certain safety procedures. The principal instrument (CASA EX79/09), therefore, permits an aircraft operated by Pionair Australia Pty Ltd, with a maximum take-off weight of more than 5 700 kg, to take off with residual traces of snow, frost and ice, subject to safety conditions.
Conditions
Under these conditions, before taking-off, the pilot in command must ensure that appropriate de-icing and anti-icing procedures, in accordance with the aircraft flight manual or the manufacturer’s instructions and data, have been used to remove all but residual snow, frost and ice from the aircraft. To ensure that there has been no subsequent build-up of snow, frost or ice, immediately before taking-off, he or she must also be satisfied that any residual snow, frost or ice will not affect the performance of the aircraft or any of its equipment or instruments.
The principal instrument referred only to regular transport operations. It was intended that the exemption apply to all operations conducted by the operator. Accordingly this instrument amends the principal instrument by omitting the reference to regular transport operations.
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. Under subregulation 308 (4) of CAR 1988, an exemption is a disallowable instrument. The exemption 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 amends the principal instrument CASA EX79/09 by widening its application to cover all operations, as was the original intention.
The instrument comes into effect on the day after it is registered. It stops having effect at the end of 30 September 2011.
The exemption has been made by a delegate of CASA under subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX85/09]