Civil Aviation Order 100.27 Amendment Instrument 2011 (No. 1)

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2011L02076 Not in force Legislative Instrument

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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.

 

Overview

The Civil Aviation Order 100.27 Amendment Instrument 2011 (No. 1) was enacted to rectify an oversight in the interpretation of existing regulations concerning the authorisation of non-destructive testing (NDT) of aircraft and aircraft components. This amendment was necessary to ensure that holders of valid airworthiness authorities (AA) to conduct NDT could carry out maintenance inspections using NDT methods without requiring additional authorisation. The Civil Aviation Act 1988 provides the legislative framework within which the Civil Aviation Orders (CAOs) operate, and the amendment was made by the Civil Aviation Safety Authority (CASA) under the authority conferred by regulation 33B of the Civil Aviation Regulations 1988. The primary objective of the amendment is to clarify that NDT AA holders, who are employed by or working under an arrangement with a certificate of approval holder, are authorised to perform maintenance inspections using NDT methods, thus preventing any operational disruptions in the aviation maintenance sector. The amendment was subject to the Legislative Instruments Act 2003, which governs the creation and operation of legislative instruments such as CAOs. Given that the amendment is of general application and only serves to correct an administrative oversight, it was not subject to the consultation requirements under the Legislative Instruments Act 2003. Furthermore, the Office of Best Practice Regulation determined that the amendment had a minimal to nil impact on business, and thus, a regulatory impact statement was not required. This amendment ensures that NDT AA holders can continue their operations without additional bureaucratic hurdles, thereby maintaining the efficiency and safety standards in the aviation maintenance industry.

Scope and Application

The Civil Aviation Order 100.27 Amendment Instrument 2011 (No. 1) amends Civil Aviation Order 100.27 to address a specific oversight regarding the scope of authority for holders of airworthiness authorities (AA) to conduct non-destructive testing (NDT) inspections. This amendment applies to holders of valid NDT AAs who are employed by, or working under an arrangement with, holders of a relevant certificate of approval, ensuring they can carry out maintenance in the form of NDT inspections on aircraft components or materials covered by their AA. The amendment is intended to correct a misunderstanding that led to the non-renewal of an authorisation in 2010, thereby preventing any future misinterpretations. The amendment is a legislative instrument subject to the Legislative Instruments Act 2003, as it affects the maintenance of aircraft generally, and not a specific person or aircraft. It does not require consultation, and the Office of Best Practice Regulation has determined that it has a low to nil impact on business, hence no regulatory impact statement is required. The amendment commences on the day after its registration.

Key Provisions

The Civil Aviation Order 100.27 Amendment Instrument 2011 (No. 1) amends the Civil Aviation Order (CAO) 100.27 to clarify and correct the authorisation for holders of certain airworthiness authorities (AAs) to carry out non-destructive testing (NDT) maintenance on aircraft components and materials. Specifically, under the amended CAO 100.27, a holder of a valid AA for NDT of aircraft and aircraft components is now authorised to conduct maintenance in the form of an inspection using an NDT method on aircraft components or materials covered by their AA (Schedule 1, Amendment 1). This amendment clarifies that such holders do not require additional authorisation from the Civil Aviation Safety Authority (CASA) to perform NDT maintenance, provided they are employed by or working for an entity with a relevant Certificate of Approval (CofA) under the Civil Aviation Regulations 1988 (CAR 1988). The amendment imposes specific obligations on parties involved. Holders of a valid NDT AA must ensure they are employed by, or working under an arrangement with, a CofA holder permitted to conduct NDT inspections. This ensures that the maintenance carried out is within the scope of their authority and the regulatory framework. Additionally, CofA holders must verify that their employees or contractors holding NDT AAs are aware of and comply with the conditions of their authorisation, including the requirement to perform maintenance only on components and materials covered by their AA. There are no specific offences, penalties, or civil/criminal consequences outlined in the CAO amendment itself for breaches related to the authorisation to carry out NDT maintenance. However, any failure to comply with the conditions of the authorisation or the broader regulatory requirements under CAR 1988 may lead to enforcement actions by CASA. Such actions could include the revocation of the AA, fines, or other regulatory sanctions. The severity of these penalties would depend on the nature and extent of the breach, as determined under the applicable provisions of the Civil Aviation Act 1988 and the CAR 1988.

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