Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 95.34 Instrument 2007
Legislation
Subsection 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) provides 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) are 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 has entered into a contract for the purchase of NHIndustries NH90 Tactical Transport Helicopter. Australian Aerospace Limited (AAL) has project management responsibility for the flight testing of these aircraft. If the flight testing is successful, the ADF will put the aircraft into service. In accordance with CAR 1988, therefore, the aircraft are military aircraft to which regulation 200.010 of CASR 1998 may apply.
In accordance with regulation 200.010 of CASR 1998, Civil Aviation Order 95.34 has been made to set out the conditions with which the aircraft must comply if they are to be exempt from CAR 1988 and CASR 1998 while undergoing flight testing. Under the conditions, AAL must exercise the authorisation and control of the flight testing necessary to ensure the airworthiness of the aircraft. Before beginning flight testing, AAL personnel must inspect the aircraft to determine whether it complies with the design standard and is suitable for flight testing. The ADF must exercise the authorisation and control of the flight testing necessary to ensure the aircrew are properly qualified and experienced, and that any ADF pilots are properly authorised. The flight testing must be conducted in accordance with particular ADF and AAL flight manuals and other technical publications and limitations referred to in the CAO.
Legislative Instruments Act
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 Order is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
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 Order will have only a low impact on business.
The Order came into effect on 12 November 2007. It was subsequently registered on the Federal Register of Legislative Instruments.
As a result of an administrative oversight, the Order was not registered before it was to come into effect. However, the Order is entirely beneficial for the operator and this retrospectivity is, therefore, consistent with that permitted under subsection 12 (2) of the LIA. In the circumstances, it is necessary for the Order to have retrospective effect to ensure the legality of the operator’s operations during the period before the Order was registered. Procedures have been put in place to avoid a repeat of the administrative oversight.
The Order 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 95.34 Instrument 2007]