Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 100.27 Amendment Instrument 2011 (No. 1)
Purpose
The purpose of Civil Aviation Order 100.27 Amendment Instrument 2011 (No. 1) (the CAO amendment) is to authorise a certain class of airworthiness authority holders to carry out particular maintenance.
Legislative background
Regulation 33B of the Civil Aviation Regulations 1988 (CAR 1988) provides that CASA may, in writing, and in accordance with the Civil Aviation Orders (CAOs), issue various kinds of airworthiness authorities (AAs). Paragraph 33B (1) (d) provides for authorities to conduct non-destructive testing (NDT) of aircraft and aircraft components.
CAO 100.23 sets out general rules for AA classes, one of which is the NDT AA. CAO 100.27 sets out the requirements for an NDT AA and provides for the issue and renewal of the AA. Generally, the period of validity of an AA is 2 years.
Under regulation 42ZC of CAR 1988, maintenance may only be carried out on an Australian aircraft in Australian territory if permitted under the regulation. The regulation sets out the requisite qualifications and circumstances for persons who may carry out maintenance.
Thus, subregulations 42ZC (3) and (4) require, for example, that “[s]ubject to subregulation (5)”, a person must hold an aircraft engineer licence or a relevant AA and either hold, or be working for the holder of, a relevant certificate of approval under regulation 30 of CAR 1988.
Subregulation 42ZC (5) provides that “[i]n spite of subregulations (3) and (4)”, a person may carry out maintenance on an aircraft component, or an aircraft material, if the person is working for the holder of a relevant certificate of approval under regulation 30 of CAR 1988 and, for maintenance that is an inspection using an NDT method, the person is authorised by CASA under subregulation 42ZC (6).
Under subregulation 42ZC (6), CASA may, in writing, authorise a person for subregulation 42ZC (5).
Under subregulation 5 (1) of CAR 1988, where CASA is empowered under a regulation to issue an authority, CASA may, in the absence of a contrary intention in the regulation, issue the authority in a CAO. The power mentioned in subregulation 5 (1) to issue an authority results in an authorisation containing and conferring the authority to do something. Thus, power to issue an authority encompasses the power mentioned in subregulation 42ZC (6) to issue an authorisation containing and conferring the authority.
Background
Between 3 January 2002 and 30 November 2010, CASA issued 2 instruments (CASA 23/02 and CASA 480/06) under subregulation 42ZC (6), each of 4-years’ duration, each authorising the class of valid NDT AA holders, working for relevant certificate of approval holders, to carry out maintenance that is an inspection using an NDT method.
On 1 December 2010, the second of the 2 authorisations (CASA 480/06) lapsed. It was not renewed because it was mistakenly thought that the mere holding of a valid NDT AA, without more, allowed holders to carry out NDT inspections.
The CAO amendment is made to correct this error and avoid the possibility of it recurring. It authorises the holder of a valid AA to conduct NDT of aircraft and aircraft components to carry out, on an aircraft component or an aircraft material that is covered by the AA, maintenance in the form of an inspection using an NDT method.
The person authorised must be employed by, or working under an arrangement with, a relevant CAR 30 CofA holder permitted to conduct maintenance in the form of an inspection using an NDT method.
Legislative Instruments Act 2003 (the LIA)
Under paragraph 98 (5A) (a) of the Act, the regulations may empower CASA to issue instruments in relation to matters affecting the maintenance of aircraft. Under subsection 98 (5AA) of the Act, an instrument issued under paragraph 98 (5A) (a) is a legislative instrument subject to the LIA (other than Part 6 concerning sunsetting) if it is expressed to apply in relation to a class of persons, aircraft or aeronautical products.
Under subsection 98 (5AB) of the Act, an instrument issued under paragraph 98 (5A) (a) is not a legislative instrument if it is expressed to apply in relation to a particular person, aircraft or aeronautical product.
Under regulation 33B of CAR 1988, CASA may make CAOs in relation to AAs.
Made under regulation 33B and subregulation 42ZC (6) of CAR 1988, the CAO amendment is an instrument affecting the maintenance of aircraft and is of general application. It is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under sections 24, 38 and 42 of the LIA.
Consultation
Consultation under section 17 of the LIA has not been required for the CAO amendment which is a machinery amendment only and of beneficial effect. It places beyond doubt that a person holding an NDT AA and working for a relevant certificate of approval holder needs no further authorisation before carrying out maintenance in the form of an inspection using an NDT method.
Office of Best Practice Regulation (OBPR)
The instrument has only a low to nil impact on business. OBPR does not require a regulatory impact statement (RIS) for the CAO amendment because a preliminary assessment of business compliance costs indicates that the amendment will have only a nil to low impact on business.
Commencement and making
The CAO amendment commences on the day after registration.
The CAO amendment has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Civil Aviation Order 100.27 Amendment Instrument 2011 (No. 1)]
Details of CAO 100.27 Amendment Instrument 2011 (No. 1)
1 Name of instrument
Under this section, the instrument is the Civil Aviation Order 100.27 Amendment Instrument 2011 (No. 1).
2 Commencement
Under this section, the instrument commences on the day after registration.
3 Amendment of Civil Aviation Order 100.27
Under this section, Schedule 1 amends Civil Aviation Order 100.27.
Schedule 1 Amendment
[1] After subsection 3
Amendment 1 inserts a new subsection 4, Authorisation to carry out maintenance.
It provides that for subregulation 42ZC (5) of CAR 1988, the holder of a valid AA to conduct NDT of aircraft and aircraft components is authorised to carry out, on an aircraft component or an aircraft material that is covered by the AA, maintenance in the form of an inspection using an NDT method.
A Note explains that for the exercise of the privilege, the person authorised must meet the condition mentioned in paragraph 42ZC (5) (a) of CAR 1988, that is, he or she must be employed by, or working under an arrangement with, the holder of a certificate of approval that covers maintenance in the form of an inspection using an NDT method.