Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 100.66 Repeal Order 2011
Purpose
The purpose of Civil Aviation Order 100.66 Repeal Order 2011 (the CAO repeal) is to take account of the enactment of Parts 66 and 147 of the Civil Aviation Safety Regulations 1998 (CASR 1998).
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). In particular, under paragraph 33B (1) (a), CASA may issue authorities to carry out maintenance on aircraft (maintenance authorities or MAs).
CAO 100.66
Civil Aviation Order 100.66 (CAO 100.66) was made under paragraph 33B (1) (a) of CAR 1988 to provide for the issue of MAs by CASA following candidates’ training and assessment by recognised organisations which met training standards and were approved by CASA in accordance with CAO 100.66.
Other necessary heads of power
Various other ancillary heads of power under CAR 1988 were used to make certain aspects of CAO 100.66, for example, subregulation 42ZC (6) for authorising certain persons to carry out maintenance, subregulation 230 (4) for authorising the starting and running of rotorcraft engines, and subregulation 308 (1) for certain exemptions.
Acts Interpretation Act 1901 (AIA)
Under subsection 33 (3) of the AIA, (as applied for legislative instruments by section 13 of the Legislative Instruments Act 2003 (the LIA)), where regulations confer a power to make an instrument (in the form of a CAO), the power shall, unless the contrary intention appears, be construed as including a power, exercisable in like manner and subject to like conditions, if any, to repeal the instrument (i.e. the CAO).
Background
Amendments made to CAR 1988 and CASR 1998 by the Civil Aviation and Civil Aviation Safety Amendment Regulations 2010 (No. 1) (registered on 14 December 2010) made Parts 66 and 147 of CASR 1998 which deal with aircraft engineer licences (AELs) and maintenance training organisations.
The rules for AELs and maintenance training organisations, contained in CASR Parts 66 and 147, supersede the rules for issue of MAs following training by recognised organisations under CAO 100.66.
Consequently, under the various heads of power under which it was made, and under subsection 33 (3) of the AIA, CAO 100.66 has been repealed.
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 of CAR 1988 (and various other heads of power), CAO 100.66 was an instrument affecting the maintenance of aircraft and was of general application. It was, therefore, a legislative instrument subject to registration, tabling and disallowance in the Parliament under sections 24, 38 and 42 of the LIA. 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.
Consultation
For section 17 of the LIA, extensive industry and public consultations were conducted on the maintenance suite of regulations (Parts 42, 66, 145 and 147 of CASR 1998). Advance notice of the consequential amendments was posted on the Standards Consultative Committee (SCC) discussion forum. No comments were received as a result of the posting.
Office of Best Practice Regulation (OBPR)
For section 17 of the LIA, extensive industry and public consultations were conducted on the maintenance suite of regulations (Parts 42, 66, 145 and 147 of CASR 1998). Advance notice of the consequential amendments was posted on the Standards Consultative Committee (SCC) discussion forum. No comments were received as a result of the posting.
Commencement and making
The CAO amendment commences on 27 June 2011.
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 100.66 Repeal Order 2011]