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]
Overview
The Civil Aviation Act 1988 was enacted to regulate civil aviation in Australia, ensuring safety and efficiency in air navigation. The Act empowers the Governor-General to create regulations that serve the interests of safety, and in this context, the Civil Aviation Regulations 1988 were established. The Civil Aviation (Exemption) Regulations 2005, under the authority of the Act, were introduced to address a specific safety concern regarding night acrobatic flights at the Australian International Air Show in Avalon, Victoria. The Civil Aviation Safety Authority (CASA) issued an exemption under regulation 308 of the Civil Aviation Regulations 1988, allowing four experienced American pilots to conduct night acrobatic performances during the air show, subject to CASA’s approval and safety conditions. This exemption is intended to balance the unique demands of the air show environment with the overarching goal of maintaining the highest safety standards in civil aviation.
Scope and Application
The Civil Aviation Regulations 1988, under the authority of the Civil Aviation Act 1988, provide for the safety and regulation of aviation in Australia. Specifically, regulation 308 allows the Civil Aviation Safety Authority (CASA) to grant exemptions to certain provisions of the regulations, provided it is in the interests of safety. In the context of the Australian International Air Show to be held at Avalon in Victoria, CASA has issued an exemption to allow four US pilots to perform night acrobatic flights, which would otherwise contravene the general prohibition under regulation 155. This exemption, granted without specific conditions, is applicable solely to the performances of these pilots during the air show, from 11 to 20 March 2005. The exemption is subject to disallowance by Parliament under the Legislative Instruments Act 2003 and will cease to have effect at the conclusion of the air show.
Key Provisions
The key operative sections of this legislation revolve around the exemption granted to certain pilots for acrobatic night flights during the Australian International Air Show at Avalon, Victoria. Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations, such as the Civil Aviation Regulations 1988 (CAR 1988), for the safety of air navigation. Specifically, subregulation 308(1) of CAR 1988 allows the Civil Aviation Safety Authority (CASA) to exempt individuals from certain provisions of CAR 1988, subject to safety considerations. In this case, the exemption exempts four American pilots from the requirement under paragraph 155(1)(a) of CAR 1988 that prohibits flying an aircraft in acrobatic flight at night.
The obligations imposed by this exemption require the pilots to conduct their night acrobatic performances only as part of the air show approved by the organiser, AirShows DownUnder. The exemption applies only during the air show period, from 11 March 2005 to 20 March 2005, and is limited to the specific activities approved by the organiser. Moreover, the exemption is subject to compliance with any additional safety conditions CASA may specify, although in this instance, no specific conditions were imposed.
Breach of the conditions set forth in the exemption could lead to various civil or criminal consequences, including the revocation of the exemption and possible legal action under the Civil Aviation Act 1988. While the maximum penalties are not explicitly detailed in this exemption, general penalties under the Act can include fines and imprisonment for violations related to air safety. The exemption is also a disallowable instrument under the Legislative Instruments Act 2003 (LIA), meaning it can be subject to disallowance by Parliament if not tabled within the required timeframe.
Lastly, it is important to note that this exemption is a legislative instrument and must be tabled and potentially disallowed in Parliament according to sections 38 and 42 of the LIA. However, consultation under section 17 of the LIA was not undertaken in this specific case due to the personal nature of the exemption and its limited scope. The exemption takes effect the day after it is registered on the Federal Register of Legislative Instruments and ceases at the end of the air show on 20 March 2005.