Explanatory Statement
Civil Aviation Regulations 1988
Exemption — from standard take-off and landing minima – Thai Airways
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 subregulation 257 (3), it is an offence for an aircraft to take off 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 237/10. The minima are also set out in AIP En Route 1.5, sections 4.3 and 4.4. If conditions are met, the minimum visibility for take-off inside or outside Australian territory is 550 metres. If conditions are met, the minimum visibility for landing inside or outside Australian territory is 800 metres, or 550 metres RVR. An exemption would be required to operate with lower minimum visibility (low visibility operations or LVO).
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. Under subregulation 308 (3A), it is an offence to contravene a condition of an exemption that is otherwise being relied upon for an operation.
The exemption has been issued for Thai Airways International Ltd, trading as Thai Airways (Thai Airways), for the conduct of LVO in Australia. The exemption states the minima for the various aeroplanes, as well as the conditions for their use. For instance, the use of the lower minima will require a higher standard of runway lighting (see clause 8 in Schedule 2).
In essence, the operator must ensure that specified visibility standards are met for take-offs and landings. These may be performed only at aerodromes properly equipped to support the LVO conducted under the exemption. As a foreign aircraft operator, Thai Airways must also conduct its operations in accordance with the approval to conduct LVO issued by the Department of Civil Aviation Thailand.
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 is required by Thai Airways to enable low visibility take-offs and CAT II and CAT III landings inside Australia consistent with the standards and requirements specified in the instrument which are not considered prejudicial to the interests of safety.
Office of Best Practice Regulation (OBPR)
The exemption would be of beneficial effect to the operator. The OBPR does not require preparation of a Regulation Impact Statement in this case because a preliminary assessment of business compliance costs in the context of similar instruments indicates that it will have only a nil to low impact on business.
Making and commencement
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument comes into effect on the day after it is registered. It stops having effect at the end of 31 October 2012.
[Instrument number CASA EX89/10]
Overview
The Civil Aviation Regulations 1988 (CAR 1988) were enacted to ensure the safety of air navigation, with section 98 of the Civil Aviation Act 1988 empowering the Governor-General to make regulations. Specifically, subregulation 257 allows the Civil Aviation Safety Authority (CASA) to determine meteorological minima for landing or take-off at an aerodrome, with the requirement that these minima be published in the Aeronautical Information Publication (AIP) or Notices to Air Missions (NOTAMS). The exemption in question, issued under subregulation 308 of CAR 1988, allows Thai Airways International Ltd to conduct low visibility operations (LVO) in Australia under specific conditions that maintain safety standards, such as higher standards of runway lighting. This exemption is a legislative instrument subject to tabling and disallowance in Parliament under the Legislative Instruments Act 2003. The exemption was made necessary to accommodate Thai Airways' operations in accordance with both Australian and Thai standards, and it is designed to ensure that safety is not compromised while facilitating smoother operations for the airline.
Scope and Application
The Civil Aviation Regulations 1988, under the authority granted by the Civil Aviation Act 1988, allow the Civil Aviation Safety Authority (CASA) to establish and modify meteorological minima for aircraft take-off and landing, with these minima published in the Aeronautical Information Publication (AIP) or Notice to Air Missions (NOTAMS). An exemption has been granted to Thai Airways International Ltd, trading as Thai Airways, for conducting low visibility operations (LVO) in Australia, permitting operations below the standard minima set forth in the regulations, subject to specific conditions designed to uphold safety. These conditions include adherence to higher standards of runway lighting and compliance with approval from the Department of Civil Aviation Thailand. The exemption is a legislative instrument subject to disallowance in the Parliament under the Legislative Instruments Act 2003 and comes into effect on the day after registration, terminating on 31 October 2012.
Key Provisions
The key provisions of this legislation are found in section 98 of the Civil Aviation Act 1988 and subregulations 257 and 308 of the Civil Aviation Regulations 1988. Section 98 of the Act provides the authority for the Governor-General to create regulations for the Act and ensure the safety of air navigation. Subregulation 257(1) allows the Civil Aviation Safety Authority (CASA) to determine the meteorological minima for landing or take-off at an aerodrome, while subregulation 257(2) requires that these determinations be published in the Aeronautical Information Publication (AIP) or Notice to Air Missions (NOTAMS). Subregulation 257(3) criminalises taking off if the meteorological conditions fall below the determined minima. Subregulation 308(1) permits CASA to exempt aircraft or associated parties from specified provisions of the Civil Aviation Regulations 1988, provided that the exemption is made in the interests of safety and may include any necessary conditions. Subregulation 308(3A) states that it is an offence to contravene the conditions of such an exemption.
The obligations imposed by this Act on Thai Airways and other entities are primarily centred around safety. Thai Airways must ensure that their operations meet the specified visibility standards for take-offs and landings. They must conduct these operations at aerodromes that are properly equipped to support low visibility operations (LVO). Furthermore, as a foreign aircraft operator, Thai Airways must adhere to the approval to conduct LVO issued by the Department of Civil Aviation Thailand. These obligations are designed to ensure that the operations are conducted safely and in compliance with both Australian and Thai regulations.
The Act also outlines the penalties for non-compliance. Under subregulation 257(3), it is an offence for an aircraft to take off if the meteorological conditions do not meet the specified minima, which can result in legal consequences. Additionally, subregulation 308(3A) makes it an offence to contravene the conditions of an exemption granted by CASA. Penalties for such offences can include fines or other sanctions, although the specific maximum penalties are not detailed in the provided text. The seriousness of these penalties underscores the importance of adhering to the safety standards and conditions set forth by the Act and the regulations.
The exemption issued to Thai Airways for conducting LVO in Australia is subject to the Legislative Instruments Act 2003. Under subparagraph 6(d)(i) of the LIA, this exemption is classified as a disallowable instrument, meaning it is subject to tabling and disallowance in the Parliament. The exemption is also required to be consistent with the standards and requirements set out in the instrument, ensuring that it does not prejudice the interests of safety. Additionally, although consultation under section 17 of the LIA has not been undertaken in this specific case, such consultation is typically required to ensure that the instrument is well-considered and in the public interest. The Office of Best Practice Regulation has determined that a Regulation Impact Statement is not necessary due to the minimal impact on business compliance costs.