Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX122/18 — Flight in Class D Airspace near Sunshine Coast Aerodrome (Sunshine Coast Sports Aviators) Instrument 2018
Purpose
The purpose of this legislative instrument is to permit members of Sunshine Coast Sports Aviators Inc. (the Association), an association incorporated in Queensland, to operate hang gliders and paragliders from sites near Point Cartwright, Maroochydore. The site is within 16 kilometres of the controlled aerodrome at Sunshine Coast, which means that the operations are otherwise prohibited under sub‑subparagraph 7.1 (i) (iii) of Civil Aviation Order 95.8.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to 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 the following:
(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft; or
(b) the airworthiness of, or design standards for, aircraft.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from 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, 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, an exemption must be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Under subregulation 11.245 (1) of CASR, CASA may issue directions about, among other things, any matter affecting the safe navigation and operation of aircraft. Under subregulation 11.245 (2), CASA may only issue a direction if the direction is for the purpose of CASA’s functions and not inconsistent with the Act, and if CASA is satisfied that the direction is necessary in the interests of the safety of air navigation. Under regulation 11.250, a direction ceases to be in force on the day specified in the direction. Regulation 11.255 makes it an offence for a person to contravene a direction that is applicable to the person.
Civil Aviation Order 95.8 (CAO 95.8) applies to hang glider and paraglider aircraft and contains exemptions from the Civil Aviation Regulations 1988 subject to conditions, such as the pilot being issued a certificate by the Hang Gliding Federation of Australia Inc (HGFA) (paragraph 6.1 of CAO 95.8). Another of the conditions imposed, sub‑subparagraph 7.1 (i) (iii) of CAO 95.8, provides that an aircraft must not be flown except in Class C or D airspace that is below 300 feet above ground level and not within 16 kilometres of a controlled aerodrome.
Background
Members of the Association operate hang gliders and paragliders from the hang-gliding site at Point Cartwright near Maroochydore, Queensland. The site consists of two areas defined by the lengths of coastline and points 100 metres from that coastline.
The site is within 16 kilometres of Sunshine Coast aerodrome, which is a controlled aerodrome. The Association’s members have been able to use the site because their operations have, for many years, been exempted from compliance with sub‑subparagraph 7.1 (i) (iii) of CAO 95.8 despite the proximity of the site to Sunshine Coast aerodrome.
The Association has requested the grant of a new exemption to replace the current exemption, CASA EX150/15, that expires on 31 August 2018.
Instrument
The instrument exempts the pilot in command of a hang glider or paraglider from compliance with sub‑subparagraph 7.1 (i) (iii) of CAO 95.8 when conducting an exempt operation.
Section 1 names the instrument.
Section 2 states when the instrument commences and when it will be repealed.
Section 3 contains definitions for the instrument. An important definition is exempt operation, which is defined to be an operation: (1) conducted wholly within Class D airspace at the Point Cartwright site; and (2) covered by an LoA that is in effect; and (3) the pilot in command for which is a financial member of the HGFA and a member of the Association.
Another important term is LoA, which is a “letter of agreement” between the Association and Airservices Australia (AA) to describe the terms on which AA and the Association will cooperate to permit the conduct of exempt operations and to ensure that the operations do not conflict with aircraft operating at Sunshine Coast aerodrome. A note identifies that the current LoA is dated 26 February 2015.
Section 3 also defines Point Cartwright site by reference to lines between prescribed coordinates of latitude and longitude along the coast and 100 metres from the coast (in this statement referred to as prescribed lines), as well as lines that connect the corresponding endpoints of the prescribed lines. The effect of the definition is to create 2 roughly rectangular areas that are the “locations” that comprise the Point Cartwright site.
Section 4 contains the exemption, with the effect noted above.
Section 5 imposes conditions on the pilot in relation to the exemption. The pilot must confirm air traffic control clearance for the operations with the duty pilot. Consistent with the operational limitation in CAO 95.8 for operations more than 16 kilometres from a controlled aerodrome, the pilot must not conduct an exempt operation higher than 300 feet above mean sea level. The pilot must also comply with any conditions in the relevant LoA.
Section 6 of the instrument contains 3 directions for the duty pilot, being defined in section 3 as the member of the Association responsible for overseeing and facilitating hang gliding and paragliding operations at the Point Cartwright site. There are directions that require the duty pilot to obtain clearance from AA before a session of operations commences at the Point Cartwright site, and to notify AA when a session of operations is completed for a day, or a part of a day. These are necessary to ensure that AA’s air traffic controllers are aware of when exempt operations are occurring. A third direction imposes reporting obligations in the event of an incident or accident involving an exempt operation. A note explains that, for regulation 11.250 of CASR, the directions cease to be in force when the instrument is repealed.
Section 7 directs the Association to ensure that CASA has a copy of the LoA that is in effect in relation to an exempt operation. A note explains that, for regulation 11.250 of CASR, the direction ceases to be in force when the instrument is repealed.
Document incorporated by reference
In accordance with subsection 98 (5D) of the Act, the instrument has the effect of applying, adopting or incorporating an LoA by reference, as the LoA exists from time to time. It does so by applying any LoA that is in effect in relation to an exempt operation.
The Association will have a copy of each LoA and provides it to pilots wishing to operate in reliance on the exemption in the legislative instrument. By prior arrangement with CASA, a copy of the LoA in effect can be made available for viewing free of charge at any office of CASA.
Legislation Act 2003 (the LA)
Subsection 98 (5AA) of the Act states that an instrument issued under paragraph (5A) (a) is a legislative instrument if it applies to a class of persons or a class of aircraft. This exemption applies to a class of persons, being pilots in command of hang gliders and paragliders operating at the Point Cartwright site, and so is a legislative instrument. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
This instrument is of substantially the same effect as CASA EX150/15. A consultation draft of the instrument was provided to the Association for acceptance of the conditions. The President of the Association agreed that the members would be able to comply with the instrument.
The instrument is issued at the request of the Association with the support of the HGFA Operations Manager. CASA has consulted AA’s air traffic control centre for Sunshine Coast aerodrome and the HGFA, both of which expressed support for a new instrument permitting the exempt operations at Point Cartwright. AA recommended a 12 month duration.
In these circumstances, CASA is satisfied that no further consultation on the instrument is necessary or appropriate for section 17 of the LA.
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 exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
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 the day after it is registered and is repealed on 31 August 2019.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX122/18 — Flight in Class D Airspace near Sunshine Coast Aerodrome (Sunshine Coast Sports Aviators) Instrument 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
Members of the Sunshine Coast Sports Aviators Inc. (the Association), an association incorporated in Queensland, operate hang gliders and paragliders from a site at Point Cartwright in Queensland (the site). The site is within 16 kilometres of Sunshine Coast aerodrome, which is a controlled aerodrome.
Sub‑subparagraph 7.1 (i) (iii) of Civil Aviation Order 95.8 (the CAO) prohibits aircraft, operating under the scheme in the CAO, from flying within 16 kilometres of a controlled aerodrome. Therefore, hang glider and paraglider operators require an exemption for the operations.
The exemption is subject to conditions on pilots who are operating at the site, and directions to the Association’s duty pilot and to the Association. The duty pilot is an Association member responsible for overseeing and facilitating a session of hang gliding and/or paragliding operations at the site.
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