CASA 63/23 — Air Displays (Precision Airmotive) Ongoing Approval Instrument 2023

Explanatory Statement

Civil Aviation Safety Regulations 1998

CASA 63/23 — Air Displays (Precision Airmotive) Ongoing Approval Instrument 2023

Purpose

The purpose of CASA 63/23 — Air Displays (Precision Airmotive) Ongoing Approval Instrument 2023 (the instrument) is for the Civil Aviation Safety Authority (CASA) to grant ongoing approval, until the end of 17 October 2028:

(a) for Precision Airmotive Pty Ltd (Precision Airmotive) to conduct air displays at the display area at Wangaratta aerodrome that are organised by the person nominated by the company to be the air display organiser; and

(b) for pilots in command of aircraft being operated in such an air display to conduct both aerobatic manoeuvres for flights at the air display and flights over a populous area at the air display.

The instrument includes conditions on the approvals, and directions for the organiser, that are imposed by CASA in the interests of the safety of air navigation.

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).

Approvals generally

Part 91 of CASR sets out the general operating and flight rules for Australian aircraft. Regulation 91.045 of CASR provides that, if a provision of Part 91 refers to a person holding an approval under the regulation, a person may apply to CASA, in writing, for the approval and, subject to regulation 11.055, the approval must be granted.

Under regulation 11.015 of CASR, an approval 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. Regulation 11.056 provides that an authorisation may be granted subject to any condition that CASA is satisfied is necessary in the interests of the safety of air navigation. Under regulation 11.077, a person commits an offence of strict liability if the person breaches a condition of an authorisation.

Approvals to conduct air displays

Subregulation 91.180(1) of CASR provides that a person contravenes the subregulation if the person conducts an air display in Australian territory and does not hold an approval under regulation 91.045 to conduct the air display. Subregulation 91.180(2) provides that the operator and pilot in command of an aircraft for a flight contravene the subregulation if the flight is in an air display in Australian territory and the person conducting the air display does not hold an approval under regulation 91.045 to conduct the air display. Subregulation 91.180(3) states that a person commits an offence of strict liability if the person contravenes subregulation 91.180(1) or (2).

Approvals to conduct acrobatic manoeuvres

Regulation 91.185 of CASR provides for the conduct of acrobatic manoeuvres.

Subregulation 91.185(2) provides that the pilot in command of an aircraft for a flight contravenes the subregulation if, during the flight the pilot in command conducts aerobatic manoeuvres over a populous area, at an air display or at night and the pilot in command does not hold an approval under regulation 91.045 to conduct the aerobatic manoeuvres over the populous area, at the air display or at night, as the case may be. Subregulation 91.185(3) provides that a person commits an offence of strict liability if the person contravenes subregulation 91.185(1) or (2).

Approvals to fly over populous areas or public gatherings

Under subregulation 91.265(2) of CASR, the pilot in command of an aeroplane flown over a populous area or a public gathering commits a strict liability offence if, during the flight, the aeroplane is flown below 1 000 feet above the highest feature or obstacle within a horizontal radius of 600 m of the point on the ground or water immediately below the aeroplane, and none of the circumstances mentioned in subregulation 91.265(4) applies. Those circumstances include that the pilot in command holds an approval for the purposes of regulation 91.180 (air displays in Australian territory).

Under subregulation 91.267(2) of CASR, the pilot in command of an aircraft flown other than over a populous area or a public gathering commits a strict liability offence if, during the flight, the aircraft is flown below 500 feet above the highest feature or obstacle within a horizontal radius of 300 m of the point on the ground or water immediately below the aircraft, and none of the circumstances mentioned in subregulation 91.267(3) applies. Those circumstances include that the pilot in command holds an approval for the purposes of regulation 91.180 (air displays in Australian territory).

Power of CASA to issue directions

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 only 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.

Legislative instruments may incorporate matter in another instrument as in force from time to time

Under subsection 14(1) of the Legislation Act 2003 (the LA), a legislative instrument may make provision in relation to matters by applying, adopting, or incorporating provisions of an Act or disallowable legislative instrument as in force at a particular time or as in force from time to time. A legislative instrument may also make provision in relation to matters by applying, adopting, or incorporating any matter contained in any other instrument or writing as in force at, or before, the time the legislative instrument commences. Under subsection 14(2) of the LA, unless the contrary intention appears, the legislative instrument may not make provision in relation to a matter by applying, adopting, or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. However, subsection 98(5D) of the Act provides that, despite section 14 of the LA, 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

Precision Airmotive is a company based at Wangaratta Airport in Victoria that trades as Classic Air. The company restores and repairs classic World War II aircraft and has conducted small flying displays of such aircraft for several years, mostly associated with other events such as vintage motor vehicle displays and aerodrome open days. Precision Airmotive also operates the Classic Air Museum, Wangaratta, Victoria, which holds aeroplanes that are sometimes used in the air displays. That museum is currently closed. Information regarding the operations of Precision Airmotive can be found on its Facebook page at https://www.facebook.com/precisionairmotive.

Precision Airmotive has applied to CASA for an ongoing approval for flying displays that it conducts. Precision Airmotive conducts these flying displays using its registered business name Classic Air. A number of air display approvals have previously been issued to Precision Airmotive by CASA for individual displays. These involved individual applications having to be made by Precision Airmotive to CASA for approval of each display, with CASA assessing each application, with related financial and administrative costs for both Precision Airmotive and CASA. CASA considers it appropriate for an ongoing approval to be given to Precision Airmotive for the conduct of its flying displays, with appropriate safeguards.

As part of the assessment of this application, CASA assessed Precision Airmotive’s proposed ongoing management of change process relevant to its conduct of air displays under such an ongoing approval and found the process to be satisfactory. The process is set out in the Classic Air Safety Management System, as existing at commencement of this instrument, and is based on the management of change process applicable to operators to which Part 119 of CASR applies. Under the process, a significant change (as described in the manual) requires CASA approval before implementation.

The instrument is similar to CASA 30/22 — Air Displays (Temora Historic Flight Club) Ongoing Approval Instrument 2022, which provides ongoing CASA approval for the Temora Historic Flight Club Incorporated to conduct air displays and for pilots in command of aircraft being operated in such an air display to conduct aerobatic manoeuvres for flights at the air display, and for flights over a populous area at the air display.

Overview of instrument

The instrument applies in relation to Precision Airmotive, the organiser and pilots in command of aircraft being operated in any Classic Air air display (participants) who are mentioned in the program of events for the air display. The effect of the instrument is to approve Precision Airmotive to conduct air displays until the end of 17 October 2028. The instrument also grants approvals for participants to conduct aerobatic manoeuvres for flights at any Classic Air air display, and for flights over a populous area at any Classic Air air display.

In the instrument, Classic Air air display is defined as an air display conducted in the display area, that is organised by the organiser. Display area is defined to mean the area, at Wangaratta aerodrome, that is described as the display area in the Classic Air Air Display Manual, as it exists from time to time.

The term organiser is defined to mean the person nominated by Precision Airmotive to be the air display organiser for the Classic Air air display, and named as the air display organiser in the program of events for the Classic Air air display. Such a nomination may be made in the Classic Air Air Display Manual.

Each approval granted in the instrument is subject to conditions. For example, Precision Airmotive must comply with any requirement, mentioned in a relevant document, that applies to Precision Airmotive and relates to the Classic Air air display. A relevant document is defined to mean either the Classic Air Air Display Manual or the Classic Air Safety Management System, as the documents exist from time to time.

The instrument includes directions that the organiser must comply with any requirement mentioned in a relevant document that relates to the Classic Air air display and must provide CASA with a completed CASA Post Display Report form within 14 days after the Classic Air air display is completed. The requirement to provide such a report was in the previous approval instruments and ensures CASA is aware of any occurrences at an air display that may adversely affect the safety of future events so that appropriate action may be taken. For example, depending on the occurrence, a surveillance event may be raised to investigate the matter.

CASA has assessed Precision Airmotive’s application for the instrument, including the documents submitted by Precision Airmotive setting out the procedures for their operations at Wangaratta aerodrome which are referenced in the instrument. Based on that assessment, CASA is satisfied that there are no adverse safety implications in relation to granting the approvals and issuing the direction set out in the instrument.

Documents incorporated by reference

In accordance with paragraph 15J(2)(c) of the LA, the following table contains a description of the documents incorporated by reference into the legislative instrument, the organisation responsible for each document and how the document may be obtained. In each case, all of the instrument is incorporated as existing from time to time. This is authorised by subsection 98(5D) of the Act, which provides that, despite section 14 of the LA, a legislative instrument may 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.

Content of instrument

Section 1 names the instrument.

Section 2 sets out the duration of the instrument. Subsection 2(b) provides that the instrument is repealed at the end of 31 October 2028. A note explains that some of the provisions are in force until the end of 17 October 2028, as it until then that Precision Airmotive is approved to conduct any Classic Air air display.

Section 3 contains definitions for the instrument.

Section 4 provides that the instrument applies in relation to Precision Airmotive, the organiser and pilots in command of aircraft being operated in any Classic Air air display (participants) in relation to any Classic Air air display.

Section 5 contains approvals granted by CASA. Subsection 5(1) provides that, for subregulation 91.180(1) of CASR, Precision Airmotive is approved to conduct the Classic Air air display.

Subsection 5(2) provides that, for regulation 91.180 of CASR, each participant mentioned in the program of events for the Classic Air air display is approved. A note is included for information that lists the CASR provisions for which this approval is required.

Subsection 5(3) provides that, for subparagraph 91.185(2)(b)(i) of CASR, each participant mentioned in the program of events for the Classic Air air display as conducting aerobatic manoeuvres over a populous area, is approved to do so for a flight over a populous area at the air display.

Subsection 5(4) provides that, for subparagraph 91.185(2)(b)(ii) of CASR, each participant mentioned in the program of events for the Classic Air air display as conducting aerobatic manoeuvres, is approved to do so for a flight at the air display.

Subsection 5(5) provides that the approval of Precision Airmotive is subject to the condition mentioned in section 6.

Subsection 5(6) provides that the other approvals of participants are subject to the conditions mentioned in section 7.

Subsection 5(7) provides that section 5 ceases to be in force at the end of 17 October 2028. This means that the last Classic Air air display that may be conducted during the duration of the instrument must be conducted by the end of 17 October 2028, and that the conditions on the approvals in section 5 also cease to be in force at the end of 17 October 2028. This is so that approvals relating to the air display end 14 days before the Post Display Report required by the direction in section 8 is required to be provided, and the direction to provide that report within 14 days is enforceable.

Section 6 imposes a condition on the approval in section 5. Precision Airmotive must comply with any requirement, mentioned in a relevant document, that applies to Precision Airmotive and relates to the Classic Air air display. As Classic Air is the registered business name of Precision Airmotive, this includes compliance with any requirement that the relevant document refers to as applying to Classic Air. This is also explained in each relevant document. A note to section 6 states that Precision Airmotive must follow the management of change process set out in the Classic Air Safety Management System document.

Section 7 imposes conditions on participants. A participant must not carry a passenger in any aircraft piloted by the participant in the Classic Air air display and must comply with requirements in the program of events, which is defined to be the program as it exists from time to time, and with the Classic Air Air Display Manual, as the manual exists from time to time.

Section 8 provides the directions to the organiser that have been previously described in the instrument overview.

Legislation Act 2003

The instrument is registered on the Federal Register of Legislation as a legislative instrument. Under subsection 8(3) of the LA, 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.

Sunsetting

Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument, because the instrument relates to aviation safety and is made under CASR (item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015).

However, this instrument will be repealed at the end of 31 October 2028, which will occur before the sunsetting provisions would have repealed the instrument if they had applied. Any renewal of the instrument will be subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA. Therefore, the exemption from sunsetting does not affect parliamentary oversight of this instrument.

Consultation

Precision Airmotive has applied for the instrument, and approval instruments have previously been issued in relation to individual air displays conducted by Precision Airmotive. CASA has received no adverse comment in relation to those previous approval instruments.

CASA also provided a copy of the draft instrument to Precision Airmotive for comment and its comments were taken into account when preparing the final draft.

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

Sector risk, economic and cost impact

Subsection 9A(1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A(3) of the Act states that, subject to subsection(1), in developing and promulgating aviation safety standards under paragraph 9(1)(c), CASA must:

(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and

(b) take into account the differing risks associated with different industry sectors.

The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.

The economic and cost impact of the instrument has been determined by:

(a) the identification of individuals and businesses affected by the instrument; and

(b) consideration of how the requirements to be imposed on individuals and businesses under the instrument will be different compared to existing requirements; and

(c) a valuation of the impact, in terms of direct costs on individuals and businesses affected by the instrument to comply with the different requirements. This valuation is consistent with the principles of best practice regulation of the Australian Government; and

(d) a valuation of the impact the different requirements would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly; and

(e) consideration of community impacts, beyond those direct impacts on individuals and businesses affected by the instrument, that are relevant if the instrument were to result in flow‑on effects to other aviation businesses, or local non-aviation businesses that experience a change in their activity due to the instrument.

CASA has assessed that the economic and cost impact of the instrument is not significant. The ongoing approvals provided by the instrument would save Precision Airmotive the cost of making individual applications to CASA for each air display to be held until the end of 17 October 2028. The instrument does not impose any requirements on Precision Airmotive in relation to the conduct of air displays that are not already required under Precision Airmotive’s processes and procedures set out in the relevant documents. The requirements that would apply under the instrument to participants of the Classic Air air displays are also not new requirements.

Impact on categories of operations

The instrument is likely to have a beneficial effect on the operation of historic and vintage military aircraft by providing certainty regarding CASA’s approval of air displays conducted by Precision Airmotive at Wangaratta aerodrome until the end of 17 October 2028.

Impact on regional and remote communities

The instrument is likely to have a beneficial effect on the regional community of Wangaratta, Victoria, because it will provide certainty regarding CASA approval of air displays conducted by Precision Airmotive at Wangaratta aerodrome until the end of 17 October 2028. This would benefit local businesses preparing for upcoming air displays, and provide certainty for potential participants and spectators planning to visit that community that the air display is approved.

Office of Impact Analysis (OIA)

An Impact Analysis (IA) is not required in this case, as the instrument is covered by a standing agreement between CASA and OIA under which an IA is not required for approvals and directions (OIA 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 the day after it is registered and is repealed at the end of 31 October 2028.

Attachment 1

Statement of Compatibility with Human Rights

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

CASA 63/23 — Air Displays (Precision Airmotive) Ongoing Approval Instrument 2023

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 provides ongoing approval for Precision Airmotive Pty Ltd (Precision Airmotive) to conduct certain air displays at the display area at Wangaratta aerodrome in Victoria until the end of 17 October 2028. The instrument also approves participants in an air display conducted by Precision Airmotive (Classic Air air display) to conduct aerobatic manoeuvres for flights at the air display, and for flights over a populous area at the air display.

Those approvals are granted subject to conditions and the instrument issues directions to the organiser of the air displays. The conditions and directions are imposed by the Civil Aviation Safety Authority in the interest of the safety of air navigation.

Human rights implications

The legislative instrument engages the right to protection against arbitrary and unlawful interferences with privacy (Article 17 of the International Covenant on Civil and Political Rights (the ICCPR)). The right to protection against arbitrary and unlawful interference with privacy, contained in Article 17 of the ICCPR, provides that no-one shall be subjected to arbitrary or unlawful interference with their privacy.

The right to privacy is engaged by the definition of program of events in the instrument, which is prepared by the organiser of a Classic Air air display and must include the names of participants in the air display, the names of any crew accompanying a participant, and the name of the display organiser. This is required because of the approvals given under the instrument to participants, and because of the directions given under the instrument to the display organiser. The names of participants and crew members, and the organiser, are also required to be identifiable for aviation safety reasons.

Apart from the impact on the right to privacy, the instrument is beneficial in purpose and content, and does not adversely affect the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Conclusion

The legislative instrument is compatible with human rights. To the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate in order to ensure the safety of aviation operations and to promote the integrity of the aviation safety system.

Civil Aviation Safety Authority