Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — design of modification or repair for an aircraft that is to be operated under a special flight permit
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for giving effect to the Act and for the safety of air navigation. Subsections 98 (5A) and (5AA) of the Act provide that the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation of aircraft.
Regulation 21.009 of the Civil Aviation Safety Regulations 1998 (CASR 1998) prescribes the acceptance of technical data for an aircraft, aircraft engine, propeller or appliance submitted to an authorised person, or approved design organisation (ADO), where the technical data is submitted in connection with an application for a modification or repair design approval.
Subregulation 21.009 (2) requires an authorised person, or an ADO, to approve this technical data for a modification or repair design approval if they are satisfied that the technical data demonstrates that the design complies with the applicable airworthiness standards for the instrument.
Regulation 21.437 of CASR 1998 further prescribes matters relating to a grant of a modification or repair design approval by an authorised person, or an ADO. Under subregulation 21.437 (2), an authorised person, or an ADO, must approve an application for a modification or repair design approval if, among other matters, the design complies with the applicable airworthiness standards for the design.
Subregulation 21.197 (1) of CASR 1998 provides that a special flight permit may be issued for an aircraft that may not currently meet the applicable airworthiness requirements, but could reasonably be expected to be capable of safe flight for certain intended purposes further prescribed in that subregulation. These intended purposes prescribed in subregulation 21.197 (1) include such matters as flying the aircraft to a base where repairs are to be performed, delivering or exporting the aircraft, and dealing with emergencies.
Subpart 11.F of CASR 1998 provides for the granting of exemptions from particular provisions of the regulations. Under subregulation 11.160 (2), an exemption may be granted to a person or a class of persons. Under subregulation 11.170 (3), in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety.
Regulation 11.205 provides that CASA may impose conditions on an exemption if 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.
Regulation 11.225 of CASR 1998 requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Instrument
Authorised persons and ADOs are often faced with applications to approve temporary modifications and repairs, for example, ferry tank installations, which will allow an aircraft to fly under the special flight permit provisions in regulation 21.197 of CASR 1998. Special flight permits may only be issued for the limited purposes prescribed under that regulation.
CASA recognises that it is often not possible or practicable for an operator to demonstrate strict compliance with all applicable airworthiness standards in the case of temporary modifications or repairs associated with operations under a special flight permit.
The exemption allows an authorised person, or ADO, to approve the design of a modification or repair which does not fully comply with all the applicable airworthiness standards where the aircraft is to be operated under a special flight permit associated with that design. It is a condition that an authorised person, or ADO, must take into account any relevant consideration relating to the safe operation of the intended flight, including all hazards and risks, before approving the design of temporary modifications or repairs.
CASA is currently in the process of preparing regulatory amendments that would prescribe the intent of this exemption within the regulations. The instrument has been issued for a limited period in light of this anticipated time frame for the regulatory reform process, and will be repealed at the end of 30 June 2017.
Legislation Act 2003 (the LA)
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations. Paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply to a class of persons.
This instrument applies to a class of persons, being authorised persons and ADOs. Accordingly, the instrument is a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
This instrument replaces instrument CASA EX58/14, which expires at the end of June 2016. The operation of the exemption provided under instrument CASA EX58/14 has been satisfactory, and there have been no changes to the effect of the exemption provided under this instrument.
In these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LA.
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 for this instrument, as the exemption 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 direction has been issued 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 2016, and is repealed at the end of 30 June 2017.
[Instrument number CASA EX99/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — design of modification or repair for an aircraft
that is to be operated under a special flight permit
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 exemption allows an authorised person, or approved design organisation (ADO), to approve the design of a modification or repair of an aircraft which does not fully comply with all the applicable airworthiness standards in circumstances where the aircraft is operating under a special flight permit.
It is a condition that an authorised person, or ADO, must take into account any relevant consideration relating to the safe operation of the intended flight, including all hazards and risks, before approving the design of temporary modifications or repairs. In addition, any aircraft fitted with such a modification or repair may only fly under a special flight permit.
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