Explanatory Statement
Civil Aviation Safety Regulations 1998
Repeal – exemption – from standard take-off and landing minima – Virgin Australia International Airlines Pty Ltd
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.
The determination of standard meteorological minima for take-off and landing was made in instrument CASA 70/11 and, subsequently, instrument CASA 270/14. The minima are also set out in AIP En Route 1.5, section 4. For multi-engine aeroplanes operating under instrument flight rules, subject to applicable conditions, the minimum visibility for take-off inside or outside Australian territory is 550 metres. For aircraft operating under instrument flight rules, subject to applicable conditions, the minimum visibility for landing inside or outside Australian territory is 800 metres, or 550 metres runway visual range. An exemption would be required to operate with lower minimum visibility (low visibility operations or LVO).
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 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.
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
On 29 October 2013, CASA issued Virgin Australia International Airlines Pty Ltd (the operator) with an exemption from standard take-off and landing minima, applicable to the operator’s B777-300ER aircraft (CASA EX115/13 refers).
In 2014, CASA conducted an internal review of instruments dealing with low-visibility operations and determined that exemptions from regulation 257 of CAR 1988 did not concern a class of aircraft, since these exemptions are issued to, and are applicable to, individual operators and are, therefore, not required to be legislative instruments. As a result of the internal review, it was decided that LVO exemptions would be issued by CASA as non‑legislative instruments.
In June 2015, the operator requested that CASA EX115/13 be amended to incorporate a recency requirement that is in line with other exemptions concerning the operator’s A330 and B737 aircraft. Rather than require a captain to have completed the operator’s 6 monthly recurrent training and competency assessment (which includes a minimum number of low‑visibility landings within that period), the updated recency requirement requires a captain to be an active participant in the approved cyclic training and proficiency program for flight crew.
For the purposes of the operator’s request, a new, separate non-legislative instrument of exemption for the operator’s B777-300ER aircraft, with an extended expiry date but otherwise made in substantially similar terms, will be issued and will be available on the CASA website. Instrument CASA EX115/13, which will expire at the end of September 2016, is formally repealed by CASA EX99/15.
Legislative Instruments Act
Instrument CASA EX99/15 repeals CASA EX115/13 which is a legislative instrument that expires at the end of September 2016. Under subsection 33 (3) of the AIA, the relevant power of making for instrument CASA EX99/15 must be exercisable in a like manner to the instrument being repealed. Instrument CASA EX99/15 is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
This instrument repeals CASA EX115/13 and, at the operator’s request, CASA has issued a separate non-legislative instrument with an amended recency requirement in relation to pilots of the operator’s B777-300ER aircraft. CASA considers that no further consultation under section 17 of the LIA is appropriate or necessary.
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 repeal instrument, being minor or machinery in nature, is covered by a standing agreement between CASA and OBPR under which a RIS is not required (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 1 July 2015. In accordance with section 48A of the LIA, it will be repealed the day after the instrument has taken effect.
[Instrument number CASA EX99/15]
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 – Virgin Australia International Airlines Pty Ltd
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
This legislative instrument repeals instrument CASA EX115/13, being an exemption for Virgin Australia International Airlines Pty Ltd (the operator) to use minima lower than the standard take-off and landing meteorological visibility minima determined by CASA for its B777-300ER aircraft.
CASA will issue a separate non-legislative instrument of exemption for the operator to undertake low-visibility take-offs and CAT II and CAT III landings in B777-300ER 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