Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX11/18 — Low-level Operations for Air Displays and Aerobatics Practice Exemption 2018
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor‑General may make regulations for the Act and the safety of air navigation. Subsection 98 (5A) of the Act provides that the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation of aircraft.
On 1 September 2014, new arrangements dealing with flight crew licensing commenced under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR). These arrangements replaced the previous regulatory framework under Part 5 of the Civil Aviation Regulations 1988 (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.
Exemptions
Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A), CASA may grant an exemption from a provision of CAR or CASR or the CAOs, in relation to a matter mentioned in that subsection.
Under regulation 11.225 of CASR, an exemption must be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
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, an exemption (CASA EX26/15) was 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 EX26/15 expires at the end of January 2018.
In order to enable pilots to practice low-level aerobatic manoeuvres, CASA can issue instruments under regulation 165 to temporarily suspend the application of the rule in paragraph 166A (2) (c) of CAR in respect of a specified aerodrome.
Instrument
This instrument renews the exemption in CASA EX26/15, with some modifications. It extends the application of the 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 extends the application of the 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. 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.
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. It is CASA’s view that it is not necessary or appropriate to undertake any further consultation under 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).
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 is compatible with human rights as it does not raise any human rights issues.
Making and commencement
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument commences on the day of registration and is repealed at the end of 31 January 2021.
[Instrument number CASA EX11/18]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX11/18 — Low-level Operations for Air Displays and Aerobatics Practice Exemption 2018
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 does 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