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 First Response 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 EX179/12]