Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — flights by competitors of the Canungra Classic and Canungra Cup within controlled airspace
Purpose
The Canungra Hang Gliding Club Inc. (the Competition Organiser) conducts annual competitions known as the “Canungra Classic” and the “Canungra Cup” in the airspace over the town of Canungra, Queensland. In order to ensure the safety of the competitors, CASA’s Office of Airspace Regulation declares the airspace in which the competitions take place to be a restricted area or danger area (the declared areas) while the competitions are held.
However, as the declared areas are in Class C airspace, the competitors would require licences that are not normally required for sport aviation activities. The competitors would also require a level of radiocommunications qualifications that are beyond those which are generally granted by the sport’s governing body, the Hang Gliding Federation of Australia (the HGFA). Under Civil Aviation Order 95.8 Instrument 2011 (CAO 95.8), such activities are generally exempt from the various licensing, airworthiness, maintenance and operational requirements that are prescribed in Australia’s civil aviation legislation.
The instrument, therefore, provides competition entrants with exemptions from particular licensing and radiocommunications qualifications requirements found in CAO 95.8 and the Civil Aviation Regulations 1988 (CAR). The exemption only applies to competitors who meet the standards and possess the qualifications further prescribed in the instrument. In addition, the Competition Organiser and its Competition Director must comply with the safety requirements further prescribed in the instrument.
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.
Under subsections 98 (5A) and (5AA) of the Act, the regulations empower CASA to issue instruments in relation to matters affecting the safe navigation and operation of aircraft which, if applicable to a class of persons, would be legislative instruments.
Subsection 98 (5D) of the Act provides that a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.
Under subregulation 83 (1) of CAR, a person commits an offence if they transmit on a radiofrequency of a kind used for the purpose of ensuring the safety of air navigation while they are not qualified to transmit on that radiofrequency. Subregulation 83 (2) of CAR provides that a person will be qualified to transmit on such a radiofrequency if they meet the criteria prescribed in paragraph (a), (b) or (c). Among other matters, paragraph (b) provides that a person will be qualified if they are authorised to transmit on the frequency under Part 61, 64 or 65 of the Civil Aviation Safety Regulations 1998 (CASR).
Part 61 of CASR prescribes the licensing scheme for pilots and flight engineers of registered aircraft. Part 64 of CASR prescribes the requirements that a person must satisfy if they intend to transmit on a radiofrequency of a kind used for the purpose of ensuring the safety of air navigation, but do not hold a flight crew licence. Meanwhile, Part 65 of CASR applies to the performance of functions in connection with providing of air traffic services in Australian territory.
Civil Aviation Order 95.8 Instrument 2011
CAO 95.8 applies to framed hang-gliders, powered hang-gliders, paragliders and powered paragliders that are used in private operations for recreational purposes, or for flying training for the issue of a pilot certificate under that CAO.
Paragraph 3.1 of CAO 95.8 exempts persons associated with the flying of these aircraft from compliance with Part 61 of CASR and certain various airworthiness, maintenance and operational requirements that are prescribed in CAR. Under paragraph 3.2 of CAO 95.8, the exemptions provided by paragraph 3.1 are subject to a range of conditions further prescribed in subsections 6 and 7 of that CAO.
Regulation 200.001 of CASR additionally provides that a hang-glider that is used solely in private operations and for recreational purposes, or for flying training for the issue of a pilot certificate, is exempt from CASR if the conditions in subsection 4 of CAO 95.8 are complied with.
Paragraph 4.1 of CAO 95.8 provides that a person is authorised to perform a duty essential to the operation of these aircraft without holding a flight crew licence if they comply with the conditions set out in subsections 6 and 7.
Subparagraph 7.3 (b) of CAO 95.8 provides that a person must not use any radiotelephone equipment fitted to an aircraft unless the person is authorised to transmit using an aeronautical radio under Part 61 or Part 64 of CASR. Under subparagraph 7.3 (a), a person may transmit on the very high frequency (VHF) radiofrequency band if they hold a valid certificate issued by the HGFA that relates to the operation of radiotelephone equipment.
Subparagraph 7.6 (a) of CAO 95.8 provides that an aircraft to which the CAO applies may be flown in Class C or Class D airspace if the pilot holds a pilot licence issued under Part 61 of CASR with an aeroplane category rating that allows the pilot to fly in that airspace. Subparagraph 7.6 (b) further prescribes that the pilot must have a valid flight review for the class rating in accordance with Part 61 of CASR.
Exemptions issued under CASR
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations or the CAOs. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including CAR or a provision of the CAOs.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Regulation 11.205 provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Instrument
The instrument exempts pilots mentioned in section 3 from compliance with the requirements for the use of aeronautical radios prescribed under subparagraph 7.3 (b) of CAO 95.8 and subregulation 83 (1) of CAR. The instrument also exempts these pilots from the pilot licensing and flight reviews required for operations in Class C or Class D airspace under paragraph 7.6 of CAO 95.8.
Section 3 provides that the instrument will apply to a pilot of an aircraft to which CAO 95.8 applies only if the pilot fulfils the criteria further prescribed in that section. Among other matters, the instrument applies only if the pilot is conducting a flight in an area mentioned in Schedule 1 of the instrument during the time that the area has been declared to be a restricted area or a danger area under regulation 6 of the Airspace Regulations 2007. In addition, for the instrument to apply, the pilot must be a registered competitor of 1 of the competitions, and hold both a current HGFA membership and the relevant qualifications that are further defined in section 2 of the instrument. The pilot must also have been briefed before commencing the flight on the airspace restrictions and boundaries of the restricted areas or danger areas, and received confirmation that issues relating to the management of the airspace have been agreed with AA. Finally, the pilot must monitor the ultra high frequency (UHF) radiofrequency band designated by the Competition Director during the flight.
Subsection 4 (1) provides the pilots to which the instrument applies with the exemptions from subparagraph 7.3 (b) and paragraph 7.6 of CAO 95.8 and subregulation 83 (1) of CAR mentioned above. Under subsection 4 (2), these exemptions are subject to the conditions mentioned in section 5.
Section 5 of the instrument requires the Competition Director and Competition Organiser to comply with the various operational and competency requirements further prescribed in that section. Under subsection 5 (1), the Competition Director must ensure that a Notice to Airmen (NOTAM) has been published which correctly identifies the declared areas for the duration of the competitions. The Competition Director must also confirm the availability of the declared areas with Airservices Australia (AA) at the commencement of each competition day, and notify AA as soon as possible that flights in the declared areas are no longer required for each day of competition. Furthermore, the Competition Director must provide a mobile phone number that AA can use to contact the Competition Director during the period that the declared areas are in force.
Subsection 5 (2) provides that the Competition Organiser must ensure that the Competition Director complies with their obligations under subsection 5 (1). In addition, the Competition Director must ensure that a person intending to compete in the competitions fulfils the criteria mentioned in section 3 of the instrument.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation or the maintenance of aircraft. Under subsection 98 (5AA), an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply to a class of persons or a class of aircraft.
The instrument applies to a class of persons engaged in hang-gliding and paragliding operations and is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Incorporation of documents
The requirements of CAO 95.8 are incorporated as they exist from time to time. CAOs are legislative instruments published on the Federal Register of Legislation.
In accordance with subsection 98 (5D) of the Act, the HGFA Operations Manual is incorporated as it exists from time to time. The HGFA Operations Manual is freely available from the HGFA via the HGFA’s website at the following address: http://www.hgfa.asn.au/.
Consultation
The Competition Organiser applied to CASA for the issuing of an exemption to enable its competitors to compete without holding the licences, flight reviews and radiocommunications qualifications that would otherwise be required for flights within controlled airspace.
CASA consulted with the Competition Organiser and the HGFA during the preparation of the instrument, and invited the Competition Organiser and the HGFA to provide commentary on a draft of the proposed instrument. The Competition Organiser also liaised with the HGFA prior to approaching CASA to discuss the proposal, and the HGFA confirming their support for the instrument.
CASA has issued previous instruments of a similar nature to allow sport aviation operations in the same class of airspace. Having regard to these circumstances, it is CASA’s view that it is not reasonably practicable 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). The instrument is being issued in the course of CASA’s administration of the Act and regulations, and does not substantially alter existing regulatory arrangements.
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 does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
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 of registration and is repealed at the end of 30 September 2020.
[Instrument number CASA EX142/17]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — flights by competitors of the Canungra Classic and Canungra Cup within controlled airspace
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 enables competitors of the “Canungra Classic” and “Canungra Cup”, competitions that are organised by the Canungra Hang Gliding Club Inc. (the Competition Organiser), to fly in controlled airspace without holding licences and radiocommunications qualifications that are not normally required for general sport aviation activities.
The purpose of the legislative instrument is to exempt the competitors from the requirement to hold a pilot licence and a valid flight review under Part 61 of the Civil Aviation Safety Regulations 1998 and paragraph 7.6 of the Civil Aviation Order 95.8 Instrument 2011 (CAO 95.8) before being able to fly in that airspace. In addition, the legislative instrument provides the competitors with exemptions from certain radiocommunications qualifications requirements prescribed in CAO 95.8 and the Civil Aviation Regulations 1988.
For the exemption to apply, the competitors must meet the standards and hold the qualifications that are further prescribed in the instrument. The instrument further specifies a number of conditions with which the Competition Organiser and its Competition Director must comply, imposed in the interests of aviation safety.
Human rights implications
The legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
The legislative instrument is compatible with human rights, as it does not raise any human rights issues.
Civil Aviation Safety Authority