EXPLANATORY STATEMENT
CIVIL AVIATION ACT 1988
CIVIL AVIATION REGULATIONS 1988
EXEMPTION UNDER REGULATION 308 RELATING TO ACROBATIC NIGHT FLIGHTS 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 paragraph 155 (1) (a) of the Civil Aviation Regulations 1988 (CAR 1988), a pilot in command must not fly an aircraft in acrobatic flight at night.
The Australian International Air Show (the air show) is scheduled to be held at Avalon in Victoria, from 11 March 2005 to 20 March 2005. The organiser, AirShows DownUnder, has proposed a display program that includes night acrobatic performances by 4 pilots from the USA. These performances would contravene the prohibition mentioned. The organiser has requested an exemption from that provision on the basis that the 4 pilots are experienced in the conduct of night aerobatics at displays around the world, and have conducted them previously at Avalon air shows.
Under subregulation 308 (1) of CAR 1988, and after taking into account all relevant considerations relating to the interests of safety, CASA may exempt persons from compliance with specified provisions of CAR 1988 in relation to an aircraft or 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 29.4 of the Civil Aviation Orders (CAOs) provides that air displays must be approved by CASA and comply with various general and specific conditions in the interests of safety.
Having considered the safety implications of the organiser’s request, including the context of the controlled environment of the air show that is provided by section 29.4 of the CAOs, CASA has made the exemption. It exempts the 4 pilots from compliance with paragraph 155 (1) (a) of CAR 1988 without specific conditions. However, the acrobatic night flights must be operations of the air show approved by the organiser.
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 for the 4 pilots concerned and has been 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 each 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 EX08/2005]