Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX91/21 — Maintenance Control (Certain Class A Aircraft Only Engaged in Private Operations) Exemption 2021
Purpose
The purpose of CASA EX91/21 — Maintenance Control (Certain Class A Aircraft Only Engaged in Private Operations) Exemption 2021 (the instrument) is to enable certain class A aircraft, being larger or more sophisticated aircraft usually engaged in commercial operations, to be engaged in private operations only, without meeting the maintenance controller and maintenance control manual requirements of subregulations 42ZV (1) and 42ZY (1) of the Civil Aviation Regulations 1988 (CAR). These requirements are not necessary for certain class A aircraft only engaged in private operations, provided that other risk mitigators are implemented.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR) and CAR.
Subregulation 42ZV (1) of CAR provides that the operator of a class A aircraft must appoint a person to be the maintenance controller for the aircraft.
Subregulation 42ZY (1) of CAR provides that the operator of a class A aircraft must prepare a maintenance control manual for the aircraft.
Class A aircraft is defined in subregulation 2 (1) of CAR as an Australian aircraft, other than a balloon, that satisfies either or both of the following paragraphs:
(a) aircraft certificated as transport category aircraft;
(b) aircraft used, or to be used, by the holder of an Air Operator’s Certificate which authorises the use of the aircraft for a commercial purpose referred to in paragraph 206 (1) (c) of CAR (that is, regular public transport operations).
Subregulation 209 (1) of CAR provides that an operator and pilot in command of an aircraft engaged in private operations must comply with the provisions of the regulations and such additional conditions as the Civil Aviation Safety Authority (CASA) from time to time directs in the interest of safety.
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from compliance with a provision of the regulations.
Under subregulation 11.160 (2), an exemption may be granted to a person or a class of persons.
Under subregulation 11.160 (3), an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.175 (4) of CASR, in deciding whether to renew an exemption granted to a person, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to renew an exemption granted on its own initiative.
Regulation 11.205 of CASR provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210 of CASR, it is a strict liability offence not to comply with the obligations imposed by a condition.
Regulation 11.225 of CASR requires an exemption to be published on the internet. Under subregulation 11.230 (1) of CASR, the maximum duration of an exemption is 3 years.
Background
Regulations 42ZV and 42ZY of CAR principally apply to operators engaged in commercial air transport operations. CASA considers that the application of these provisions to class A aircraft only engaged in private operations is inappropriate. This position is consistent with the law applicable in the United States of America.
CASA has exempted private operators of class A aircraft from subregulations 42ZV (1) and 42ZY (1) in previous instruments, most recently in CASA EX106/18 — Maintenance Control (Class A Aircraft Used in Private Operations) Exemption 2018, which will be repealed at the end of 31 July 2021.
Overview of instrument
The instrument continues arrangements that currently allow an operator of certain class A aircraft to be engaged in private operations without meeting the requirements in CAR for the aircraft to have a maintenance controller and maintenance control manual. The instrument also includes an exemption that exempts the operator from complying with subregulation 209 (1) of CAR, to the extent that it requires compliance with the requirements.
The exemptions will apply to an operator of a class A aircraft that is certificated as a transport category aircraft and only engaged in private operations. The exemptions will not apply to an aircraft used, or to be used, by the holder of an Air Operator’s Certificate which authorises the use of the aircraft for a commercial purpose referred to in paragraph 206 (1) (c) of CAR (that is, regular public transport operations).
The instrument also imposes a condition on the operator of the aircraft to ensure that the aircraft’s approved system of maintenance includes specified matters that, in CASA’s view, adequately mitigate risks associated with the aircraft not having a maintenance controller or maintenance control manual.
CASA considers that the exemptions do not have any adverse effect on aviation safety in relation to the operation of class A aircraft engaged in private operations.
Content of instrument
Section 1 sets out the name of the instrument.
Section 2 sets out the duration of the instrument. The instrument commences on 1 August 2021 and is repealed at the end of 31 July 2024.
Section 3 provides that the instrument applies to the operator of an Australian aircraft that:
(a) is a class A aircraft because it satisfies paragraph (a) of the definition of class A aircraft in subregulation 2 (1) of CAR; and
(b) does not satisfy paragraph (b) of the definition mentioned in paragraph (a); and
(c) is only engaged in private operations within the meaning of CAR.
Section 4 provides that the operator is exempt from complying with subregulations 42ZV (1) and 42ZY (1) of CAR, as well as subregulation 209 (1) of CAR (to the extent that it requires compliance with subregulations 42ZV (1) and 42ZY (1)). The exemptions are subject to the condition stated in section 5.
Section 5 sets out the condition on the exemptions. It provides that the operator must ensure that the aircraft’s approved system of maintenance states the name of the person who is responsible for each of the matters listed in the section. There may be a different person who is responsible for each of the matters.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Additionally, paragraph 98 (5AA) (a) provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons.
The instrument exempts a class of persons, being operators of class A aircraft, from complying with the provisions in regulations 42ZV, 42ZY and 209 of CAR. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Consultation under section 17 of the LA has not been undertaken in this case. The instrument continues previous arrangements that industry has requested, and that are beneficial to industry, in circumstances where the arrangements have not been the subject of adverse feedback.
The exemptions and condition in the instrument will eventually be incorporated into the provisions of a new Part 43 of CASR. CASA’s policy development process for the new Part 43 included 2 public consultations and 2 reviews by the Aviation Safety Working Panel. Drafting has commenced on the new Part 43, but CASA currently does not expect it to come into operation until 2023.
In these circumstances CASA is satisfied that no consultation on the instrument is appropriate, or necessary, for section 17 of the LA.
Sector risk, economic and cost impact
Subsection 9A (1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A (3) of the Act states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9 (1) (c), CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.
As the instrument replaces an expiring instrument with largely the same provisions, there will be no change of economic or cost impact on individuals, businesses or the community.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case as the exemptions are covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on 1 August 2021 and is repealed at the end of 31 July 2024.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX91/21 — Maintenance Control (Certain Class A Aircraft Only
Engaged in Private Operations) Exemption 2021
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
CASA EX91/21 — Maintenance Control (Certain Class A Aircraft Only Engaged in Private Operations) Exemption 2021 (the instrument) enables certain class A aircraft, being larger or more sophisticated aircraft usually engaged in commercial operations, to be engaged in private operations only without meeting the maintenance controller and maintenance control manual requirements of subregulations 42ZV (1) and 42ZY (1) of the Civil Aviation Regulations 1988.
The instrument applies to certain class A aircraft that are only engaged in private operations. The instrument also imposes a condition on the operator of the aircraft to ensure that the aircraft’s approved system of maintenance includes specified matters that, in CASA’s view, adequately mitigate risks associated with the aircraft not having a maintenance controller or maintenance control manual.
Human rights implications
The instrument does not engage any of the applicable rights or freedoms.
Conclusion
The instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority