Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption, approval and permission — dropping of articles
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.
Regulation 150 of the Civil Aviation Regulations 1988 (CAR 1988) deals with the dropping of things from an aircraft while in flight. Subregulation 150 (1) states that the pilot in command of an aircraft must not permit anything to be dropped from an aircraft in flight. Subregulation 150 (2) states that nothing in this regulation will prevent, among other things, the dropping of packages or other articles in the course of search and rescue operations or to deliver emergency food supplies in accordance with directions issued by CASA.
Civil Aviation Order 29.5 (the Order) is made under subregulation 150 (2) of CAR 1988 and sets out CASA’s directions for dropping articles from aircraft in flight.
Paragraph 4.5 of the Order states that articles, other than leaflets or substances not in the form of liquids, powder or fine grains, shall not be dropped on a site unless it is clear of persons and stock.
Subsection 3 of the Order provides that CASA may approve dropping operations to be carried out within a control zone, within an aircraft lane of entry, or within 5 miles of a Government or licensed aerodrome.
Paragraph 7.2 of the Order states that except with the permission of CASA, dropping operations shall be conducted by day only, in accordance with visual flight rules, and in continuous sight of ground or water.
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 CAR 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), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement) or, if no day is specified, 3 years after commencement.
Instrument
Aerorescue Pty Limited (Aerorescue) is an operator involved in search and rescue operations and utilises a stores dropping method which involves stores being dropped away from survivors, i.e. they are not in the drop site. However, a trail line, which is attached to the stores, is dropped across the stricken vessel or survivors so that stores may be retrieved. In view of this, Aerorescue is unable to meet the requirements of paragraph 4.5 of the Order and requires an exemption from the requirements.
The operations undertaken by Aerorescue may be carried out at night so the instrument also permits that operations may be conducted at night. The exemption and permission are subject to conditions. Since the purpose of the dropping operations is for search and rescue, CASA also approves the operator to conduct training for dropping operations within a control zone, an aircraft lane of entry, and within 5 miles of a Government or licensed aerodrome.
Legislative Instruments Act 2003 (the LIA)
Under subparagraph 6 (d) (i) of 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. Under regulation 5A of CAR 1988, if CASA has issued a Civil Aviation Order (the CAO), and CASA later issues an exemption that affects the operation of the CAO, the later document is declared to be a disallowable instrument. The instrument affects the operation of paragraph 4.5 of the Order.
The instrument 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
Aerorescue previously held an instrument that had a similar effect (CASA EX24/13 refers, which expired at the end of January 2016) and requested that CASA consider extending the instrument. CASA has assessed the operator’s safety case and considers that the exemption, approval and permission can continue for a further 3 years. In these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 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 1 February 2016 and expires at the end of January 2019, as if it had been repealed by another instrument.
[Instrument number CASA EX11/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption, approval and permission — dropping of articles
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 aircraft operated by Aerorescue Pty Limited (Aerorescue) to conduct dropping operations contrary to the general directions issued by CASA relating to the dropping of articles.
The purpose of the legislative instrument is to allow Aerorescue to continue emergency relief and search and rescue operations that involve the dropping of articles and that would otherwise be prohibited by the Civil Aviation Regulations 1988.
The instrument is subject to conditions imposed by CASA in the interests of aviation safety.
Human rights implications
The legislative instrument promotes the right to life and the right to health in Articles 6 and 12 of the International Covenant on Civil and Political Rights by allowing Aerorescue to drop articles that may be required for emergency relief and for search and rescue purposes.
This legislative instrument does not otherwise engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it promotes human rights.
Civil Aviation Safety Authority