Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX20/19 — Operations by Sport and Recreational Aircraft in Restricted Area R979A (Australian International Airshow 2019 at Avalon Aerodrome) Exemption 2019
Purpose
The purpose of CASA EX20/19 — Operations by Sport and Recreational Aircraft in Restricted Area R979A (Australian International Airshow 2019 at Avalon Aerodrome) Exemption 2019 (the instrument) is to enable the operation of certain sport and recreational aircraft in a proposed temporary restricted area with the designation “R979A” (R979A), in the vicinity of Avalon aerodrome. The Office of Airspace Regulation, an operational unit of the Civil Aviation Safety Authority (CASA), will declare R979A in a Notice to Airmen (NOTAM), for the period (the airshow period) of the Australian International Airshow 2019 (the airshow) at Avalon aerodrome, namely from 19 February 2019 to 5 March 2019. The declaration will be made under regulation 6 of the Airspace Regulations 2007, and will have the effect of restricting the flight of aircraft over the area, during the airshow period, to aircraft flown in accordance with specified conditions.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR) and Civil Aviation Regulations 1988 (CAR).
Under subsection 20AB (1) of the Act, a person must not perform any duty that is essential to the operation of an Australian aircraft during flight time unless:
(a) the person holds a civil aviation authorisation that is in force and authorises the person to perform that duty; or
(b) the person is authorised by or under the regulations to perform that duty without the civil aviation authorisation concerned.
Under regulation 200.025 of CASR, for paragraph 20AB (1) (a) of the Act, a person is taken to hold a civil aviation authorisation that is in force and authorises the person to perform a duty that is essential to the operation of an unregistered Australian aircraft during flight time if:
(a) the person holds a pilot certificate granted by a sport aviation body that administers aviation activities in the aircraft; and
(b) the person operates the aircraft in accordance with the sport aviation body’s operations manual.
Under regulation 200.030 of CASR, a person commits an offence if:
(a) the person pilots an unregistered Australian aircraft; and
(b) a sport aviation body administers aviation activities in the aircraft; and
(c) the person does not:
(i) hold a pilot certificate granted by the sport aviation body; and
(ii) operate the aircraft in accordance with the sport aviation body’s operations manual.
Recreational Aviation Australia Limited, Hang Gliding Federation of Australia Inc and Australian Sport Rotorcraft Association Inc (the relevant sport aviation bodies) are each a sport aviation body for the purposes of the regulations mentioned above.
Subregulation 11.160 (1) of CASR states that, for subsection 98 (5A) of the Act, CASA may grant an exemption from compliance with a provision of CASR or CAR, or a provision of a Civil Aviation Order, in relation to a matter mentioned in that subsection.
Under subregulation 11.160 (2), an exemption may be granted to a person or a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.160 (3), an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption, on application by a person, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant an exemption on its own initiative.
Regulation 11.205 of CASR states CASA may impose, on an exemption, any condition necessary in the interests of the safety of air navigation. Under regulation 11.210 of CASR, it is a strict liability offence for a person not to comply with an obligation imposed on the person by a condition of an exemption.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1) of CASR, the maximum duration of an exemption is 3 years.
As far as is relevant, subparagraph 14 (1) (a) (ii) of the Legislation Act 2003 (the LA) states a legislative instrument may apply, adopt or incorporate, as in force at a particular time or as in force from time to time, the provisions of a disallowable legislative instrument.
Subsection 14 (2) of the LA states, unless a contrary intention appears in the enabling legislation, a legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. A contrary intention appears in subsection 98 (5D) of the Act, which states a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.
Documents incorporated by reference
The instrument incorporates by reference the following documents:
- Civil Aviation Order 95.10 Instrument (Repeal and Remake) 2017, as in force from time to time
- Civil Aviation Order 95.12 Instrument 2011, as in force from time to time
- Civil Aviation Order 95.12.1 Instrument 2011, as in force from time to time
- Civil Aviation Order 95.32, as in force from time to time
- Civil Aviation Order 95.55, as in force from time to time
- a NOTAM, as it exists from time to time
- CASA OAR 051/18 — Determination of Airspace and Controlled Aerodromes Etc. (Designated Airspace Handbook) Instrument 2018, as in force from time to time
- AIP Supplement H01/19, as it exists from time to time
- AIP Supplement H03/19, as it exists from time to time.
The Civil Aviation Order instruments (the Civil Aviation Orders) mentioned above are incorporated by reference as in force from time to time, in accordance with section 10 of the Acts Interpretation Act 1901 and section 13 of the LA.
The following table contains descriptions of the documents incorporated by reference and how the documents may be obtained.
Document | Description | Source |
The Civil Aviation Orders | These documents are disallowable legislative instruments made under CAR and CASR. | Freely available on the Federal Register of Legislation |
CASA OAR 051/18 — Determination of Airspace and Controlled Aerodromes Etc. (Designated Airspace Handbook) Instrument 2018 | This document is a disallowable legislative instrument, which prescribes the various volumes of airspace that are necessary for the safe conduct of aviation operations in Australia. | Freely available on the Federal Register of Legislation |
NOTAM declaring the restricted area with the designation “R979A”, in the vicinity of Avalon aerodrome | This document is a Notice to Airmen published under paragraph 4.12 (1) (b) of the Air Services Regulations 1995. | Freely available from Airservices Australia (AA) at: http://www.airservicesaustralia.com/flight-briefing/ |
AIP Supplement H01/19 | This document contains the procedures for aircraft operating under V.F.R. at aircraft landing area Avalon East (YAVE) during the airshow period. | Freely available within the Aeronautical Information Publication (AIP) produced by AA, which is accessible at: https://www.airservicesaustralia.com/aip/aip.asp |
AIP Supplement H03/19 | This document contains the procedures for aircraft operating under V.F.R. at aircraft landing area Avalon aerodrome (YMAV) during the airshow period. | Freely available within the AIP produced by AA, which is accessible at: https://www.airservicesaustralia.com/aip/aip.asp |
Content of instrument
Section 1 gives the instrument its name.
Section 2 states that the instrument commences on 19 February 2019 and is repealed at the end of 5 March 2019.
Section 3 contains various definitions of terms used in the instrument.
The definitions R979A and relevant airspace each contain the phrase “in the vicinity of Avalon aerodrome”. There is no intention for the definition in the vicinity of in subregulation 166 (2) of CAR to apply in this context.
Section 4 states the instrument applies in relation to a CAO 95.10 aircraft, CAO 95.12 aircraft, CAO 95.12.1 aircraft, CAO 95.32 aircraft or CAO 95.55 aircraft. Each of these terms is defined in subsection 3 (1) of the instrument to mean the aircraft to which the relevant Civil Aviation Order applies.
Section 5 grants exemptions to stated persons in relation to a CAO 95.10 aircraft. The exemptions are subject to the conditions stated in subsection 5 (6) and Schedule 1.
Section 6 grants exemptions to stated persons in relation to a CAO 95.12 aircraft. The exemptions are subject to the conditions stated in subsection 6 (6) and Schedule 1.
Section 7 grants exemptions to stated persons in relation to a CAO 95.12.1 aircraft. The exemptions are subject to the conditions stated in subsection 7 (6) and Schedule 1.
Section 8 grants exemptions to the operator, or pilot in command, of a CAO 95.32 aircraft or CAO 95.55 aircraft. The exemptions are subject to the conditions stated in Schedule 1.
The exemptions apply to the extent the aircraft is operated in Class C or D airspace in the vicinity of Avalon aerodrome, or R979A, as stated.
Civil Aviation Order 95.10 Instrument (Repeal and Remake) 2017, Civil Aviation Order 95.12 Instrument 2011 and Civil Aviation Order 95.12.1 Instrument 2011 do not allow a relevant aircraft to be operated in a restricted area. Accordingly, sections 5 to 7 each contain an exemption from compliance with certain provisions of CAR and the Civil Aviation Orders, in relation to the operation of the aircraft in R979A. Also, sections 5 to 7 each contain an exemption from compliance with paragraph 200.025 (b) and subparagraph 200.030 (c) (ii) of CASR in relation to a pilot’s operation of the aircraft in R979A, to the extent the relevant sport aviation body’s operations manual does not allow the pilot to operate the aircraft in R979A.
Sections 5 to 7 each contain an exemption from compliance with the pilot licensing requirements contained in Part 61 of CASR, in relation to the operation of a CAO 95.10 aircraft, CAO 95.12 aircraft, or CAO 95.12.1 aircraft, in R979A. Regulations 200.013 and 200.014 of CASR each provide for the equivalent exemption for a CAO 95.32 aircraft or CAO 95.55 aircraft.
Without the exemptions, the aircraft could not be lawfully operated in R979A.
Schedule 1 contains conditions imposed on the exemptions. One of the conditions relates to the type of radio that must be fitted to the aircraft. The other conditions impose obligations on the pilot in command of the aircraft.
In granting the exemptions, CASA has regarded as paramount the preservation of at least an acceptable level of aviation safety. In imposing the conditions on the exemptions, CASA has determined the conditions were necessary in the interests of the safety of air navigation.
Legislation Act 2003
Paragraph 98 (5A) (a) of the Act states that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Paragraphs 98 (5AA) (a) and (b) of the Act state that an instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply in relation to a class of persons or a class of aircraft.
Sections 5 to 8 of the instrument apply to stated persons (each a class of persons) in relation to the operation of a CAO 95.10 aircraft, CAO 95.12 aircraft, CAO 95.12.1 aircraft, CAO 95.32 aircraft or CAO 95.55 aircraft (each a class of aircraft).
The instrument is, therefore, a legislative instrument, and subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
CASA consulted on the instrument, before it was made, with the relevant sport aviation bodies. These bodies indicated that they believe the instrument will allow the aircraft to be operated in R979A during the airshow period.
Also, CASA consulted on the instrument, before it was made, with Aerospace Australia Limited, the organiser of the airshow. The organiser indicated its agreement with the instrument.
CASA is satisfied that no further consultation is appropriate, or reasonably practicable, for the instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the exemptions are covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on 19 February 2019, and is repealed at the end of 5 March 2019.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX20/19 — Operations by Sport and Recreational Aircraft in Restricted Area R979A (Australian International Airshow 2019 at Avalon Aerodrome) Exemption 2019
The 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 purpose of the legislative instrument is to enable the operation of certain sport and recreational aircraft in a proposed temporary restricted area with the designation “R979A”, in the vicinity of Avalon aerodrome, during the period of the Australian International Airshow 2019 at the aerodrome, namely from 19 February 2019 to 5 March 2019.
Human rights implications
The legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
The legislative instrument is compatible with human rights, as it does not raise any human rights issues.
Civil Aviation Safety Authority