EXPLANATORY STATEMENT
CIVIL AVIATION ACT 1988
CIVIL AVIATION REGULATIONS 1988
EXEMPTION UNDER REGULATION 308 RELATING TO USE OF A HANG GLIDER AT THE AUSTRALIAN INTERNATIONAL AIR SHOW, AVALON, VICTORIA
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the purposes of the Act and in the interests of the safety of air navigation.
Under subregulation 308 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may exempt persons from compliance with specified provisions of CAR 1988 in relation to a category of aircraft. Under subregulation 308 (3), an exemption is subject to the person complying with any conditions which CASA specifies to be necessary in the interests of safety.
Regulation 5 of CAR 1988 provides that where CASA is empowered to issue directions, it may issue those directions in Civil Aviation Orders.
Section 95.8 of the Civil Aviation Orders (CAOs) contains an exemption, made under subregulation 308 (1) of CAR 1988, from certain provisions of CAR 1988 otherwise applicable to pilots of hang gliders. The hang gliders are those whose pilot in command holds a pilot certificate issued by the Hang Gliding Federation of Australia (HGFA). The exemption is subject to a range of safety conditions.
For example, the pilot in command must not fly a hang glider at a height in excess of 300 feet without a prescribed altimeter (subparagraph 4.7 (b)), or in certain controlled airspace (subparagraph 4.7 (e)), or below 1 000 feet over a city, town or populous area (subparagraph 4.7 (h)), or at a public gathering (subparagraph 4.7 (k)) or at night (subparagraph 4.8 (a). Further, the pilot must not engage in acrobatic flight over a city, town or populous area (paragraph 4.11), and he or she may fly only for recreational or training purposes (paragraph 4.13).
Section 29.4 of the CAOs provides that air displays must be approved by CASA and comply with various general and specific conditions in the interests of safety.
The Australian International Air Show (the air show) is scheduled to be held at Avalon, Victoria, from 11 March 2005 to 20 March 2005. The organiser, AirShows DownUnder, has proposed a display program that includes Dan Buchanan (the pilot) flying a powered hang glider including some night acrobatics. The proposed performances would contravene the requirements of the conditions mentioned above. The organiser has requested an exemption from those requirements on the basis that the pilot is experienced in such displays at air shows around the world and has conducted them previously at Avalon air shows.
Having considered the safety implications of the organiser’s request in the context of the controlled environment of the air show that is provided by the operation of section 29.4 of the CAOs, CASA has made the instrument. It exempts the pilot and his hang glider from compliance with certain provisions of CAR 1988, subject to conditions. The instrument exempts the pilot from the same provisions as he would be exempt from if he were a pilot in command holding a pilot certificate issued by HGFA. The exemption is subject to the condition that he must hold such a certificate and otherwise comply with the requirements of section 95.8 of the CAOs except those referred to above which would prevent the proposed display program involving him.
Subregulation 308 (4) of CAR 1988 declares an exemption to be a disallowable instrument. Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. The exemption is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument is a personal exemption requested for a specific activity during a specific period.
The instrument comes into effect at the start of the day after it is registered on the Federal Register of Legislative Instruments. However, it will only apply to the pilot’s official performances as approved by the organisers for the air show. The instrument stops having effect at the end of 20 March 2005.
The exemption has been made by the Deputy Chief Executive and Chief Operating Officer, a delegate of CASA, in accordance with subregulation 7 (1) of CAR 1988.
[Exemption Number: CASA EX07/2005]
Overview
The Civil Aviation Act 1988, enacted by the Australian Parliament, was designed to provide a framework for the regulation of civil aviation within Australia, focusing on ensuring the safety and efficiency of air navigation. The Civil Aviation Regulations 1988, made under the authority of the Act, include provisions that establish the conditions and standards for the operation of aircraft, including hang gliders, within Australian airspace. However, there was a need to provide flexibility in certain circumstances to accommodate special events while maintaining safety standards. This was addressed by the Civil Aviation (Use of Hang Glider at Air Show) Exemption 2005, which was issued under subregulation 308 of the Civil Aviation Regulations 1988 by the Civil Aviation Safety Authority (CASA). The exemption aimed to allow specific hang glider activities at the Australian International Air Show in Avalon, Victoria, during March 2005, subject to stringent safety conditions to ensure compliance with the overarching objectives of the Act and Regulations.
Scope and Application
The Civil Aviation Act 1988 provides the legislative framework within which the Civil Aviation Regulations 1988 (CAR 1988) are implemented, with the aim of ensuring the safety of air navigation. Under the authority of the Civil Aviation Act 1988, the Civil Aviation Safety Authority (CASA) has the power to exempt certain individuals from complying with specified provisions of CAR 1988 in relation to a category of aircraft, such as hang gliders, as per subregulation 308(1) of CAR 1988. This exemption is subject to compliance with any conditions CASA specifies as necessary for safety, as outlined in subregulation 308(3) of CAR 1988. In the context of the Australian International Air Show scheduled at Avalon, Victoria, CASA has issued an exemption for a specific pilot flying a powered hang glider, allowing him to perform night acrobatics, which would otherwise contravene the safety conditions set out in section 95.8 of the Civil Aviation Orders (CAOs). This exemption is tailored to the controlled environment of the air show and is subject to the pilot holding a pilot certificate from the Hang Gliding Federation of Australia and adhering to the specified conditions that ensure safety. The exemption is a legislative instrument subject to tabling and disallowance under the Legislative Instruments Act 2003, though consultation was not undertaken in this instance due to the specific and temporary nature of the exemption. The exemption takes effect on the day after its registration and will cease to apply at the conclusion of the air show on 20 March 2005.
Key Provisions
The main operative sections of this legislation pertain to the exemption of a specific individual, Dan Buchanan, from certain provisions of the Civil Aviation Regulations 1988 (CAR 1988) for the purpose of participating in a hang glider display at the Australian International Air Show held at Avalon, Victoria. This exemption is detailed in Section 98 of the Civil Aviation Act 1988, which empowers the Governor-General to create regulations for air navigation safety. Under subregulation 308(1) of the CAR 1988, the Civil Aviation Safety Authority (CASA) can exempt individuals from compliance with specified provisions if it is deemed safe to do so. This exemption, granted under subregulation 308(3), is subject to conditions specified by CASA to ensure safety. Furthermore, Section 29.4 of the Civil Aviation Orders (CAOs) mandates that all air displays must be approved by CASA and meet safety conditions.
The obligations imposed by the Act on the parties governed by it, particularly the pilot, include holding a pilot certificate issued by the Hang Gliding Federation of Australia (HGFA) and adhering to the conditions stipulated in Section 95.8 of the CAOs. These conditions include restrictions such as not flying at a height over 300 feet without a prescribed altimeter, avoiding certain controlled airspaces, refraining from flying below 1,000 feet over cities or towns, and not performing acrobatics over populated areas. The pilot must also ensure that the hang glider is used only for recreational or training purposes, avoiding flights at night or during public gatherings.
In terms of offences, penalties, or civil/criminal consequences for breach, the legislation does not specify maximum penalties within the text provided. However, the exemption is declared a disallowable instrument under subparagraph 6(d)(i) of the Legislative Instruments Act 2003 (LIA). This means that the exemption is subject to disallowance in the Parliament under sections 38 and 42 of the LIA. Non-compliance with the conditions set forth in the exemption could potentially lead to legal consequences, including the revocation of the exemption or other regulatory actions by CASA. The exemption is also subject to tabling and disallowance in Parliament, reinforcing the legislative oversight on such exemptions. The exemption is a personal and temporary measure, ceasing to have effect at the end of the air show on 20 March 2005.