Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 95.55 Amendment Instrument 2014 (No. 1)
Purpose
The purpose of this instrument is to amend Civil Aviation Order (CAO) 95.55 to extend the exemption in that CAO to aeroplanes that have specified approved modifications, and to some aeroplanes which have an experimental certificate for research and development or for showing compliance with regulations.
Legislation
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. In particular, under subsection 98 (5), the regulations may provide that CASA may issue a CAO containing a direction, instruction, notification, permission, approval or authority. Under subsection 98 (5A), the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft, and the airworthiness of, or design standards for, aircraft.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including the Civil Aviation Regulations 1988 (CAR 1988), in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic. Under subregulation 11.205 (1), CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Subregulation 11.230 (1) of CASR 1998 operates so that an exemption issued under subregulation 11.160 (1) ceases at the end of the day no longer than 3 years after the day on which the exemption commences.
Regulation 5 of CAR 1988 allows CASA to issue a direction, instruction, notification or give a permission, approval or authority, if empowered or required under the regulations, in CAOs. This includes issuing an exemption, being a permission to not comply with regulatory requirements.
CAO 95.55 grants an exemption from specified provisions of CAR 1988 and CASR 1998 for certain ultralight aeroplanes. Under paragraph 1.1 of CAO 95.55, the Order applies to a single-place or 2-place aeroplane (other than a weight shift controlled aeroplane or a powered parachute) that has a single engine and a single propeller, has a stall speed of not greater than 45 knots, is registered Recreational Aviation Australia Incorporated (RAA) and is mentioned in paragraph 1.2.
Paragraph 1.2 of CAO 95.55 specifies various aircraft to which CAO 95.55 may apply. Subparagraph 1.2 (d) specifies an old section 95.25 aeroplane, that has not been modified except with the approval of a person who is an authorised person for subregulation 35 (1) of CAR 1988. An old section 95.25 aeroplane is defined in subsection 2 of CAO 95.55 as an aeroplane to which section 95.25 of the CAOs, as in force immediately before 28 February 1990, applies.
Paragraph 3.1 of CAO 95.55 exempts aeroplanes to which CAO 95.55 applies from specified provisions of the regulations, including Part 4A of CAR 1988, which relates to maintenance of aircraft, and Part 61 of CASR 1998, which relates to flight crew licensing.
Paragraph 6.1 of CAO 95.55 provides that the exemptions given by subsection 3 are subject to specified general conditions. Those conditions include, at subparagraph 6.1 (f), that in the case of an aeroplane to which CAO 95.55 applies by virtue of subparagraph 1.2 (b), (c) or (f), the aeroplane must not have been modified without the approval of CASA or an authorised person for the purposes of regulation 35 of CAR 1988.
Regulation 35 of CAR 1988 was repealed on 27 June 2011. Regulation 202.054 of CASR 1998 provides that, despite the repeal of regulation 35 of CAR 1988, an approval of a design of a modification or repair that was in force under subregulation 35 (2) or (6) of CAR 1988 immediately before 27 June 2011 continues in force on and after 27 June 2011 according to its terms.
Approval of modification and repair designs is now dealt with under Subpart 21.M of CASR 1998. Regulation 21.435 allows CASA to grant a modification/repair design approval. Regulation 21.437 allows an authorised person or approved design organisation to grant a modification/repair design approval.
Regulation 21.195A of CASR 1998 empowers CASA or an authorised person to issue an experimental certificate. Paragraph 21.191 (a) of CASR 1998 provides that an experimental certificate may be issued for the purpose of research and development. Paragraph 21.191 (b) of CASR 1998 provides that an experimental certificate may be issued for the purpose of showing compliance with regulations.
Background
CASA has identified that there are a large number of aeroplanes registered with RAA that have been modified from their previously accepted or certified basis. This has been partly due to most of these aircraft having little or no factory support since manufacture, and partly due to many of the engines and propellers originally accepted no longer being commercially available or manufactured. These aeroplanes have been modified with newer replacement parts, such as upgraded engines and new technology propellers, to accommodate safe operation when original replacement parts have not been available.
In the absence of this instrument, RAA would be required not to register a long-term aircraft until it is restored to its original approved or certified configuration. This may cause many aircraft to no longer be operated because no appropriate products are available to revert the aircraft back to their original configuration. It may also mean that some aircraft would be restored back to their approved or certified configuration with aged and possibly unsafe components.
Instrument
This instrument amends CAO 95.55 to address this issue in 2 ways.
First, the instrument extends the class of aeroplanes to which the exemption in CAO 95.55 applies to include old section 95.25 aeroplanes that have been modified with the approval of CASA, an authorised person or an approved design organization.
Second, the instrument extends the class of aeroplanes to which the exemption in CAO 95.55 applies to include, for a limited period, aeroplanes for which there is a current experimental certificate for the purpose of research and development or showing compliance with regulations.
Notes on provisions
Section 1 of the instrument provides that the title of the instrument is the Civil Aviation Order 95.55 Amendment Instrument 2014 (No. 1).
Section 2 provides that the instrument commences on the day of registration.
Section 3 provides that Schedule 1 amends CAO 95.55.
Item 1 of Schedule 1 substitutes a new subparagraph 1.2 (d) to extend the application of that subparagraph to recognise additional categories of persons who can approve a modification of an old section 95.25 aeroplane. The new categories include CASA, an approved design organisation, and an authorised person for regulation 21.437 of CASR 1998.
Item 2 of Schedule 1 corrects the reference to an experimental certificate in subparagraph 1.2 (h) by omitting the words “of airworthiness”.
Item 3 of Schedule 1 inserts a new subparagraph 1.2 (i), which extends the aeroplanes to which CAO 95.55 may apply to include an aeroplane for which there is a current experimental certificate for a purpose mentioned in paragraph 21.191 (a) or (b) of CASR 1998. New subparagraph 1.2 (i) only applies until the end of August 2017.
Item 4 of Schedule 1 replaces the condition in subparagraph 6.1 (f) to reflect that modifications may also be approved under regulations 21.435 and 21.437 of CASR 1998.
Legislative Instruments Act
Under subsection 98 (5AAA) of the Act, CAOs are declared to be legislative instruments. In addition, an instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of aircraft. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003.
Consultation
This instrument has been developed at the request of, and in consultation with, RAA, which is the peak body responsible for administering operations by aircraft to which CAO 95.55 applies. It is CASA’s view that no further consultations in relation to this instrument were necessary or appropriate.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required (OBPR id: 14507).
Making and commencement
The instrument has been issued by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on the day of registration.
[Civil Aviation Order 95.55 Amendment Instrument 2014 (No. 1)]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Civil Aviation Order 95.55 Amendment Instrument 2014 (No. 1)
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
This legislative instrument amends Civil Aviation Order (CAO) 95.55, which grants an exemption from specified provisions of the Civil Aviation Regulations 1988 and the Civil Aviation Safety Regulations 1998 for certain ultralight aeroplanes.
The main purpose of this instrument is to amend CAO 95.55 so that it applies to a broader range of modified aircraft, including some aeroplanes which have an experimental certificate for research and development or for showing compliance with regulations.
The instrument also updates reference to provisions of the regulations relating to approval of modifications of aircraft.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority