Explanatory Statement
Civil Aviation Regulations 1988
Directions — relating to the dropping of articles from gyroplanes at ASRA National Championships
Legislation
Section 98 of the Civil Aviation Act 1988 (the Civil Aviation Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation.
Subsection 98 (5A) of the Civil Aviation Act provides that the Regulations may empower CASA to issue instruments in relation to the following:
(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft; or
(b) the airworthiness of, or design standards for, aircraft.
Subregulation 150 (1) of the Civil Aviation Regulations 1988 (CAR 1988) provides that, subject to the regulation, the pilot in command of an aircraft must not permit anything to be dropped from the aircraft.
Subregulation 150 (2) allows the dropping of packages or other articles or substances in certain circumstances, including their dropping in accordance with directions issued by CASA.
Subregulation 11.245 (1) of Civil Aviation Safety Regulations 1998 (CASR 1998) provides that CASA may, by instrument, issue a direction about any matter affecting, as mentioned in paragraph (a), the safe navigation and operation of aircraft. However, subregulation (2) provides that CASA may issue such a direction:
(a) only if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation; and
(b) only if the direction is not inconsistent with the Civil Aviation Act; and
(c) only for the purposes of CASA’s functions.
The direction under subregulation 11.245 (1) is consistent with subregulation (2).
Background
These directions apply to the dropping of “flour bombs” in the Australian Sport Rotorcraft Association Inc National Championships.
The Championships will take place this year in the period 3-6 April. However the instrument will remain in force for a period of 3 years and apply to Championships conducted during that period. Previous instruments have been issued for the same purpose in 2006 and 2009.
Nature of the directions
The direction under subregulation 11.245 (1) of CASR 1998 applies to the ASRA Operations Manager, or his or her representative.
The direction under subregulation 150 (2) of CAR 1988 covers current ASRA members supervising, or acting as pilots in command of gyroplanes registered with ASRA and participating in the Annual ASRA National Championships (the Championships).
The directions require compliance with the detailed directions in Schedules 1 and 2 to ensure the safe conduct of the competition.
Schedule 1 is to be read with the direction under subregulation 11.245 (1) and contains the following requirements:
• the ASRA Operations Manager, or his or her representative, has to take all reasonable steps to ensure compliance with the directions in Schedule 2
• the ASRA Operations Manager, or his or her representative, must ensure that ASRA has obtained written permission to hold the Championships from the operator of the aerodrome at which they are to be conducted
• the ASRA Operations Manager, or his or her representative, must ensure that the centre of the target area to be used in the competition is located at least 30 metres from the judges and at least 100 metres from onlookers or spectators
• to avoid conflict with other aircraft operating in the area, the ASRA Operations Manager, or his or her representative, must use VHF radio to communicate with the other aircraft
• for the VHF radio, the ASRA Operations Manager, and his or her representative, must hold a valid flight radiotelephone operator licence, an aeronautical radio operator certificate, a recreational pilot licence with a flight radio endorsement or an ASRA radio operator endorsement
• the ASRA Operations Manager, or his or her representative, must monitor both inbound and outbound traffic calls
• the ASRA Operations Manager, or his or her representative, must ensure that all debris from the dropping of articles is removed during or after the event when it is safe to do so.
Schedule 2 is to be read with the direction under subregulation 150 (2) and contains the following requirements that apply to participating pilots:
• the dropping of articles must be conducted during daylight hours in V.M.C.
• the dropping of articles must be conducted in such a manner and at such a time as would avoid conflict with other aircraft operating in the area
• all operations must be carried out in accordance with the directions issued by CASA under regulation 99A of CAR 1988 and published in AIP or NOTAM
• the articles to be dropped must be made from household flour or lime, contained in a frangible container with a maximum weight of 250 grams and aimed at a designated target area
• for the dropping of articles, the centre of the target area must be located at least 30 metres from the judges and at least 100 metres from onlookers or spectators
• only 1 gyroplane at a time must drop an article
• participants in the Championships must comply with any instructions that the ASRA Operations Manager, or his or her representative, issues to ensure compliance with these directions.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Legislative Instruments Act 2003 (the LIA)
Subsection 5 (1) of the LIA defines a legislative instrument as an instrument in writing that is of a legislative character and that is or was made in exercise of a power delegated by the Parliament.
Subsection 5 (2) states, without limiting the generality of subsection 5 (1), that an instrument is taken to be of a legislative character if:
“(a) it determines the law or alters the content of the law, rather than applying the law in a particular case; and
(b) it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right”.
Under paragraph 98 (5A) (a) of the Civil Aviation Act, CASA may issue instruments, including approvals, in relation to a matter that affects the safe navigation and operation of aircraft. For subsection 98 (5AA) of that Act, an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply to a class of persons.
This direction applies to a class of persons, being current ASRA members supervising, or participating in, the annual ASRA National Championships. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
General consultation with the aviation industry has not been undertaken in this case. The instrument is consistent with 2 previous directions issued by CASA for the same activity. It is issued for a limited purpose, being to allow the conduct of a recreational activity by gyrocopter flyers over a limited period at 1 location. Although the direction has a duration of 3 years, it only has effect while the Championships are being conducted. The operator of the aerodrome at which the competition is to be conducted in 2015 has given the required consent for the Championships to proceed at that location.
Commencement and making
The instrument commences on 1 April 2015. It expires at the end of March 2018, as if it had been repealed by another instrument.
The direction has been issued by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
[Instrument number CASA 29/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Direction — relating to the dropping of articles from gyroplanes at
ASRA National Championships
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
The legislative instrument is issued for a limited purpose, being to allow the conduct of a recreational activity by gyrocopter flyers over a limited period. Although the direction has a duration of 3 years, it only has effect while the Championships are being conducted. The operator of the aerodrome at which the Championships are being conducted has to give their consent for the Championships to proceed at that location.
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