Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX152/18 — Powered Weight-Shift-Controlled Aeroplanes and Other Powered Aircraft (Certain Aerial Work Operations) Exemption 2018
Purpose
The purpose of this instrument is to permit powered weight-shift-controlled aeroplanes, powered parachutes, powered hang-gliders and powered paragliders, if they are operated under an Air Operators Certificate (AOC) authorising flights for aerial work purposes, to engage in operations conducted for the aerial work purposes of aerial advertising, aerial photography, aerial surveying or aerial spotting.
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. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR) and Civil Aviation Regulations 1988 (CAR).
Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, the Civil Aviation Safety Authority (CASA) may grant an exemption from a provision of the regulations or a Civil Aviation Order.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons. Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative. Under subregulation 11.175 (4) of CASR, in deciding whether to reissue an exemption on application by a person, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant an exception again on its own initiative.
Regulation 11.205 of CASR provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210 of CASR, 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) of CASR, the maximum duration of an exemption is 3 years.
Part 4 of CAR sets out airworthiness requirements for aircraft. Part 4A of CAR sets out maintenance requirements for aircraft. Part 4B of CAR sets out requirements for reporting of defects in Australian aircraft. Part 4C of CAR requires registered operators of aircraft to maintain flight manuals. Part 4D of CAR provides for the removal or alteration of aircraft manufacturer’s data plates etc. Part 7 of CAR provides for the keeping of navigation logs for aircraft.
Under subregulation 133 (1) of CAR, the pilot in command of an Australian aircraft must not commence a flight if certain specified requirements, including specified maintenance requirements, are not satisfied.
Under subregulation 139 (1) of CAR, the pilot in command of an aircraft, when flying, must carry specified documentation. Under subregulation 139 (2) of CAR, the aircraft, when flying, is not required to carry certain specified documents, including its certificates of registration and airworthiness. Under subregulation 139 (3) of CAR, an aircraft that is operated under an AOC need not carry its flight manual if it carries on board an operations manual that contains required information and instructions.
Under subregulation 149 (1) of CAR, the pilot in command of an aircraft must not permit anything to be towed by the aircraft if it not permitted by regulation 149 or authorised under Part 61 of CASR.
Under subregulation 150 (1) of CAR, the pilot in command of an aircraft in flight must not permit anything to be dropped from the aircraft. Under subregulation 151 (1) of CAR, the pilot in command of an aircraft in flight must not allow persons or objects to be picked up by the aircraft.
Under regulation 157 of CAR 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 over any other area at a height lower than 500 feet.
Under subregulation 166A (1) of CAR, the pilot in command of an aircraft must not operate the aircraft on the manoeuvring area of, or in the vicinity of, a non-controlled aerodrome if the pilot engages in conduct that results in the contravention of a rule specified in subregulation 166A (2). Paragraph 166A (2) (f) of CAR specifies that, subject to subregulation 166A (4), if the pilot takes off from the aerodrome, the pilot must maintain the same track from the take-off until the aircraft is 500 feet above the terrain.
Under regulation 207 of CAR, a person must not use an Australian aircraft in a class of operation in the circumstances specified in the regulation. Under regulation 208 of CAR, the operator of an Australian aircraft must ensure that the aircraft is operated with the minimum operating crew specified in the certificate of airworthiness, or the flight manual, for the aircraft, as supplemented by such additional operating crew members as CASA directs.
Under regulation 230 of CAR, a person must not start the engine of an Australian aircraft, or permit the engine of an Australian aircraft to be run, if it is not permitted by the regulation.
Under regulation 252 of CAR, a person must not contravene a direction given by CASA with respect to the provision in Australian aircraft of such emergency systems and equipment, and such-life saving equipment, as CASA considers necessary to safeguard the aircraft and persons on board.
Regulation 200.013 of CASR provides that an aeroplane to which CAO 95.32, as in force from time to time, applies is exempt from CASR if the conditions in that Order are satisfied.
Civil Aviation Order 95.32 (CAO 95.32) relates to weight-shift-controlled aeroplanes and powered parachutes. Subsection 3 of CAO 95.32 grants exemptions to persons from compliance with specified provisions of CAR in relation to an aeroplane to which CAO 95.32 applies, subject to conditions.
Subsection 6 of CAO 95.32 imposes general conditions on the exemptions. Subparagraph 6 (b) provides that a person must not use a relevant aeroplane other than for:
- the carriage, without charge, of persons or goods; or
- the aerial inspection, conducted as a private operation, of stock, fencing, or farm or pastoral equipment, which is located on land owned by, or under the control of, the pilot or a member of the pilot’s immediate family; or
- in relation to certain aeroplanes — certain flying training.
Subparagraph 6 (c) provides that the pilot in command of the aeroplane must hold an appropriate pilot certificate and fly the aeroplane in accordance with the certificate. Subsection 7 of CAO 95.32 imposes specified flight conditions on the exemption.
Civil Aviation Order 95.8 (CAO 95.8) relates 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 certain pilot certificates. Subsection 3 of CAO 95.8 grants exemptions to persons from compliance with Part 61 of CASR and specified provisions of CAR, subject to conditions. This exemption is continued by regulation 202.011 of CASR. Subsection 6 of CAO 95.8 imposes general conditions on the exemptions. Subsection 7 imposes flight conditions on the exemptions.
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.
Background
This instrument replaces CASA EX191/15. CASA EX01/2003, CASA EX17/06, CASA EX64/08, CASA EX72/10 and CASA EX142/12 previously exempted specified powered weight-shift-controlled aircraft from specified provisions of CAR so the aircraft could perform operations related to aerial advertising, aerial photography aerial surveying and aerial spotting.
Overview of instrument
The exemptions and conditions set out in this instrument apply to the operator and pilot in command of relevant aircraft. The instrument takes account of the fact that CAO 95.32 already exempts powered weight‑shift‑controlled aeroplanes and powered parachutes that are engaged in the specified aerial work operations from relevant provisions of CAR.
The instrument provides exemptions for an operator and pilot in command of a relevant aircraft that is engaged in a specified aerial work operation. A relevant aircraft is defined as any of the following aircraft, as defined in CAO 95.32 or CAO 95.8, that are operated under an AOC that authorises flights for aerial work purposes: a powered weight-shift-controlled aeroplane, a powered parachute, a powered hang-glider and a powered paraglider. A specified aerial work operation is defined as an operation conducted for specified aerial work purposes. These purposes are aerial surveying, aerial spotting, aerial photography and advertising, including towing of flags and banners.
The instrument exempts the operator of a relevant aircraft that is a powered weight‑shift‑controlled aeroplane or powered parachute that is engaged in a specified aerial work operation from compliance with subparagraph 6 (b) of CAO 95.32. The pilot in command of such a relevant aircraft is exempted from compliance with subparagraph 6 (b) and 6 (c) of CAO 95.32. Each of these exemptions from these general conditions is subject to specified conditions.
The instrument also exempts the operator of a relevant aircraft that is a powered hang-glider or powered paraglider that is engaged in a specified aerial work operation from compliance with certain airworthiness, maintenance and other requirements of CAR. The pilot in command of such an aircraft is exempt from certain flight rules and other provisions of CAR.
The instrument exempts operators and pilots in command of powered hang-gliders or powered paragliders engaged in specified aerial work operations from more CAR provisions than operators or pilots in command of powered weight-shift-controlled aeroplanes or powered parachutes engaged in such operations. This is because CAO 95.8 only applies in relation to powered hang-gliders or powered paragliders if they are used in private operations or for certain flying training, and therefore the exemptions provided under CAO 95.8 do not apply to them. In contrast, the exemptions provided for by CAO 95.32 already apply to pilots in command and operators of relevant aircraft that are powered weight-shift-controlled aeroplanes or powered parachutes engaged in specified aerial work operations.
CASA has assessed the impact the instrument will have on aviation safety and is satisfied that it will have no impact on the safety of the operation of relevant aircraft engaged in specified aerial work operations. However, CASA is reviewing the policy supporting the instrument and has issued the instrument for a shorter duration of 1 year pending consideration of whether such instruments should be issued in the future, and on what terms.
Documents incorporated by reference
The instrument incorporates parts of CAO 95.32 and CAO 95.8. Each of these Civil Aviation Orders is a disallowable legislative instrument (see section 98(5AAA) of the Act). In accordance with subsection 14 (1) of the Legislation Act 2003 (the LA), both these Civil Aviation Orders are incorporated as in force from time to time (see definitions of CAO 95.32 and CAO 95.8 in section 3 of the instrument). CAO 95.32 and CAO 95.8 are available for free from the Federal Register of Legislation at https://www.legislation.gov.au. For CAO 95.8 see Civil Aviation Order 95.8 Instrument 2011, with Federal Register of Legislation number F2015C00153.
Content of instrument
Section 1 sets out the name of the instrument.
Section 2 sets out the duration of the instrument. The instrument commences on the day after it is registered and is to be repealed at the end of 31 October 2019.
Section 3 provides some definitions for the instrument. A key defined term is relevant aircraft. Another is specified aerial work operation which means operations conducted for any of the commercial work purposes mentioned in subregulation 206 (1) of CAR that are listed in the definition.
Section 4 provides an exemption for the operator of a relevant aircraft that is a powered weight-shift-controlled aeroplane or a powered parachute and is engaged in a specified aerial work operation from compliance with subparagraph 6 (b) of CAO 95.32. This exemption is subject to the condition in subsection 5 (1). Section 4 also provides an exemption for the pilot in command of such an aircraft from subregulations 149 (1), 150 (1) and 151 (1) of CAR and subparagraphs 6 (b) and 6 (c) of CAO 95.32. This exemption is subject to the conditions in subsection 5 (2).
Section 5 sets out the conditions on the exemptions in section 4. Under subsection 5 (1), the operator must ensure the relevant aircraft is equipped with a serviceable altimeter that can be easily seen by the pilot in command. Under subsection 5 (2), the pilot in command may fly the relevant aircraft only if the pilot, if the aircraft is registered with RAAus, holds specified RAAus certification and, if the aircraft is registered with the HGFA, holds specified HGFA certification. A pilot must also have accrued at least 100 hours in command of an aircraft of its kind.
Section 6 provides an exemption for the operator of a relevant aircraft that is a powered hang‑glider or a powered paraglider and is engaged in a specified aerial work operation from compliance with the following provisions of CAR: each provision of Part 4, 4A, 4B, 4C, 4D and 7 that applies to the operator, subregulations 139 (2) and (3), paragraph 166A (2) (f) and regulations 157, 207, 208, 230 and 252. This exemption is subject to the condition in subsection 7 (1). Section 6 also provides an exemption for the pilot in command of such aircraft from subregulations 133 (1), 139 (1), 149 (1), 150 (1), 151 (1) and 157 (1) of CAR, and subregulation 166A (1) of CAR to the extent that the subregulation requires compliance with paragraph 166A (2) (f) and regulations 207 and 230 of CAR. The exemption is subject to the condition in subsection 7 (2).
Section 7 sets out the conditions on the exemptions in section 6. Under subsection 7 (1), the operator must ensure that the relevant aircraft is equipped with a serviceable altimeter that can be easily seen by the pilot and must comply with the general and flight conditions of CAO 95.8 that would apply to the operator if CAO 95.8 applied to the relevant aircraft. Under subsection 7 (2), the pilot in command may fly the relevant aircraft only if the pilot holds a specified HGFA pilot certificate and has accrued at least 100 hours as pilot in command of an aircraft of its kind.
Legislation Act 2003
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. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument exempts a class of persons, being operators of relevant aircraft that are powered weight-shift-controlled aeroplanes and powered parachutes, from subparagraph 6 (b) of CAO 95.32. It also exempts operators and pilots in command of these relevant aircraft and of powered hang-gliders and powered paragliders that are relevant aircraft from specified provisions of CAR. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The instrument is of beneficial effect to industry, and its reissue supports operators already operating under CASA EX191/15 that it replaces. No concerns have been raised with CASA in relation to the exemption provided by CASA EX191/15 or any of the previous instruments. In August 2018, CASA consulted with the Hang Gliding Federation of Australia Inc (HGFA) and Recreational Aviation Australia Limited (RAAus) as the instrument includes exemptions against Civil Aviation Orders that regulate the activities of their members, and both organisations support the reissue of the instrument. In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for 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 and promotes the right to work.
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 at the end of 31 October 2019.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX152/18 — Powered Weight-shift-controlled Aeroplanes and other Powered Aircraft (Certain Aerial Work Operations) 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 allows powered weight-shift-controlled aircraft and certain other powered aircraft that are operated under an Air Operator’s Certificate that authorises flights for aerial work purposes to engage in operations for the aerial work purposes of aerial advertising, aerial photography, aerial surveying or aerial spotting.
The instrument provides exemptions from certain provisions of CAR for the operators and pilots in command of these aircraft that are engaged in these specified aerial work operations. Operators and pilots in command of aircraft that are powered weight-shift-controlled aeroplanes or powered parachutes and are engaged in these operations are also exempted from some general conditions of Civil Aviation Order 95.32 that would otherwise prevent the aircraft from conducting the operations.
The exemptions are subject to conditions that CASA has imposed in the interests of aviation safety.
Human rights implications
This legislative instrument engages positively with the right to work by providing the opportunity for operators and pilots of powered weight-shift-controlled aircraft and certain other powered aircraft to commercially engage in operations for specified aerial work purposes.
Conclusion
This legislative is compatible with human rights and promotes the right to work.
Civil Aviation Safety Authority