Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — solo flight training using ultralight aeroplanes registered with the RAA at Jandakot Aerodrome
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. Subsection 98 (4A) of the Act empowers CASA to issue Civil Aviation Orders (the CAOs) not inconsistent with the Act or regulations made under the Act.
Subsection 98 (5A) of the Act provides that the Regulations may empower CASA to issue instruments in relation to the following:
(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft; or
(b) the airworthiness of, or design standards for, aircraft.
Civil Aviation Order 95.55 (CAO 95.55) permits certain aircraft registered with Recreational Aviation Australia Incorporated (the RAA) to operate in controlled airspace if they comply with conditions set out in CAO 95.55. The RAA may conduct flight training in controlled airspace under CAO 95.55 if the aeroplane is registered with the RAA and the pilot is suitably qualified and trained. RAA students cannot conduct solo operations in controlled airspace unless specifically authorised because they do not hold a valid pilot licence as required under paragraph 7.3 of CAO 95.55.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the Regulations, including the Civil Aviation Regulations 1988, or a provision of the Civil Aviation Orders, in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
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.
Instrument
The exemption is to allow Cloud Dancer Pilot Training Pty Ltd (the operator), to conduct solo flight training for student pilots using ultralight aeroplanes registered with the RAA. The operator is required to meet all the conditions of CAO 95.55 except the requirement not to fly solo in controlled airspace without a valid pilot licence.
The exemption is subject to conditions. The conditions include a requirement that each student holds a class 1 or class 2 medical certificate or a CASA recreational aviation medical practitioner’s certificate, and that the RAA syllabus for instructing students may be used. In addition, the operator must ensure that the pilot in command has been assessed as competent to the standards specified in the Part 61 Manual of Standards for the controlled aerodrome endorsement, the controlled airspace endorsement and the flight radio endorsement, and the flight instructor must hold the specified minimum qualifications.
The instrument also formally repeals instrument CASA EX191/12, which was an instrument on the same subject that expired at the end of November 2015.
Legislative Instruments Act 2003 (the LIA)
Under section 5 of the LIA, subject to sections 6, 7 and 9 of the LIA, a legislative instrument is an instrument in writing that is of a legislative character, and that is or was made in the exercise of a power delegated by the Parliament.
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The instrument applies to a class of persons, namely, students and pilots under the control of the operator, and to a class of aircraft, namely, ultralight aeroplanes registered with the RAA, and is, therefore, a legislative instrument.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
CASA consulted with the operator and with the RAA. The consultations also involved Airservices Australia which stated that it did not have any specific objections to the proposed operations.
Following initial consultation and agreements, previous exemptions have been granted to allow operations of this kind in the same class of airspace using ultralight aeroplanes registered with the RAA. It is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required (OBPR id: 14507).
Making and commencement
The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on the day of registration. It expires at the end of December 2018, as if it had been repealed by another instrument.
[Instrument number CASA EX05/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — solo flight training using ultralight aeroplanes registered with the RAA at Jandakot Aerodrome
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 permits solo flying in controlled airspace by student pilots and other pilots using ultralight aeroplanes registered with Recreational Aviation Australia at Jandakot Aerodrome. The pilots have to be under the control of Cloud Dancer Pilot Training Pty Ltd, which is an RAA flight training facility.
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