Explanatory Statement
Civil Aviation Safety Regulations 1998
Direction — conduct of parachute training operations
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation. Under subsection 98 (5A) of the Act, the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation, maintenance or airworthiness of, or design standards for, aircraft.
Under regulation 11.245 of the Civil Aviation Safety Regulations 1998 (CASR 1998), for subsection 98 (5A) of the Act, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation, maintenance or airworthiness of, or design standards for, aircraft. However, CASA may issue such a direction only if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, the direction is not inconsistent with the Act, and the direction is for the purposes of CASA’s functions. CASA’s functions include, under section 9 of the Act, the safety regulation of civil air operations in Australian territory by means that include developing and promulgating appropriate, clear and concise aviation safety standards.
If a direction under regulation 11.245 specifies a day on which it ceases to be in force, under regulation 11.250 of CASR 1998, the direction ceases to be in force on that specified day.
Under regulation 11.255 of CASR 1998, it is an offence of strict liability for a person to contravene a direction under regulation 11.245 that is applicable to the person.
Regulation 2 of the Civil Aviation Regulations 1988 (CAR 1988) defines an approved system of maintenance, for an Australian aircraft, to mean a system of maintenance for the aircraft that has been approved under regulation 42M of CAR 1988, including any changes to the program that have been approved under regulation 42R. Approvals under regulations 42M and 42R are made by CASA or a person appointed by CASA.
Under subregulation 209 (1) of CAR 1988, the operator and the pilot in command of an aircraft engaged in a private operation must comply with the provisions of CAR 1988 and CASR 1998 and with such additional conditions as CASA from time to time directs in the interest of safety.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Background
The dropping of parachutists engaged in training operations is regarded by CASA as a private operation. These operations are regarded by CASA as being in a separate category from those operations involving parachuting as a sporting activity carried out by established clubs. The second category is carried out in accordance with authorisations and specifications, issued under regulation 152 of CAR 1988.
Since the first category of parachute operations was regarded as private, the aircraft involved were maintained to private operations standards and only required to be inspected annually, with engines being operated on condition, meaning that they could be operated until a licensed aircraft maintenance engineer refused to sign off on the annual inspection for that aircraft with that engine in it. Additionally, pilots on those operations only required a private pilot licence.
In 2006, at Willowbank in Queensland, 5 occupants died when an aircraft engaged in a parachute training operation crashed on take-off. The subsequent Queensland coroner’s report was critical of CASA’s policy of classifying such operations as private operations.
Enhanced maintenance standards for parachute aircraft
In response to the investigation findings of the Willowbank accident and CASA’s analysis of the appropriate maintenance standards for aircraft engaged in parachute operations, CASA required aircraft engaged in parachute training operations and all tandem descents to be maintained to charter aircraft standards rather than private aircraft standards. Other requirements have also been imposed. The conduct of those operations is subject to supervision by the Australian Parachute Federation Ltd (APF), with CASA exercising overarching control.
This instrument contains directions relating to aircraft engaged in parachute training operations by organisations that are members of the APF. This instrument repeals and replaces a previous direction (CASA 09/15) to address issues raised in relation to the requirements for operation in controlled airspace and remaining clear of a specified restricted area.
This instrument is similar to an instrument that was previously issued by CASA relating to operations by the Australian Skydiving Association Incorporated, which also conducted parachute training operations in Australia (CASA 12/15).
Responsibility for not entering restricted area
Section 11 of CASA 09/15 provided that, up to and including flight level 150, Air Traffic Control (ATC) may assign to the pilot of a jump aircraft responsibility for not entering an active restricted area that has been designated for non-flying military activities or military flying in which ATC services are not provided.
This instrument amends section 11 so that, up to and including flight level 150, ATC may assign to the jump pilot responsibility for not entering an active restricted area that has been designated for non-flying activities or flying activities for which ATC services are not provided. The activities no longer need to be military in nature.
Other amendments
The definition of APF has been amended to reflect that the APF is now a company (Australian Parachute Federation Ltd) instead of an incorporated association (Australian Parachute Federation Incorporated).
This instrument also amends the definition of controlled airspace (CTA) so that the definition no longer refers to a GAAP Control Zone.
In CASA 09/15, subsections 11 (2) and (3) were duplicate provisions. The duplication has been removed in this instrument.
A small number of consequential and technical amendments have also been made.
Power to issue directions
CASA 09/15 was made under regulation 209 of CAR 1988. CASA’s view is that it is more appropriate to make this type of direction under regulation 11.245 of CASR 1998.
Legislative Instruments Act 2003 (the LIA)
Under subsection 98 (5AA) of the Act, an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if it is expressed to apply in relation to a class of persons, a class of aircraft or a class of aeronautical products (as distinct from a particular person, aircraft or product).
The instrument applies to a class of aircraft, being aircraft engaged in parachute training operations by organisations that are members of the APF. Therefore, the instrument is a legislative instrument and is subject to registration, and tabling and disallowance in the Parliament, under sections 24, and 38 and 42 of the LIA.
Consultation
The instrument was requested by the APF, which represents organisations and operators engaged in parachute training operations that are affected by this instrument. Airservices Australia, as the organisation responsible for air navigation services including ATC, has agreed to the proposed amendment relating to responsibility for not entering an active restricted area. In these circumstances, it is CASA’s view that it was not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the direction is covered by a standing agreement between CASA and OBPR under which a RIS is not required for a direction (OBPR id: 14507).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The instrument has been made by the Associate Director of Aviation Safety, a delegate of CASA, relying on the power of delegation in subregulation 11.260 (1) of CASR 1998.
The instrument commences on the day after registration. It ceases to be in force and expires at the end of 30 November 2018, as if it had been repealed by another instrument.
[Instrument number CASA 06/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Direction — conduct of parachute training operations
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
This legislative instrument contains directions relating to aircraft engaged in parachute training operations by organisations that are members of the Australian Parachute Federation Ltd (the APF).
The purpose of this legislative instrument is to replace an earlier instrument (CASA 09/15) to update conditions relating to air traffic control clearance in relation to restricted areas, amend the definition of controlled airspace, and update the legal name of the APF.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority