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]
Overview
The Civil Aviation Order 95.34 Instrument 2007, made under the Civil Aviation Act 1988, addresses the regulatory gap concerning the exemption of military aircraft undergoing flight testing from certain civil aviation regulations. Enacted to ensure the safety of air navigation, this order was introduced to facilitate the flight testing of military aircraft, particularly those being constructed for the Australian Defence Force, by specifying conditions that must be met to exempt these aircraft from the Civil Aviation Regulations 1988 and the Civil Aviation Safety Regulations 1998. The order was issued by the Director of Aviation Safety on behalf of the Civil Aviation Safety Authority (CASA) and is subject to tabling and disallowance in the Parliament under the Legislative Instruments Act 2003. The instrument was designed to be entirely beneficial for the operator, and its retrospective effect was permitted due to an administrative oversight, ensuring the legality of operations during the period before its registration.
Scope and Application
The Civil Aviation Order 95.34 Instrument 2007 applies specifically to military aircraft that are undergoing flight testing or acceptance flight testing. This includes any aircraft that are part of the Australian Defence Force, or those that are being constructed for the ADF. The Order is designed to ensure that these aircraft can be exempt from certain provisions of the Civil Aviation Regulations 1988 and the Civil Aviation Safety Regulations 1998, provided that the specified conditions are met. These conditions mandate that the flight testing is conducted under the proper authorisation and control of the ADF and Australian Aerospace Limited, with particular attention to the airworthiness of the aircraft and the qualifications of the aircrew involved. The geographic reach of the Order is national, as it pertains to the operations of military aircraft within Australia. While the Order is comprehensive, it does not apply to civilian aircraft or non-military operations. The Order is a legislative instrument and is subject to tabling and disallowance in the Parliament under the Legislative Instruments Act 2003. It was made retrospectively effective to ensure the legality of operations conducted before its registration, reflecting an administrative oversight that has since been addressed.
Key Provisions
The Civil Aviation Order 95.34 Instrument 2007, which was made under the authority of the Civil Aviation Act 1988, sets out specific conditions that must be adhered to for military aircraft undergoing flight testing to be exempt from certain regulations. Specifically, under section 98 of the Act, the Governor-General has the power to create regulations that ensure the safety of air navigation. Regulation 200.010 of the Civil Aviation Safety Regulations 1998 (CASR 1998) exempts military aircraft undergoing flight testing from the Civil Aviation Regulations 1988 (CAR 1988) and CASR 1998 if certain conditions outlined in Part 95 of the Civil Aviation Orders (CAOs) are met.
This Order applies to military aircraft, which are defined in regulation 2 of CAR 1988 as aircraft belonging to any part of the Australian Defence Force (ADF) or being constructed for the ADF. In this case, Australian Aerospace Limited (AAL) is responsible for the flight testing of NHIndustries NH90 Tactical Transport Helicopters under a contract with the Department of Defence. AAL must ensure the aircraft's airworthiness by conducting inspections before the flight testing begins and must comply with specific flight manuals and technical publications. The ADF is also required to ensure that aircrew members are adequately qualified and authorised.
The Order is a legislative instrument and, as such, is subject to tabling and disallowance in Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (LIA). Although the Order was not registered before it came into effect due to an administrative oversight, it was made retrospective to ensure the legality of operations during the period before its registration, in line with subsection 12(2) of the LIA. The Office of Best Practice Regulation determined that a Regulation Impact Statement was not necessary because the Order is expected to have a low impact on business.
Failure to comply with the conditions set out in the Order can result in significant consequences. Under the Civil Aviation Act 1988, breaches of the regulations or orders made under it can lead to both civil and criminal penalties. For instance, individuals or entities found in breach of these provisions could face fines of up to $216,000 for a corporation and $43,200 for an individual, along with potential imprisonment terms. The severity of these penalties underscores the importance of adhering to the stipulated conditions to maintain the safety and legality of military aircraft flight testing operations.