Explanatory Statement
Civil Aviation Regulations 1988
Exemption — maximum take-off weight requirements in aerial application operations
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.
Under subregulation 137.190 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), the pilot in command of an aeroplane engaged in an application operation must not commence a take‑off if the aeroplane’s gross weight exceeds:
(a) the maximum gross weight shown in the aeroplane’s flight manual; or
(b) any maximum gross weight that:
(i) has been established for that type of aeroplane by a flight test supervised by CASA; and
(ii) is shown on a placard, approved by CASA and displayed in the aeroplane’s cockpit; or
(c) the maximum gross weight shown on the type certificate, or type certificate data sheet, that is issued for the aeroplane by the national aviation authority of the State of Design (within the meaning given in Annex 8 to the Chicago Convention) of the aeroplane.
Under subregulation 137.190 (2) of CASR 1998, the pilot must calculate the take‑off weight by a method that includes calculating the weight of:
(a) the crew and any equipment carried; and
(b) the aeroplane’s fuel and load.
Under subregulation 138 (1) of the Civil Aviation Regulations 1988 (CAR 1988), if a flight manual has been issued for an Australian aircraft, the pilot in command of the aircraft must comply with a requirement, instruction, procedure or limitation concerning the operation of the aircraft that is set out in the manual.
Under subregulation 138 (2) of CAR 1988, if a flight manual has not been issued for an Australian aircraft and, under the relevant airworthiness standards for the aircraft, the information and instructions that would otherwise be contained in an aircraft’s flight manual are to be displayed either wholly on a placard, or partly on a placard and partly in another document, the pilot in command of the aircraft must comply with a requirement, instruction, procedure or limitation concerning the operation of the aircraft that is set out:
(a) on the placard; or
(b) on the placard or in the other document.
Under the definitions in regulation 137.010 of CASR 1998, an aerial application operation (or application operation) means, among other things, a flight to apply application material. Application material means, among other things, material such as fertilizer, baits and pesticides. Apply means to drop or spray the material onto the ground or water.
Under subregulation 235 (1) of CAR 1988, CASA may, for the purposes of CAR 1988 and CASR 1998, give directions setting out the method of estimating, with respect to an aircraft at any time:
(a) the weight of the aircraft, together with the weight of all persons and goods (including fuel) on board the aircraft, at that time; and
(b) the centre of gravity of the aircraft at that time.
Under subregulation 235 (2) of CAR 1988, CASA may, for the purpose of ensuring the safety of air navigation, give directions setting out the manner of determining, with respect to a proposed flight of an aircraft:
(a) a maximum weight, being a weight less than the maximum take‑off weight of the aircraft; or
(b) a maximum weight, being a weight less than the maximum landing weight of the aircraft;
that the gross weight of the aircraft at take‑off or landing, as the case may be, is not to exceed.
Under subregulation 235 (2A) of CAR 1988, a person must not contravene a direction under subregulation (1) or (2).
Under subregulation 235 (4) of CAR 1988, the pilot in command of an aircraft must not allow the aircraft to take off if its gross weight exceeds its maximum take‑off weight or, if a lesser weight determined in accordance with a direction under subregulation (2) is applicable to the take‑off, that lesser weight.
Subregulation 11.160 (1) of CASR 1998 provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the Regulations, including CAR 1988, or a provision of the Civil Aviation Orders (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 of CASR 1998, 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
CASA EX217/15 is an instrument that repeals and replaces CASA EX01/12.
The legislative instrument exempts the pilot in command of a specified aeroplane from compliance with the requirements of regulation 138 of CAR 1988 to the extent that the regulation requires compliance with the maximum take-off weight contained in a flight manual, a placard or another document. The exemption is subject to conditions imposed by CASA in the interests of the safety of air navigation.
Pilots in command of certain aeroplanes engaged in aerial application operations are also exempt from the weight limitations expressed in subregulations 137.190 (1) and (2) of CASR 1998, but subject to conditions.
Further, the legislative instrument exempts a pilot in command of a specified aircraft from the requirements of subregulations 235 (2A) and (4) of CAR 1988, but subject to conditions.
Despite the exemption, the operator and pilot in command of the aeroplane must comply with any operational or airworthiness limitations, requirements or conditions expressed in any of the flight manual, type certificate or type certificate data sheet which are relevant at the weight at which the aeroplane is operating.
If any of the flight manual, type certificate or type certificate data sheet states that a maximum gross weight is for a particular type of operation or if the aeroplane is in a particular certification category, the aeroplane can only be flown at that weight if the aeroplane is conducting that type of operation or is in that particular certification category.
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 the CAOs. 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 a class of aircraft. The exemption applies to a class of persons and a class of aircraft and is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Consultation
The instrument repeals and replaces a previous instrument, CASA EX01/12, issued for the same purpose. The instrument is beneficial to aircraft operators and pilots. In these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
Making and commencement
The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on the day of registration, and expires at the end of November 2017, as if it had been repealed by another instrument.
[Instrument number CASA EX217/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — maximum take-off weight requirements in aerial application operations
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 the pilot in command of a specified aeroplane from compliance with the requirements of regulation 138 of the Civil Aviation Regulations 1988 (CAR 1988) to the extent that the regulation requires compliance with the maximum take-off weight contained in a flight manual, a placard or another document. Pilots in command of specified aeroplanes engaged in aerial application operations are also exempt from the weight limitations expressed in subregulations 137.190 (1) and (2) of the Civil Aviation Safety Regulations 1998. Further, the legislative instrument exempts a pilot in command of a specified aircraft from the requirements of subregulations 235 (2A) and (4) of CAR 1988. The exemption is subject to conditions imposed by CASA in the interests of the safety of air navigation.
The instrument renews the exemption previously in instrument CASA EX01/12.
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