Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — flight in Class D airspace within 16 kilometres of an aerodrome
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and in the interests of the safety of air navigation.
Paragraph 7.6 of Civil Aviation Order 95.8 provides that an aircraft, to which this Order applies, may be flown in Class C or Class D airspace if the pilot holds a valid pilot licence (not being a student pilot licence) issued under Part 5 of the Civil Aviation Regulations 1988 (CAR 1988) that allows the holder to fly in that airspace and has satisfactorily completed a flight review in accordance with regulation 5.81, 5.108 or 5.169 of CAR 1988. This provision was inserted into the Order in March 2011.
The Sunshine Coast Hang Gliding Club (the Association), a member of the Gliding Federation of Australia (HGFA), has applied to CASA to operate hang-gliders and paragliders at 2 sites at Point Cartwright on the coast of Maroochydore in Queensland. The sites are within 16 kilometres of the Sunshine Coast Airport.
Exemptions
Under subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), CASA may grant an exemption from compliance with a provision of CASR 1998. Airservices Australia has applied for an exemption. In deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety.
CASA has agreed to grant the exemption and impose conditions. Under subregulation 11.205 (1), CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation.
Under regulation 11.210, it is an offence to fail to comply with a condition of an exemption. 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.
Legislative Instruments Act
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations or the Civil Aviation Orders. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The instrument applies to a class of persons and is, therefore, legislative. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Human Rights Compatibility
This Legislative Instrument does not engage any of the applicable rights or freedoms. It is compatible with human rights as it does not raise any human rights issues.
Consultation
CASA consulted the HGFA and the Association.
Commencement and making
The instrument commences on the day after registration and stops having effect at the end of August 2015.
The exemption has been made by the Director of Aviation Safety in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX154/12]
Overview
The Civil Aviation Safety Regulations 1998 (CASR 1998) were enacted to provide comprehensive regulation of civil aviation safety in Australia. This Act, overseen by the Civil Aviation Safety Authority (CASA), aims to ensure the safety of air navigation through stringent regulatory measures. One of the key provisions of the CASR 1998 is the ability for CASA to grant exemptions from compliance with certain regulations, provided that such exemptions do not compromise safety. This mechanism was utilised in the case of the Sunshine Coast Hang Gliding Club, which sought to operate hang-gliders and paragliders within 16 kilometres of the Sunshine Coast Airport, an area classified as Class D airspace. CASA agreed to grant an exemption subject to specific conditions to maintain safety standards, reflecting the policy objective of balancing operational needs with public safety.
Scope and Application
The Civil Aviation Safety Regulations 1998, as amended, provide the framework for ensuring the safety of air navigation in Australia, and under the authority of the Civil Aviation Act 1988, the Civil Aviation Safety Authority (CASA) has the power to grant exemptions and impose conditions on such exemptions where necessary for safety reasons. Specifically, subregulation 11.160(1) of the Civil Aviation Safety Regulations 1998 allows CASA to exempt certain entities or individuals from complying with certain provisions of the regulations, provided that doing so does not compromise the acceptable level of safety. This authority is exercised through legislative instruments, which, as per the Legislative Instruments Act 2003, must be tabled and may be subject to disallowance in the Parliament. The exemption in question applies to the Sunshine Coast Hang Gliding Club, permitting the operation of hang-gliders and paragliders within 16 kilometres of the Sunshine Coast Airport, subject to specific conditions set by CASA to ensure safety. This exemption is effective until the end of August 2015 and is subject to publication on the Internet, as required by regulation 11.225. Failure to comply with the conditions of this exemption constitutes an offence under regulation 11.210.
Key Provisions
The Civil Aviation Safety Regulations 1998 (CASR 1998) include several operative sections that pertain to the exemption of certain activities from compliance with specific regulations. Section 11.160(1) allows the Civil Aviation Safety Authority (CASA) to grant exemptions from the provisions of CASR 1998, provided that such exemptions do not compromise safety. Section 11.205(1) further stipulates that CASA may impose conditions on these exemptions if necessary for the safety of air navigation. These sections empower CASA to tailor exemptions to specific contexts while ensuring safety is maintained.
Entities and individuals governed by CASR 1998, particularly those seeking exemptions, must adhere to the conditions imposed by CASA. For instance, if CASA imposes conditions on an exemption, these must be strictly followed. Failure to comply with these conditions is an offence under regulation 11.210, which can lead to legal repercussions. Moreover, any exemption granted by CASA must be published on the internet under regulation 11.225, ensuring transparency and public awareness.
The legislative framework also outlines the consequences for non-compliance with the terms of an exemption. According to regulation 11.210, failing to comply with a condition of an exemption is an offence. The nature and severity of the penalty for such offences depend on the specifics of the breach and may include both civil and criminal liabilities. Additionally, under subregulation 11.230(1), any exemption granted is time-bound, ceasing either on the specified date or, if none is specified, three years after its commencement.
The process of granting and imposing conditions on exemptions is further regulated by the Legislative Instruments Act 2003 (LIA). Under subsection 98(5A) of the Civil Aviation Act 1988, CASA can issue legislative instruments that exempt certain classes of persons or aircraft from compliance with CASR 1998 or Civil Aviation Orders. Such instruments are subject to tabling and disallowance in the Parliament, as stipulated in sections 38 and 42 of the LIA. This ensures that the legislative process is transparent and accountable.
Human rights compatibility is also a consideration in this legislative context. The Explanatory Statement clarifies that the Legislative 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. This ensures that the exemption process does not infringe upon the rights of individuals or groups adversely.