Explanatory Statement
Civil Aviation Safety Regulations 1998
Civil Aviation Order 95.57 Instrument 2008
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.
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 (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 with the Spanish Branch of the European Aeronautic Defence and Space Company (EADS CASA) for the conversion of 4 Airbus A330 aircraft into multi-role transport tanker (MRTT) aircraft. These aircraft are being modified by Qantas Airways Limited at their Brisbane airport facilities. 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, Civil Aviation Order 95.57 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, EADS CASA must exercise authorisation and control of flight testing of the EADS CASA Airbus A330 MRTT aircraft to the extent necessary to ensure that the aircraft are airworthy. The ADF must exercise authorisation and control of the flight testing necessary to ensure that the aircrew of the EADS CASA Airbus A330 MRTT aircraft have appropriate ratings, medical classification and flying experience to the extent necessary and in accordance with military standards. Before beginning flight testing, EADS CASA personnel must conduct an inspection of the aircraft to determine whether the aircraft complies with the design standard and is suitable for flight testing. Before beginning flight testing, the ADF must ensure that all ADF pilots conducting tests are properly authorised to do so. Production flight testing must be conducted in accordance with the applicable publication issued by EADS CASA. Acceptance flight testing must be conducted in accordance with:
(a) the applicable publications issued by EADS CASA; and
(b) the aircraft operating limitations issued from time to time by EADS CASA; and
(c) the applicable flight manual and airworthiness directives issued by the ADF.
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
This is the result of discussions held between CASA, the ADF, the PA5402 Engineering Team and EADS on 13 March 2008.
Office of Best Practice Regulation
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 nil to low impact on business compliance costs and other impact on business and individuals (including restrictions on competition) also appears negligible.
The Order commences on the day after it is registered.
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 95.57 Instrument 2008]
Overview
The Civil Aviation Order 95.57 Instrument 2008 was enacted to address the specific conditions under which military aircraft, undergoing production flight testing or acceptance flight testing, may be exempt from the Civil Aviation Regulations 1988 and Civil Aviation Safety Regulations 1998. This order was developed in response to a contract between the Department of Defence and the Spanish Branch of the European Aeronautic Defence and Space Company (EADS CASA) for the conversion of Airbus A330 aircraft into multi-role transport tanker (MRTT) aircraft. The legislation empowers the Governor-General to make regulations in the interest of air navigation safety, as stipulated in section 98 of the Civil Aviation Act 1988. The primary objective of this order is to ensure that the military aircraft in question meet specific safety and operational standards during their flight testing phase, thus maintaining the safety standards mandated by the Civil Aviation Act. The order is subject to parliamentary oversight and disallowance under the Legislative Instruments Act 2003.
Scope and Application
The Civil Aviation Order 95.57 Instrument 2008 applies specifically to the flight testing of military aircraft that are being converted or modified, such as the Airbus A330 aircraft being transformed into multi-role transport tanker (MRTT) aircraft for the Australian Defence Force (ADF) by Qantas Airways Limited at their Brisbane airport facilities. This Order sets out the conditions under which these aircraft are exempt from the Civil Aviation Regulations 1988 (CAR 1988) and Civil Aviation Safety Regulations 1998 (CASR 1998) during the flight testing phase. The entities involved in this process include EADS CASA, the ADF, and Qantas Airways Limited. The Order is made under the authority of the Civil Aviation Act 1988, which empowers the Governor-General to create regulations for the safety of air navigation, and it extends to the Commonwealth of Australia. The Order is subject to tabling and disallowance in the Parliament under the Legislative Instruments Act 2003, indicating its legislative standing. The Office of Best Practice Regulation has determined that this Order has a negligible impact on business compliance costs and other business impacts, thereby not requiring a Regulation Impact Statement.
Key Provisions
The Civil Aviation Order 95.57 Instrument 2008 sets out the conditions that must be met for military aircraft, specifically the Airbus A330 MRTT aircraft being converted by Qantas Airways Limited, to be exempt from the Civil Aviation Regulations 1988 (CAR 1988) and Civil Aviation Safety Regulations 1998 (CASR 1998) during their production and acceptance flight testing. Under section 200.010 of the CASR 1998, these aircraft are exempt if they comply with the conditions outlined in this Order (regulation 200.010). The Order requires EADS CASA to exercise authorisation and control over the flight testing to ensure the aircraft are airworthy, and mandates that the Australian Defence Force (ADF) ensures the aircrew have the necessary qualifications and experience in accordance with military standards (regulations 3 and 4).
Entities governed by the Order, namely EADS CASA and the ADF, must meet several obligations to comply with the regulations. EADS CASA must conduct an inspection of the aircraft before flight testing to verify compliance with design standards and suitability for testing (regulation 5). The ADF must ensure that all test pilots are properly authorised (regulation 6). Production flight testing must adhere to publications issued by EADS CASA, while acceptance flight testing must follow EADS CASA publications, ADF-issued aircraft operating limitations, and applicable flight manuals and airworthiness directives (regulation 7).
The Order also outlines the legislative framework under which it operates. As per section 98(5) of the Civil Aviation Act 1988, Civil Aviation Orders such as this are considered disallowable instruments under the Legislative Instruments Act 2003 (LIA). Consequently, the Order is subject to disallowance in the Parliament (section 42 of the LIA). This means that once registered, the Order can be tabled and potentially disallowed by Parliament, providing a check on its implementation.
Under the Legislative Instruments Act 2003, the Order is classified as a legislative instrument, necessitating its tabling and potential disallowance in Parliament (section 38 of the LIA). The Office of Best Practice Regulation has assessed that the Order will have a negligible impact on business compliance costs and minimal other impacts on business and individuals, thereby exempting it from a Regulation Impact Statement. This assessment indicates that the regulatory burden imposed by the Order is minimal. The Order comes into effect on the day after its registration, ensuring that all parties are aware of and can prepare for the new regulatory requirements.