Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA 98/21 — Parachute Descents (CASA 84/18) (Australian Parachute Federation Ltd) Amendment Instrument 2021
Purpose
The purpose of this instrument is to amend CASA 84/18 — Conduct of Parachute Training Operations Directions 2018 (CASA 84/18) to extend its operation for the purpose of enabling the Australian Parachute Federation Ltd (the APF) to continue to conduct operations under the transitional arrangements established by regulation 202.502 of the Civil Aviation Safety Regulations 1998 (CASR). That regulation is inserted into CASR by item 8 of Schedule 2 to the Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019 (the three‑pack regulations).
The purpose of CASA 84/18 is to promote the safety of parachute training operations conducted by organisations that are members of the APF. To achieve this purpose, the instrument issues directions under regulation 11.245 of CASR to persons involved in these operations. The directions include requirements for the conduct of parachute training operations, the maintenance of aircraft used for parachute training operations, the qualifications of pilots of these aircraft, parachute descent procedures, radio procedures and radio equipment.
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 CASR and the Civil Aviation Regulations 1988 (CAR).
Subpart 11.G of CASR provides for the Civil Aviation Safety Authority (CASA) to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a) of CASR, for subsection 98 (5A) of the Act, 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.
Under subsection 33 (3) of the Acts Interpretation Act 1901, 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
CASA 84/18 makes directions relating to parachute training operations, defined in the instrument as aircraft operations conducted by a training organisation and involving a descent by a student parachutist or novice parachutists from a jump aircraft.
In the current regulatory scheme, parachute descents in Australia may be conducted if CASA, under regulation 152 of CAR, has authorised the descents and they are conducted in accordance with CASA’s written specifications. As at commencement of this instrument, CASA has issued instruments of authorisation under regulation 152 of CAR to allow 2 established organisations to approve descents in accordance with CASA’s written specifications. The 2 organisations are the APF and the Australian Skydiving Association Inc.
Schedule 2 to the three‑pack regulations, which inserts Part 105 (dealing with parachuting from aircraft) into CASR, is due to commence on 2 December 2021. Regulation 202.502, inserted into CASR by item 8 of the Schedule, provides transitional arrangements for parachute descents that are currently oversighted by parachuting sport aviation bodies, and authorised under the existing scheme that regulates parachuting activities. The amendment of the repeal date of CASA 84/18 is necessary to enable the APF to continue its operations under the transitional arrangements (to the extent they are applicable), for the purposes of the instrument’s incorporation by paragraph 202.502 (1) (b) and until the date at which regulation 202.502 will self‑repeal. This date is tied to the end of the transitional period for Part 149 (Approved Self-administering Aviation Organisations). Under the new flight operations rules, the rules and standards for parachuting activities will be provided under Part 105 of CASR and the Manual of Standards that will be issued for the purposes of that Part. Although the APF has transitioned to becoming an approved self‑administering aviation organisation under Part 149 of CASR, the Part 105 Manual of Standards is still under development (and expected to be finalised during 2022). CASA intends to repeal CASA 84/18 when the Part 105 Manual of Standards is made and the legislative structure is in place for the APF to operate within the new Part 105 scheme.
The maintenance obligations and some other requirements of instrument CASA 84/18 were originally imposed by CASA in response to a parachuting accident in Willowbank, Queensland in 2006. In that accident 5 occupants of an aircraft engaged in a parachute training operation died when the aircraft crashed on take‑off. The subsequent Queensland coroner’s report was critical of CASA’s policy at that time of requiring these kinds of aircraft to meet only private maintenance standards because the operations they were engaged in are classified as private operations and since 2009 aircraft used for parachute descents have been subject to additional operational and maintenance requirements.
Overview of instrument
The instrument amends the repeal date of CASA 84/18 and inserts a new self‑repeal date, being the end of 1 December 2023. The instrument also omits section 10 which imposed requirements relating to supplemental oxygen equipment and supply. These requirements have been superseded by requirements prescribed in the Part 91 Manual of Standards that apply to the aircraft that are used for parachuting training operations by members of the APF. A note that refers the reader to the new supplemental oxygen requirements, which take effect on 2 December 2021, is inserted at the end of section 12.
CASA has assessed the impact the instrument will have on aviation safety and is satisfied that it will promote the safety of the operation of jump aircraft and parachutists.
Content of instrument
Section 1 sets out the name of the instrument.
Section 2 provides that the instrument commences on the day after it is registered.
Section 3 provides that Schedule 1 amends instrument CASA 84/18 — Conduct of Parachute Training Operations Directions 2018.
Schedule 1
Item 1 omits the existing repeal date, being the end of 30 November 2021, and inserts the new repeal date, being the end of 1 December 2023.
Item 2 relates to the term in the vicinity of in section 3, which refers to the definition of that term in subregulation 166 (1) of CAR. Subregulation 166 (1) of CAR will be repealed on 2 December 2021 by item 33 of Schedule 1 of the Civil Aviation Legislation Amendment (Flight Operations—Consequential Amendments and Transitional Provisions) Regulations 2021. Item 2 amends the definition of in the vicinity of to refer to subregulation 166 (1) of CAR as in force on 1 December 2021, so that the term continues to have the same meaning despite the repeal of subregulation 166 (1) of CAR.
Item 3 omits section 10 which provided for requirements relating to supplemental oxygen equipment, supply and use. The provision required the operator of an unpressurised jump aircraft to ensure that supplemental oxygen is provided for each flight crew member when the aircraft operates above flight level 120 or above 10 000 feet AMSL for certain periods or in certain conditions. This requirement is superseded by section 26.43 of the Part 91 Manual of Standards, prescribed for the purposes of regulation 91.810 (about equipment requirements) in Part 91 of CASR.
Item 4 substitutes the heading of section 12 to reflect that section 12 is not only about radio equipment.
Item 5 adds a note to the end of section 12 that explains that there are supplemental oxygen equipment and supply requirements that apply to aircraft under section 26.43 of the Part 91 Manual of Standards.
Legislation Act 2003 (the LA)
CASA has obligations under the LA in respect of legislative instruments. 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. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. This instrument amends an instrument that issues directions under regulation 11.245 of CASR, for operators of jump aircraft, jump pilots, training organisations, parachutists and flight crew members. Directions issued by CASA under regulation 11.245 of CASR are for subsection 98 (5A) of the Act. 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 APF did not raise any concerns regarding the making of CASA 84/18. It was also provided with a copy of a draft of this instrument before it was made and raised no concerns with the instrument. As the amendments do not impact any other operations, no further consultation was considered necessary.
CASA 84/18 will also no longer be required when the proposed legislative framework comprising Part 105 of CASR together with a completed Part 105 Manual of Standards is in place.
In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable 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 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. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
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 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 98/21 — Parachute Descents (CASA 84/18) (Australian Parachute Federation Ltd) Amendment Instrument 2021
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 purpose of this instrument is to amend CASA 84/18 — Conduct of Parachute Training Operations Directions 2018 (CASA 84/18) to extend its operation for the purpose of enabling the Australian Parachute Federation Ltd (the APF) to continue to conduct operations under the transitional arrangements established by regulation 202.502 of the Civil Aviation Safety Regulations 1998 (CASR). That regulation is inserted into CASR by item 8 of Schedule 2 to the Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019 (the three‑pack regulations).
Schedule 2 to the three-pack regulations, which inserts Part 105, dealing with parachuting from aircraft, into CASR, is due to commence on 2 December 2021. Regulation 202.502 provides transitional arrangements for parachute descents that are currently oversighted by parachuting sport aviation bodies, and authorised under the existing scheme that regulates parachuting activities. The amendment of the repeal date will enable the APF to continue its operations under the transitional arrangements (to the extent they are applicable) until the new regulatory scheme for parachuting activities is in place. The Part 105 Manual of Standards, which supports Part 105 of CASR, is currently under development and proposed to be made during 2022.
The amended instrument (CASA 84/18) promotes the safety of aircraft used for parachute training operations and parachutists by issuing directions under regulation 11.245 of CASR to persons involved in parachute training operations conducted by organisations that are members of the APF. The directions in CASA 84/18 include requirements for the maintenance of aircraft used for parachute training operations, qualifications of pilots, radio equipment and radio procedures, and parachute descent requirements.
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