Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — navigation and anti-collision lights
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.
Paragraph 3 of Appendix V to Civil Aviation Order (CAO) 20.18 requires that aircraft must have 2 landing lights except when engaged in private and aerial operations and charter operations not carrying passengers for hire and reward when it must have 1 light.
Subregulation 195 (1) of the Civil Aviation Regulations 1988 (CAR 1988) requires that the pilot in command and the operator of an aircraft must comply with the rules requiring lights to be displayed in relation to the aircraft at night and in conditions of poor visibility.
Subregulation 196 (1A) provides that the operator and pilot in command of an aeroplane in flight, or operating on the manoeuvring area of a land aerodrome, must ensure that the lights required by this regulation to be displayed on the aeroplane are displayed.
Subregulation 196 (3) provides that unless CASA otherwise directs, an aeroplane in flight or operating on the manoeuvring area of a land aerodrome shall display, in addition to navigation lights, an anti-collision light consisting of a flashing red light.
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 1998) provides that, for subsection 98 (5A), CASA may grant an exemption from a provision of the Regulations, including CAR 1988 or a provision of the CAOs, 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, 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.
The exemption will permit Airvan Flight Services Pty Ltd (the operator) to carry out covert surveillance without displaying some of the required lights. To mitigate against the risks associated with such operations, conditions have been imposed.
Legislative Instrument Act
Exemptions issued under regulation 11.160 of CASR 1998 are issued under subsection 98 (5A) of the Act. 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 and so is a legislative instrument.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument is an exemption requested for covert surveillance and border protection operations. It renews a previous instrument, CASA EX113/09, which expires at the end of December 2011. Similar instruments have been issued to some other operators.
The instrument comes into effect on 1 January 2012 and stops having effect at the end of 31 December 2015.
The exemption has been made by the Associate Director of Aviation Safety, a delegate of CASA, under subregulation 11.260 (1) of CASR 1988.
[Instrument number CASA EX141/11]
Overview
The Civil Aviation Safety Regulations 1998 were enacted to ensure the safety of air navigation, as empowered by section 98 of the Civil Aviation Act 1988. This regulation allows the Governor-General to make rules concerning the safety of air navigation, which includes the necessary requirements for aircraft lights to ensure visibility and safety during night and poor visibility conditions. The policy objective is to maintain the highest safety standards for air navigation by ensuring compliance with lighting regulations, while also providing the flexibility to grant exemptions in specific operational contexts, such as covert surveillance and border protection, to mitigate associated risks through imposed conditions. The exemption in question, issued under the authority of the Civil Aviation Safety Regulations 1998, allows Airvan Flight Services Pty Ltd to operate without displaying some of the required lights for covert surveillance purposes, subject to specific conditions to ensure air navigation safety.
Scope and Application
The Civil Aviation Safety Regulations 1998, as amended, include provisions for exemptions related to the operation of aircraft, particularly in the context of covert surveillance and border protection. Section 98 of the Civil Aviation Act 1988 empowers the Governor-General to make regulations for the Act, with a focus on the safety of air navigation. The exemption in question, under subregulation 11.160 of the Civil Aviation Safety Regulations 1998, allows Airvan Flight Services Pty Ltd to conduct covert surveillance without displaying certain required lights, such as navigation and anti-collision lights, to mitigate the risks associated with such operations. Conditions have been imposed on this exemption to ensure safety, and it is classified as a legislative instrument under subsection 98(5AA) of the Act because it applies to a class of persons. The exemption, which is effective from 1 January 2012 until 31 December 2015, was made by the Associate Director of Aviation Safety, a delegate of CASA, and it renews a previous exemption that was due to expire at the end of December 2011. This exemption is specific to the operator and its covert surveillance operations and does not extend to other persons or classes of aircraft unless similarly exempted.
Key Provisions
The Civil Aviation Safety Regulations 1998 (CASR 1998) establish the framework for ensuring the safe navigation and operation of aircraft in Australia. Section 98 of the Civil Aviation Act 1988 empowers the Governor-General to make regulations, and regulation 11.160 of CASR 1998 allows the Civil Aviation Safety Authority (CASA) to grant exemptions from certain provisions of the Regulations, including the Civil Aviation Regulations 1988 (CAR 1988) and Civil Aviation Orders (CAO), in matters affecting safe navigation, operation, airworthiness, or design standards of aircraft. Under this provision, CASA has granted an exemption to Airvan Flight Services Pty Ltd, permitting them to carry out covert surveillance without displaying some of the required lights, subject to specific conditions.
The obligations imposed by this exemption require Airvan Flight Services Pty Ltd to adhere to the conditions set forth by CASA to mitigate risks associated with covert surveillance operations. These conditions are intended to ensure that the exemption does not compromise the safety of air navigation. The exemption is tailored to the operator, specifying the circumstances under which the exemption applies and the exact nature of the operations that will be conducted. CASA has the authority under subregulation 11.205(1) of CASR 1998 to impose conditions on such exemptions if deemed necessary for the safety of air navigation. Additionally, under subregulation 11.230(1) of CASR 1998, the exemption must be published on the internet and will cease to have effect no later than three years from its commencement unless a specific end date is provided within the exemption itself.
Failure to comply with the conditions of the exemption or the regulations may result in legal consequences. CASA, as the regulatory authority, has the power to enforce compliance and take action against breaches. The Civil Aviation Act 1988 and the Civil Aviation Safety Regulations 1998 do not specify particular penalties for breaches of these exemptions, but general provisions under the Acts allow for enforcement actions including fines and potential prosecution for serious breaches. The severity of the penalty depends on the nature and extent of the breach, but it is clear that CASA has robust mechanisms to ensure compliance and maintain the safety of air navigation.