Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — hang-gliding and paragliding operations at Hooley Dooley launch site within active restricted airspace at Williamtown, NSW
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the safety of air navigation.
Regulation 308 of the Civil Aviation Regulations 1988 (CAR 1988), which was repealed on 27 June 2011, allowed CASA to exempt aircraft or persons from compliance with specified provisions of CAR 1988. Regulation 5 of CAR 1988 allows CASA to issue a permission, approval or authority, if empowered or required under the regulations, in Civil Aviation Orders (the CAOs).
The Civil Aviation Order 95.8 Instrument 2011 (CAO 95.8) was made on 22 March 2011 under regulation 308 of CAR 1988. CAO 95.8 is a legislative instrument and is available on the Federal Register of Legislation. Despite the repeal of regulation 308 of CAR 1988, CAO 95.8 is continued in force by regulation 202.011 of the Civil Aviation Safety Regulations 1998 (CASR 1998).
CAO 95.8 applies to hang‑gliders and paragliders where these aircraft are used in private operations for recreational purposes, or used for flying training for the issue of pilot certificates for these aircraft. CAO 95.8 exempts pilots of these aircraft from the licensing scheme prescribed in Part 61 of CASR 1998 and various airworthiness, maintenance and operational requirements prescribed in CAR 1988.
The exemptions provided by CAO 95.8 are subject to a range of conditions further prescribed in that CAO. In particular, 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 7.1 (i) permits pilots to operate these aircraft in Class C or Class D airspace if the operation is below 300 feet above ground level and not within 16 kilometres of a controlled aerodrome. Paragraph 7.6 specifies that a pilot may operate these aircraft in Class C or Class D airspace beyond the limitations contained in subparagraph 7.1 (i) if 2 criteria are fulfilled: firstly, if the pilot holds a licence issued under Part 61 of CASR 1998 with an aeroplane category rating that allows the pilot to fly in that airspace; and secondly, if the pilot has a valid flight review for the class rating in accordance with Part 61 of CASR 1998.
Exemptions issued under CASR 1998
Subpart 11.F of CASR 1998 provides for the granting of exemptions from particular provisions of the regulations or the CAOs. Subregulation 11.160 (1) of CASR 1998 provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including CAR 1988 or a provision of the CAOs.
Under subregulation 11.160 (2) of CASR 1998, 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 1998 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 applies to pilots who are members or guest members of Newcastle Paragliding Club (the Club) and who are also members of the Hang Gliding Federation of Australia (HGFA), where the pilot is operating a hang-glider or paraglider within active military restricted airspace at Williamtown, New South Wales.
For the exemption to apply, the Club must also sign an agreement with the Williamtown Defence authority governing the conduct of the operations within the active military restricted airspace. In addition, the exemption will only apply if the Williamtown Defence authority and Williamtown air traffic control have approved the operation.
Members of the Club previously operated from Hooley Dooley launch site within the boundary of Williamtown military restricted airspace on weekends, when control of that airspace was deactivated. The airspace is now active restricted airspace on weekends, and the Club also plans to operate each day of the week.
Accordingly, Club pilots are not authorised to operate in the airspace without complying with the pilot licensing requirements prescribed under paragraph 7.6 of CAO 95.8 and Part 61 of CASR 1998, which are requirements not ordinarily applied to hang-glider and paraglider pilots. This instrument exempts these pilots from the Part 61 requirements mentioned in paragraph 7.6 of CAO 95.8 when operating within the boundary of the military restricted airspace at Williamtown.
The exemption is stated to be subject to conditions, set out in the instrument, imposed in the interest of aviation safety. Among other matters, the pilot must have a pilot certificate and radio operator qualifications that have been issued by the HGFA. Before commencing operations, the pilot must register with a Club official and be briefed on the conditions of the instrument by the Club’s Duty Officer. There are altitude and geographical limits on the operations within the military restricted airspace and an altitude limit within 5 nautical miles of the airspace boundary. The altitude limit within 5 nautical miles of the airspace boundary does not displace the requirement when operating within restricted airspace to remain within 2 nautical miles of the launch site. There are also conditions related to the carriage and use of a VHF radio, and a procedure in the event of radio failure.
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.
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 provides a similar exemption to members of the Club prescribed under instrument CASA EX43/14, which expired at the end of May 2016. The Club applied to CASA for a new instrument of exemption after consulting with the Williamtown Defence authority and the HGFA. The Williamtown Defence authority has provided in-principle approval for the Club to operate along the north-western boundary of the restricted airspace, and the HGFA has confirmed its continuing support for the exemption.
Members of the Club have previously operated from Hooley Dooley launch site without incident, and continue to engage with the Williamtown Defence authority in planning their operations. 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.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
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).
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 1998.
The exemption commences on the day of registration and is repealed at the end of 31 October 2019.
[Instrument number CASA EX161/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — hang-gliding and paragliding operations at Hooley Dooley launch site within active restricted airspace at Williamtown, NSW
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 exempts members and guest members of Newcastle Paragliding Club (the Club), who are also members of the Hang Gliding Federation of Australia, from the requirements of paragraph 7.6 of Civil Aviation Order 95.8 when operating a hang-glider or paraglider within military restricted airspace at Williamtown, New South Wales.
The purpose of this legislative instrument is to exempt these pilots from the requirement to hold a pilot licence and a valid flight review under Part 61 of the Civil Aviation Safety Regulations 1998 before being able to fly in that airspace.
The Club has received in-principle approval from the Williamtown Defence authority to operate along the north-western boundary of the restricted airspace. The instrument specifies a range of conditions, including in relation to an agreement between the Club and the Williamtown Defence authority that govern the conduct of the operations in the active military restricted airspace.
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