Civil Aviation Order 82.5 Amendment Order (No. 1) 2011

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

Legislation au F2011L00497 Not in force Legislative Instrument

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Explanatory Statement

 

Civil Aviation Act 1988

 

Civil Aviation Order 82.5 Amendment Order (No. 1) 2011

 

Legislative background

Under section 27 of the Civil Aviation Act 1988 (the Act), CASA may issue Air Operators’ Certificates (AOCs) with respect to aircraft for the purpose of safety regulation. Under section 28 of the Act, CASA must issue the AOC if satisfied that the applicant can comply with the requirements of Australian civil aviation safety legislation.

 

Under paragraph 28BA (1) (b) of the Act, an AOC has effect subject to any conditions specified in the regulations or Civil Aviation Orders (the CAOs).

 

Additionally, under subsection 98 (4A) of the Act, CASA may issue CAOs, not inconsistent with the Act, in respect to any matter in relation to which regulations may be made for the purposes of, relevantly, section 28BA of the Act (conditions on AOCs).

 

Part 82 of the CAOs specifies conditions on AOCs for various kinds of operations. CAO 82.5 contains conditions on AOCs that authorise regular public transport operations in high capacity aircraft, i.e. aircraft certificated as having a maximum seating capacity exceeding 38 seats or a maximum payload exceeding 4 200 kilograms.

 

Background

ICAO audit of CASA

One of the recommendations of the ICAO audit in February 2008 was that CASA should provide legislative rules for cockpit voice recorder (CVR) and flight data recorder (FDR) records to be preserved for examination if an aircraft carrying such recorders was involved in a relevant accident or incident.

 

Previous CAO amendment

Civil Aviation Order 82.5 Amendment Order (No. 3) 2010 (the previous CAO amendment) implemented CASA’s response to this recommendation.

 

CASA’s response was based on the preservation of the relevant records in the event of an immediately reportable matter and a foreign immediately reportable matter occurring to an aircraft that is carrying a CVR or FDR.

 

Effect of previous CAO amendment

Under the previous CAO amendment, and using the effect of provisions in the Transport Safety Investigation Act 2003 (the TSI Act) and the Transport Safety Investigation Regulations 2003 (the TSI Regulations), an immediately reportable matter was an aviation accident and incident event mentioned in a list of such events which must be reported to the Australian Transport Safety Bureau (the ATSB) for it to determine whether a safety investigation should occur.

 

Under the previous CAO amendment, a foreign immediately reportable matter was defined as a matter relating to the safety of transport by means of aircraft that must be reported to an authority of a foreign country under a law of that country.

 

As the investigating bodies and, therefore, the bodies to which relevant matters were to be reported, under the previous CAO amendment the ATSB, and an authority of a foreign country under a law of that country, were designated as responsible authorities. Within certain prescribed time limits, each responsible authority was to determine how long CVR and FDR records were to be preserved for the purposes of the responsible authority.

 

Removal of foreign immediately reportable matter

Following a preliminary review of the way in which the previous CAO amendment would and was operating, for reasons of practicality, CASA decided to remove the notion of foreign immediately reportable matters from the scheme.

 

It was considered that imposition of foreign immediately reportable matters obligations on Australian AOC holders would not result in any enhanced preservation of relevant CVR and FDR records for Australian purposes.

 

However, it could result in the operator, solely because of the previous CAO amendment, being subject to 2 separate determinations of how long to preserve CVR and FDR records — a determination by the foreign country authority, if it made one, and a determination by the ATSB. It was the objective of the previous CAO amendment specifically to assist ATSB in the preservation of relevant records.

 

The new CAO amendment

Therefore, under Schedule 1 of Civil Aviation Order 82.5 Amendment Order (No. 1) 2011 (the new CAO amendment), a small number of technical amendments are made to remove references to foreign immediately reportable matters and foreign responsible authorities.

 

As a result, under the new CAO amendment, relevant Australian and foreign aircraft, in Australian airspace, would be subject to the CAO’s records preservation requirement for ATSB purposes.

 

Also, relevant Australian aircraft, in foreign airspace, would be subject to the CAO’s records preservation requirement for ATSB purposes.

 

However, relevant Australian aircraft, in foreign airspace, would not be subject to the CAO’s records preservation requirement for the foreign country’s purposes. (Of course, the foreign country may have its own analogous rules which the Australian operator must observe in that country.)

 

Legislative Instruments Act 2003 (the LIA)

Paragraph 28BA (1) (b) of the Act provides that an AOC has effect subject to any conditions “specified in the regulations or Civil Aviation Orders”.

 

Subsection 98 (4A) of the Act provides that CASA may issue CAOs with respect to any matter in relation to which regulations may be made for the purposes of section 28BA.

 

Under subsection 98 (4B) of the Act, a CAO issued under subsection 98 (4A) is stated to be a legislative instrument and is, therefore, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.

 

By providing that an AOC has effect subject to any conditions specified in the regulations or CAOs, paragraph 28BA (1) (b) of the Act is a separate head of power for the making of relevant CAOs. For section 5 of the LIA, such CAOs would be legislative instruments subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.

 

The new CAO amendment is made under both paragraph 28BA (1) (b) and subsection 98 (4A) of the Act and is a legislative instrument.

 

Consultation

Appropriate consultation under section 17 of the LIA had been undertaken in relation to the previous CAO amendment. Further consultation was not considered necessary for the new CAO amendment which would have no effect on previously consulted parties.

 

Office of Best Practice Regulation (OBPR)

OBPR did not require a Regulation Impact Statement for the previous CAO amendment because a preliminary assessment of business compliance costs indicated that that amendment would have only a nil to low impact on business (OBPR ID No. 11939). Given the narrowed focus of the new CAO amendment, this remains the case.

 

Commencement and making

The new CAO amendment commences on the day after it is registered. The new 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 82.5 Amendment Order (No. 1) 2011]

 

Overview

The Civil Aviation Order 82.5 Amendment Order (No. 1) 2011 amends the conditions on Air Operators’ Certificates (AOCs) for high capacity aircraft. Enacted by the Civil Aviation Safety Authority (CASA), this amendment responds to the International Civil Aviation Organization's (ICAO) 2008 recommendation that CASA should establish legislative rules for the preservation of cockpit voice recorder (CVR) and flight data recorder (FDR) records in the event of an accident or incident. The previous amendment in 2010 implemented CASA's response to this recommendation, but CASA later determined that imposing obligations on Australian AOC holders for foreign immediately reportable matters would not enhance record preservation for Australian purposes. Therefore, the 2011 amendment removes references to foreign immediately reportable matters and foreign responsible authorities, ensuring that aircraft operating in Australian airspace and relevant Australian aircraft in foreign airspace are subject to the preservation requirements for the Australian Transport Safety Bureau (ATSB) purposes. This amendment is subject to the Legislative Instruments Act 2003 and was not subject to further consultation or a Regulation Impact Statement as it was considered to have a nil to low impact on business.

Scope and Application

The Civil Aviation Order 82.5 Amendment Order (No. 1) 2011 amends the Civil Aviation Order 82.5, which specifies conditions on Air Operators’ Certificates (AOCs) that authorise regular public transport operations in high capacity aircraft, specifically those with a maximum seating capacity exceeding 38 seats or a maximum payload exceeding 4,200 kilograms. The amendment applies to all persons and entities holding AOCs for such operations, effectively streamlining the preservation requirements of cockpit voice recorder (CVR) and flight data recorder (FDR) records. These amendments remove the obligation to preserve such records for foreign authorities, simplifying compliance for Australian operators. The changes apply within Australia and to Australian aircraft operating in foreign airspace, although foreign jurisdictions may have their own preservation rules. The amendment is made under the authority granted by the Civil Aviation Act 1988, which allows the Civil Aviation Safety Authority (CASA) to issue Civil Aviation Orders not inconsistent with the Act. This amendment is a legislative instrument subject to tabling and disallowance in Parliament, as per the Legislative Instruments Act 2003.

Key Provisions

Under the Civil Aviation Act 1988 (the Act), the Civil Aviation Safety Authority (CASA) has the authority to issue Air Operators' Certificates (AOC) to aircraft operators, subject to certain conditions (sections 27 and 28). These certificates are issued if CASA is satisfied that the applicant can comply with Australian civil aviation safety legislation (section 28). The AOCs are effective subject to any conditions specified in the Civil Aviation Orders (CAOs) (paragraph 28BA(1)(b)). CASA also has the power to issue CAOs concerning matters for which regulations may be made, such as conditions on AOCs (subsection 98(4A)). The Civil Aviation Order (CAO) 82.5 Amendment Order (No. 1) 2011 (the new CAO amendment) modifies the conditions on AOCs for regular public transport operations in high capacity aircraft (CAO 82.5). Specifically, the new CAO amendment removes the requirement to preserve cockpit voice recorder (CVR) and flight data recorder (FDR) records for foreign authorities in the event of an accident or incident. The new CAO amendment imposes specific obligations on the holders of AOCs for high capacity aircraft. These operators must ensure that CVR and FDR records are preserved for the Australian Transport Safety Bureau (ATSB) in the event of an aviation accident or incident that is immediately reportable under the Transport Safety Investigation Act 2003 (TSI Act) and the Transport Safety Investigation Regulations 2003 (TSI Regulations). The amendment streamlines the process by removing the need to preserve records for foreign authorities, unless required by the laws of the country where the incident occurred. This change is aimed at ensuring that the preservation of records primarily assists the ATSB in conducting safety investigations. The new CAO amendment does not introduce new offences or penalties; however, failure to comply with the conditions of an AOC, including the preservation of CVR and FDR records, could result in CASA taking enforcement action against the AOC holder. Such actions could include the suspension or revocation of the AOC, which would prevent the operator from conducting regular public transport operations. The potential penalties for non-compliance with AOC conditions are significant, as they could result in severe operational disruptions and potential safety risks. The specific penalties for breaches of AOC conditions are not detailed in the CAO amendment but are generally governed by the provisions of the Civil Aviation Act 1988 and other related legislation. In accordance with the Legislative Instruments Act 2003 (LIA), the new CAO amendment is a legislative instrument and is subject to tabling and disallowance in the Parliament (sections 38 and 42 of the LIA). The amendment has been made under both paragraph 28BA(1)(b) and subsection 98(4A) of the Act, and it is considered a legislative instrument. The new CAO amendment follows appropriate consultation processes, building on previous consultations regarding the Civil Aviation Order 82.5 Amendment Order (No. 3) 2010, and did not require a new Regulation Impact Statement from the Office of Best Practice Regulation (OBPR) due to its minimal impact on business compliance costs. The new CAO amendment commenced on the day after it was registered and was made by the Director of Aviation Safety on behalf of CASA in accordance with subsection 73(2) of the Act.

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