CASA EX20/07 - Exemption – display of lights at night and in poor visibility

Overview

The Civil Aviation Regulations 1988 were amended in 2007 to address the specific operational requirements of the Police Integrity Commission (PIC), a law enforcement agency authorised to conduct covert surveillance of nominated targets. This amendment was enacted to allow the PIC to perform certain surveillance operations without displaying the external lights required under the general aviation regulations, thereby ensuring the covert nature of their operations. The exemption, which applies to night-time and poor visibility conditions, is underpinned by stringent conditions to ensure safety, including the requirement for these operations to adhere to Instrument Flight Rules and for the PIC to display external lights upon request by Air Traffic Control (ATC). The amendment was made under section 98 of the Civil Aviation Act 1988, empowering the Governor-General to enact regulations in the interest of air navigation safety, and is subject to disallowance under the Legislative Instruments Act 2003. This regulatory change was implemented without consultation as it pertains to a specific operational need of a particular law enforcement agency.

Scope and Application

The Civil Aviation Regulations 1988 (CAR 1988) provide a comprehensive regulatory framework for ensuring the safety of air navigation in Australia, with specific requirements for aircraft operation, including the display of lights at night and in poor visibility as mandated by subparagraph 195(1) of the CAR 1988. However, section 98 of the Civil Aviation Act 1988 empowers the Governor-General to make regulations for the Act, including exemptions that can be applied to certain entities under specific circumstances to balance safety with operational needs. In this instance, an exemption has been granted to the Police Integrity Commission (PIC), a law enforcement agency, allowing it to operate its aircraft without displaying external lights during certain covert surveillance operations. This exemption is subject to strict conditions, such as conducting these operations under the Instrument Flight Rules, displaying external lights when requested by Air Traffic Control (ATC), and notifying ATC when external lights are not being displayed. The exemption is a legislative instrument as defined under the Legislative Instruments Act 2003 and, although it is exempt from disallowance, it is subject to tabling and disallowance in the Parliament. The exemption applies specifically to the PIC and its operations and is effective from the day after registration until 31 May 2009.

Key Provisions

The Civil Aviation Regulations 1988 (CAR 1988) under Section 195(1) generally require that aircraft operating at night or in poor visibility conditions must display lights as a safety measure. However, subregulation 308(4) introduces an exemption for the Police Integrity Commission (Commission), allowing it to carry out certain covert operations without displaying external lights on its aircraft. This exemption is conditional on the operations being conducted under Instrument Flight Rules and the aircraft displaying external lights when requested by Air Traffic Control (ATC). Additionally, ATC must be notified when external lights are not in use. The obligations imposed on the Commission by this exemption include strict adherence to the conditions set forth to ensure safety during operations. Specifically, they must operate under Instrument Flight Rules, ensuring that their pilots are trained and equipped for such conditions. The Commission is also required to display external lights when requested by ATC and to notify ATC when the lights are not in use. These conditions are intended to mitigate risks and maintain safety standards despite the exemption. Failure to comply with the conditions of the exemption can lead to various consequences. Firstly, any breach of the conditions may result in the Commission being subject to enforcement actions under the Civil Aviation Act 1988 and the Civil Aviation Regulations 1988. These actions can include administrative penalties, which may be substantial given the safety implications of such breaches. Additionally, if the breach leads to an incident or accident, the Commission could face civil or criminal liability under the relevant aviation and criminal laws, which could include fines and imprisonment, depending on the severity of the incident. The legislative instrument, being an exemption declared under subregulation 308(4) of CAR 1988, is subject to the provisions of the Legislative Instruments Act 2003 (LIA). It is classified as a disallowable instrument and, therefore, must be tabled and can be subject to disallowance by Parliament under sections 38 and 42 of the LIA. The instrument, made by a delegate of the Civil Aviation Safety Authority (CASA), comes into effect on the day after it is registered and ceases to have effect at the end of May 31, 2009. Consultation under section 17 of the LIA was not undertaken, as the exemption is specific to the Commission and relates to law enforcement operations.