Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX08/21 — Low-level Operations for Air Displays and Aerobatics Practice Exemption 2021
Purpose
The purpose of instrument CASA EX08/21 — Low-level Operations for Air Displays and Aerobatics Practice Exemption 2021 (the instrument) is to enable pilots to conduct flights at below 500 feet above ground level for the purpose of training for, and participating in, air displays.
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 the Civil Aviation Safety Regulations 1998 (CASR) and Civil Aviation Regulations 1988 (CAR).
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, the Civil Aviation Safety Authority (CASA) may grant an exemption from compliance with a provision of the regulations.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person, or a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.175 (4) of CASR, in deciding whether to reissue an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant an exemption on its own initiative.
On 1 September 2014, new arrangements dealing with flight crew licensing commenced under Part 61 of CASR. These arrangements replaced the previous regulatory framework under Part 5 of CAR.
Subpart 61.E of CASR deals with pilot licensing limitations and authorisations. Regulation 61.375 applies to the holder of a pilot licence and authorises the holder to exercise the privileges of the licence or to conduct an activity if the holder has the required rating. In particular, subregulation 61.375 (7) of CASR authorises the holder of a pilot licence to conduct an activity mentioned in Table 61.375 only if the licence holder also has a rating mentioned for that activity. Item 5 of Table 61.375 specifies that for low-level operations, the required rating is either a low-level rating or an aerial application rating.
Regulation 61.010 of CASR defines a low-level operation as an operation below 500 feet above ground level other than climbing from take-off, descending for the purpose of landing, or an aerial application operation.
Regulation 61.065 of CASR states that the holder of a flight crew licence commits an offence if, among other things, the holder conducts an activity mentioned in Part 61 (including low-level operations) while piloting a registered aircraft and the holder is not authorised under Part 61 to conduct the activity.
Subregulation 157 (1) of CAR states that the pilot in command of an aircraft must not fly the aircraft over any city, town or populous area at a height lower than 1 000 feet, or any other area at a height lower than 500 feet. Subregulation 157 (4) provides that subregulation 157 (1) does not apply if, among other things, the aircraft is engaged in private operations or aerial work operations requiring low flying, and the owner or operator of the aircraft has received a general or specific permit from CASA to make the low-level flights during those operations.
Division 2 (containing regulations 164 to 169) of Part 12 of CAR contains rules relating to operating an aircraft on or in the vicinity of an aerodrome. Under regulation 165 of CAR, CASA may, in respect of a specified aerodrome, temporarily suspend, either wholly or in part, the application of rules contained in Division 2 of Part 12 of CAR. Under subregulation 166A (1) of CAR, the pilot in command of an aircraft commits an offence if the aircraft is being operated on the manoeuvring area of, or in the vicinity of, a non-controlled aerodrome and the pilot engages in conduct that results in the contravention of a rule set out in subregulation 166A (2). These rules include paragraph 166A (2) (c) which requires that, if the pilot is flying in the vicinity of the aerodrome, the pilot must either join or avoid the circuit pattern for the aerodrome.
Civil Aviation Order (CAO) 29.4 provides that an air display shall not be conducted without the written approval of CASA. An air display is defined in the CASR Dictionary as organised flying performed before a public gathering, including a contest, an exhibition of aerobatic manoeuvres, flying in formation and other aircraft operations associated with the air display. CAO 29.4 contains a similar definition of air display for that CAO.
Background
Part 5 of CAR, prior to its repeal, allowed CASA to issue approvals under CAO 29.4 to conduct air displays and permissions under paragraph 157 (4) (b) of CAR to the owners and operators of an aircraft to undertake low-level flying at air displays. These permissions, applicable to the owners and the operators of an aircraft, would indirectly allow pilots of the aircraft to perform low-level flights at air displays.
The new licensing framework under Part 61 of CASR prevents a pilot from undertaking low-level operations without holding a low-level rating or aerial application rating. After receiving industry feedback and conducting an internal review and consultation process, CASA has determined that this was not an intended consequence of the new Part 61 framework with respect to air displays. CASA has commenced work to amend the definition of low-level operation in regulation 61.010 of CASR to exclude air displays that are approved by CASA.
In the interim, exemptions (CASA EX26/15, Exemption — low-level operations at air displays and CASA EX11/18 — Low-level Operations for Air Displays and Aerobatics Practice Exemption 2018 (CASA EX11/18)) were granted to each pilot of an aircraft operating at an air display approved by CASA and who does not hold a low-level rating or aerial application rating. It allowed those pilots to conduct low-level flying without committing an offence under subregulation 157 (1) of CAR or subregulation 61.065 (1) of CASR, and without complying with the rating requirements under subregulation 61.375 (7) of CASR. CASA EX11/18 expires at the end of January 2021.
In order to enable pilots to practice low-level aerobatic manoeuvres, CASA can issue instruments under regulation 165 of CAR to temporarily suspend the application of the rule in paragraph 166A (2) (c) of CAR in respect of a specified aerodrome.
Overview of instrument
The instrument renews the exemption in CASA EX11/18, with some modifications. It renews an exemption to pilots conducting practice for an air display approved by CASA at an aerodrome specified by CASA in an instrument under regulation 165 of CAR from time to time.
It also renews an exemption to pilots who hold an aerobatics (unlimited) flight activity endorsement and are conducting low-level operations for practice of aerobatic manoeuvres at an aerodrome specified by CASA in an instrument under regulation 165 of CAR from time to time.
CASA is satisfied that renewing the exemptions will have no negative impact on aviation safety. A pilot who holds an aerobatics (unlimited) flight activity endorsement will have experience and demonstrated competence in conducting low-level operations involving aerobatic manoeuvres. In each case, the exemption only applies if the pilot complies with the conditions of the air display approval or instrument issued under regulation 165 of CAR.
Content of instrument
Section 1 sets out the name of the instrument.
Section 2 sets out the duration of the instrument.
Section 3 sets out a definition used in the instrument: low-level operation, which has the meaning given by regulation 61.010 of CASR.
Section 4 (1) sets out that the instrument applies to a pilot in command of an aircraft who:
(a) does not hold a low-level rating or an aerial application rating; and
(b) is conducting a low-level operation:
(i) at an air display approved by CASA from time to time; or
(ii) during practice for an air display approved by CASA at an aerodrome specified by CASA in an instrument under regulation 165 of CAR from time to time; and
(c) complies with the conditions of any approval or instrument mentioned in paragraph (b).
Section 4 (2) sets out that the instrument also applies to a pilot in command of an aircraft who:
(a) holds an aerobatics (unlimited) flight activity endorsement; and
(b) is conducting a low-level operation for practice of aerobatic manoeuvres at an aerodrome specified by CASA in an instrument under regulation 165 of CAR from time to time; and
(c) complies with the conditions in the instrument mentioned in paragraph (b).
Section 5 sets out that a pilot referred to in section 4 is exempt from compliance with:
(a) paragraph 157 (1) (b) of CAR;
(b) subregulation 61.065 (1) of CASR, to the extent that it prohibits the pilot from conducting a low-level operation;
(c) subregulation 61.375 (7) of CASR, but only in relation to item 5 of Table 61.375 of CASR.
Legislation Act 2003 (the LA)
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations or the CAOs. 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 exemption applies to a class of persons, being certain pilots of aircraft operating at an air display approved by CASA or practising aerobatic manoeuvres. The exemption is, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
This exemption has been made following industry feedback on Subpart 61.Q of CASR dealing with low-level ratings. The instrument effectively continues CASA policy under the previous regulatory framework under Part 5 of CAR and rectifies an unintended consequence of the new regulatory requirements. The instrument is beneficial to industry. 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 exemptions (OBPR id: 14507).
Sector risk, economic and cost impact
Subsection 9A (3) of the Act states that subject to regarding the safety of air navigation as the most important consideration, in developing and promulgating aviation safety standards under paragraph 9 (1) (c), CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.
As the instrument replaces an expiring instrument with the same (or largely the same) provisions and conditions, there will be no change of economic or cost impact on individuals, businesses or the community.
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 1 February 2021 and is repealed at the end of 31 January 2024.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX 08/21 — Low-level Operations for Air Displays and Aerobatics Practice Exemption 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
This legislative instrument applies to pilots who are operating at, or practising for, an air display approved by CASA and who do not hold a low-level rating or an aerial application rating. It also applies to pilots who hold an aerobatics (unlimited) flight activity endorsement and are conducting low-level operations for practice of aerobatic manoeuvres at an aerodrome specified by CASA.
This legislative instrument exempts those pilots from the requirement to hold a low‑level rating and the offence provisions for operating under 500 feet above ground level and for conducting activities without authorisation under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR).
The exemption continues CASA policy on the treatment of low-level flying for air displays and rectifies an unintended consequence of the new regulatory framework under Part 61 of CASR. CASA separately deals with the organisers of air shows and pilots practising aerobatic manoeuvres about the aviation safety risks of low-level flying.
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