Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Order 20.9 Amendment Order (No. 1) 2010
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in the interests of the safety of air navigation.
Subregulation 235 (7) of the Civil Aviation Regulations 1988 (CAR 1988) provides that CASA may, for the purposes of ensuring the safety of air navigation, give directions with respect to the method of loading persons and goods (including fuel) on aircraft.
Directions under subregulation 235 (7) are contained in Civil Aviation Order 20.9 (CAO 20.9). Section 4 of CAO 20.9 sets out particular directions for loading fuel on aircraft. Paragraph 4.2.3 provides that the operator of an aircraft with a maximum seating capacity of less than 20 must ensure that fuel is not loaded on to the aircraft while passengers are on board, or entering or leaving, the aircraft.
Under paragraph 4.2.2 of CAO 20.9, passengers on aircraft with a maximum seating capacity of 20 or more are allowed to remain on board during fuelling if certain conditions are satisfied. These conditions are contained in paragraphs 4.2.1, 4.2.2 and 4.2.5 of CAO 20.9. In addition, paragraph 4.2.4 allows medical aeroplanes to load fuel with less than 20 passengers provided the conditions of CAO 4.2.2 are satisfied.
For many of the smaller jet aeroplanes (less than 20 passengers) that normally conduct charter and private flights, these aircraft have similar underwing systems for loading fuel to that of the larger passenger transport aeroplanes. Often at both Australian and international airports, operators of these aeroplanes have no right of entry to airport terminals requiring the passengers to congregate on the hardstand while refuelling takes place. CASA regularly issues exemptions to allow such operators to refuel their aeroplanes while passengers are on board, subject to conditions.
Aeromedical turbine engine aeroplanes without underwing fuelling capability regularly transport patients with medical conditions that require the patient to remain within reach, or connected to various medical support equipment on the aeroplane at all times, throughout the flight. To have continued access to the medical equipment, there are times when the patient must remain on board during an intermediate fuelling stop. Many of these turbine engine medical aeroplanes do not have underwing fuelling systems. CASA regularly issues exemptions to medical aeroplane operators to be able to load fuel in the above circumstances, subject to conditions.
This Amendment Order is an interim measure until the proposed Part 91 of the Civil Aviation Safety Regulations 1998 is made.
Legislative instrument
Under subsection 98 (5) of the Act, where the regulations provide for certain instruments to be issued in the form of CAOs, such CAOs are declared to be disallowable instruments. Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. The Amendment Order is a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Consultation under section 17 of the LIA has been undertaken, initially in the form of a Notice of Proposed Rule Making (NPRM) for Part 91 of the Civil Aviation Safety Regulations 1998. In March 2009, a posting was included on the Standards Consultative Committee discussion forum announcing the amendment as a new standards development project.
OBPR
The Office of Best Practice Regulation does not require a Regulation Impact Statement because a preliminary assessment of the Business Compliance Costs indicates that the amendment will have only a low impact on business.
The Amendment Order has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 84A (2) of the Act and comes into effect the day after it is registered.
[Civil Aviation Amendment Order 20.9 (No. 1) 2010]
Overview
The Civil Aviation Order 20.9 Amendment Order (No. 1) 2010, made under the Civil Aviation Act 1988, aims to address the practical challenges faced by operators of smaller jet aeroplanes and medical aeroplanes with respect to refuelling while passengers are on board. The Civil Aviation Order 20.9 (CAO 20.9) previously required that fuel not be loaded on aircraft with a maximum seating capacity of less than 20 while passengers were present, but this prohibition caused operational difficulties for certain operators, particularly those without underwing fuelling systems. The amendment provides an interim measure until the proposed Part 91 of the Civil Aviation Safety Regulations 1998 is enacted, allowing these operators to refuel with passengers on board under specific conditions. This was achieved following consultation with stakeholders, and a Regulation Impact Statement was deemed unnecessary due to the low anticipated impact on business. The Order was made by the Director of Aviation Safety on behalf of CASA and is subject to disallowance in Parliament.
Scope and Application
The Civil Aviation Order 20.9 Amendment Order (No. 1) 2010 applies to the operators of aircraft in Australia, with specific provisions for those operating smaller aircraft with a maximum seating capacity of less than 20 passengers and medical aeroplanes. The regulations, made under subsection 98(1) of the Civil Aviation Act 1988, are designed to ensure the safety of air navigation. They amend the Civil Aviation Regulations 1988 by updating the directions under subregulation 235(7) to allow for the loading of fuel on aircraft while passengers are on board under certain conditions. These conditions primarily relate to the type of aircraft and the specific circumstances under which refuelling can occur. The Amendment Order is applicable nationally and is subject to disallowance in the Parliament under the Legislative Instruments Act 2003. Consultation on the amendment was conducted, and the Office of Best Practice Regulation determined that a Regulation Impact Statement was not necessary due to the anticipated low impact on business compliance costs.
Key Provisions
The Civil Aviation Order 20.9 Amendment Order (No. 1) 2010 amends the existing Civil Aviation Regulations 1988 (CAR 1988) to allow for specific conditions under which fuel may be loaded onto certain aircraft while passengers are on board. Under the Civil Aviation Act 1988 (the Act), the Governor-General has the authority to create regulations for the safety of air navigation. Section 98(1) of the Act allows for the creation of these regulations, while subregulation 235(7) of the CAR 1988 empowers the Civil Aviation Safety Authority (CASA) to issue directions for the safe loading of persons and goods on aircraft. The directions for loading fuel are outlined in Civil Aviation Order 20.9 (CAO 20.9).
The Amendment Order modifies paragraph 4.2.3 of CAO 20.9, which previously stipulated that fuel should not be loaded on aircraft with a seating capacity of less than 20 passengers while passengers were on board. The Amendment Order introduces conditions under which fuel can be loaded on such aircraft while passengers remain on board, ensuring safety measures are met. This is particularly relevant for charter and private flights, where passengers often have to wait on the hardstand during refuelling. Similarly, the Amendment Order allows medical aeroplanes to load fuel with fewer than 20 passengers on board, provided certain conditions are satisfied.
The Amendment Order imposes specific obligations on aircraft operators, requiring them to adhere to the conditions set forth in CAO 20.9 when loading fuel while passengers are on board. Operators must ensure that all safety measures are in place to prevent accidents or incidents during the refuelling process. These conditions include the use of appropriate safety equipment and the implementation of procedures that minimise the risk to passengers and crew. CASA regularly issues exemptions subject to these conditions, ensuring that operators comply with safety regulations.
There are potential civil and criminal consequences for non-compliance with the provisions of the Amendment Order. Breaches of the safety directions outlined in CAO 20.9 can result in enforcement actions by CASA, including fines and other penalties. The maximum penalties for non-compliance with aviation safety regulations can be significant, reflecting the high risk associated with unsafe practices during refuelling. Operators found in breach of the conditions may face legal action, which could lead to substantial financial penalties and damage to their reputation.