Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption – from standard landing minima – Boeing 737 fail-passive aircraft – Virgin Australia Airlines Pty Ltd
Legislation
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.
Under subregulation 257 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may determine the meteorological minima, that is the visibility requirements, for landing or take‑off at an aerodrome. Under subregulation 257 (2), the determination must be published in AIP or NOTAMS. Under subregulations 257 (3) and (4), it is an offence for an aircraft to take-off or land if an element of the meteorological minima for that operation is less than that determined for the aircraft at the aerodrome.
The determination of standard meteorological minima for take-off and landing was made in instrument CASA 70/11. The minima are also set out in AIP En Route 1.5. If conditions are met, the minimum visibility for landing inside or outside Australian territory is 800 metres, or 550 metres runway visual range. An exemption would be required to operate with lower minimum visibility (low visibility operations or LVO).
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 the regulations, including CAR 1988, in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2), 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), 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.
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.
Instrument
The exemption exempts B737 (NG) aircraft with a fail‑passive automatic landing system operated by Virgin Australia Airlines Pty Ltd (the operator), from the standard meteorological minima for landing. Following a review of the rules governing low visibility operations, new exemptions have been issued to various operators, allowing them to use lower minima than was previously the case. This exemption states the lower minima for the aeroplanes, in respect of Category II low visibility landings, as well as the conditions for their use. For instance, the use of the lower minima will require the maximum cross-wind component to be below a specified velocity (see clause 12 in Schedule 2).
In essence, the operator must ensure that specified visibility standards are met for landings that may be performed only at aerodromes properly equipped to support the low visibility operations conducted under the exemption. Flight crew training, experience, recency and competency must meet specified benchmarks. Aircraft equipment must be maintained. Operational restrictions and limitations must be observed. Appropriate foreign approvals for the operations must be obtained. A range of documents for inspection must be carried on board the aircraft.
The instrument revokes and replaces an earlier exemption (CASA EX73/13). The effect of this instrument is to modify the experience required by a pilot, as set out in paragraph 3 (b) of Schedule 2, before the pilot may conduct an LVO. The pilot is still required to perform 2 autolands in the aircraft in at least Category I conditions. However, the pilot is no longer required to perform 1 of those autolands under the supervision of a B737 LVO qualified training and check captain of the operator.
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. 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. The exemption applies to a class of aircraft. The exemption is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
The operator has applied for this instrument of exemption. The instrument is required by the operator to enable it to conduct low visibility landings inside and outside Australian territory consistent with the standards and requirements specified in the instrument which are not considered prejudicial to the interests of safety. A draft of the instrument has been provided to the operator for comment. The operator agreed with the contents of this instrument. CASA considers that no further consultation is appropriate or necessary as the instrument applies only to this aircraft operator.
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 exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Making and commencement
The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on the day of registration. It expires at the end of June 2016, as if it had been repealed by another instrument.
[Instrument number CASA EX86/13]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption – from standard landing minima – Boeing 737 fail-passive aircraft –
Virgin Australia Airlines Pty Ltd
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 permits Virgin Australia Airlines Pty Ltd (the operator) to use minima lower than the standard landing meteorological visibility minima determined by CASA. The exemption is subject to conditions directed by CASA in the interest of safety.
The legislative instrument revokes and replaces an earlier exemption (CASA EX73/13) to modify the experience required by a pilot before the pilot may conduct a low visibility operation.
The primary purpose of the legislative instrument is to allow aircraft operated by the operator to land using reduced visibility minima specified in the exemption. Use of the minima is subject to compliance with the stated conditions.
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