Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Exemption — operations by sport and recreational aircraft in restricted area R979A (Avalon 2017 Airshow)
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.
Under subsections 98 (5A) and (5AA) of the Act, the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation of aircraft which, if applicable to a class of persons, would be legislative instruments.
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.
Under subregulation 5 (1A) of the Civil Aviation Regulations 1988 (CAR), wherever CASA is empowered or required under the regulations to issue any permission, approval or authority, CASA may, unless the contrary intention appears, issue the permission, approval or authority in Civil Aviation Orders (the CAOs).
Exemptions issued under the Civil Aviation Safety Regulations 1998 (CASR)
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations or the CAOs. 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, including CAR or a provision of the CAOs.
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.
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), the maximum duration of an exemption is 3 years.
Instrument
The purpose of CASA EX27/17 is to enable the operation of certain sport and recreational aircraft in pending temporary restricted area R979A (R979A) at Avalon aerodrome. CASA’s Office of Airspace Regulation will declare R979A to be a temporary restricted area in a Notice to Airmen (NOTAM), to cover the duration of the practice days and events held at the Australian International Air Show 2017 (the Airshow).
In accordance with subsection 98 (5D) of the Act, the NOTAM declaring R979A is incorporated as it exists from time to time. The NOTAM will be freely available via the National Aeronautical Information Processing System (NAIPS) Internet Service. The NAIPS Internet Service is provided by Airservices Australia, which is accessible via the Internet by creating a free NAIPS Internet Service account on the following webpage: https://www.airservicesaustralia.com/naips/Account/Logon.
The effect of the instrument is to allow the applicable aircraft to operate in R979A (being Class C and Class D airspace) without complying with the pilot licensing requirements for operations in controlled airspace, but subject to compliance with all the other conditions in the CAO that apply to the aircraft.
The aircraft to which the exemption applies are those aircraft operated in accordance with CAOs 95.10, 95.12, 95.12.1, 95.32 and 95.55. CAO 95.10 applies to privately‑built, single-place ultralight aeroplanes. CAO 95.12 and CAO 95.12.1 apply to gyroplanes. CAO 95.32 applies to weight-shift controlled aeroplanes and powered parachutes. CAO 95.55 applies to a variety of ultralight aircraft that meet 1 of the different sets of criteria set out in subsection 1 of that CAO.
The instrument exempts the aircraft to which CAO 95.10, CAO 95.12, CAO 95.12.1, CAO 95.32 or CAO 95.55 apply from a number of provisions of CAR set out in section 5 of the instrument. These provisions of CAR deal with airworthiness requirements and maintenance, radio systems, flight conditions and flight rules, lighting, operating crew, startup of engines, emergency systems and flights over water. The instrument also provides an authorisation for the aircraft to be operated in R979A without the pilot meeting the licensing requirements in Part 61 of CASR, for the purpose of paragraph 20AB (1) (b) of the Act.
For the exemption to apply, the aircraft must be registered with Recreational Aviation Australia Incorporated (the RAA), the Hang Gliding Federation of Australia Incorporated (the HGFA) or the Australian Sport Rotorcraft Association (the ASRA).
The aircraft must comply with all of the operational conditions prescribed in the CAO that applies to that aircraft, except for the pilot licensing and flight review requirements for flights of the aircraft in controlled airspace. For the avoidance of doubt, the instrument also exempts the pilot in command of an aircraft to which this instrument applies from the licensing requirements prescribed in Part 61 of CASR.
There are further conditions in Schedule 1 of the instrument that must be met by the aircraft and its pilot in command for operations in R979A. Aircraft to which the exemption applies must be fitted with a radio capable of two-way communication with air traffic control. The pilot in command must verify the serviceability of this radio before take-off.
The pilot in command must also comply with the procedures published in the Aeronautical Information Package (AIP) Supplements H01/17 and H03/17 as they apply to operations in restricted airspace R979A. AIP Supplement H01/17 describes the procedures for aircraft operating under the V.F.R. for the aircraft landing area at Avalon East aerodrome during 28 February 2017 to 5 March 2017. AIP Supplement H03/17 describes the procedures for V.F.R. aircraft at Avalon aerodrome during 22 February 2017 to 7 March 2017.
In accordance with subsection 98 (5D) of the Act, these AIP Supplements are incorporated as they exist from time to time. The AIP Supplements are freely available within the AIP produced by Airservices Australia, which is accessible via the Internet on the following webpage: https://www.airservicesaustralia.com/aip/aip.asp.
The pilot in command must also have the written approval of the organiser of the Airshow in order to land at Avalon aerodrome or Avalon East aerodrome. If the pilot in command does not have a valid pilot licence and flight review for the aircraft that has been issued under Part 61 of CASR, the pilot must also have a written approval from the RAA, the HGFA or the ASRA that states they have demonstrated the necessary competencies to conduct the operation safely.
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. Under subsection 98 (5AA), an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply to a class of persons or a class of aircraft.
The instrument applies to a class of aircraft and pilots operating in restricted airspace during the period of the Airshow. 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.
Consultation
The instrument provides similar exemptions to those that have been provided to sport and recreational pilots visiting Avalon aerodrome for previous occurrences of the airshow. CASA has also consulted with Aerospace Australia Limited (the organiser of the Airshow) and RAA, HGFA and ASRA on the terms of this instrument.
Having regard to these circumstances, it is CASA’s view that it is not reasonably practicable 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 in this case, as 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
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
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 1998.
The exemption commences on 22 February 2017 and is repealed at the end of 7 March 2017.
[Instrument number CASA EX27/17]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — operations by sport and recreational aircraft in restricted area R979A (Avalon 2017Airshow)
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 the operation of certain sport and recreational aircraft in a temporary restricted area during the Australian International Air Show 2017 at Avalon, Victoria (the Airshow) between 22 February 2017 and 7 March 2017.
The primary purpose of the legislative instrument is to allow pilots in command of sport and recreational aircraft to attend, or participate in, the Airshow, subject to compliance with conditions imposed by CASA in the interests of aviation safety.
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