Commonwealth Numbered Regulations - Explanatory Statements

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CIVIL AVIATION REGULATIONS (AMENDMENT) 1994 NO. 382

STATUTORY RULES 1994 No. 382

Issued by the authority of the Minister for Transport

Civil Aviation Act 1988

Civil Aviation Regulations (Amendment)

Subsection 98(1) of the Civil Aviation Act 1988 (the Act) provides that the GovernorGeneral may make regulations for the purposes of the Act and in relation to the safety of air navigation.

The Regulations make a number of miscellaneous amendments of the Civil Aviation Regulations (the Regulations). Details of the more substantial amendments are given below.

Regulation 31 as amended allows the Authority more flexibility in publishing particulars of the practical experience required of an applicant for an aircraft maintenance engineer licence. The previous requirement to publish particulars in Civil Aviation Orders had proved administratively cumbersome. Similar technical requirements for other types of licences do not have to be published in the Civil Aviation Orders.

The amendments of regulations 99AA, 174A, 174D, 177 and 179A provide for directions and instructions issued under those regulations to be disallowable instruments. This gives effect to an undertaking given by the previous Minister to the Senate Standing Committee on Regulations and Ordinances to ensure that directions and instructions issued under those regulations are subject to Parliamentary scrutiny.

New regulation 309A gives the operator of an aircraft or the pilot in command the power to give instructions prohibiting or limiting the doing of an act on board the aircraft that may endanger its safety. In particular, the regulation authorises an operator or pilot in command of an aircraft to restrict or prohibit the use of portable electronic devices which may adversely effect an aircraft's safety and navigation systems. The operator or pilot in command must be satisfied on reasonable grounds that the instruction is necessary in the interests of air navigation safety.

The other amendments in the Regulations are minor amendments of a legal or technical kind.

DETAILS OF THE AMENDMENTS ARE AS FOLLOWS:

REGULATION 1

This regulation provides that the Civil Aviation Regulations (the Regulations) are amended as set out in the amending Regulations.

REGULATION 2

This regulation replaces paragraph (b) of the definition of "class A aircraft" to make it clear that an aircraft becomes a class A aircraft (and thereby subject to more stringent safety requirements) when it is used, or is to be used, for regular public transport purposes by the holder of an Air Operator's Certificate which authorises its use for that purpose. One of the effects of the definition is that an aircraft that is not a class A aircraft may become one if it is loaned to a person who uses it under an Air Operator's Certificate which authorises the use of aircraft in regular public transport operations.

REGULATION 3

Regulation SA makes certain directions and exemptions given or granted under the Regulations that affect Civil Aviation Orders disallowable instruments.

This regulation amends subregulation 5A(1) so that airworthiness directives are not subject to regulation 5A. The amendment is designed to ensure that airworthiness directives, which are generally designed to deal with urgent safety problems, can continue to take effect quickly.

REGULATION 4

This regulation makes 3 amendments of regulation 31.

Subregulation 4.1 removes the requirement in paragraph 31(4)(c) that the Authority set out in Civil Aviation Orders the practical experience needed by an applicant for an aircraft maintenance engineer licence.

Subregulation 4.2 inserts a new subregulation 31(5A) which obliges the Authority to publish particulars of the practical experience it requires. The new subregulation permits the Authority to identify that experience by reference to other published documents , as in force at a particular time or from time to time. This enables the Authority to take advantage quickly and easily of any standard experience requirements that may be developed in future, either locally or internationally.

Subregulation 4.3 adds a new subregulation 31(7) which allows the Authority to accept other practical experience that it considers to be equivalent to the published requirements.

The amendments do not affect in any way the rights of applicants for maintenance engineer licences. In particular, a refusal to grant a licence is reviewable by the Administrative Appeals Tribunal under section 31 of the Act.

REGULATION 5

This regulation amends regulation 42G.

Subregulation 5.1 amends subregulation 42G(5) so that a student pilot who has passed a general flying progress flight test for a particular category of aircraft is able to inspect the flight control system of an Australian aircraft belonging to that category after part of that system has been assembled, adjusted, repaired, modified or replaced. It is considered that such a pilot has sufficient expertise and experience to enable him or her to carry out such an inspection.

Subregulation 5.2 adds a new subregulation 42G(7) to define the different categories of aircraft.

REGULATION 6

This regulation amends regulation 42ZC.

Subregulation 6.1 amends subregulation 42ZC(4) so that the holder of a student pilot licence who has passed a general flying progress flight test for a particular category of aircraft can carry out limited maintenance of a kind specified in Schedule 8 on a Class B aircraft belonging to that category. It is considered that such a pilot has sufficient expertise and experience to enable him or her to carry out such maintenance.

Subregulation 6.2 adds a new subregulation (11) to define the different categories of aircraft.

REGULATION 7

This regulation amends regulation 5.52 to replace references in the regulation to "aeronautical reference number" with references to "aviation reference number". which is the expression used by the Authority.

REGULATION 8

This regulation amends subregulation 82(1) to make it clear that the Authority's power to approve radiocommunication systems may be exercised only to ensure the safety of air navigation.

While such a limitation is implied in the Authority's primary responsibility for the regulation of air safety, the amendment is considered necessary in view of the growing use of systems for communication between aircraft and the ground for purposes other than air navigation.

REGULATION 9

This regulation amends subregulation 82A(1) to make it clear that the Authority's power to issue directions as to the use of words and phrases when communicating by radiotelephone may be exercised only in respect of : radiocommunication systems approved under subregulation 82(1).

REGULATION 10

This regulation amends regulation 83.

Subregulation 10.1 amends subregulation 83(1) to make it clear that it only applies to the use and operation of radiocommunication systems approved under subregulation 82(1).

Subregulation 10.2 amends subparagraph 83(1)(d)(iii) to update the reference to the "Radiocommunications Act 1983" to the "Radiocommunications Act 1992".

Subregulation 10.3 inserts a new subregulation 83(1A) which provides that subregulation 83(1) does not apply to the operation of a radiocommunication system under subregulation 5.66(1). Subregulation 5.66(1) permits a student pilot to operate an aircraft's radiocommunication system while undergoing flying training.

Subregulation 10.4 amends subregulation 83(2) to provide that it applies only in respect of radiocommunication. systems used to ensure the safety of air navigation.

Subregulation 10.5 amends subregulation 83(3) to provide that it does not apply to the operation of a radiocommunication system by a student pilot under subregulation 5.66(1).

Subregulation 10.6 makes a minor drafting amendment to paragraph 83(3)(a).

Subregulation 10.7 amends paragraph 83(3)(e) to update the reference to the "Radiocommunications Act 1983" to the "Radiocommunications Act 1992".

Subregulation 10.8 omits subregulation 83(4)and replaces it with a new subregulation, to make it clear that subregulation 83(4) applies only to radiocommunication systems that have been approved under subregulation 82(1).

REGULATION 11

This regulation amends paragraph 83E(1)(b) to limit its application to radiocommunication systems used for the purpose of ensuring the safety of air navigation.

REGULATION 12

This regulation adds a new subregulation to regulation 84 to limit its application to radiocommunication systems installed or carried on foreign aircraft in Australian territory for the purpose of ensuring the safety of air navigation.

REGULATION 13

This regulation amends subregulation 98(1A) by omitting the reference to Schedule 3. Schedule 3 has previously been omitted from the Regulations.

REGULATION 14

This regulation amends regulation 99AA by inserting a new subregulation 99AA(6A). The new subregulation provides that a direction or an instruction under subregulation 99AA(5) or (5A) that is not given by means of a Civil Aviation Order is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

REGULATION 15

This regulation amends regulation 17.4A by inserting a new subregulation 174A(1C). The new subregulation provides that an instruction under subregulation 174A(1) that is not given by means of a Civil Aviation Order is a disallowable instilment for the purposes of section 46A of the Acts Interpretation Act 1901.

REGULATION 16

This regulation amends regulation 174D by inserting a new subregulation 174D(3A). The new subregulation provides that an instruction under subregulation 174D(1) that is not issued in the form of a Civil Aviation Order is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

REGULATION 17

This regulation amends regulation 177 by inserting a new subregulation (1B). The new subregulation provides that an instruction under subregulation (1), that is not issued in the form of a Civil Aviation Order is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

REGULATION 18

This regulation amends regulation 179A by inserting a new subregulation (3A). The new subregulation provides that an instruction under subregulation (1) that is not issued in the form of a Civil Aviation Order is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

REGULATION 19

This regulation amends regulation 235 by replacing the present penalty, which is expressed in monetary terms, with an equivalent penalty expressed in penalty units.

REGULATION 20

This regulation amends regulation 256A by inserting a penalty at the foot of subregulation (1) to apply to a contravention of the subregulation. The penalty that used to apply was omitted when the subregulation was, replaced on a previous occasion.

REGULATION 21

This regulation inserts a new regulation 309A.

Subregulation 309A(1) gives the operator or pilot in command of an aircraft the power to give an instruction prohibiting or limiting the doing of an act during flight time in an aircraft. In particular, the regulation authorises an operator or pilot in command of an aircraft to restrict or prohibit the use of portable electronic devices which may adversely affect an aircraft's electronic safety and navigation systems.

Under subregulation 309A(2) the power of the operator or, pilot in command to give an instruction is exerciseable only if he or she is satisfied, on reasonable grounds, that it is necessary in the interests of the safety of air navigation. ,

Under subregulation 309A(3) an instruction does not bind a person until communicated to the person.

Subregulation 309A(4) makes it an offence to contravene an instruction without a reasonable excuse.

REGULATION 22

This regulation amends Part 4 of Schedule 1 (Medical Standards) by removing the power to conduct a simulated test for Air Traffic Controllers to test their colour vision. A simulated test of the type used is now considered to be unsuitable for that purpose.

REGULATION 23

This regulation amends Schedule 8 by removing the present heading. The new heading was needed as a result of the amendment of subregulation 42ZC(4), which made the previous heading inaccurate.

The Regulations commenced on gazettal.