CASA 29/19 — Dropping of Articles from Certain Aircraft Towing Another Aircraft Direction 2019

Explanatory Statement

Civil Aviation Regulations 1988

CASA 29/19 — Dropping of Articles from Certain Aircraft Towing Another Aircraft Direction 2019

Purpose

The purpose of CASA 29/19 — Dropping of Articles from Certain Aircraft Towing Another Aircraft Direction 2019 (the instrument) is to enable the dropping of ropes or associated fittings used for the towing of another aircraft from an aircraft (the towing aircraft) that is registered with Recreational Aviation Australia Limited (RAAus) or the Hang Gliding Federation of Australia Inc (HGFA) and to which Civil Aviation Order (CAO) 95.32 or CAO 95.55 applies. To achieve this purpose, the instrument issues directions under subparagraph 150 (2) (a) (viii) of the Civil Aviation Regulations 1988 (CAR) to the pilot in command of the towing aircraft.

Legislation

Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR) and CAR.

It is an offence under subregulation 149 (1) of CAR for the pilot in command of an aircraft to permit anything to be towed by the aircraft if the towing is not permitted by that regulation or authorised under Part 61 of CASR. Under subregulation 149 (5) of CAR, it is a defence to a prosecution under subregulation 149 (1) if the pilot in command had the written permission of CASA for the towing and the towing was done in accordance with the directions (if any) specified in the permission.

It is an offence under subregulation 150 (1) of CAR, subject to regulation 150, for the pilot in command of an aircraft in flight to permit anything to be dropped from the aircraft. Subregulation (2) states that nothing in regulation 150 prevents the dropping of packages or other articles or substances in specified circumstances. These circumstances are in the course of agricultural operations, cloud seeding operations, firefighting operations or search and rescue operations, to initiate controlled burning, to deliver emergency medical supplies or food supplies, or in the course of other operations. However, the dropping of packages, other articles or substances must be in accordance with directions issued by the Civil Aviation Safety Authority (CASA), to ensure the safety of the aircraft as far as practicable and to minimise hazard to persons, animals or property.

Paragraph 7.4 of CAO 95.32 provides that a person must not use an aeroplane to which CAO 95.32 applies to tow another aircraft unless the pilot in command of the aeroplane is authorised to do so by RAAus or HGFA, as applicable, in accordance with a procedure approved in writing by CASA. Paragraph 7.4 of CAO 95.32 also provides that the towing aeroplane must be certified by the aeroplane’s manufacturer as suitable for that purpose or listed in Civil Aviation Advisory Publication 149, as it exists from time to time, as acceptable to CASA for that purpose or approved by CASA, in writing, as being suitable for that purpose.

A note under paragraph 7.4 of CAO 95.32 states that the paragraph is in effect a permission, under regulation 149 of CAR, given to the pilot in command of the towing aeroplane.

Paragraph 7.4 of CAO 95.55 provides that a person must not use a relevant aeroplane to tow another aircraft unless the pilot in command is authorised to do so by the pilot’s relevant administering organisation, in accordance with a procedure approved by CASA. Paragraph 7.4 of CAO 95.55 also provides that the towing aeroplane must be certified as suitable for that purpose or listed in Civil Aviation Advisory Publication 149, as it exists from time to time, as acceptable to CASA for that purpose or approved by CASA, in writing, as suitable for that purpose.

Subsection 98 (5D) of the Act provides that a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.

Background

The instrument replaces instrument CASA EX72/16, Exemption — dropping of articles from an aircraft, that expires at the end of April 2019. That instrument revoked and replaced instrument CASA 770/02, Permission under regulation 149 for towing hang gliders, which included directions on the same subject.

The instrument addresses the need for aircraft registered with RAAus or HGFA to be able to drop ropes or associated fittings, for example, in the event of an emergency. Emergency dropping of ropes is rare but may happen in the event of an engine failure or conduct of an emergency landing, if the glider gets “out-of-station” and affects the safety of flight of the towing aircraft, or if the rope tangles with another aircraft.

Overview of instrument

The instrument applies in relation to a relevant aircraft that is used to tow another aircraft and from which ropes or associated fittings used for towing of the other aircraft are dropped. A relevant aircraft is defined in the instrument as an aeroplane that is registered with RAAus or HGFA, and to which CAO 95.32 or CAO 95.55 applies.

Directions are issued under subparagraph 150 (2) (a) (viii) of CAR to the pilot in command of a relevant aircraft that is used to tow another aircraft.

CASA has assessed the impact the instrument will have on aviation safety and is satisfied that the directions imposed on the pilot in command of a relevant aircraft will preserve an acceptable level of safety.

Documents incorporated by reference

In accordance with paragraph 15J (2) (c) of the Legislation Act 2003 (the LA), the following table contains a description of the documents incorporated by reference into the instrument, the organisation responsible for each document and how they may be obtained. The table also states how the document is incorporated.

Under subsection 14 (1) of the LA, unless the contrary intention appears, a legislative instrument may incorporate any matter contained in a legislative instrument, as in force from time to time. CAOs are legislative instruments.

Content of instrument

Section 1 of the instrument sets out the name of the instrument.

Section 2 of the instrument sets out the duration of the instrument. The instrument commences on 1 May 2019 and is repealed at the end of 30 April 2022.

Section 3 of the instrument sets out some definitions for the instrument. A key defined term is relevant aircraft.

Section 4 sets out the application of the instrument. The instrument applies in relation to a relevant aircraft that is used to tow another aircraft and from which ropes or associated fittings used for towing of the other aircraft are dropped. An example of an “associated fitting” are the rings known as Tost rings that clip into a glider’s release point or a weak link built into the rope.

Section 5 sets out directions issued under subparagraph 150 (2) (a) (viii) of CAR. These directions are to the pilot in command of a relevant aircraft used to tow another aircraft. They require the pilot in command to satisfy all eligibility and competency requirements for the towing of another aircraft that are in the relevant Operations Manual, i.e. the RAAus Operations Manual (for an aeroplane registered with RAAus) or the HGFA Operations Manual (for an aeroplane registered with HGFA).

The directions in section 5 also require the pilot in command to ensure that the towing of the other aircraft is conducted in accordance with the relevant Operations Manual, to ensure that the aircraft being towed is operated in accordance with any towing requirements in the flight manual of the towed aircraft and to take reasonable steps to ensure that any dropping of ropes or associated fittings used for towing the other aircraft does not injure any person or animal, or damage any property.

A note under the directions to the pilot in command makes it clear that paragraph 7.4 of CAO 95.32 and paragraph 7.4 of CAO 95.55 also set out other requirements that apply to persons who use a relevant aircraft to tow another aircraft. A description of these requirements is set out above under the heading Legislation.

Legislation Act 2003

Subsection 8 (4) of the LA provides that an instrument is a legislative instrument if it determines the law or alters the content of the law, rather than determining particular cases in which the law is to apply or is not to apply. The directions in the instrument set out requirements for pilots in command of relevant aircraft that tow another aircraft. The instrument is, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.

Consultation

The instrument replaces instrument CASA EX72/16 in relation to which no adverse comment was received by CASA. The instrument is beneficial to industry and includes requirements designed to preserve aviation safety, and to minimise the risk of any dropping of ropes or associated fittings used for towing other aircraft injuring any person or animal, or damaging any property.

CASA anticipates that the need to drop ropes or associated fittings used for towing, for example in an emergency, from aircraft registered with RAAus or HGFA, will be addressed in proposed new Part 103 of CASR. It is expected that new Part 103 of CASR will be made by mid-2020 with commencement a year later, at which time the instrument would be repealed.

In these circumstances, CASA is satisfied that no consultation is appropriate or reasonably practicable for the instrument for section 17 of the LA.

Office of Best Practice Regulation (OBPR)

A Regulation Impact Statement (RIS) is not required in this case, as the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for directions (OBPR id: 14507).

Statement of Compatibility with Human Rights

The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Making and commencement

The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.

The instrument commences on 1 May 2019 and is repealed at the end of 30 April 2022.

Attachment 1

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011

CASA 29/19 — Dropping of Articles from Certain Aircraft Towing
Another Aircraft Direction 2019

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 sets out directions under subparagraph 150 (2) (a) (viii) of the Civil Aviation Regulations 1988 relating to aircraft that are registered with Recreational Aviation Australia Limited (RAAus) or the Hang Gliding Federation of Australia Inc (HGFA) that are used to tow other aircraft and are aircraft to which Civil Aviation Order (CAO) 95.32 or CAO 95.55 applies.

The instrument applies in relation to a relevant aircraft that is used to tow another aircraft and from which ropes or associated fittings used for towing the other aircraft are dropped. The instrument issues directions to the pilot in command of a relevant aircraft. The directions are designed to ensure aviation safety.

The first direction is that the pilot in command must satisfy all eligibility and competency requirements for the towing of another aircraft that are in the RAAus Operations Manual (for an aeroplane registered with RAAus) or the HGFA Operations Manual (for an aeroplane registered with HGFA). Other directions are that the pilot in command must ensure that the towing of the other aircraft is conducted in accordance with the relevant Operations Manual, to ensure that the aircraft being towed is operated in accordance with any requirements for its towing set out in its flight manual and to take reasonable steps to ensure that any dropping of ropes or associated fittings used for towing the other aircraft does not injure any person or animal, or damage any property.

The legislative instrument replaces instrument CASA EX72/16, Exemption — dropping of articles from an aircraft, that expires at the end of April 2019.

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