Commonwealth Numbered Regulations - Explanatory Statements

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CIVIL AVIATION REGULATIONS (AMENDMENT) 1991 NO. 54

EXPLANATORY STATEMENT

STATUTORY RULES 1991 No. 54

CIVIL AVIATION REGULATIONS (AMENDMENT)

(ISSUED BY THE AUTHORITY OF THE MINISTER FOR SHIPPING AND AVIATION SUPPORT)

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 particular in relation to the safety of air navigation.

The Civil Aviation Regulations (Amendment) amend regulations 233, 234 and 308 of the Civil Aviation Regulations (the "Principal Regulations"). Details of the amendments are set out below.

Regulation 1

This regulation provides that the Principal Regulations are amended as set out in the amending regulations.

Regulation 2

This regulation makes an amendment to regulation 233 of the Principal Regulations which is consequential upon the amendment made to regulation 234 of the Principal Regulations by regulation 3.

Regulation 3

This regulation repeals regulation 234 of the Principal Regulations and substitute a new regulation 234.

Regulation 234 of the Principal Regulations previously provided that an aircraft must not commence a flight if the quantity of fuel on board was less than the Civil Aviation Authority considered necessary and directed. Aeronautical Information Publication RAC/OPS 1-42 contained the Authority's directions in relation to the fuel requirements for aircraft.

The Civil Aviation Authority considers that it is not necessary from a safety point of view for it to specify the only method that may be used to calculate the fuel requirements that need to be carried on aircraft. It considers that the calculation of fuel should be a matter for the pilot in command and the operator of an aircraft to determine in each particular case. The Authority will provide advisory guidelines for the use of pilots and operators which will set out one possible method that may be used to calculate fuel requirements. However, there may be other methods of calculating fuel requirements that a pilot and operator may wish to use instead of the method suggested by the,; Authority. Operators and pilots will be free to use whichever method they wish so long as they comply with the statutory requirement in the new regulation 234 that sufficient fuel is carried to enable a flight to be undertaken in safety.

Accordingly, the new subregulations 234(1) and (2) provide that it is the responsibility of the pilot in command and the operator, rather than the CAA, to make a decision about the sufficiency of fuel carried on board an aircraft. This amendment is in line with the recent amendments to the Regulations which came into operation on 10 January 1991 which gave the pilot in command of an aircraft the responsibility for the operational control of the aircraft.

Should a pilot in command or an operator breach subregulation 234(1) or (2), subregulation 234(3) provides that in determining whether in the particular case the fuel carried on board the aircraft was sufficient for the flight, a court must have regard to matters specified in subregulation 234(3). These matters include such considerations as the distance to be travelled by the aircraft, the meteorological conditions in which the aircraft is to fly, the possibility of delays, diversions, rerouting, loss of pressurisation and engine failure.

Regulation 4

This regulation repeals regulation 308 of the Principal Regulations and substitute a new regulation 308.

Regulation 308 of the Principal Regulations previously provided that the Civil Aviation Authority could exempt balloons, gliders, rotorcraft, model pilotless aircraft or such other types or categories of aircraft as the Authority specified from compliance with such provisions of the Regulations as the Authority specified.

From time to time legal doubts had been expressed about the extent to which the previous regulation 308 could be used to provide exemptions from the provisions of the Civil Aviation Regulations because it was expressed to apply to "aircraft" and not to "persons". The way the regulation was drafted also made it arguable that the regulation was restricted to the categories of aircraft listed in the regulation (ie rotorcraft, gliders, balloons and similar types of aircraft).

The new regulation 308 makes it clear that exemptions can relate to any type or category of aircraft - not merely to types or categories of aircraft actually specified in the regulation or categories similar to the specified categories.

The new regulation 308 also expressly allows persons associated with particular types or categories of aircraft to be exempted from specific provisions of the regulations.

Also, the new regulation 308 makes it clear that any conditions imposed by exemptions must be determined having regard to the exemptions granted and must be necessary in the interests of safety. This was probably the case under the previous regulation 308, but it is considered desirable to include such an express requirement.

Finally, the new regulation 308 expressly provides that before it can grant an exemption the Authority must take into account any relevant conditions relating to the interests of safety.

Any exemption granted by the Authority under the new regulation 308 will be subject to Parliamentary disallowance.

Regulation 5

This regulation is a saving provision that is necessary to preserve existing exemptions because of the repeal of the previous regulation 308.

The amending Regulations will commence on the day their making is notified in the Gazette.


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