Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — minimum height and lateral separation for operations (Aerotech NT)
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation. Subsection 98 (5A) of the Act provides that the Regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation of aircraft.
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 137.140 (4) of CASR 1998 provides that an aeroplane may fly closer to a building (under 100 metres) if, more than 48 hours before the proposed operation, the occupier of the building was notified in writing about the operation and did not object to the operator. Alternatively, if it was not reasonably practicable to give written notice, the occupier is to be notified verbally before the operation.
Subregulation 11.160 (1) of 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.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Instrument
Aerotech NT Pty Ltd (the operator) provides specialised aerial fire fighting and marine oil spill control operations to Federal and State Government emergency services agencies. CASA EX208/15 is an exemption that allows the pilot in command of an aeroplane operated by the operator engaged in an application operation (the dropping of fire retardants, foam or water) or reconnaissance flights, 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. It is not practical for the operator to provide building occupiers with written and verbal notice during firefighting operations.
It is a condition of the exemption that the operator’s operations must be conducted under an arrangement with a recognised State or Territory emergency services authority.
CASA EX208/15 repeals and replaces CASA EX172/12, which was an exemption issued for the same purpose that expired at the end of November 2015.
Legislative Instruments Act 2003 (the LIA)
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. CASA EX208/15 applies to a class of persons, being pilots in command of the operator’s aeroplanes, and is, therefore, a legislative instrument. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The instrument has been requested by the operator to replace CASA EX172/12, which expired at the end of November 2015. It is relevant to the operator’s emergency response operations and it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The exemption has been made by a delegate of CASA under regulation 11.260 of CASR 1998.
The instrument commences on the day of registration and expires at the end of November 2018, as if it had been repealed by another instrument.
[Instrument number CASA EX208/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — minimum height and lateral separation for operations (Aerotech NT)
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 legislative instrument exempts pilots in command of Aerotech NT Pty Ltd’s (the operator’s) aeroplanes that are conducting firefighting operations (aerial application of fire retardants or reconnaissance) from complying with height and lateral separation requirements, as well as notification requirements, specified in regulation 137.140 of the Civil Aviation Safety Regulations 1998. For emergency situations, flying below the height and lateral minima is required to properly conduct the firefighting operation and it is not practicable for the operator to notify building occupants.
The exemption is subject to the condition that the operator’s operations must be conducted under an arrangement with a recognised State or Territory emergency services authority.
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