CASA EX153/21 — Part 105 (Trainee Parachutists) Exemption 2021

Explanatory Statement

Civil Aviation Safety Regulations 1998

CASA EX153/21 — Part 105 (Trainee Parachutists) Exemption 2021

Purpose

The instrument exempts a student or novice parachutist who is a member of the Australian Parachuting Federation Ltd (the APF) or the Australian Skydiving Association Inc (the ASA) from compliance with Part 105 of the Civil Aviation Safety Regulations 1998 (CASR) if the parachute descent is authorised and undertaken in accordance with legislative instruments that apply to the relevant parachuting organisation. The instrument also exempts a person who undertakes a parachuting activity related to the parachute descent from compliance with Part 105. The exemption is initiated by the Civil Aviation Safety Authority (CASA) under regulation 11.160 of CASR.

There are provisions of Part 105 (about parachuting from aircraft), inserted into CASR by Schedule 2 to the Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019 that are expressed to apply to, or in relation to, trainee parachutists. The meaning of that term is delegated to the Manual of Standards for Part 105 (the Part 105 MOS), the making of which has been delayed beyond the commencement of Part 105 (that commences on 2 December 2021). As a result, there may be doubt about how these provisions would apply.

The instrument reflects the same arrangements that are established by the transitional provision regulation 202.502, inserted into CASR by item 8 of Schedule 2 to the Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019. It provides that a person who is treated by the ASA or the APF as a student or novice parachutist, and is undertaking a parachute descent, is exempt from compliance with Part 105 of CASR if the descent is authorised by instrument CASA 263/02 or instrument CASA 36/19, and is conducted in accordance with instrument CASA 11/17 or instrument CASA 84/18. The instrument similarly exempts parachuting activities undertaken for the purposes of such a descent from the application of Part 105.

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 CASR and Civil Aviation Regulations 1988 (CAR).

Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from compliance with a provision of the regulations.

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.

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 11.170 (3) of CASR, in deciding whether to grant an exemption, 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 exemption on its own initiative.

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.

Part 105 of CASR applies to all parachute descents from aircraft in Australia conducted using a personnel parachute. The Part does not apply to emergency parachute descents, parachute descents that are not from aircraft and parachute descents from state aircraft.

In conjunction with the proposed Part 105 MOS, the Part consolidates all existing legislative requirements (operations, maintenance, personnel, aircraft and equipment) applicable to parachuting from aircraft. It sets out detailed requirements for the conduct of defined parachuting activities, including training, parachute maintenance and defect reporting, pilot requirements and related activities, as well as parachuting specific operating rules that are additional to the rules of Part 91 of CASR.

The Part replaces previous rules under regulation 152 of CAR and instruments made under that regulation.

The existing legislative instruments that impose requirements in relation to parachuting are instruments CASA 263/02, CASA 11/17, CASA 84/18, CASA 36/19 and Civil Aviation Order 20.16.3 (CAO 20.16.3). A number of the requirements of these instruments are incorporated within Division 105.C.6 (Miscellaneous requirements), Subpart 105.D (Operational requirements), and Subpart 105.K (Instruments, indicators, equipment and systems). The other requirements are to be included in the proposed Part 105 MOS. The making of the Part 105 MOS is currently delayed.

Background

The exemptions in the instrument reflect arrangements established by Division 202.FE.1, inserted into CASR by item 8 of the Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019, under which Part 105 applies in relation to parachuting activities undertaken on or after 2 December 2021, subject to transitional provisions. Subregulation 202.502 (1) provides that Part 105 does not apply in relation to a parachute descent if the descent is authorised by, and conducted in accordance with: instrument CASA 263/02 or CASA 36/19 (as either is in force from time to time); and, if the descent is being undertaken by a trainee parachutist or tandem parachutist instrument, CASA 11/17 or CASA 84/18 (as either is in force from time to time); and subsection 15 of CAO 20.16.3 (as in force immediately before 2 December 2021).

Subregulation 202.502 (2) provides that if Part 105 does not apply because of the operation of subregulation (1), Part 105 also does not apply to any other parachuting activity undertaken for the purposes of the descent.

Subregulation 202.502 (3) provides that despite the repeal of regulation 152 of CAR, instruments CASA 263/02 and CASA 36/19 continue in force as if the repeal had not happened.

Overview of instrument

The instrument has the effect that a person who undertakes a parachute descent, who is not otherwise caught by regulation 202.502 and is treated by the ASA or the APF as a student or novice parachutist, is exempt from compliance with Part 105 if the person complies with relevant instruments, that are incorporated by reference in the instrument. The exemption extends to persons who undertake a parachuting activity related to a parachute descent undertaken by the student or novice parachutist.

If it is the case that regulation 202.502 applies to a person, Part 105 would have been disapplied under the transitional regulations, and the exemptions in the instrument would not have relevance.

CASA has assessed the impact the instrument will have on aviation safety and is satisfied that it will promote the safety of parachuting activities.

Incorporations by reference

Under subsection 98 (5D) of the Act, a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing is in force or existing at a particular time or from time to time (including an instrument or writing that does not exist when the legislative instrument is made).

In accordance with subsection 98 (5D) of the Act, the instrument applies, adopts or incorporates matters contained in the following instruments, which are detailed further below:

• Instrument CASA 263/02
• Instrument CASA 11/17
• Instrument CASA 84/18
• Instrument CASA 36/19
• CAO 20.16.3.

Under paragraph 15J (2) (c) of the Legislation Act 2003 (the LA), the Explanatory Statement must contain a description of the incorporated documents and indicate how they may be obtained. The instrument incorporates the instruments set out in the following table:

Each of the instruments is freely available on the Federal Register of Legislation.

Content of instrument

Section 1 provides for the citation of the instrument as CASA EX153/21 — Part 105 (Trainee Parachutists) Exemption 2021.

Section 2 provides for the duration of the instrument. It commences on 2 December 2021 and is repealed at the end of 1 December 2023.

Subsection 3 (1) provides for defined words and phrases for the instrument. These include definitions of novice parachutist and student parachutist. The meanings of those terms are incorporated by reference from instrument CASA 84/18 (in the case of persons who are members of the APF) and instrument CASA 11/17 (in the case of persons who are members of the ASA). In those instruments, those terms have the meaning given by the respective organisation in a document issued by it and approved by CASA. The subsection also includes a signpost definition of the term parachuting activity, defined by regulation 105.010 of CASR.

Subsection 3 (2) provides that a reference in the instrument to instrument CASA 11/17 or instrument CASA 84/18 is a reference to that instrument as in force from time to time. The provision clarifies that those legislative instruments are incorporated as in force from time to time.

Section 4 provides for exemptions for a student parachutist or a novice parachutist from compliance with Part 105 of CASR.

Under subsection 4 (1), the exemption applies to a student parachutist or novice parachutist who is a member of the ASA or the APF and undertakes a parachute descent. If a person is a tandem parachutist and complies with the relevant instrument when conducting a parachute descent, the person is covered by the transitional arrangements in regulation 202.502 of CASR. Therefore, paragraph 4 (1) (c) disapplies the exemption in the case of a tandem parachutist.

Subsection 4 (2) provides that a person is exempt from compliance with Part 105 of CASR if the parachute descent is authorised by, and conducted in accordance with, the relevant instruments applying to the ASA or the APF and the requirements of subsection 15 of CAO 20.16.3 (incorporated as in force immediately before 2 December 2021). Subsection 15 imposes requirements relating to seating, and restraints for parachutists carried on aircraft.

For a member of the ASA, a parachute descent must be authorised by, and conducted in accordance with instruments CASA 11/17 and CASA 263/02 (to the extent that CASA 263/02 is not inconsistent with CASA 11/17). CASA 11/17 imposes operational and maintenance rules in respect of aircraft used to facilitate parachute descents in parachute training operations. The provisions of that instrument will prevail in the case of any inconsistency with a provision of CASA 263/02.

For a member of the APF, a parachute descent must be authorised by, and conducted in accordance with, instruments CASA 84/18 and CASA 36/19 (to the extent that CASA 36/19 is not inconsistent with CASA 84/18). CASA 84/18 imposes operational and maintenance rules in respect of aircraft used to facilitate parachute descents in parachute training operations. The provisions of that instrument will prevail in the case of any inconsistency with CASA 36/19.

Subsection 4 (3) provides an exemption from compliance with Part 105 for a person who undertakes a parachuting activity for the purposes of a parachute descent mentioned in subsection 4 (2). A parachuting activity includes conducting a parachute descent; packing a parachute; maintaining a parachute; assembling a parachute; supervising a parachute descent; operating an aircraft to facilitate a parachute descent; and providing training in any of those activities.

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 2 classes of persons, being members of a parachuting sport aviation body who undertake a parachute descent, and persons who conduct a parachuting activity in relation to that descent. 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.

As the instrument relates to aviation safety and is made under the Act and CASR, Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument (item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015). However, this instrument will be repealed at the end of 1 December 2023, which will occur before the sunsetting provisions would have repealed the instrument if they had applied. Any renewal of the instrument will be subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA. Therefore, the exemption from sunsetting does not affect parliamentary oversight of this instrument.

Consultation

Consultation under section 17 of the LA has not been undertaken in this case. The transitional arrangements for Part 105 of CASR and this instrument enable the parachuting sector to continue using the existing rules under which they have been operating, until the Part 105 MOS is made and the framework for Part 105 is in place. The transitional arrangements were included in the consultation process for the development of the Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019 (which inserted regulation 202.502). The Explanatory Statement for those regulations sets out the details of the consultation undertaken for the then proposed Part 105. In these circumstances, CASA is satisfied that no consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.

Sector risk, economic and cost impact

Subsection 9A (1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A (3) of the Act states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9 (1) (c), CASA must:

(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and

(b) take into account the differing risks associated with different industry sectors.

The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.

The instrument makes no changes to existing arrangements under which parachuting activities have been taking place and there will be no change to the economic or cost impact on individuals, businesses or the community.

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.

Making and commencement

The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.

The instrument commences on 2 December 2021 and is repealed at the end of 1 December 2023.

Attachment 1

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011

CASA EX153/21 — Part 105 (Trainee Parachutists) Exemption 2021

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 instrument exempts a student or novice parachutist who is a member of the Australian Parachuting Federation Ltd (the APF) or the Australian Skydiving Association Inc (the ASA) from compliance with Part 105 of the Civil Aviation Safety Regulations 1998 (CASR) if the parachute descent is authorised and undertaken in accordance with legislative instruments that apply to the relevant parachuting organisation. The instrument also exempts a person who undertakes a parachuting activity related to the parachute descent from compliance with Part 105. The exemptions are initiated by CASA under regulation 11.160 of CASR.

There are provisions of Part 105 (about parachuting from aircraft), inserted into the CASR by Schedule 2 to the Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019 that are expressed to apply to, or in relation to, trainee parachutists. The meaning of that term is delegated to the Manual of Standards for Part 105, the making of which has been delayed beyond the commencement of Part 105 (that commences on 2 December 2021). As a result, there may be doubt about how these provisions would apply.

The instrument reflects the same arrangements that are established by the transitional provision regulation 202.502, inserted into the CASR by item 8 of Schedule 2 to the Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019. It provides that a person who is treated by the ASA or the APF as a student or novice parachutist, and is undertaking a parachute descent, is exempt from compliance with Part 105 if the descent is authorised by instrument CASA 263/02 or instrument CASA 36/19, and is conducted in accordance with instrument CASA 11/17 or instrument CASA 84/18. The instrument similarly exempts parachuting activities undertaken for the purposes of such a descent from the application of Part 105.

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