Explanatory Statement
Civil Aviation Regulations 1988
CASA 70/18 — Repeal of CASA 443/05 Instrument 2018
Purpose
The purpose of this legislative instrument is to repeal instrument CASA 443/05, Designation of non-controlled aerodromes (CASA 443/05), another legislative instrument that is no longer required.
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor‑General may make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Regulations 1988 (CAR) and the Civil Aviation Safety Regulations 1998 (CASR).
Under paragraph 99A (1) (b) of CAR, the Civil Aviation Safety Authority (CASA) may designate airspace as an area in which broadcast requirements apply. Under subregulation 99A (3), CASA may also give directions specifying the broadcast requirements that apply.
At the time that CASA 443/05 was made CAR also included subregulation 166A (1), which provided that CASA may designate a non-controlled aerodrome in the vicinity of which a serviceable aircraft VHF radio must be carried in aircraft. In 2010 the Civil Aviation Amendment Regulations 2010 (No. 1) (the amendment regulations) amended CAR Part 12, Division 2 (Operation on and in the vicinity of aerodromes) by replacing regulation 166A (1) of CAR with a new provision and inserting new regulations 166D and 166E.
Regulation 166D of CAR provides that CASA may issue a legislative instrument that states that a specified non-controlled aerodrome is a designated non-controlled aerodrome. Regulation 166E of CAR provides that it is an offence to operate an aircraft without a serviceable aircraft VHF radio if the aircraft is on the manoeuvring area of, or in the vicinity of, a non-controlled aerodrome that is either a certified, military or registered aerodrome, or is specified as a designated non-controlled aerodrome under regulation 166D of CAR.
Regulation 308 of CAR, under which CASA 443/05 repealed the exemption instruments mentioned in section 2 of that instrument, was repealed in 2011 by the Civil Aviation and Civil Aviation Safety Amendment Regulations 2011 (No. 2).
Under subsection 33 (3) of the Acts Interpretation Act 1901 (the AIA), where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Background
Section 2 of CASA 443/05 revoked 2 exemption instruments (CASA 14/1999 and CASA 15/1999) and 2 instruments designating airspace for broadcast requirements (CASA 202/05 and CASA 203/05). All four instruments were registered on the Federal Register of Legislation (FRL) as legislative instruments, making CASA 443/05 a legislative instrument under subsection 8 (3) and paragraph 10 (1) (d) of the Legislation Act 2003 (the LA). CASA 443/05 is registered on the FRL as a legislative instrument. Under section 3 of CASA 443/05, CASA designated specified aerodromes as non‑controlled aerodromes in the vicinity of which a serviceable aircraft VHF radio must be carried in aircraft.
CASA considers that CASA 443/05 is no longer necessary for three reasons. The first is that CASA 443/05 has most likely ceased to have effect. Section 2 of CASA 443/05 has been automatically repealed by section 48C of the LA and section 3 was made under previous subregulation 166A (1) of CAR, which was repealed in 2010 by the amendment regulations. There is no transitional provision in CAR or the amendment regulations to the effect that an instrument of designation made under subregulation 166A (1) of CAR can be treated as if it were made under regulation 166D of CAR.
The second reason is that the changes made to CAR in 2010 by the amendment regulations mean that CASA 443/05 is no longer required. Under regulation 166E of CAR, it is an offence to operate an aircraft in the vicinity of certain non-controlled aerodromes without a serviceable aircraft VHF radio. Under regulation 166E of CAR, the aerodrome must be either a certified, military or registered aerodrome, or one specified as a designated non-controlled aerodrome under regulation 166D of CAR.
The third reason is that CASA 443/05 is now inaccurate, as it includes in its list of non‑controlled aerodromes some aerodromes that are now controlled.
Instrument
In reliance on the power construed from subsection 33 (3) of the AIA, this instrument repeals CASA 443/05.
The repeal of CASA 443/05 will have no impact on aviation safety because under the amendments made to CAR in 2010, serviceable aircraft VHF radios are required for aircraft in the vicinity of certified, registered or military aerodromes or CASA‑designated non-controlled aerodromes. Also, if need be an aerodrome operator may easily require an aircraft to use a radio as a condition of access to the aerodrome.
Legislation Act 2003
Under subsection 8 (5) and paragraph 10 (1) (d) of the LA, an instrument is a legislative instrument if it includes a provision that repeals another legislative instrument. This instrument repeals CASA 443/05, which is a legislative instrument.
Therefore, this instrument is also a legislative instrument within the meaning of the LA, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
No consultation has been undertaken for this instrument. For the reasons given previously, its repeal is necessary because it has most likely already ceased to have effect and its repeal will not affect the safety of aviation stakeholders.
In these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any consultation under section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by standing agreements between CASA and OBPR under which a RIS is not required (OBPR id: 14507 and OBPR id: 24429).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
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 registration. It is automatically repealed in accordance with section 48A of the LA.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA 70/18 — Repeal of CASA 443/05 Instrument 2018
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 repeals legislative instrument CASA 443/05. Under CASA 443/05, CASA designated aerodromes as non-controlled aerodromes in the vicinity of which a serviceable aircraft VHF radio must be carried in aircraft, and revoked some CASA instruments that were no longer required.
The requirement for aircraft to carry serviceable aircraft VHF radios in the vicinity of non-controlled aerodromes is now dealt with in changes made to Part 12 of the Civil Aviation Regulations 1988 after CASA 443/05 was made. In addition, the designation of these non-controlled aerodromes by CASA 443/05 was made under previous subregulation 166A (1) of CAR, which was repealed when the abovementioned changes to Part 12 of CAR were made. CASA 443/05 also incorrectly lists as non-controlled aerodromes some aerodromes that are now controlled. Consequently, CASA 443/05 is no longer required and is being repealed.
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