Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — navigation and anti-collision lights
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.
Aircraft lights
Paragraph 3 of Appendix V to Civil Aviation Order (CAO) 20.18 requires that aircraft must have 2 landing lights, except when engaged in private and aerial operations and charter operations not carrying passengers for hire and reward when it must have 1 landing light.
Subregulation 195 (1) of the Civil Aviation Regulations 1988 (CAR 1988) requires that the pilot in command and the operator of an aircraft must comply with the rules in Part 13 of CAR 1988 requiring lights to be displayed in relation to the aircraft at night and in conditions of poor visibility.
Subregulation 196 (1A) of CAR 1988 provides that the operator and pilot in command of an aeroplane in flight, or operating on the manoeuvring area of a land aerodrome, must ensure that the lights required by regulation 196 to be displayed on the aeroplane are displayed.
Under subregulation 196 (3) of CAR 1988, unless CASA otherwise directs, an aeroplane in flight or operating on the manoeuvring area of a land aerodrome shall display, in addition to navigation lights, an anti-collision light consisting of a flashing red light.
Exemption
Subsection 98 (5A) of the Act provides that the regulations may empower CASA to issue instruments in relation to the following:
(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft; or
(b) the airworthiness of, or design standards for, aircraft.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A), CASA may grant an exemption from a provision of the Regulations, including CAR 1988 or a provision of the CAOs, 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, an exemption must be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
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
The exemption will permit Airvan Flight Services Pty Ltd (the operator) to continue to carry out covert surveillance without displaying some of the lights required by CAR 1988 and CAO 20.18. To mitigate against the aviation safety risks associated with such operations, conditions have been imposed. Those conditions include requirements relating to air traffic control and circumstances in which external lights must be displayed.
CASA EX211/15 repeals and replaces CASA EX141/11, which was an exemption issued for the same purpose that is expressed to stop having effect at the end of December 2015.
Legislative Instruments Act 2003 (the LIA)
Under subparagraph 6 (d) (i) of the LIA, an instrument is a legislative instrument if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA.
Under regulation 5A of CAR 1988, if CASA has issued a CAO, and CASA later issues an exemption that affects the operation of that CAO, the later document is declared to be a disallowable instrument. CASA EX211/15 exempts the operator and pilot in command from specified requirements of CAO 20.18 and, therefore, is declared to be a disallowable 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 operator has applied for renewal of the exemption in CASA EX141/11. There have been no known issues with the operations conducted by the operator under CASA EX141/11. The instrument merely renews that exemption for a further period. In these circumstances, CASA considers that no further consultation under section 17 of the LIA is necessary or appropriate for this instrument.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required for OBPR in this case because the exemption is 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
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 subregulation 11.260 (1) of CASR 1998.
The instrument commences on the day of registration and expires, as if it had been repealed by another instrument, at the end of November 2018.
[Instrument number CASA EX211/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — navigation and anti-collision lights
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
This legislative instrument exempts Airvan Flight Services Pty Ltd (the operator) from certain requirements to display navigation and anti-collision lights on aircraft when conducting surveillance or police operations on behalf of the Australian Federal Police or a State or Territory Police Force.
The purpose of the instrument is to allow the operator carry out covert surveillance without displaying some of the lights required by CAR 1988 and Civil Aviation Order 20.18. To mitigate against the aviation safety risks associated with such operations, conditions have been imposed. Those conditions include requirements relating to air traffic control and circumstances in which external lights must be displayed.
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