Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — low-level operations at air displays
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.
On 1 September 2014, new arrangements dealing with flight crew licensing commenced under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR 1998). These arrangements replaced the previous regulatory framework under Part 5 of the Civil Aviation Regulations 1988 (CAR 1988).
Subpart 61.E of CASR 1998 deals with pilot licensing limitations and authorisations. Regulation 61.375 applies to the holder of a pilot licence and authorises the holder to exercise the privileges of the licence or to conduct an activity if the holder has the required rating. In particular, subregulation 61.375 (7) of CASR 1998 authorises the holder of a pilot licence to conduct an activity mentioned in Table 61.375 only if the licence holder also has a rating mentioned for that activity. Item 5 of Table 61.375 specifies that for low-level operations, the required rating is either a low-level rating or an aerial application rating.
Regulation 61.010 of CASR 1998 defines a low-level operation as an operation below 500 feet above ground level other than climbing from take-off, descending for the purpose of landing, or an aerial application operation.
Regulation 61.065 of CASR 1998 states that the holder of a flight crew licence commits an offence if, among other things, the holder conducts an activity mentioned in Part 61 (including low-level operations) while piloting a registered aircraft and the holder is not authorised under Part 61 to conduct the activity.
Subregulation 157 (1) of CAR 1988 states that the pilot in command of an aircraft must not fly the aircraft over any city, town or populous area at a height lower than 1 000 feet, or any other area at a height lower than 500 feet. Subregulation 157 (4) provides that subregulation 157 (1) does not apply if, among other things, the aircraft is engaged in private operations or aerial work operations requiring low flying, and the owner or operator of the aircraft has received a general or specific permit from CASA to make the low-level flights during those operations.
Civil Aviation Order 29.4 (CAO 29.4) provides that an air display shall not be conducted without the written approval of CASA. An air display is defined as organised flying, including cross-country events, contests, exhibitions of flying or local flights made for the purpose of carrying passengers for hire or reward performed before a public gathering.
Subregulation 11.160 (1) of CASR 1998 provides that, for subsection 98 (5A), CASA may grant an exemption from a provision of these Regulations, including a provision of the Civil Aviation Orders (the CAOs), in relation to a matter mentioned in that subsection.
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.
Instrument
Part 5 of CAR 1988, prior to its repeal, allowed CASA to issue approvals under CAO 29.4 to conduct air displays and permissions under paragraph 157 (4) (b) of CAR 1988 to the owners and operators of an aircraft to undertake low-level flying at air displays. These permissions, applicable to the owners and the operators of an aircraft, would indirectly allow pilots of the aircraft to perform low-level flights at air displays.
The new licensing framework under Part 61 of CASR 1998 prevents a pilot from undertaking low-level flights without holding a low-level rating. After receiving industry feedback and conducting an internal review and consultation process, CASA has determined that this was not an intended consequence of the new Part 61 framework with respect to air displays. CASA has commenced work to amend the definition of “low-level operation” in regulation 61.010 of CASR 1998 to exclude air displays that are approved by CASA.
In the interim, this exemption applies to each pilot of an aircraft who is operating at an air display approved by CASA and who does not hold a low-level rating or aerial application rating — allowing those pilots to conduct low-level flying without committing an offence under subregulation 157 (1) of CAR 1988 or subregulation 61.065 (1) of CASR 1998, and without complying with the rating requirements under subregulation 61.375 (7) of CASR 1998.
It is a condition of the exemption that the pilot must not fly below 200 feet, must not fly with a bank angle of more than 30 degrees between 200 feet and 500 feet, and must comply with any conditions relevant to the pilot as contained in the air display approval issued by CASA.
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 aircraft. The exemption applies to each pilot of an aircraft operating at an air display approved by CASA. The exemption is, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
This exemption has been made following an internal post-implementation review conducted by CASA on Part 61 of CASR 1998 following industry feedback on Subpart 61.Q dealing with low-level ratings. The instrument effectively continues CASA policy under the previous regulatory framework under Part 5 of CAR 1988 and rectifies an unintended consequence of the new regulatory requirements. The instrument is beneficial to industry. 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 the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument commences on the day of registration and expires at the end of January 2018, as if it had been repealed by another instrument.
[Instrument number CASA EX26/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — low-level operations at air displays
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 each pilot who is operating at an air display approved by CASA and who does not hold a low-level rating or an aerial application rating, from the requirement to hold a low-level rating as well as offence provisions for operating under 500 feet above ground level and for conducting activities without authorisation under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR 1998).
The exemption continues CASA policy on the treatment of low‑level flying for air displays and rectifies an unintended consequence of the new regulatory framework under Part 61 of CASR 1998. CASA separately deals with the organisers of air shows about the aviation safety risks of low-level flying at air displays.
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