Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — maximum take-off weight requirements in aerial application operations
Purpose
CASA EX217/15 (the current instrument) provides for aerial application operations by certain aeroplanes to be conducted, in certain circumstances, at increased maximum take-off weights. The current instrument expires at the end of November 2017.
The purpose of CASA EX164/17 (the relevant instrument) is to renew several of the exemptions under the current instrument for a further 2 years, with drafting and editorial changes. However, the relevant instrument does not renew the exemption from compliance with the requirements stated in subregulation 235 (2A) of the Civil Aviation Regulations 1988 (CAR), as the exemption is no longer considered to be necessary.
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 CAR.
Under subregulation 137.190 (1) of CASR, the pilot in command of an aeroplane engaged in an application operation must not commence a take‑off if the aeroplane’s gross weight exceeds:
(a) the maximum gross weight shown in the aeroplane’s flight manual; or
(b) any maximum gross weight that:
(i) has been established for that type of aeroplane by a flight test supervised by CASA; and
(ii) is shown on a placard, approved by CASA and displayed in the aeroplane’s cockpit; or
(c) the maximum gross weight shown on the type certificate, or type certificate data sheet, that is issued for the aeroplane by the national aviation authority of the State of Design (within the meaning given in Annex 8 to the Chicago Convention) of the aeroplane.
Under subregulation 137.190 (2) of CASR, the pilot must calculate the take‑off weight by a method that includes calculating the weight of:
(a) the crew and any equipment carried; and
(b) the aeroplane’s fuel and load.
Under subregulation 138 (1) of CAR, if a flight manual has been issued for an Australian aircraft, the pilot in command of the aircraft must comply with a requirement, instruction, procedure or limitation concerning the operation of the aircraft that is set out in the manual.
Under subregulation 138 (2) of CAR, if a flight manual has not been issued for an Australian aircraft and, under the relevant airworthiness standards for the aircraft, the information and instructions that would otherwise be contained in an aircraft’s flight manual are to be displayed either wholly on a placard, or partly on a placard and partly in another document, the pilot in command of the aircraft must comply with a requirement, instruction, procedure or limitation concerning the operation of the aircraft that is set out:
(a) on the placard; or
(b) on the placard or in the other document.
As far as is relevant to the relevant instrument, under subregulation 235 (4) of CAR, the pilot in command of an aircraft must not allow the aircraft to take off if its gross weight exceeds its maximum take‑off weight.
Division 11.F.1 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 in relation to a matter mentioned in that subsection.
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 by CASA on its own initiative.
Under regulation 11.175 of CASR, CASA may renew an exemption. Under subregulation 11.175 (4) of CASR, in deciding whether to renew an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
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.
Subparagraph 14 (1) (a) (i) of the Legislation Act 2003 (the LA) allows a legislative instrument to apply, adopt or incorporate the provisions of another legislative instrument, as the other instrument is in force at a particular time or in force from time to time. The other instrument must be of a type mentioned in subsection 14 (3) of the LA, which relevantly includes a disallowable instrument — paragraph 14 (3) (a).
Instrument
Section 1 provides that the relevant instrument commences on 1 December 2017 and is repealed at the end of 30 November 2019.
Section 2 contains a definition of the term relevant aeroplane, which, in broad terms, covers an aeroplane engaged in aerial application operations governed by Part 137 of CASR, and an aeroplane that is equipped to conduct operations akin to aerial application operations for private purposes. It also contains a note alerting the reader that certain terms and expressions used in the relevant instrument have the same meaning as they have in the Act and the regulations.
Section 3 states that the pilot in command of a relevant aeroplane is exempt from the requirements of various stated provisions of CASR and CAR, which relate to:
(a) the maximum take-off weight at which the aeroplane may take off; and
(b) the calculation of the maximum take-off weight of the aeroplane.
It also states that the exemptions are subject to the conditions stated in section 4.
Section 4 states the conditions to which the exemptions are subject. The stated conditions are, in effect, the same as those stated in the current instrument. The conditions impose:
(a) a requirement that the pilot in command of a relevant aeroplane not commence a take-off if the aeroplane’s gross weight exceeds the highest of the weights determined under one of the several methods mentioned in the condition; and
(b) a requirement that the pilot in command of a relevant aeroplane calculate its take-off weight by a method that includes calculating the total of several weights mentioned in the condition.
The current instrument states 2 further conditions in clauses 3 and 4 of Schedule 3 of the instrument. These conditions have not been replicated in the relevant instrument as the conditions impose requirements that already apply generally to the pilot in command of a relevant aeroplane, without reference to the exemptions. To remove doubt about the effect of the omission of these 2 further conditions in the instrument, a note has been included in section 3 to the effect that the pilot in command must comply with the requirements under the regulations not the subject of the exemptions.
The relevant instrument incorporates the requirements of Civil Aviation Order 100.7 (the Order) for the determination of the empty weight of a relevant aeroplane. The Order gives directions relating to the calculation of the weight of aircraft under subregulation 235 (1) of CAR. The Order is a legislative instrument. Under subparagraph 14 (1) (a) (i) of the LA, paragraph 4 (2) (c) of the relevant instrument applies, adopts or incorporates the Order, as in force from time to time. The Order is freely available, and accessible via the Internet on the following webpage: https://www.legislation.gov.au/Details/F2015L01127.
In renewing the exemptions under the current instrument, CASA has regarded as paramount the preservation of at least an acceptable level of aviation safety.
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. Also, paragraphs 98 (5AA) (a) and (b) of the Act provide that an instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply in relation to a class of persons or class of aircraft.
The relevant instrument exempts the pilot in command (a class of persons) of a relevant aeroplane (a class of aircraft) from the requirements of various stated provisions of CAR and CASR. 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 relevant instrument renews the exemptions under the current instrument for a further 2 years. The instrument operates for the benefit of the operator, and pilot in command, of a relevant aeroplane. In these circumstances, CASA is satisfied that no consultation is appropriate or reasonably practicable for the instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this instance, as the exemptions are 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 relevant 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 exemptions have been granted by a delegate of CASA, relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on 1 December 2017 and is repealed at the end of 30 November 2019.
[Instrument number CASA EX164/17
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — maximum take-off weight requirements in aerial application operations
This legislative instrument, CASA EX164/17, 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
CASA EX217/15 (the current instrument) makes provision for the maximum take-off weight (MTOW), and the method of calculating the MTOW, of certain aeroplanes used in aerial application type operations, as an alternative to the requirements for these matters in the Civil Aviation Safety Regulations 1998. The current instrument expires at the end of November 2017.
The purpose of the legislative instrument is to renew the alternative arrangements under the current instrument for a further 2 years, with drafting and editorial changes.
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