Explanatory Statement
Civil Aviation Regulations 1988, Civil Aviation Order 100.5
Exemption — recording time-in-service
Determination — non-application of part of CAO 100.5
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 — CAR 1988
Under subregulation 43B (1) of the Civil Aviation Regulations 1988 (CAR 1988), it is an offence if, on completion of a day’s flying operations, the owner, operator or pilot in command of the aircraft fails to record on the maintenance release the total time‑in‑service of the aircraft on that day.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A), CASA may grant an exemption from a provision of the Regulations, including the Civil Aviation Regulations 1988 or a provision of the Civil Aviation Orders, 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.
Background
Regulation 43B was inserted in CAR 1988 in 1992. Before this, the larger airlines were exempt from the requirement for such time-in-service recording. The larger airlines have, in the main, highly complex computerised infrastructures to control and manage aircraft maintenance. Regulation 43B presented these airlines with considerable difficulty because their computer programs are not programmed for this particular information and would require substantial alteration to enable compliance with regulation 43B. The kind of information involved is provided in an alternative form through the aircraft’s approved system of maintenance.
In these circumstances, CASA considers that the requirement for daily recording of time-in-service for each Class A aircraft is neither necessary nor appropriate.
Instrument — exemption
The instrument, therefore, exempts the owner, operator and pilot in command of a Class A aircraft from the specific time-in-service recording requirements of regulation 43B of CAR 1988. Class A aircraft are Australian aircraft certificated in the transport category or used under an Air Operator’s Certificate that authorises regular public transport operations.
Conditions
The exemption is subject to conditions. The operator of the aircraft must ensure that the time-in-service for the aircraft that is necessary to meet the continuing airworthiness requirements of the aircraft is recorded and the record is kept up-to-date. The operator must also include details of the recording method in the operator’s maintenance control manual prepared for regulation 42ZY of CAR 1988.
Legislation — CAO 100.5
Under subregulation 43 (1) of CAR 1988, maintenance releases for Australian aircraft may only be issued in the manner and form that CASA directs or approves. Under subregulation 43 (2), CASA may give directions specifying the information to be entered on a maintenance release before it is issued. Under subregulation 5 (1), where CASA has power to issue directions it may do so in Civil Aviation Orders. Paragraph 6.5 of Civil Aviation Order 100.5 (CAO 100.5) contains directions specifying the information to be entered on a maintenance release.
Subparagraphs 6.5 (d), (e) and (f) of CAO 100.5 set out requirements to record time‑in-service and related information which, for the reasons mentioned above, are neither necessary nor appropriate for Class A aircraft.
Under paragraph 1.2 of CAO 100.5, CASA may issue a determination that a provision of CAO 100.5 does not apply to specified Australian aircraft. Under paragraph 1.3 of CAO 100.5, before making a determination, CASA must take into account any relevant safety considerations. Using this power, CASA has determined in the instrument that subparagraphs 6.5 (d), (e) and (f) of CAO 100.5 do not apply to Class A aircraft. The information that would otherwise be required to be recorded under subparagraphs 6.5 (d), (e) and (f) of CAO 100.5 is adequately dealt with under the conditions for the exemption. Hence, the exemption and the determination are combined in the same instrument.
CASA does not consider that the exemption or the determination will have a detrimental effect on the safety of air navigation.
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 or Civil Aviation Orders. 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 and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Compatibility with human rights and freedoms
This 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 as it does not raise any human rights issues. It does not engage any of the applicable rights or freedoms.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument replaces, with substantially the same scope and effect, a previous instrument which expires at the end of June 2012 and which was to facilitate the operation of Class A aircraft without affecting safety.
The instrument commences on 1 July 2012. It stops having effect at the end of 30 June 2015. The exemption has been made by a delegate of CASA under regulation 11.260 of CASR 1998.
[Instrument number CASA EX90/12]