Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 100.6 Repeal Instrument 2011
Purpose
The purpose of Civil Aviation Order 100.6 Repeal Instrument 2011 (the CAO repeal) is to repeal an obsolete section of the Civil Aviation Orders (CAOs), taking account of the enactment of Subpart 21.M of the Civil Aviation Safety Regulations 1998 (CASR 1998) and the repeal of regulations 35 and 36 of the Civil Aviation Regulations 1988 (CAR 1988).
Legislative background
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and in the interests of the safety of air navigation.
Under subsection 98 (5) of the Act, the regulations may provide that CASA may issue a CAO containing a direction, instruction or notification.
Under subregulation 35 (1) of CAR 1988, a person could apply to the Civil Aviation Safety Authority (CASA) or an authorised person for approval of the design of a modification or repair of an aircraft or aircraft component or a type of aircraft or aircraft component. Under subregulation 35 (2), an applicant was required to furnish to CASA or the authorised person such evidence relating to the design as CASA or the authorised person required, and satisfy CASA or the authorised person that the design conformed with any relevant design standard.
Under subregulation 36 (1) of CAR 1988, a person could apply to CASA or an authorised person for approval of an aircraft component or type of aircraft component as a replacement for another aircraft component or type of aircraft component. Under subregulation 36 (2), an applicant was required to furnish to CASA or the authorised person such evidence relating to the suitability of the proposed replacement component as CASA or the authorised person required, and satisfy CASA or the authorised person that the design of the component conformed with any relevant design standard.
Amendments to regulations
The Civil Aviation and Civil Aviation Safety Amendment Regulations 2011 (No. 1) (CACASAR 2011 (No. 1)) commenced on 27 June 2011 and inserted Subpart 21.M into CASR 1998. Subpart 21.M of CASR 1998 sets out the requirements for the issue of modification/repair design approvals. CACASAR 2011 (No. 1) also amended Subpart 21.K of CASR 1998, which prescribes requirements for the approval of certain materials, parts, processes and appliances, including modification and replacement parts. CACASAR 2011 (No. 1) also repealed regulations 35 and 36 of CAR 1988.
CAO 100.6
Under regulation 5 of CAR 1988, wherever CASA is empowered or required under CAR 1988 to issue any direction, instruction or notification, CASA may generally do so in CAOs.
Civil Aviation Amendment Order (No. R84) 2004 (also known as F2005B00927) revoked and remade section 100.6 of the CAOs. Section 100.6 set out the procedure to be followed by an applicant under regulations 35 and 36 of CAR 1988. It also set out the drawings, specifications and other documents that had to accompany the application.
Acts Interpretation Act 1901 (the AIA)
Under subsection 33 (3) of the AIA, in conjunction with section 13 of the Legislative Instruments Act 2003 (the LIA), if regulations confer a power to make an instrument, then, unless the contrary intention appears, the power includes the power to repeal the instrument in like manner and subject to like conditions, if any, as the instrument may be made. Therefore, CASA is empowered to repeal a CAO in like manner and subject to like conditions, if any, as a CAO may be made.
This CAO repeal instrument repeals section 100.6 of the CAOs, under regulation 5 of CAR 1988 and subsection 33 (3) of the AIA. This has been done because section 100.6 of the CAOs is no longer required following the repeal of regulations 35 and 36 of CAR 1988, and the commencement of Subpart 21.M of CASR 1998 and the amendments to Subpart 21.K of CASR 1998.
The LIA
Under subsection 98 (5AAA) of the Act, a CAO issued under a regulation made under subsection 98 (5) is a legislative instrument.
Made under regulations 35 and 36 of CAR 1988, and implicitly under regulation 5 of CAR 1988, CAO 100.6 was, therefore, a legislative instrument. The repeal of such a legislative instrument is also itself a legislative instrument under section 5 of the LIA and subject to registration, tabling and disallowance in the Parliament under sections 24, 38 and 42 of the LIA.
Consultation
For section 17 of the LIA, consultation on the amendments in CACASAR 2011 (No. 1) was undertaken through the joint CASA/industry Standards Consultative Committee (SCC), the SCC Certification Standards Sub‑committee and SCC Maintenance Standards Sub‑committee. The initial consultation with these Committees took place in November 2009 and then again on the redrafted regulations in March 2011. The draft regulations were also provided for comment directly to industry delegates and authorised persons approving modifications and repairs.
CASA received several responses to the consultation drafts and all comments were evaluated and incorporated, as appropriate, into the regulations. In general, the comments indicated that the proposal was acceptable to industry. As a result of these consultations, a number of amendments were made to the regulations.
The repeal of CAO 100.6 is a natural consequence of the repeal of regulations 35 and 36 of CAR 1988 by CACASAR 2011 (No. 1), as the practical operation of CAO 100.6 is dependent on the existence of those regulations.
Office of Best Practice Regulation (OBPR)
The legislative changes in CACASAR 2011 (No. 1) did not affect the current industry practices. A Regulatory Impact Statement Exemption (reference number 10087) was obtained from OBPR for CACASAR 2011 (No. 1). OBPR assessed the impacts of the proposal as nil or low and that the preparation of a Regulation Impact Statement was not required. The repeal of CAO 100.6 is a natural consequence of the legislative changes in CACASAR 2011 (No. 1).
Commencement and making
The CAO repeal commences on the day after registration.
The CAO repeal 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 100.6 Repeal Instrument 2011]