Explanatory Statement
Civil Aviation Regulations 1988
Direction — use of night vision devices prohibited in private 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 subregulation 209 (1) of the Civil Aviation Regulations 1988 (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 with such additional conditions as CASA from time to time directs in the interests of safety (a CAR 209 direction).
Background
Night vision goggles (NVG) for night flying are used extensively in the highly trained and disciplined arena of military aviation operations by the Australian Defence Force. But, without high grade training and standards, the use of NVG in Australian civil aviation operations poses risks.
CASA is conducting a 12 month trial of NVG by certain Air Operator Certificate (AOC) holders, namely approved aerial work operators in emergency-type operations (including law enforcement, search and rescue and aerial fire fighting). CASA is using processes and standards established by Civil Aviation Order 82.6 (CAO 82.6).
Until the results of this trial have been collected and assessed, CASA considers that, in the interests of safety, NVG should not be used in private operations. At the conclusion of the trial, CASA will consider whether, and if so under what conditions, it would be safe to permit use of NVG or other night vision devices for navigational purposes in private operations.
Previous direction
In early 2007, while CAO 82.6 was in the final stages of preparation, the threatened use of NVG in private and other operations resulted in CASA issuing a CAR 209 direction (CASA 30/07) making it a condition of any private operation that the operator and pilot in command must not use a night vision device as the primary means of terrain avoidance for safe air navigation by means of visual surface reference external to an aircraft.
A night vision device includes the most obvious form of this equipment, namely NVG. However, it was necessary to use a broader definition than merely NVG to ensure that other similar devices were also covered. Thus, a night vision device meant night vision enhancement equipment fitted to, or mounted in or on, an aircraft, or worn by a person in the aircraft, that can detect and amplify light in both the visual and near infra-red bands of the electromagnetic spectrum, or provide an artificial image representing topographical displays.
CAO 82.6 trial
CAO 82.6 was finalised, commenced on 31 July 2007 and the trial of NVG is underway. The first steps in the trial are start-up steps in which CASA NVG flying operations inspectors (NVG FOIs) must flight test and qualify (by endorsing log books) suitably skilled and experienced pilots as NVG pilots and NVG flight instructors to conduct permitted operations for approved operators.
However, such flight tests, and other competency check flights may take the form of private operations which would otherwise be prohibited by the previous direction.
Therefore, it is necessary to modify the application of the previous direction about use of NVG in private operations to bring it into harmony with the provisions of CAO 82.6 and CASA’s start-up plans to implement CAO 82.6.
New CAR 209 direction
Instrument CASA 288/07 (the new direction), revokes the previous direction.
The new direction is expressed to apply to each operator, and each pilot in command, of a private operation.
Under the direction, it is a condition of a private operation that a night vision device must not be used in the operation as the primary means of terrain avoidance for safe air navigation by means of visual surface reference external to an aircraft.
However, the new CAR 209 direction is expressed not to apply if the private operation is an NVG flight test or an NVG competency check flight (NVG CCF) under CAO 82.6 that is conducted by an NVG FOI.
The previous direction had a provision that permitted use of NVG in private operations related to an NVG operation for which CASA approval had been given. It was thought that some operators held such pre-CAO 82.6 CASA approvals to use NVG and that they conducted NVG pilot training and checking in private operations. However, no such approvals were, in fact, given.
CASA intends that NVG use will only be permitted in accordance with CAO 82.6 and that all NVG flights, including flight tests and NVG CCFs conducted by anyone other than the NVG FOIs, must be conducted by approved operators, whether under a relevant AOC (for NVG initial training) or as a private operation (for other than NVG initial training).
The new direction, therefore, contains a provision to the effect that NVD in the form of NVG may be used if the private operation is NVG training, other than NVG initial training, by an approved NVG operator, for a permitted NVG operation, in accordance with Civil Aviation Order 82.6. (NVG initial training has the same meaning as in CAO 82.6 and is, in effect, the training required to obtain an initial NVG qualification.)
Legislative Instruments Act
The direction is considered to be a legislative instrument for section 5 of the Legislative Instruments Act 2003 (the LIA). It is, therefore, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Consultation under section 17 of the LIA has not been undertaken before making the modified direction because it is considered to be of only beneficial effect to industry.
For the making of CAO 82.6, there was extensive consultation with the specialised helicopter aviation industry, particularly the Helicopter Association of Australia. A joint CASA/industry panel was also established to monitor the 12 month trial and the new direction will be reported to the panel.
However, it is necessary to make the new direction as soon as possible. Since its intent and effect is only to expedite the process of CASA NVG FOI flight testing and checking suitable pilots, without otherwise altering the restriction on the use of NVG in private operations, it was considered that further consultation was not required.
Making, registration and commencement
The instrument comes into effect on the day after it is registered.
The instrument has been made by a delegate of CASA in accordance with regulation 7 of CAR 1988.
[Instrument number CASA 288/07]