Explanatory Statement
Civil Aviation Safety Regulations 1998
Repeal — exemptions for helicopters used in certain off-shore operations
Background
Under section 98 of the Civil Aviation Act 1988 (the Act), the Governor-General may make regulations for the Act and in the interests of the safety of air navigation.
In 1995, subregulations 178 (3) and (4) of the Civil Aviation Regulations 1988 (CAR 1988) prohibited an aircraft being flown at a height less than the lowest safe altitude, except in the circumstances described in subregulation 178 (5). Those circumstances include during take-off or landing, during an instrument approach procedure determined by CASA, and in accordance with instructions from air traffic control.
In 1995, CASA issued exemptions to 2 operators, Lloyd Helicopter Pty Ltd (instrument CASA 04/95) and Bristow Helicopters Australia Pty Ltd (instrument CASA 12/95), from compliance with subregulations 178 (3) and (4) of CAR 1988 during an instrument approach or departure procedure at an off-shore facility.
Regulation 178 has been extensively amended since 1995, such that an exemption from subregulations 178 (3) and (4) may no longer have the intended legal effect.
Currently, under subregulations 178 (1) and (2) of CAR 1988, the pilot in command is prohibited from flying an aircraft at a height lower than the published or determined lowest safe altitude, except in the circumstances described in subregulation 178 (4). Those circumstances include during an authorised instrument approach procedure determined by CASA.
CASA has since determined authorised instrument approach procedures to be used by 3 specified operators, including the operators to which CASA 04/95 and CASA 12/95 apply. Consequently, under subregulation 178 (4) of CAR 1988, the specified operators do not require an exemption from the requirements of subregulations 178 (1) and (2) of CAR 1988 to conduct those procedures.
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, in relation to a matter mentioned in that subsection.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions
(if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Repeal
This instrument repeals CASA 04/95 and CASA 12/95. Those instruments no longer refer to the correct provisions of CAR 1988, and the exemptions in the instruments are no longer required because updated instrument approach procedures have been determined by CASA.
Consultation
CASA has consulted with the affected operators, Lloyd Helicopters Pty Ltd and Bristow Helicopters Pty Ltd about the repeal of CASA 04/95 and CASA 12/95 in the context of the development and determination of authorised instrument approach procedures to replace those instruments. For this reason, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the Legislative Instruments Act 2003.
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).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
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 1998 and subsection 94 (1) of the Act.
The instrument commences on the day of registration.
[Instrument number CASA EX137/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Repeal — exemptions for helicopters used in certain off-shore operations
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 purpose of this legislative instrument is to repeal CASA 04/95 and CASA 12/95, which are instruments granting exemptions to 2 aircraft operators from the requirements in subregulations 178 (3) and (4) of the Civil Aviation Regulations 1988 (CAR 1988), which prohibited an aircraft to be flown at a height less than the lowest safe altitude.
Following amendment of regulation 178 of CAR 1988, and the recent determination of authorised instrument approach procedures to be used by the operators, these exemptions are no longer required.
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