Explanatory Statement
Civil Aviation Regulations 1988
Exemption — navigation and anti-collision lights
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 207 (2) of the Civil Aviation Regulations 1988 (CAR 1988) provides that an Australian aircraft must not be used in any class of operation unless it is fitted with such instruments, and is fitted with or carries such equipment, including emergency equipment, as the Civil Aviation Safety Authority (CASA) approves or directs.
Subregulation 5 (1) of CAR 1988 provides that whenever CASA is empowered by CAR 1988 to give directions or approvals, it may do so in Civil Aviation Orders (the CAOs).
Clause 3 of Appendix V of Civil Aviation Order 20.18 requires that aircraft must have 2 landing lights except when engaged in private and aerial work operations and charter operations not carrying passengers for hire and reward when it must have 1 light.
Subregulation 195 (1) of CAR 1988 requires that the pilot in command and the operator of an aircraft must comply with the rules requiring lights to be displayed in relation to the aircraft at night and in conditions of poor visibility.
Subregulation 196 (1A) of CAR 1988 provides that the operator and pilot in command of an aeroplane in flight, or operating on the manoeuvring area of a land aerodrome, must ensure that the lights, required by this regulation to be displayed on the aeroplane, are displayed.
Subregulation 196 (3) of CAR 1988 provides that unless CASA otherwise directs, an aeroplane in flight or operating on the manoeuvring area of a land aerodrome must display, in addition to navigation lights, an anti-collision light consisting of a flashing red light.
Aerorescue Pty Limited (the operator) already operates fast, sophisticated turboprop aircraft at 5 locations around Australia that are equipped with surveillance equipment that can detect personnel, aircraft, and marine craft a long distance from their position. The operator is currently contracted to the Australian Maritime Safety Authority to provide search and rescue capability nationally. The operator provides a perfect platform for covert surveillance. Some of these operations require that external lights on the aircraft are turned off. The exemption will permit the operator to carry out covert surveillance without displaying some of the required lights.
To mitigate against the risks associated with such operations, conditions have been imposed. The pilot in command and the operator must ensure that the ELTA radar system is operative.
Legislative Instruments Act
Subregulation 308 (4) of CAR 1988 declares an exemption to be a disallowable instrument. 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. The exemption is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument is an exemption requested for cover surveillance and border protection operations. A similar instrument would be issued for operations of this nature to any operator who is able to meet all requirements.
The instrument commences on the day after it is registered and stops having effect at the end of 31 May 2009.
The exemption has been made by a delegate of CASA in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX30/08]
Overview
The Civil Aviation Regulations 1988 were enacted to regulate the safety of air navigation in Australia, ensuring that aircraft operating within Australian airspace meet specific safety standards. The regulations provide a comprehensive framework for the operation of aircraft, including requirements for instruments, equipment, and lights. The Civil Aviation Regulations 1988 were introduced to address the need for standardised safety protocols in aviation, ensuring the protection of passengers, crew, and the public. These regulations are overseen by the Civil Aviation Safety Authority (CASA), which has the authority to approve or direct the use of instruments and equipment in accordance with the Civil Aviation Act 1988. The regulations include specific requirements for navigation and anti-collision lights, which are crucial for safe flight operations, especially in conditions of poor visibility or at night. Exemptions from these requirements can be granted under certain conditions, as demonstrated by the exemption for covert surveillance operations conducted by Aerorescue Pty Limited, which was approved to turn off certain lights for specific operations while maintaining the operation of their ELTA radar system to mitigate risks.
Scope and Application
The Civil Aviation Regulations 1988, as amended by the instrument CASA EX30/08, provide an exemption concerning navigation and anti-collision lights for Aerorescue Pty Limited, a specific operator of sophisticated turboprop aircraft. This exemption applies to the operations of the operator when engaged in covert surveillance activities, particularly those related to search and rescue missions contracted to the Australian Maritime Safety Authority. Such operations require the deactivation of external aircraft lights to maintain the element of surprise. To mitigate the safety risks inherent in these operations, the exemption imposes conditions that the pilot in command and the operator must ensure the ELTA radar system is operational. The exemption applies to the operator's activities across Australia, with the instrument ceasing to have effect by 31 May 2009. This exemption, as a disallowable instrument under the Legislative Instruments Act 2003, is subject to tabling and disallowance in the Parliament. Notably, consultation under the Legislative Instruments Act was not undertaken for this exemption, which was issued in response to specific operational needs.
Key Provisions
The key sections of the Civil Aviation Regulations 1988 (CAR 1988) that are relevant to this exemption are subregulations 207(2), 195(1), 196(1A), and 196(3) (paragraphs 2–4). Subregulation 207(2) mandates that an Australian aircraft cannot be used in any operation unless it is equipped with instruments and equipment approved by the Civil Aviation Safety Authority (CASA) or as directed by CASA. Subregulation 195(1) requires that the pilot in command and the operator of an aircraft must comply with rules regarding the display of lights in night or poor visibility conditions. Subregulation 196(1A) requires that the operator and pilot in command of an aeroplane must ensure that the required lights are displayed when in flight or on the manoeuvring area of a land aerodrome. Subregulation 196(3) requires that, unless CASA otherwise directs, an aeroplane in flight or on the manoeuvring area of a land aerodrome must display, in addition to navigation lights, an anti-collision light consisting of a flashing red light. The exemption allows Aerorescue Pty Limited to turn off some of the required lights for covert surveillance operations, while imposing certain conditions to mitigate associated risks.
The obligations imposed on the parties governed by the Civil Aviation Regulations 1988 (CAR 1988) include ensuring that the aircraft is fitted with instruments and equipment approved by CASA, and that the pilot in command and the operator comply with rules regarding the display of lights in night or poor visibility conditions (subregulations 207(2), 195(1), 196(1A), and 196(3)). The operator and pilot in command must ensure that the required lights are displayed when in flight or on the manoeuvring area of a land aerodrome (subregulation 196(1A)). For the exemption to apply, the pilot in command and the operator must ensure that the ELTA radar system is operative (paragraph 9). This condition is intended to mitigate against the risks associated with the covert surveillance operations.
Breach of the conditions of the exemption may result in civil or criminal consequences. The exemption is a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (LIA). Failure to comply with the conditions of the exemption may result in civil penalties, including fines, or criminal penalties, including imprisonment. The maximum penalties for civil and criminal offences under the Civil Aviation Act 1988 (the Act) and the Civil Aviation Regulations 1988 (CAR 1988) vary depending on the offence and the circumstances of the breach. The exemption does not provide any specific penalties for breach, but it is subject to the general penalties applicable under the Act and the CAR 1988.