Explanatory Statement
Civil Aviation Safety Regulations 1998
Repeal – 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 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.
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 subsection 33 (3) of the Acts Interpretation Act 1901 (the AIA), 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
Instrument CASA EX156/12 was registered on 14 October 2012 and commenced on the day of registration. Instrument CASA EX156/12 exempted Thai Airways International Public Company Limited of Bangkok, Thailand (the operator) from compliance with the standard take-off and landing minima determined by CASA under subregulation 257 (1) of CAR 1988. The exemption applied to the operator and allowed each A330-300, A340-500, A340-600, B747-400 B777-200, B777-200ER and B777-300 aircraft operated by the operator to conduct low-visibility take-offs and CAT II and CAT III landings, subject to a number of conditions regarding approach bans, required visual references and cross-wind restrictions.
The operator subsequently requested a reissue of the exemption to apply to 2 additional types of aircraft – B7878 and A380-800 aircraft, as well as including the B777-300ER which was inadvertently omitted from the previous LVO exemption. Before the request for reissue was made, CASA conducted an internal review that determined that exemptions from regulation 257 of CAR 1988 did not concern a class of aircraft, since these exemptions are issued to, and applicable to, individual operators and are, therefore, not required to be legislative instruments. As a result of the internal review, for the purposes of the operator’s request, a new, separate non‑legislative instrument of exemption, including the operator’s B777-300ER, B787-8 and A380-800 aircraft has been issued and instrument CASA 156/12 is repealed by this instrument.
Legislative Instruments Act
Under subsection 33 (3) of the AIA, the relevant power of making for instrument CASA 99/14, subregulation 11.160 (1) of CASR 1998, must be exercisable in a like manner to the instrument being repealed, CASA 156/12. Instrument CASA 99/14 repeals CASA EX156/12 which is an existing legislative instrument. Instrument CASA 99/14 is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003.
Consultation
The operator has requested the addition of the operator’s B777-300ER, B787-8 and A380‑800 aircraft to their exemption from regulation 257 of CAR 1988. CASA is taking the opportunity to repeal CASA EX156/12 and issue a new non-legislative instrument covering the operator’s B777-300ER, B787-8 and A380-800 aircraft. 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 instrument 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 instrument 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 on the day after registration, as if it had been repealed by another instrument.
[Instrument number CASA EX99/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Repeal – exemption from standard take-off and landing minima – Thai Airways
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 repeals instrument CASA EX156/12, being an exemption for Thai Airways International Public Company Limited of Bangkok, Thailand (the operator) to use minima lower than the standard take-off and landing meteorological visibility minima determined by CASA.
CASA will issue a new non-legislative instrument of exemption for the operator to undertake low-visibility take-offs and CAT II and CAT III landings in prescribed classes of aircraft.
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