Overview of civil aviation safety legislation
The legislative framework regulating aviation safety in Australia is complex, reflecting the landscape of the aviation industry and the activities it conducts. The written 'laws of the Commonwealth' that bind CASA derive from a number of sources, grouped under two broad headings:
- Primary legislation, being laws passed by the Commonwealth Parliament:
- Civil Aviation Act 1988 (CAA)
- Airspace Act 2007
- Delegated legislation (also called 'subordinate legislation'), being legislative instruments signed by the Governor-General, a Minister or an official empowered by an Act (e.g. CASA's DAS and CEO), to issue the instrument under the Act:
- Civil Aviation Safety Regulations 1998 (CASR)
- Civil Aviation Regulations 1988 (CAR)
- Airspace Regulations 2007
- Manuals of Standards (MOSs)
- Civil Aviation Orders (CAOs)
- Airworthiness Directives (ADs)
- other instruments, such as approvals, Australian Technical Standard Orders (ATSOs), authorisations, designations, determinations, directions, exemptions, instructions, permissions, permits, specifications and revocation notices.
This framework supports CASA's need to comply with basic legal procedural requirements and safeguards while also responding quickly to urgent safety issues and technological change. In part, the complexity is also the result of efforts over the past 30-40 years to arrive at an appropriate balance between safety, economic reality and legal certainty.
In practice, CASA operates within a three-tier system consisting of:
- Tier 1: CAA and Airspace Act
- Tier 2: CAR, CASR and Airspace regulations
- Tier 3: MOSs, CAOs, ADs and other legislative instruments.
CASA also publishes various advisory documents to provide additional guidance about the delegated legislation. These advisory publications describe the intent and purpose of the legislation and explain how it is possible to comply with the legislation.
1. Primary legislation
The CAA and Airspace Act 2007 fall under the responsibility of the Minister for Infrastructure and Regional Development. Amendments to the two Acts require the approval of Cabinet or the Prime Minister. They must be passed by both Houses of Parliament and assented to by the Governor-General.
The Airspace Act 2007 requires the Minister for Infrastructure and Regional Development to make an 'Australian Airspace Policy Statement' outlining the Government's policy in respect to the classification, designation and strategies for the administration and management of Australian-administered airspace. This Statement must be reviewed at least every three years with consultation between the Department, CASA, Airservices Australia and other relevant entities.
CASA's obligations under the CAA and Airspace Act 2007 are detailed in our overview of CASA rulemaking principles and obligations.
2. Delegated legislation
Delegated legislation is a generic name for the regulations and other legislative instruments. The Airspace Regulations 2007 are delegated under the Airspace Act 2007; the CAR and CASR, the MOSs, CAOs and ADs are delegated legislation under the CAA.
The CAR and CASR provide regulatory controls over civil aviation safety. They set out in some detail the safety standards that are required in relation to airworthiness of aircraft, licences and ratings of flight crew and maintenance personnel, air traffic control, rules of the air, dangerous goods and many other safety issues.
The regulations are made by the Governor-General (acting on the advice of the Minister for Infrastructure and Transport) under section 98 of the CAA. CASA develops policies and standards, engages in public consultation, and gives drafting instructions to the Office of Parliamentary Counsel (OPC). OPC prepares draft regulations on the basis of CASA's instructions. The draft regulations are given legal clearance (settlement) by OPC and are then processed through CASA and the Department before being submitted by the Minister to the Federal Executive Council (EXCO) to be made into law by the Governor- General.
The regulation/amendment becomes effective either on a date specified in the regulation/amendment or on the day after the notification of making is registered and published by OPC in the Federal Register of Legislation (FRL). Once made (i.e. signed and issued), regulations and amendments are tabled in Parliament and are subject to disallowance in accordance with the Legislation Act 2003.
2.2 Manuals of Standards
MOSs are comprised of detailed technical material and requirements, including uniform specifications and standard applications, that complement requirements set out in the CASR. They contain only those standards that are clearly authorised by a particular regulation—they are not used to promulgate advisory material.
CASA is authorised, by the CAA and CASR, to draft and make a MOS when a clear requirement exists to specify standards that, for the purposes of clarity and/or effective administration and upkeep, should not be contained within the CASR.
A MOS is drafted as a legislative instrument by CASA's Legal Affairs, Regulatory Policy and International Strategy Branch (LARPIS) and made by the Director of Aviation Safety (DAS). A MOS becomes effective either on a specified date or on the day after the notification of making is registered and published in the FRL. Once made, a MOS is tabled in Parliament and is subject to disallowance in accordance with the Legislation Act 2003.
2.3 Civil Aviation Orders
The CAOs typically contain technical detail and requirements that complement those set out in the CAR.
The CAOs are generally made under the authority of the CAR, rather than the CAA itself, although some existing CAOs are made directly under the CAA (e.g. CAO 82 is made under the authority of subsection 98 (4A) of the CAA).
Orders are drafted by CASA's LARPIS and made (i.e. signed) by the DAS. The CAO becomes effective either on a specified date set out in the CAO or on the day after the notification of making is registered and published in the FRL. Once made, CAOs are tabled in Parliament and are subject to disallowance in accordance with the Legislation Act 2003.
As CASA progressively introduces the CASR—and the subject matter covered by the CAR is progressively reduced—there will be fewer CAOs issued, because the CASR does not provide CASA with the power to make CAOs. Instead, technical and supporting material for the CASR is issued in MOSs, which are made in accordance with Subpart 11.J of CASR.
2.4 Airworthiness Directives
Part 39 of CASR provides for CASA to issue an AD for a kind of aircraft, or a kind of aeronautical product, if an unsafe condition exists in that aircraft or aeronautical product of that kind and the condition exists, is likely to exist or could develop in other aircraft or aeronautical products of that kind.
ADs are drafted by CASA's technical specialists and signed by a CASA delegate in the Airworthiness and Engineering Standards Branch (AESB). The AD becomes effective on the particular date specified in the AD and is registered and published in the FRL. Once issued by CASA, ADs are tabled in Parliament and are subject to disallowance in accordance with the Legislation Act 2003.
3. Advisory documents
In addition to making delegated legislation, CASA publishes various other documents that are advisory rather than legislative in effect. These advisory publications explain the intent and purpose of the legislation and how compliance with the legislation may be achieved.
3.1 Acceptable means of compliance and guidance material
The Acceptable Means of Compliance (AMC) serves as a means by which the requirements contained in the CASR , associated with a certificate, licence, permission, approval or other authorisation, can be met by the applicant. The AMC sets out one or more acceptable methods of demonstrating compliance with a specific regulation. An AMC is not binding on industry applicants—participants are free to submit alternative methods of compliance.
However, if an industry applicant follows the relevant AMC, then the applicant is assured of satisfying the associated regulatory requirements and CASA is obliged to issue the requested authorisation. CASA sometimes publishes guidance material (GM) with an AMC—the AMC/GM is a single document with indexing that relates to a specific regulatory provision.
CASA technical specialists draft AMC/GMs in conjunction with practitioners or technical specialists from the aviation industry/community. AMC/GMs are published on CASA's website and are not disallowable legislative instruments for the purposes of the Legislation Act 2003.
3.2 Other advisory material
In addition to AMC/GMs, CASA issues other advisory publications to explain the intent of the legislation and provide context for the legislation and how it may be applied.
Advisory publications issued by CASA include:
- Advisory Circulars (ACs)—to be read in conjunction with the referenced CASR or associated MOS.
- Civil Aviation Advisory Publications (CAAPs)—to be read in conjunction with the referenced CAR or associated CAO.
- Airworthiness Advisory Circulars (AACs)—to be read as guidance on the applicable CAO.
These publications serve to illustrate the meaning of certain requirements by offering interpretative and explanatory guidance. They are drafted by CASA technical specialists and are not disallowable legislative instrument for the purposes of the Legislation Act 2003.
4. Differences between delegated legislation and advisory documents
|Regulations||MOS / CAO||Advisory documents|
|Rules of conduct, standards and other requirements of general application that must be met.||Technical standards and other requirements that must be met in order to comply with the regulations and/or qualify for a licence, certificate, permission or other authorisation.||Provide advice and explain one or more ways to comply with the Regulations, but are not compulsory or mandatory.|
|Drafted by OPC.||Drafted by CASA (Legal Affairs, Regulatory Policy and International Strategy Branch)||Drafted by CASA (technical branches).|
|Are legislative instruments under the Legislation Act 2003.||Are legislative instruments under the Legislation Act 2003.||Are not legislative instruments under the Legislation Act 2003.|
|Are disallowable by the Parliament.||Are disallowable by the Parliament.||Are not disallowable by the Parliament.|