Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 82.5 Amendment Order (No. 3) 2010
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.
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.
Details of the CAO amendment
Civil Aviation Order 82.5 Amendment Order (No. 3) 2010 (the CAO amendment) implements CASA’s response to this recommendation. CASA’s response is based on the preservation of the relevant records in the event of an immediately reportable matter or a foreign immediately reportable matter occurring to an aircraft that is carrying a CVR or FDR.
Under 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 is 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. A list of such events (which is subject to change if the TSI Act or TSI Regulations are changed) is at Appendix 1. Reports must be made to the ATSB by responsible persons, defined under the TSI Act and TSI Regulations as including, for example, a member of the flight crew, the aircraft owner or operator, an air traffic controller, or an aerodrome operator or ground crew.
Under the CAO amendment, a foreign immediately reportable matter is 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.
Under the CAO amendment, the obligation to preserve CVR and FDR records is time limited. Thus, the relevant AOC holder must ensure that the records are preserved at least until the holder is notified by the responsible authority. The notice may require preservation of the records until another specified date, or subsequent dates if subsequent notices are given before the expiry of the previous notice. Alternatively, the notice may not require preservation of the records beyond the date the notice is received.
However, if no notice is received either way within 30 days of the occurrence of the immediately reportable matter or foreign immediately reportable matter, then the records need not be preserved beyond that 30 day period during which no notice was received.
The CAO amendment defines a responsible authority as the ATSB (for immediately reportable matters) or the relevant foreign authority responsible for safety investigations (for a foreign immediately reportable matter).
Officially recorded oral communications
It is necessary to prescribe a period of up to 30 days in order to create for the responsible authority a preliminary limited time frame for contact, but one that is long enough to enable it to deal with unforeseeable contingencies. However, for the reasons set out below, it is not expected that in practice any operator will have to wait for 30 days before receiving some kind of notification from the ATSB or the foreign responsible authority.
Under the CAO amendment, to notify means to inform orally or in writing. This flexibility will enable the responsible authority (for example, the ATSB) to immediately communicate to the AOC holder or its representative, the ATSB’s decision that preservation is, or is not, required. In a case where ATSB or the foreign responsible authority is clearly of the opinion that preservation is not required, the holder is then able to immediately resume operations without having to await written notice.
This procedure is possible and acceptable only because communications on the official telephone line of the ATSB (and other responsible authorities) are electronically recorded so that no issue arises of proving whether the ATSB did or did not convey a particular decision about preserving the records.
As a matter of administrative practice, ATSB is expected to give written notice in the more obvious cases for essential preservation of records. Nevertheless, provided the official telephone line is used involving electronic recording of communications with ATSB, or the foreign responsible authority, the validity of a notice is not dependent on it having been given in writing.
Specific details of the CAO amendment are set out in Appendix 2.
Legislative Instruments Act 2003 (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 CAO amendment is made under both paragraph 28BA (1) (b) of the Act and subsection 98 (4A) of the Act and is a legislative instrument.
Consultation
Consultation under section 17 of the LIA has been undertaken in this case as follows.
In September 2010, CASA wrote to all AOC holders authorised to conduct regular public transport operations in high capacity aircraft, foreshadowing the CAO amendment and requesting their comments. Comments received were considered by CASA. In particular, CASA took into account comments in relation to uncertainty in the length of time records must be preserved by an operator without the operator knowing what course of action the responsible authority proposed to take.
Office of Best Practice Regulation (OBPR)
The new CAO amendment would impose on a relevant AOC holder whose aircraft was involved in an immediately reportable matter or a foreign immediately reportable matter, a new obligation to preserve CVR and FDR records for up to 30 days, though in practice only until the holder had earlier received a relevant notice from the ATSB or equivalent, clarifying preservation requirements within or beyond the 30 days.
The extent of the new CASA obligation is, therefore, quite time limited because under subsection 43 (1) of the TSI Act, the Chief Commissioner of the ATSB has his or her own power to direct non-removal and non-interference with specified things.
Also, based as it is on the outcome of an ICAO audit, the new rule is required if Australia is to continue to meet its international obligations for aviation regulation.
Further, given the overall low incidence of immediately reportable matters and foreign immediately reportable matters, the new obligation would only have a low to nil impact on business. OBPR does not require a 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 (OBPR ID No. 11939).
Commencement and making
The CAO amendment commences on the day after it is registered. 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 82.5 Amendment Order (No. 3) 2010]
Appendix 1
IMMEDIATELY REPORTABLE MATTERS
(Subject to change if the TSI Act or TSI Regulations are amended.)
immediately reportable matter means 1 or more of the following:
(a) the death of, or a serious injury to:
(i) a person on board the aircraft or in contact with the aircraft or anything attached to the aircraft or anything that has become detached from the aircraft; or
(ii) a person who has been directly exposed to jet blast;
(b) the aircraft being missing;
(c) the aircraft suffering serious damage, or the existence of reasonable grounds for believing that the aircraft has suffered serious damage;
(d) the aircraft being inaccessible and the existence of reasonable grounds for believing that the aircraft has been seriously damaged;
(e) airprox in which the aircraft and 1 or more other aircraft come into such close proximity that a threat to the safety of the aircraft exists or may exist, in airspace where the aircraft are not subject to an air traffic separation standard or where separation is a pilot responsibility.
(f) violation of controlled airspace;
(g) a near-collision involving aircraft manoeuvring on the ground;
(h) an occurrence in which flight into terrain is narrowly avoided;
(i) the rejection of a take-off from a closed or occupied runway;
(j) a take-off from a closed or occupied runway with marginal separation from an obstacle or obstacles;
(k) a landing on a closed or occupied runway;
(l) a significant failure to achieve predicted performance during take-off or initial climb;
(m) a fire (even if subsequently extinguished), smoke, fumes or an explosion on or in any part of the aircraft;
(n) an uncontained engine failure;
(o) a mechanical failure resulting in the shutdown of an engine;
(p) the use of any procedure for overcoming an emergency;
(q) an event requiring the use of oxygen by a flight crew member;
(r) malfunction of an aircraft system that seriously affects the operation of the aircraft;
(s) a flight crew member becoming incapacitated during flight;
(t) fuel exhaustion;
(u) the aircraft’s supply of useable fuel becoming so low (whether or not as a result of fuel starvation) that the pilot declares an emergency in flight;
(v) undershooting, over-running or running off the side of a runway during take-off or landing, or any other similar occurrence;
(w) any of the following occurrences, if the occurrence causes difficulty controlling the aircraft:
(i) a weather phenomenon;
(ii) operation outside the aircraft’s approved envelope;
(x) the failure of 2 or more related redundant systems for flight guidance and navigation;
(y) serious damage to, or destruction of, any property outside the aircraft caused by contact with the aircraft or anything that has become detached from the aircraft.
Appendix 2
CAO Amendment
The amendment inserts a new subsection 12 in CAO 82.5 making it a new condition on relevant AOCs that holders preserve cockpit voice recorder and flight data recorder records in accordance with the subsection.
12.1Under this paragraph, the new subsection is expressed to apply if there is an immediately reportable matter or a foreign immediately reportable matter for an aircraft, and there is a cockpit voice recorder or flight data recorder record for the matter.
A Note refers the reader to section 18 of the TSI Act for the requirement to report an immediately reportable matter.
A second Note explains that under section 24 of the TSI Act, it is an offence to hinder an investigation under that Act.
A third Note explains that under subsection 43 (1) of the TSI Act, the Chief Commissioner of the Australian Transport Safety Bureau may direct that specified things, or things in a specified class of things, must not be removed or interfered with except with the permission of the Chief Commissioner. Under subsection 43 (3) of the Act, contravention of such a direction is an offence.
12.2Under this paragraph, each AOC holder must preserve cockpit voice recorder and flight data recorder records in accordance with subsection 12.
A Note explains that this paragraph does not affect the obligations that exist under the TSI Act, or relevant foreign legislation to report immediately reportable matters, or foreign immediately reportable matters, to the responsible authority.
12.3Under this paragraph , the AOC holder must ensure that the records are preserved as follows:
(a) if the responsible authority notifies the holder that the records need not be preserved — until the date the notice is given; or
(b) if the responsible authority notifies the holder that the records must be preserved until a date stated in the notice — until the stated date, or until a later specified date if a second or subsequent notification is given to the holder before the previous notification expires; or
(c) if the responsible authority does not give the holder a notice mentioned in subparagraph (a) or (b) within the 30 days after the matter occurred — until the end of the 30 days.
A Note explains that notification may be in writing, or if oral, may be confirmed in writing. Use of electronically recorded communications on the official telephone line enables the responsible authority to communicate its decision immediately, if appropriate, while providing factual evidence that the decision was communicated.
A second Note explains that ATSB has procedures to ensure that its communications on the official telephone line are acknowledged as understood.
12.4Under this paragraph, the holder must ensure that, despite paragraph 12.2, a person on board the holder’s aircraft must not disable or switch off the aircraft’s cockpit voice recorder or flight data recorder during flight.
12.5Under this paragraph, certain expressions are defined as follows:
foreign immediately reportable matter means a matter relating to the safety of transport by means of an aircraft that must be reported to an authority of a foreign country under a law of that country.
immediately reportable matter has the meaning given by subsection 3 (1) of the TSI Act.
notifies means informs orally or in writing.
official telephone line means the telephone line that is:
(a) nominated by the relevant responsible authority for reporting immediately reportable matters or foreign immediately reportable matters: and
(b) published in an official aeronautical information publication.
A Note explains, by way of example, that the nominated official telephone line for reporting immediately reportable matters to the ATSB is toll-free call 1800 011 034 as published in the AIP.
responsible authority means:
(a) for an immediately reportable matter — the Australian Transport Safety Bureau established by section 12 of the TSI Act; or
(b) for a foreign immediately reportable matter — the authority responsible for investigation of such matters in the foreign country concerned.