Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption, permission and approval — dropping of articles
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.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including the Civil Aviation Regulations 1988 (CAR 1998), 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.
Civil Aviation Order 29.5 (the Order) is made under subregulation 150 (2) of CAR 1988 and sets out CASA’s directions for dropping articles from aircraft in flight.
Subsection 3 of the Order provides that CASA may approve dropping operations to be carried out within a control zone, within an aircraft lane of entry, or within 5 miles of a Government or licensed aerodrome.
Paragraph 4.5 of the Order states that articles, other than leaflets or substances not in the form of liquids, powder or fine grains, shall not be dropped on a site unless it is clear of persons and stock. CASA may exempt persons from compliance with this direction.
Paragraph 7.2 of the Order states that except with the permission of CASA, dropping operations shall be conducted by day only, in accordance with visual flight rules, and in continuous sight of ground or water.
Aerorescue Pty Limited (Aerorescue) is involved in search and rescue operations and utilises a stores dropping method which involves stores being dropped away from survivors, i.e. they are not in the drop site. However, a trail line, which is attached to the stores, is dropped across the stricken vessel or survivors so that stores may be retrieved. In view of this, Aerorescue is unable to meet the requirements of paragraph 4.5 of the Order and requires an exemption from the requirements.
The operations undertaken by Aerorescue may be carried out at night so the instrument also permits that operations may be conducted at night. The exemption and permission are subject to conditions.
Legislative Instruments Act
Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA 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 Civil Aviation Order (the CAO), and CASA later issues an exemption that affects the operation of the CAO, the later document is declared to be a disallowable instrument. The instrument affects the operation of paragraph 4.5 of CAO 29.5.
The instrument is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Compatibility with human rights and freedoms
A statement of compatibility with human rights is at Attachment 1.
Consultation
Aerorescue has requested the instrument to help in search and rescue operations. Further consultation under section 17 of the LIA has not been undertaken in this case. The exemption replaces a previous instrument, CASA EX25/11, which is revoked by this instrument.
Commencement and making
The instrument commences on the day of registration and expires at the end of January 2016 as if it had been repealed by another instrument.
The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
[Instrument number CASA EX24/13]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption, permission and approval — dropping of articles
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 permits aircraft operated by Aerorescue Pty Limited (Aerorescue) to conduct dropping operations contrary to the general directions issued by CASA relating to the dropping of articles.
The primary purpose of the legislative instrument is to allow Aerorescue to continue emergency relief and search and rescue operations that involve the dropping of articles and that would otherwise be prohibited by the Civil Aviation Regulations 1988.
The exemption and permission are subject to conditions imposed by CASA in the interest of safety of air navigation.
Human rights implications
The legislative instrument promotes the right to life and the right to health by allowing Aerorescue to drop articles that may be required for emergency relief and search and rescue purposes.
This legislative instrument does not otherwise engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it promotes human rights.
Civil Aviation Safety Authority