Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — CASR Part 137 (incendiary dropping at or above 500 feet)
Purpose
The purpose of this exemption is to re-issue a previous exemption relating to aircraft operations for dropping incendiaries for controlled burning.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the safety of air navigation.
Legislation for exemptions from CASR
Under subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR), CASA may grant an exemption from compliance with a provision of CASR, the Civil Aviation Regulations 1988 (CAR) or the Civil Aviation Orders (the CAOs).
Under subregulation 11.160 (3) of CASR, CASA may grant an exemption of its own initiative. Under subregulation 11.170 (3), in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of aviation safety.
Under subregulation 11.205 (1) of CASR, 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 of CASR, 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.
Aerial application operations
Part 137 of CASR deals with aerial application operations, other than in rotorcraft. It is construed to cover the aerial application not only of water but also of incendiaries for controlled burning and other firefighting purposes.
Under previous instruments (CASA EX27/08, CASA EX13/10, CASA EX32/10, CASA EX02/12 and CASA EX24/15), CASA has granted an exemption from Part 137 of CASR to certain operators, and their pilots, for dropping incendiaries. This was to protect the position of operators who had been in the business of incendiary dropping before the requirements of Part 137 of CASR were imposed.
Provided that alternative safety risk mitigators are in place, CASA considers that seasonal fire fighting involving the dropping of incendiaries on behalf of an emergency control authority from 500 feet or higher does not require the pilot in command or the aeroplane operator to satisfy the wide range of requirements in Part 137.
Australian State and Territory fire authorities, through the National Aerial Firefighting Centre Ltd (NAFC), initiated the CASA review of the regulatory regime around incendiary dropping operations.
Exemption
In substance, the exemption renews CASA EX24/15, which expires at the end of 31 January 2016.
This exemption applies to the pilot and operator of an aircraft used in incendiary dropping operations conducted at not less than 500 feet for a State or Territory authority responsible for controlled burning activities.
The pilot is exempt from all of Part 137 of CASR in relation to the incendiary dropping operations. It is a condition that the pilot must comply with the requirements of CAO 29.5 as if the operation is not a Part 137 aerial application operation. CAO 29.5 sets out directions in relation to the dropping of articles for paragraph 15 (2) (a) of CAR. The directions include, among other things, a requirement for the pilot to be qualified in accordance with Part 61 of CASR to carry out the operation.
CAO 29.5 does not otherwise apply in relation to aircraft engaged in aerial application operations.
The operator is also exempt from Part 137 of CASR in relation to the incendiary dropping operations. It is a condition that the operator must hold an AOC authorising the operations, and must obtain prior written CASA approval of operations manual procedures for the conduct of incendiary dropping operations. In addition, the operator is required to take reasonable steps to ensure that the pilot complies with the condition relating to compliance with CAO 29.5.
Legislation Act 2003 (LA)
Exemptions issued under regulation 11.160 of CASR are issued under subsection 98 (5A) of the Act. Subsection 98 (5AA) of the Act states that an instrument issued under paragraph (5A) (a) is a legislative instrument if it applies to a class of persons or a class of aircraft. This exemption applies to a class of persons and so is a legislative instrument and, therefore, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Consultation under section 17 of the LA was undertaken with the NAFC in regard to a previous exemption which is now merely being renewed. The instrument beneficially exempts operators and pilots from certain requirements provided compensating safety conditions are met. In this situation CASA is of the view that further consultation is not necessary or appropriate.
Office of Best Practice Regulation (OBPR)
OBPR does not require a Regulation Impact Statement in this case because, as with the previous exemptions, a preliminary assessment of business compliance costs, in the context of the nature of the instrument, indicates that it will have only a nil to low impact on business.
Statement of Compatibility with Human Rights
A statement of compatibility with human rights is at Attachment 1.
Commencement and making
The instrument commences on 1 February 2017 is repealed at the end of 31 January 2020.
The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
[Instrument number CASA EX18/17]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — CASR Part 137 (incendiary dropping at or above 500 feet)
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
The exemption would adjust the requirements for incendiary dropping operations for controlled burning and beneficially exempts operators and pilots from certain requirements, provided compensating safety conditions are met.
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