CASA EX18/17 - Exemption — CASR Part 137 (incendiary dropping at or above 500 feet)

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2017L00082 Not in force Legislative Instrument

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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

Overview

The Civil Aviation Safety Regulations 1998 were enacted to ensure the safety of air navigation, with a focus on protecting the position of operators who had been in the business of incendiary dropping before the requirements of Part 137 were imposed. This piece of legislation, specifically the exemption for incendiary dropping operations at or above 500 feet, was introduced to address the need for a regulatory regime that accommodates seasonal firefighting activities while maintaining an acceptable level of aviation safety. The Civil Aviation Safety Authority (CASA) has the authority to grant exemptions under section 98 of the Civil Aviation Act 1988, and this exemption, which renews a previous exemption, aims to provide flexibility for pilots and operators involved in controlled burning activities conducted by State or Territory authorities, provided that alternative safety risk mitigators are in place. The policy objective of this exemption is to facilitate essential firefighting operations while ensuring that safety standards are upheld through the imposition of specific conditions. This exemption has been made by a delegate of CASA, in accordance with the powers granted under subregulation 11.260(1) of the Civil Aviation Safety Regulations 1998. It is set to commence on 1 February 2017 and will be repealed at the end of 31 January 2020. The legislative instrument is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislation Act 2003, as it applies to a class of persons and is therefore considered a legislative instrument. The Office of Best Practice Regulation has determined that a Regulation Impact Statement is not required, as the exemption is expected to have a nil to low impact on business compliance costs. Additionally, a Statement of Compatibility with Human Rights has been prepared, confirming that the exemption does not engage any applicable rights or freedoms and is therefore compatible with human rights.

Scope and Application

The Civil Aviation Safety Regulations 1998 (CASR) exemption concerning incendiary dropping at or above 500 feet applies to aircraft operators and their pilots who engage in controlled burning activities for State or Territory fire authorities. This exemption, which is a legislative instrument subject to tabling and disallowance in the Parliament, is designed to benefit those who have been involved in incendiary dropping operations prior to the imposition of Part 137 of CASR. By renewing a previous exemption, it allows these operators and pilots to conduct certain operations while meeting specific safety conditions, thereby exempting them from the full regulatory requirements of Part 137. The exemption specifies that the pilot must comply with the requirements of Civil Aviation Order 29.5 as if conducting an operation not covered by Part 137, and the operator must hold an Authorised Operator Certificate and obtain CASA approval for their operations manual procedures. The exemption, which comes into effect on 1 February 2017 and expires at the end of 31 January 2020, is published on the Internet as mandated by the CASR.

Key Provisions

The main operative sections of this exemption (CASA EX18/17) under the Civil Aviation Safety Regulations 1998 (CASR) provide a renewed exemption from Part 137 of CASR for pilots and operators conducting incendiary dropping operations at or above 500 feet, for controlled burning purposes on behalf of State or Territory authorities. Section 11.160(1) of the CASR empowers the Civil Aviation Safety Authority (CASA) to grant exemptions from compliance with certain CASR provisions, and this exemption, under section 11.160(3), is granted by CASA on its own initiative. Section 11.205(1) allows CASA to impose conditions on such an exemption, and section 11.210 makes it an offence to fail to comply with these conditions. The exemption, which is subject to the conditions outlined in section 11.160(3), must also be published on the Internet as per section 11.225 of the CASR. This exemption imposes several obligations on the parties it governs. For pilots, the key obligation is to comply with the requirements of Civil Aviation Order (CAO) 29.5 as if the operation is not a Part 137 aerial application operation. This includes ensuring they are qualified in accordance with Part 61 of CASR to carry out the operation. For operators, the obligations include holding an Air Operator Certificate (AOC) that authorises the operations and obtaining prior written CASA approval of operations manual procedures for the conduct of incendiary dropping operations. Furthermore, operators must take reasonable steps to ensure that pilots comply with the condition relating to compliance with CAO 29.5. The legislation also outlines the consequences for breaches of the conditions imposed by this exemption. Regulation 11.210 of the CASR specifies that it is an offence to fail to comply with a condition of an exemption, and such an offence may lead to civil or criminal penalties. The specific penalties for non-compliance are not detailed in the provided text, but under Australian law, the penalties for such offences typically include fines and, in severe cases, imprisonment. The exact penalties would depend on the nature and severity of the breach, as well as any relevant jurisdictional guidelines.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.