EXPLANATORY STATEMENT
CIVIL AVIATION REGULATIONS 1988
REFUELLING WITH PATIENTS ON BOARD — ROYAL FLYING DOCTOR SERVICE (WESTEN OPERATIONS)
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in the interests of the safety of air navigation.
Under subregulation 235 (11) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may exempt an aircraft from any of the requirements imposed by regulation 235. Subregulation 235 (7) of CAR 1988 provides that CASA may, for the purposes of ensuring the safety of air navigation, give directions with respect to the method of loading persons and goods (including fuel) on aircraft.
Subsection 4 of Civil Aviation Order 20.9 is made under subregulation 235 (7) and sets out CASA’s directions in relation to the loading of fuel on aircraft. Paragraph 4.2.3 states that the operator of an aircraft with a maximum seating capacity of less than 20 must ensure that fuel is not loaded on to the aircraft while passengers are on board, or entering or leaving, the aircraft. For certain aircraft operated by the Royal Flying Doctor Service of Australia (Western Operations) to comply with paragraph 4.2.3, critically ill patients on board an aircraft would have to be taken off the aircraft before it could be refuelled. CASA does not consider that such action is necessary to ensure the safety of air navigation.
CASA has, therefore, issued an exemption from paragraph 4.2.3 for the refuelling of certain RFDS aircraft while passengers are on board. The exemption is subject to conditions. For example, the operator must ensure that when fuel is being loaded no passenger is on board unless the requirements set out in Schedule 1 to the exemption are met. The requirements include information that has to be given, before refuelling, to passengers who are capable of understanding; the location of the aircraft’s operating crew and medical staff while fuel is being loaded; and connection of the aircraft and fuelling equipment to an earth point while fuel is being loaded.
Because this approval affects the operation of paragraph 4.2.3 of Civil Aviation Order 20.9, it is declared to be a disallowable instrument under regulation 5A of CAR 1988. 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.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation under section 17 of the LIA has not been undertaken in this case.
The exemption has been issued, at the request of the operator, to permit the refuelling of aircraft in a manner consistent with medical requirements and subject to safeguards. Previous exemptions have been issued for the same purpose to the named operator and to others.
The exemption has been issued by a delegate of CASA appointed under regulation 7 of CAR 1988.
The exemption takes effect at the start of the day after it is registered on the Federal Register of Legislative Instruments and stops having effect at the end of April 2008.
[Instrument number WAO 856]
Overview
The Civil Aviation Regulations 1988, amended by the F2005L02304 instrument, were enacted to address the conflict between stringent aviation safety regulations and the operational necessities of the Royal Flying Doctor Service of Australia (Western Operations). The Civil Aviation Act 1988 empowers the Governor-General to make regulations for air navigation safety, which CASA administers. Specifically, the instrument targets the requirement that aircraft with a maximum seating capacity of less than 20 must not be refuelled while passengers are on board. For the RFDS, this meant removing critically ill patients before refuelling, which CASA deemed unnecessary for ensuring safety. Consequently, CASA issued an exemption allowing certain RFDS aircraft to be refuelled while passengers are on board, provided that strict conditions are met, such as ensuring no passenger is on board unless specific safety requirements are fulfilled. This exemption aims to balance safety with the practical needs of the RFDS, allowing them to continue their vital services without undue disruption. The exemption is a legislative instrument, subject to parliamentary scrutiny and potential disallowance, although consultation under the Legislative Instruments Act 2003 was not undertaken for this instance.
Scope and Application
The Civil Aviation Regulations 1988, as amended, contain provisions that govern the refuelling of aircraft while passengers are on board, with specific attention to safety concerns. Under subregulation 235(11) of these regulations, the Civil Aviation Safety Authority (CASA) has the authority to exempt certain aircraft from the standard requirements if it deems such action necessary for air navigation safety. Specifically, subregulation 235(7) allows CASA to issue directions regarding the loading of persons and goods, including fuel, on aircraft. In this context, CASA has issued an exemption for certain aircraft operated by the Royal Flying Doctor Service of Australia (Western Operations), enabling these aircraft to be refuelled while critically ill patients are on board, subject to specific conditions that ensure safety. This exemption applies to aircraft with a maximum seating capacity of less than 20 and is designed to balance operational needs with safety standards. The exemption is subject to disallowance under the Legislative Instruments Act 2003 and has been issued by a delegate of CASA, taking effect upon registration on the Federal Register of Legislative Instruments and remaining in force until the end of April 2008.
Key Provisions
The Civil Aviation Regulations 1988 (CAR 1988) establish provisions for the safety of air navigation, and section 98(1) of the Civil Aviation Act 1988 empowers the Governor-General to make regulations under the Act. Specifically, subregulation 235(11) of CAR 1988 allows the Civil Aviation Safety Authority (CASA) to exempt aircraft from certain regulatory requirements, while subregulation 235(7) allows CASA to issue directions regarding the loading of persons and goods, including fuel, on aircraft. Civil Aviation Order 20.9, paragraph 4.2.3, mandates that aircraft with a maximum seating capacity of less than 20 must not have fuel loaded while passengers are on board, entering, or leaving the aircraft. However, CASA has issued an exemption from this requirement for certain aircraft operated by the Royal Flying Doctor Service of Australia (Western Operations), enabling these aircraft to be refuelled while patients are on board, provided specific conditions are met.
The exemption issued by CASA requires the operator to ensure that no passenger is on board the aircraft when fuel is being loaded, unless certain conditions are satisfied. These conditions include providing information to passengers who can understand it before refuelling, ensuring the location of the aircraft's operating crew and medical staff is known during fuel loading, and connecting the aircraft and fuelling equipment to an earth point while fuel is being loaded. These measures are designed to mitigate any potential risks associated with refuelling while patients are on board. The exemption is a legislative instrument under section 5 of the Legislative Instruments Act 2003 (LIA) because it affects the operation of Civil Aviation Order 20.9, paragraph 4.2.3. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA. However, consultation under section 17 of the LIA was not undertaken in this instance.
Offences or breaches of the conditions set out in the exemption could result in serious safety concerns. CASA, as the regulatory authority, would have the power to take action against any non-compliance, which could include further restrictions or revocation of the exemption. The consequences of breaching the conditions could potentially lead to safety incidents or accidents, which could have severe implications for both the passengers and the operation of the aircraft. Therefore, adherence to the conditions is critical to maintaining the safety of air navigation. The exemption, which is registered under instrument number WAO 856, is effective from the day after its registration on the Federal Register of Legislative Instruments and remains in force until the end of April 2008.