Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Civil Aviation Order 95.33 Repeal Instrument 2012
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation.
Regulation 200.010 of the Civil Aviation Safety Regulations 1998 (CASR 1998) provided that a military aircraft undergoing production flight testing or acceptance flight testing (flight testing) is exempt from the Civil Aviation Regulations 1988 (CAR 1988) and CASR 1998 if the conditions set out in the relevant section of Part 95 of the Civil Aviation Orders (the CAOs) were complied with.
Military aircraft are defined in regulation 2 of CAR 1988 as aircraft of any part of the Australian Defence Force (ADF), including any aircraft that is being constructed for the ADF.
The Department of Defence entered into a contract for the purchase of Eurocopter EC 665 Tiger Armed Reconnaissance Helicopters. Australian Aerospace Limited had project management responsibility for the flight testing of these aircraft.
In accordance with regulation 200.010, section 95.33 of the CAOs (CAO 95.33) was made to set out the conditions with which the aircraft had to comply if they were to be exempt from CAR 1988 and CASR 1998 while undergoing flight testing. Because regulation 200.010 of CASR 1998 has been repealed, the repeal instrument has been made under regulation 11.160 of CASR 1998. Regulation 11.160 of CASR 1998 provides that CASA may grant an exemption from a provision of the regulations, including CAR 1988, or a provision of the CAOs. Under subsection 33 (3) of the Acts Interpretation Act 1901 (the AIA), a power to make, grant or issue an instrument includes a power to repeal any such instrument.
Consultation
The Department of Defence advised CASA that flight testing activities under CAO 95.33 are no longer required and that the Order need no longer be in place.
Human rights implications
The instrument removes an exemption from legislative requirements as described above. The instrument does not engage any of the applicable rights or freedoms.
The Civil Aviation Order 95.33 Repeal Instrument 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 95.33 Repeal Instrument 2012]
Overview
The Civil Aviation Order 95.33 Repeal Instrument 2012 was enacted to repeal the exemption for military aircraft undergoing flight testing from specific civil aviation regulations, addressing a gap in regulatory oversight that arose from the particular circumstances of military aircraft production and testing. This instrument was developed under the authority granted by the Civil Aviation Act 1988, which empowers the Governor-General to make regulations necessary for the safety of air navigation. The Civil Aviation Safety Regulations 1998, which originally provided the exemption, have since been amended, necessitating the repeal of Civil Aviation Order 95.33. The instrument was created following consultations with the Department of Defence, which indicated that the flight testing activities covered by CAO 95.33 were no longer required. This repeal ensures that all military aircraft will comply with the necessary civil aviation regulations, aligning with the overarching policy objective of maintaining safety standards in air navigation.
Scope and Application
The Civil Aviation Order 95.33 Repeal Instrument 2012 applies to the regulation of military aircraft undergoing flight testing in Australia, specifically in relation to the exemption from the Civil Aviation Regulations 1988 (CAR 1988) and the Civil Aviation Safety Regulations 1998 (CASR 1998) previously granted under CAO 95.33. This repeal instrument affects any entity involved in the flight testing of military aircraft, particularly those under the responsibility of Australian Aerospace Limited or similar contractors involved with the Australian Defence Force (ADF). The instrument revokes the conditions previously outlined in CAO 95.33 that allowed for the exemption of such military aircraft from CAR 1988 and CASR 1988 during flight testing. The repeal is made under the authority of the Civil Aviation Act 1988, specifically under regulation 11.160 of the CASR 1998, which empowers the Civil Aviation Safety Authority (CASA) to grant exemptions from legislative requirements, including the ability to repeal such exemptions. The repeal instrument is a Commonwealth initiative, impacting national aviation safety standards and regulatory requirements for military aircraft flight testing across Australia.
Key Provisions
The Civil Aviation Order 95.33 Repeal Instrument 2012 pertains to the repeal of Civil Aviation Order 95.33, which previously set conditions for military aircraft undergoing flight testing to be exempt from certain civil aviation regulations. Specifically, section 95.33 of the Civil Aviation Orders (CAO 95.33) had been created to detail the conditions under which military aircraft could be exempt from the Civil Aviation Regulations 1988 (CAR 1988) and the Civil Aviation Safety Regulations 1998 (CASR 1998) during flight testing activities. The repeal of CAO 95.33 is in response to the Department of Defence's notification that flight testing activities under this order are no longer necessary.
The Civil Aviation Order 95.33 Repeal Instrument imposes certain obligations and requirements on the parties governed by the regulations it repeals. Primarily, the repeal affects the exemption conditions that were previously outlined in CAO 95.33, removing the specific conditions that allowed military aircraft to be exempt from CAR 1988 and CASR 1998 during flight testing. The repeal means that all military aircraft undergoing flight testing must now comply fully with the CAR 1988 and CASR 1998, as the exemptions previously provided by CAO 95.33 no longer apply.
There are no specific offences, penalties, or civil/criminal consequences outlined in the Civil Aviation Order 95.33 Repeal Instrument itself, as it primarily serves to remove exemptions rather than impose new regulatory requirements. However, by repealing CAO 95.33, the Instrument ensures that all military aircraft involved in flight testing will need to adhere to the full set of civil aviation regulations, which may include various compliance and enforcement mechanisms under CAR 1988 and CASR 1998. These regulations typically include provisions for enforcement actions, including fines and other penalties, for non-compliance with civil aviation safety and operational standards.