Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Authorisation and direction — passenger occupation of a control seat of aircraft registered with certain recreational aviation administration organisations
Purpose
This legislative instrument authorises passengers to occupy a control seat of certain recreational aircraft for the purpose of subregulation 226 (1) of the Civil Aviation Regulations 1988 (CAR). The instrument also issues directions to the pilot of the aircraft to ensure that the passenger’s occupation of the seat does not adversely affect safety.
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.
Subregulation 226 (1) of CAR limits the persons authorised to occupy a control seat of an aircraft equipped with fully or partially functioning dual controls. In addition to the holder of a pilot licence and a student pilot, paragraph 226 (1) (c) permits a person to occupy such a seat if the person is authorised by CASA.
Under regulation 11.015 of CASR, an authorisation of this type is an authorisation under Part 11 of CASR, with Subpart 11.BA of CASR applying to the authorisation. Regulation 11.055 sets out criteria that apply to CASA when granting an authorisation.
Subpart 11.G of CASR provides for CASA to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a) of CASR, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245 (2) of CASR provides that CASA may issue such a direction if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, if the direction is not inconsistent with the Act, and for the purposes of CASA’s functions.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255 it is an offence of strict liability to contravene a direction under regulation 11.245.
Background
A significant number of 2 seat aircraft are operated in Australia under the auspices of recreational aviation administration organisations (RAAOs). Such aircraft are exempt from the aircraft registration requirements under CASR. Most 2 seat recreational aircraft are fitted with fully or partially functioning dual controls (recreational dual control aircraft).
The effect of regulation 226 of CAR is that recreational dual control aircraft cannot be used to carry a passenger in the second seat. While there is an authorisation for the passenger occupation of control seats in section 20.16.3 of the Civil Aviation Orders (CAO 20.16.3), the authorisation applies only in relation to aircraft registered under CASR and therefore does not cover recreational dual control aircraft.
This restriction affects aircraft registered by the following RAAOs: Recreational Aviation Australia Limited, Hang Gliding Federation of Australia and The Australian Sport Rotorcraft Association Incorporated.
CASA has previously granted authorisations for paragraph 226 (1) (c) of CAR, the most recent of which expires on 30 June 2017 (instrument CASA 153/14).
Instrument
The instrument continues the authorisation for a person who does not hold a pilot licence and is not a student pilot to occupy a control seat of a recreational dual control aircraft.
To ensure the passenger occupation of the seat does not compromise safety, the instrument directs the pilot in command of the aircraft to instruct the passenger on matters to ensure that the passenger does not interfere with the dual controls during flight. The instrument also directs the pilot to ensure that satisfactory communications are maintained between the pilot and the passenger. The directions are consistent with the conditions for the passenger occupation of control seats in Australian registered aircraft mentioned in CAO 20.16.3.
The directions are issued under regulation 11.245 of CASR, for subsection 98 (5A) of the Act.
CASA is satisfied that the continued grant of the authorisation, with the directions, would not be likely to have an adverse effect on the safety of air navigation.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation or the maintenance of aircraft. Directions issued under regulation 11.245 of CASR are issued for subsection 98 (5A) of the Act.
Paragraph 98 (5AA) (a) of the Act states that an instrument issued under paragraph (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. As the instrument issues directions under regulation 11.245 of CASR to a class of persons, namely pilots in command of recreational dual control aircraft, the instrument is a legislative instrument.
The instrument is therefore subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
No consultation was undertaken in respect of the instrument. The instrument is the reissue of a previous instrument that CASA initiated to benefit industry due to the unintended omission of the relevant aircraft from the directions in CAO 20.16.3. The previous instrument has not been the subject of any feedback from industry that necessitates any change in the new instrument.
In these circumstances CASA is satisfied that no consultation is appropriate or necessary for this 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 instrument 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. The instrument does not engage any of the applicable rights or freedoms.
Making and commencement
The direction 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 July 2017 and is repealed at the end of 30 June 2022.
[Instrument number CASA 59/17]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Authorisation and direction — passenger occupation of a control seat of aircraft registered with certain recreational aviation administration organisations
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 authorises passengers to occupy a control seat of certain recreational aircraft for the purpose of subregulation 226 (1) of the Civil Aviation Regulations 1988. The instrument also issues directions to the pilot of the aircraft to ensure that the passenger’s occupation of the seat does not adversely affect safety.
Human rights implications
The 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