Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX22/22 – Amendment of CASA EX39/19 (Aerobatics) – Instrument 2022
Purpose
Exemption instrument CASA EX39/19 was made to, in effect, allow pilots in command of aircraft conducting certain aerobatic activities at a non-controlled aerodrome, to fly without maintaining a listening watch or making broadcasts on the VHF (the very high frequency) for the aerodrome. Specified safety conditions applied. CASA EX39/19 also contained safety directions to the Australian Aerobatic Club and its specified affiliated chapters (the Club) in relation to aerobatic activities. The instrument requires amendment to take account of changes made by the commencement of Part 91 of CASR on 2 December 2021. CASA EX22/22 (the exemption amendment) makes those changes.
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 had previously made the Civil Aviation Regulations 1988 (CAR)).
Subsection 98 (5A) of the Act provides that the regulations may empower the Civil Aviation Safety Authority (CASA) to issue instruments in relation to the following:
(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft;
(b) the airworthiness of, or design standards for, aircraft.
Subsection 98 (5D) of the Act provides that 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.
Making broadcasts and maintaining listening watch
Regulation 166C of CAR provided that if an aircraft was operating on the manoeuvring area of, or in the vicinity of, a non-controlled aerodrome and the aircraft was carrying a serviceable aircraft very high frequency (VHF) radio and the pilot in command of the aircraft held a radiotelephone qualification, the pilot was responsible for making a broadcast on the VHF in use for the aerodrome.
Subregulation 243 (1) of CAR provided that if an aircraft was equipped with radio apparatus for use during flight, the pilot in command must maintain a listening watch, or must ensure that a listening watch was maintained.
Exemptions
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations.
Under subregulation 11.160 (2) of CASR, 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) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.175 (4) of CASR, in deciding whether to renew an exemption on application, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
Regulation 11.205 provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition.
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.
Directions
Subpart 11.G of CASR provides for CASA to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a) of CASR, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245 (2) of CASR provides that CASA may issue such a direction if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, if the direction is not inconsistent with the Act, and for the purposes of CASA’s functions.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255, it is an offence of strict liability to contravene a direction under regulation 11.245.
Background
CASA EX39/19 contained exemptions from regulation 166C of CAR and subregulation 243 (1) of CAR. However, on and from 2 December 2021, the provisions were repealed by the Civil Aviation Safety Amendment (Part 91) Regulations 2018. Mention of the provisions is, therefore, removed from the instrument.
The Civil Aviation Safety Amendment (Part 91) Regulations 2018 also now contain regulations 91.630 and 91.640 to CASR, which deal with the same subjects as regulation 166C and subregulation 243 (1) of CAR, respectively.
Under new regulation 91.630, it would be an offence if, during a flight of an aircraft that is fitted with or carries a radio, the pilot in command does not make a broadcast or a report relating to the flight that is prescribed by the Part 91 Manual of Standards.
Regulation 91.640 would require the pilot in command of certain aircraft, or another pilot occupying a pilot seat of the aircraft, to continuously monitor radio transmissions when outside controlled airspace.
CASA EX39/19 was originally drafted to also exempt from these new provisions from when they took effect. The exemption amendment preserves these exemptions.
However, Civil Aviation Safety Amendment (Part 91) Regulations 2018 also contained regulation 91.375 — Operating on manoeuvring area, or in the vicinity, of non-controlled aerodrome—general requirements. Under subregulation 91.375 (1), the pilot in command of an aircraft for a flight contravenes the subregulation if the aircraft is operated on the manoeuvring area of, or in the vicinity of, a non-controlled aerodrome, and a requirement mentioned in subregulation(2) is not met.
Under subregulation 91.375 (2), the requirements include that (a) the pilot must keep a lookout for other aircraft that are being operated on the manoeuvring area, or in the vicinity, of the aerodrome to avoid a collision, and (c) if the pilot is flying the aircraft in the vicinity of the aerodrome—the pilot must join, or avoid, the circuit pattern for the aerodrome. Under subregulation 91.375 (3), a person commits an offence of strict liability if the person contravenes subregulation (1).
For the purpose of aerobatic manoeuvring, it is necessary to also exempt the Club and its participants from these provisions which are incompatible with the kind of manoeuvring required in aerobatic flying.
However, the provision in paragraph 91.375 (2) (b), which is about not causing a danger to other aircraft, and paragraph (d), which is about take-off and landing manoeuvres, must still be complied with.
In the safety directions contained in Schedule 2 of CASA EX39/19, reference is made to “RPT aircraft” and “RPT operations”. Effective on 2 December 2021, these terms become “scheduled air transport operations” and the exemptions amendment makes this adjustment.
Apart from the new exemptions from provisions in regulation 91.375, the exemption amendment is essentially a technical revision of CASA EX39/19 and gives rise to no additional aviation safety concerns that were not addressed in the making of that instrument.
CASA is also satisfied that the new exemptions from provisions in regulation 91.375 do not give rise to additional safety concerns. CASA considers that, for many years, aerobatic manoeuvres have been very well managed by the Club and have been scrutinised by CASA and found to be satisfactory. Consequently, there is no change to the risk profile on which CASA EX39/19 and the exemption amendment are based.
The exemption amendment commences on 11 April 2022. It also amends the repeal date of CASA EX39/19 from the end of 30 April 2022 to the end of 23 May 2022. This amendment is necessary to allow CASA EX39/19 to remain in force for an additional short period without contravening the 3-year limitation on exemptions mentioned in subregulation 11.230 (1).
Details of the exemption amendment are set out in Attachment 1.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons.
The instrument applies to a class of persons, being the pilots in command of the aircraft participating in the aerobatic activities organised by the Club. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Sunsetting
As the instrument relates to aviation safety and is made under CASR, that means that Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument (as per item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015). The instrument deals with aviation safety matters that, once identified, require a risk response or treatment plan. Generally speaking, item 15, when invoked, is necessary in order to ensure that, in the interests of aviation safety, a relevant instrument has enduring effect, certainty and clarity for aviation operators both domestic and international.
In this case, the instrument amends CASA EX39/19 and is almost immediately spent and repealed in accordance with the automatic repeal provisions in Subdivision A in Division 1 of Part 3 of Chapter 3 of the LA. The principal exemptions instrument is itself repealed at the end of 23 May 2022 by virtue of the terms of paragraph 2 (b) of CASA EX39/19, as amended by the exemption amendment. Thus, in practice, no sunsetting avoidance issues arise and there is no impact on parliamentary oversight.
Consultation
The Club (and its aerobatic participants) originally sought CASA EX39/19 and were, essentially, the sole beneficiaries of it. The technical revisions are necessary to ensure that CASA EX39/19 continues to apply as originally intended. 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 LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for subordinate instruments of this kind (OBPR id: 14507).
Sector risk, economic and cost impact
Subsection 9A (1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A (3) of the Act states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9 (1) (c), CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
The sector risk impact of the exemption instrument is neutral as it would apply the same conditions that have applied under previous exemptions and permissions issued to the Club.
The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses, and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution, and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.
In terms of economic and cost impacts for section 9A (3) of the Act, the exemption instrument would facilitate the conduct of aerobatic manoeuvres. Without the amendments in the instrument, the Club and its participating pilots would not be able to conduct aerobatic flying.
The proposal has a positive impact on the local communities where the aerobatic events are taking place. The participants and others involved would otherwise not be visiting the area and that would cause a loss of business and commercial activity in those communities.
Rural and regional impacts
The Minister’s Statement of Expectations states: “I expect that CASA will: … (b) fully consider the impact of new regulations on general aviation, with a particular focus on regional and remote Australia. All Explanatory Statements drafted by CASA for subordinate legislation should identify the impact on the various categories of operations as well as on communities in regional and remote Australia served by those operations and how these impacts have been considered.”
There are no identified rural and regional impacts that differ in any material way from the general economic and cost impacts described above. However, many non-controlled aerodromes are located in rural and regional areas and, when sch an area is chosen by the Club, the community may benefit as mentioned above.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 2.
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 is subject to registration, commences on 11 April 2022, and is repealed at the end of 23 May 2022.
Attachment 1
CASA EX22/22 – Amendment of CASA EX39/19 (Aerobatics) – Instrument 2022
1 Name
This section names the instrument.
2 Commencement
This section commences the instrument on 11 April 2022.
3 Amendment of CASA EX39/19
This section enables Schedule 1 to amend CASA EX39/19.
Schedule 1 Amendments
[1] Paragraph 2 (b)
This amendment provides for CASA EX39/19 to be repealed at the end of 23 May 2022.
[2] Section 3, Definitions, “in the vicinity of”, “RPT aircraft”, “RPT operation”
This amendment repeals redundant definitions.
[3] Paragraphs 5 (1) (a) and (b), including the Note
This amendment removes redundant references to CAR provisions that have been repealed, and adds new exemptions from provisions in regulations 91.375 of CASR.
[4] Schedule 1, paragraphs 2 (a) and (b), including the Notes
This amendment is consequential on amendment 3.
[5] to [9] Schedule 2
These amendments remove redundant references to CAR terminology and insert updated Part 91 of CASR terminology.
Attachment 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX22/22 – Amendment of CASA EX39/19 (Aerobatics) – Instrument 2022
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
Exemption instrument CASA EX39/19 was made to, in effect, allow pilots in command of aircraft conducting certain aerobatic activities at a non-controlled aerodrome, to fly without maintaining a listening watch or making broadcasts on the VHF (the very high frequency) for the aerodrome. Specified safety conditions applied. CASA EX39/19 also contained safety directions to the Australian Aerobatic Club and its specified affiliated chapters (the Club) in relation to aerobatic activities. The instrument requires amendment to take account of changes made by the commencement of Part 91 of CASR on 2 December 2021. CASA EX22/22 (the exemption amendment) makes those changes.
Human rights implications
CASA EX39/19 engaged with the right to protection against arbitrary and unlawful interferences with privacy in Article 17 of the International Covenant on Civil and Political Rights and this was addressed in the Explanatory Statement for the instrument.
The exemption amendment as such does not give rise to any new engagement with human rights.
The exemption in the legislative instrument is beneficial in purpose and content and does not adversely affect the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Conclusion
The legislative instrument is compatible with human rights.
Civil Aviation Safety Authority