Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX95/23 – Amendment of CASA EX83/21 – Instrument 2023 (No. 2)
Purpose
The purpose of CASA EX95/23 – Amendment of CASA EX83/21 – Instrument 2023 (No. 2) (the exemption instrument) is to amend a number of exemptions and directions contained within CASA EX83/21 – Part 121 and Part 91 of CASR – Supplementary Exemptions and Directions Instrument 2021 (CASA EX83/21 or the principal instrument). CASA EX83/21 makes a number of exemptions and directions relating to Part 121 of the Civil Aviation Safety Regulations 1998 (CASR). Part 121 of CASR is one of CASA’s new Flight Operations Regulations (FOR) that commenced on 2 December 2021.
Legislation — exemptions
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.
Subpart 11.F of the CASR deals with exemptions. Under subregulation 11.160 (1), and for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of CASR in relation to a matter mentioned in subsection 98 (5A). Subsection 98 (5A) matters are, in effect, those affecting the safety, airworthiness or design of aircraft.
Under subregulation 11.160 (2), an exemption may be granted to a person or a class of persons. Under subregulation 11.160 (3), CASA may grant an exemption on application, or on its own initiative.
Under subregulation 11.170 (3), for an application for an exemption, CASA must regard as paramount the preservation of an acceptable level of safety. For making a decision on its own initiative, CASA is guided by the requirement in subsection 9A (1) of the Act that in exercising its powers and functions CASA must regard the safety of air navigation as the most important consideration. The preservation of an acceptable level of safety remains paramount.
Under regulation 11.205, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition. Under regulation 11.225, CASA must, as soon as practicable, publish on the internet details of all exemptions under Subpart 11.F of CASR.
Under subregulation 11.230 (1), an exemption may remain in force for 3 years or for a shorter period specified in the instrument.
Under subregulation 11.230 (3), an exemption, in force in relation to a particular aircraft owned by a particular person, ceases to be in force when the aircraft ceases to be owned by that person. Under regulation 11.235, an exemption is not transferable (as between operators, aircraft, etc.).
Legislation — directions
Section 98 of the Act empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Under subregulation 11.245 (1) of CASR, for subsection 98(5A) of the Act, CASA may, by instrument, issue a direction about, among other things, any matter affecting the safe navigation and operation of aircraft.
Under subregulation 11.245 (2), CASA may issue such a direction: only if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation; and only if the direction is not inconsistent with the Act; and only for the purposes of CASA’s functions.
Under regulation 11.250 of CASR, a direction ceases to be in force on a day specified in the instrument or, if no day is specified, 1 year after the instrument commences. Under subregulation 11.255 (1), it is an offence to contravene a direction under regulation 11.245 that is applicable to the person.
Background
Analysis by CASA of feedback from Australian air transport operators and other stakeholders regarding the implementation of civil aviation legislation relating to Australian air transport operations requires amendments to be made to the principal instrument.
Along with some minor corrections, the exemption instrument amends the principal instrument to allow more time for relevant operators to transition to full compliance with the FOR, while ensuring that an acceptable level of safety is preserved.
Details of the exemption instrument are set out in Appendix 1.
Aviation safety
In determining whether to issue the exemption instrument, CASA had regard to the safety of air navigation as the most important consideration.
CASA is satisfied that, given the nature of the amendments involved, and the necessary conditions imposed, an acceptable level of aviation safety will be preserved, and the safety of air navigation thereby maintained.
Legislation Act 2003 (the LA)
Exemptions under Subpart 11.F of CASR are “for subsection 98 (5A)” of the Act, that is, for regulations which empower the issue of certain instruments, like exemptions, in relation to “(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft”, and “(b) the airworthiness of, or design standards for, aircraft”.
The exemption instrument is clearly one in relation to matters affecting the safe navigation and operation of aircraft. Under subsection 98 (5AA) of the Act, an exemption issued under paragraph 98 (5A) (a), for such matters, is a legislative instrument if expressed to apply in relation to a class of persons, a class of aircraft or a class of aeronautical products (as distinct from a particular person, aircraft or product).
The exemption instrument is generic in nature and applies to classes of persons. It is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under section 15G, and sections 38 and 42, of the LA.
Sunsetting
As the exemption instrument relates to aviation safety and is made under CASR, that means that Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument (as per item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015).
The exemption instrument deals with aviation safety matters that, once identified, require a risk response or treatment plan. Generally speaking, item 15, when invoked, is necessary in order to ensure that, in the interests of aviation safety, a relevant instrument has enduring effect, certainty and clarity for aviation operators both domestic and international.
In this case, the instrument amends the principal instrument and is almost immediately spent and repealed in accordance with the automatic repeal provisions in Subdivision A in Division 1 of Part 3 of Chapter 3 of the LA. The principal instrument is itself repealed at the end of 1 December 2024 by virtue of the terms of section 2 of the principal instrument (as amended). Thus, in practice, no sunsetting avoidance issues arise and there is no impact on parliamentary oversight.
Incorporations by reference
Under subsection 98 (5D) of the Act, the instrument may apply, adopt or incorporate any matter contained in any instrument or other writing. A non-legislative instrument may be incorporated into a legislative instrument made under the Act as that non‑legislative instrument exists or is in force at a particular time or from time to time (including a non-legislative instrument that does not exist when the legislative instrument is made).
Under paragraph 15J (2) (c) of the LA, the Explanatory Statement must contain a description of the incorporated documents and indicate how they may be obtained.
References to provisions of CASR are taken to be as they are in force from time to time, by virtue of paragraph 13 (1) (c) of the LA. CASR is freely available online on the Federal Register of Legislation.
The following documents are applied, adopted or incorporated for the purposes of the exemption instrument.
Document | Description | Manner of incorporation | Source |
Operations manual | This is an operator’s document principally setting out the practices, processes and procedures to be followed by the operator and all relevant personnel to comply with applicable aviation safety requirements. | As in force from time to time. | These manuals are the proprietary intellectual and commercial property of specific operators and apply only to the operator and its personnel. Further, the operator is under obligations to make the manual available to its personnel who have obligations under the document. |
Operator expositions | A document, or suite of documents, that specifies the scope of the operations and activities conducted by the operator, and sets out the plans, processes, procedures, programs and systems implemented by the operator to comply with the civil aviation legislation. | As in force from time to time by virtue of subsection 98 (5D) of the Civil Aviation Act 1988, and in accordance with the definition of exposition in the CASR Dictionary. | These are the proprietary intellectual and commercial property of specific operators and apply only to the operator and its personnel. Further, the operator is under obligations to make the exposition available to its personnel who have obligations under the document. |
Consultation
Under section 16 of the Act, in performing its functions and exercising its powers, CASA must consult government, industrial, commercial consumer and other relevant bodies and organisations insofar as CASA considers such consultation to be appropriate.
Under section 17 of the LA, before a legislative instrument is made, CASA must be satisfied that it has undertaken any consultation it considers appropriate and practicable in order to draw on relevant expertise and involve persons likely to be affected by the proposals.
Exemptions from regulatory requirements are considered to be beneficial for those to whom they apply, who voluntarily elect to take advantage of them, and who comply with their conditions. It is, therefore, rarely necessary to engage in extensive public consultation on a proposed exemption. However, it is CASA’s policy to consult, where possible, in an appropriate way with those parts of the aviation industry most likely to avail themselves of, or be affected by, an exemption so that they may have the opportunity to comment on the possible or likely terms, scope and appropriateness of the exemption.
Although a formal, public consultation has not been undertaken in relation to this instrument, the amendments to the principal instrument have arisen from informal consultation with the aviation industry relating to the continuing implementation of the FOR in relation to Australian air transport operators. The amendments to the principal instrument are consequential on changes in the FOR implementation methodology contained within CASA EX99/23 – Amendment of CASA EX87/21 – Instrument 2023 (No. 2), which amends CASA EX87/21 – Flight Operations Regulations – SMS, HFP&NTS and T&C Systems – Supplementary Exemptions and Directions Instrument 2021.
Office of Impact Analysis (OIA)
An Impact Analysis (IA) is not required because the instrument is covered by a standing agreement between CASA and the OIA under which an IA is not required for exemption or direction instruments (OIA id: 14507).
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.
In terms of economic and cost impacts for subsection 9A (3) of the Act, the exemption instrument will relieve operators from requirements that might otherwise have involved compliance costs.
Sector risks
For aviation safety reasons, the exemption instrument is specific to those operators who fall within its scope and who choose to take the benefit of the exemptions and comply with its conditions.
Environmental impact
Under subsection 9A (2) of the Act, while regarding the safety of air navigation as the most important consideration, CASA must exercise its powers and perform its functions in a manner that ensures that, as far as practicable, the environment is protected from the effects and associated effects of the operation and use of aircraft.
It is not anticipated there will be any negative environmental impacts as a result of the exemption instrument, as compared to the baseline that existed on 1 December 2021, since the instrument does not create any new environmental impacts arising from flight operations.
Statement of Compatibility with Human Rights
The Statement in Appendix 2 is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The exemption instrument is compatible with human rights: with its aviation safety focus, it promotes the right to life, the right to work, and the right to safe and healthy working conditions, and it does so in a way that is reasonable, necessary and proportionate in the context of aviation safety.
Making and commencement
The instrument commences on 2 December 2023. The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260(1) of CASR.
Appendix 1
Details – CASA EX95/23 – Amendment of CASA EX83/21 – Instrument 2023 (No. 2)
1 Name
This section names the instrument.
2 Commencement
Under this section, the instrument commences on 2 December 2023.
3 Amendment of CASA EX83/21
Under this section, Schedule 1 amends CASA EX83/21 – Part 121 and Part 91 of CASR – Supplementary Exemptions and Directions Instrument 2021 (the principal instrument).
Schedule 1 Amendments
[1] Section 2
This amendment modifies the date of repeal of the principal instrument to be the end of 1 December 2024.
[2] Subsection 3 (1), definitions of CAR, charter operation, operations manual and regular public transport operation
Among other definitions, this amendment redefines the meaning of CAR (the Civil Aviation Regulations 1988) to be the version as in force from time to time. Particular provisions will refer to CAR as in force immediately before 2 December 2021 where that version is intended to be the operative version for the provision.
[3] After subsection 3 (2)
This section inserts a clarifying provision to the effect that unless the contrary intention is expressed, any document incorporated into the principal instrument is so incorporated as it is in force from time to time.
[4] Paragraph 28 (1) (b)
Under paragraph 28 (1) (b), Part 5 of the principal instrument applies to the operator of an aeroplane for a flight that is a Part 121 operation if, immediately before 2 December 2021, among other things, the operator was subject to a requirement under subregulation 217 (1) of CAR to provide a training and checking organisation for the operations, or for an aeroplane used in the operations.
Consequential on the changed definition of CAR, above, this amendment provides that CAR means CAR as in force immediately before 2 December 2021.
[5] Section 29
Section 29 contains a direction that a relevant operator must include in its exposition, information, procedures and instructions on how it will comply with paragraph 121.475 (2) (c) that at least one pilot occupying a pilot seat must have the prescribed experience required by paragraph 121.480 (1) (b) and subregulations 121.480 (2) and (3). This was to be complied with by not later than the earlier of 2 options, one of which expired at the end of 1 September 2023.
This amendment reinstates section 29 and replaces the previous compliance date with a future date to be announced in writing by CASA, and communicated to relevant operators at least 3 months before it occurs. CASA is working with relevant operators to reach a point where exemption is not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
Appendix 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX95/23 – Amendment of CASA EX83/21 – Instrument 2023 (No. 2)
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 purpose of CASA EX95/23 – Amendment of CASA EX83/21 – Instrument 2023 (No. 2) (the exemption instrument) is to amend a number of exemptions and directions contained within CASA EX83/21 – Part 121 and Part 91 of CASR – Supplementary Exemptions and Directions Instrument 2021 (CASA EX83/21 or the principal instrument). CASA EX83/21 makes a number of exemptions and directions relating to Part 121 of the Civil Aviation Safety Regulations 1998 (CASR). Part 121 of CASR is one of CASA’s new Flight Operations Regulations (FOR) that commenced on 2 December 2021.
Human rights implications
The legislative instrument engages with the following human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011:
the right to life under Article 6 of the International Covenant on Civil and Political Rights (the ICCPR)
the right to safe and healthy working conditions under Article 7 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR)
the right to work under Article 6 of the ICESCR.
Right to life under the ICCPR
Right to safe and healthy working conditions under the ICESCR
This engagement is in the context of CASA’s statutory purpose. The aim of CASA and its regulatory framework is to uphold aviation safety by prescribing the conduct of individuals and organisations involved in civil aviation operations, including flight operations. It is, therefore, a threshold requirement for all CASA legislative instruments that they preserve, promote and enhance aviation safety and, thereby, contribute to safe and healthy working conditions for crew and ground staff.
Along with some minor corrections, the exemption instrument amends the principal instrument to allow more time for relevant operators to transition to full compliance with the FOR, while ensuring that an acceptable level of safety is preserved.
Human rights implications
This legislative instrument is compatible with human rights and to the extent that it may engage certain rights it does so in a way that promotes the right to life, the right to work, and safe and healthy working conditions on board relevant aircraft. These measures are considered to be reasonable, necessary and proportionate in the interests of aviation safety.
Conclusion
This legislative instrument is compatible with human rights.
Civil Aviation Safety Authority