Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — minimum height and lateral separation for operations
Legislation
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.
Subregulation 137.140 (3) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that the pilot in command of an aeroplane engaged in an application operation must not fly less than 350 feet above ground level (AGL) while closer than 100 metres, measured horizontally, from an occupied building unless certain notification provisions are complied with.
Subregulation 11.160 (1) of the CASR 1998 provides that, for subsection 98 (5A), CASA may grant an exemption from a provision of the Regulations, including the Civil Aviation Regulations 1988, or a provision of the Civil Aviation Orders in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225 of CASR 1998, 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.
This exemption permits the pilot in command of an aeroplane operated by Aerotech NT Pty Ltd, engaged in an application operation, to fly over an occupied building below 350 feet AGL while closer than 100 metres while not complying with the notification provisions during emergency firefighting operations.
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 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 undergoing training 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).
Consultation
Consultation under 17 of the LIA has not been undertaken as the exemption would apply only to the pilot in command of an aeroplane engaged in firefighting operations and to the dropping of retardant in emergency conditions.
Human rights implications
The instrument sets out an exemption from legislative requirements as described above. The instrument does not engage any of the applicable rights or freedoms.
Commencement and making
The exemption commences on 1 December 2012 and stops having effect at the end of November 2015.
The exemption has been made by a delegate of CASA under regulation 11.260 of CASR 1998.
[Instrument number CASA EX172/12]
Overview
The Civil Aviation Safety Regulations 1998 (CASR 1998) were enacted to ensure the safety of air navigation in Australia, and they include provisions that require pilots to maintain specific altitudes and separations from buildings during certain operations. The Civil Aviation Act 1988 allows the Governor-General to make regulations in the interest of air navigation safety, and this framework enables the Civil Aviation Safety Authority (CASA) to grant exemptions under certain conditions. One such exemption is detailed in the Explanatory Statement for F2012L02294, which allows the pilot in command of an aeroplane operated by Aerotech NT Pty Ltd to fly below the standard 350 feet above ground level (AGL) and closer than 100 metres to an occupied building during emergency firefighting operations without complying with notification provisions. This exemption was introduced to address the specific challenges faced by firefighting aircraft in emergency situations where strict adherence to standard flight regulations could hinder the effectiveness of their operations. The exemption is subject to conditions to ensure that it does not compromise safety and is published on the Internet in line with regulatory requirements. The exemption was issued by a delegate of CASA and is effective from 1 December 2012 until the end of November 2015.
Scope and Application
The Civil Aviation Safety Regulations 1998, specifically through Subregulation 137.140(3), requires pilots in command of aeroplanes engaged in application operations to maintain a minimum height of 350 feet above ground level (AGL) when flying closer than 100 metres from an occupied building, unless certain notification provisions are adhered to. However, Subregulation 11.160(1) allows the Civil Aviation Safety Authority (CASA) to grant exemptions from these provisions under certain circumstances. This exemption applies to Aerotech NT Pty Ltd, allowing the pilot in command of their aeroplanes to fly below 350 feet AGL while closer than 100 metres from an occupied building without complying with the notification requirements, specifically during emergency firefighting operations. Such exemptions can be subject to conditions under Subregulation 11.205(1) if necessary for the safety of air navigation and must be published on the Internet as per regulation 11.225. The exemption, which is a legislative instrument under the Legislative Instruments Act 2003, applies to a class of persons undergoing training and is subject to tabling and disallowance in Parliament. The exemption is effective from 1 December 2012 until the end of November 2015 and was made by a delegate of CASA under regulation 11.260 of CASR 1998.
Key Provisions
The key provisions of the Civil Aviation Safety Regulations 1998 (CASR 1998) are set out in subregulation 137.140(3), which requires that pilots in command of aeroplanes engaged in application operations must maintain a minimum height of 350 feet above ground level (AGL) and a lateral separation of at least 100 metres from occupied buildings unless certain notification requirements are met. Additionally, subregulation 11.160(1) allows the Civil Aviation Safety Authority (CASA) to grant exemptions from these regulations if necessary for the safety of air navigation. The exemption provided by this legislation, as outlined in subregulation 11.160(2), specifically allows the pilot in command of an aeroplane operated by Aerotech NT Pty Ltd to fly below 350 feet AGL and within 100 metres of occupied buildings during emergency firefighting operations without complying with the notification provisions.
The obligations imposed by the Act on the parties it governs include compliance with the minimum height and lateral separation requirements unless an exemption is granted. CASA is obligated to consider the safety of air navigation when granting such exemptions, and must impose any necessary conditions to ensure safety, as stipulated in subregulation 11.205(1) of the CASR 1998. Moreover, the exemption must be published on the internet as per regulation 11.225, and it will cease to have effect no later than three years from its commencement, as per subregulation 11.230(1).
The legislation includes provisions for potential breaches, though specific offences, penalties, or consequences are not detailed in the text. The exemption is subject to the Legislative Instruments Act 2003 (LIA), under which it is classified as a legislative instrument and must be tabled and may be subject to disallowance by Parliament. This process ensures that the exemption is scrutinised for its adherence to legislative standards. The exemption does not engage any human rights implications as outlined in the explanatory statement, and it has been made by a delegate of CASA under regulation 11.260 of CASR 1998. This exemption is effective from 1 December 2012 and will cease to have effect by the end of November 2015.