Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Order 92.3 Repeal Order 2006
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Under former regulation 89A of the Civil Aviation Regulations 1988 (CAR 1988), a person who operated an aerodrome for use in regular public transport (RPT) operations was required to have an aerodrome licence. Under regulation 303 of CAR 1988, where CASA was empowered under CAR 1988 to issue a licence, it could set out, in the Civil Aviation Orders (the CAOs), conditions on that licence that are to be of general application to a specified class of licences. Civil Aviation Order 92.3 (CAO 92.3) sets out the conditions imposed on the aerodrome licences of special traffic mix aerodromes (STMA). These conditions required the provision and operation of a certified air/ground radio service (a CA/GRS) at the aerodromes. An STMA is one at which there is a mix of RPT flights, fixed based operations and scenic general aviation flights and, therefore, some special safety precautions are necessary. The only STMA in Australia were at Broome and Ayers Rock.
Regulation 89A was repealed on 2 May 2003. The concept of licenced aerodromes was replaced by certified aerodromes and registered aerodromes under provisions in Part 139 of the Civil Aviation Safety Regulations 1998 (CASR 1998). Generally speaking, RPT operations use certified aerodromes. Under Subpart 139.B of CASR 1998, a person can apply for an aerodrome certificate which may be granted if the person meets the standards and requirements for aerodrome certification. Under Division 139.F.3 of CASR 1998, the operator of a certified aerodrome may voluntarily install a CA/GRS, or must do so if CASA directs that a CA/GRS be provided.
However, transitional provisions in Subpart 202.FY of CASR 1998 allowed licenced aerodrome operators until 1 May 2006 to upgrade their aerodromes to meet the higher safety standards required to become certified aerodromes for RPT operations. Unless it had already become a certified aerodrome, under regulation 202.701, an aerodrome licence in force before 2 May 2003 continued in force until 1 May 2006, and remained subject to any conditions to which it had been subject, including conditions under regulation 303 of CAR 1988 as contained in CAO 92.3.
Repeal of CAO 92.3
Thus, by the continuing application of CAO 92.3 under regulation 303 of CAR 1988, preserved by regulation 202.701 of CASR 1998, Broome and Ayers Rock aerodromes were required to provide and maintain a CA/GRS until they became certified aerodromes or 1 May 2006, whichever was the later. When they became certified aerodromes, or on or after 1 May 2006, the provisions in Division 139.F.3 of CASR 1998 would address the issue.
In October 2005, Broome aerodrome became a certified aerodrome no longer subject to CAO 92.3. Therefore, CASA instrument 434/05 contained certain directions under Division 139.F.3 of CASR 1998 that the operator provide a CA/GRS.
CASA is in the final stages of issuing Ayers Rock aerodrome with its Part 139 certificate, with an outcome expected by 1 May 2006. CASA has also issued instrument 131/06 which contains directions under Division 139.F.3 of CASR 1998 that the operator provide a CA/GRS.
Therefore, from 1 May 2006, CAO 92.3 will be redundant by virtue of Division 139.F.3 of CASR 1998 and the transitional provisions for Part 139 of CASR 1998, and will be repealed from this date.
Legislative Instruments Act
Under subsection 98 (5) of the Act, where regulations provide for an instrument to be issued in the form of a CAO, the CAO is declared to be a disallowable instrument. 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. For these purposes, a CAO repeal is the same as a CAO amendment and is, therefore, a legislative instrument. It is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation under section 17 of the LIA has not been undertaken in this case because the only operators affected by CAO 92.3 are aware of the position and the repeal of the provisions is required because they are redundant.
The CAO Repeal will not, therefore, substantially alter existing arrangements and is regarded as being of a minor or machinery nature. The repeal being consequential on the coming into full effect of Part 139 of CASR 1998, which was itself the subject of appropriate consultation and a Regulation Impact Statement (RIS), the Office of Regulation Review does not require the preparation of a further RIS.
The instrument comes into effect on 1 May 2006, having been registered.
The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 84A (2) of the Act.
[Civil Aviation Order 92.3 Repeal Order 2006]