Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemptions, authorisation and directions — solo flight training at Coffs Harbour aerodrome using ultralight aeroplanes registered with Recreational Aviation Australia
Exemptions, authorisation and directions — solo flight training at Archerfield Aerodrome using ultralight aeroplanes registered with Recreational Aviation Australia
Purpose
The exemptions and authorisation in the instruments enable student pilots and pilot certificate holders to conduct solo flight training with Coffs Harbour and District Aero Club (CHDAC) at Coffs Harbour aerodrome, and with Pathfinder Aviation (Pathfinder) at Archerfield aerodrome. The exemptions and authorisation are granted for training purposes only, in controlled airspace, using ultralight aeroplanes registered with Recreational Aviation Australia (RAA).
As the student pilots and pilot certificate holders do not hold a pilot licence and flight review as required under paragraph 7.3 of Civil Aviation Order (CAO) 95.55, the exemptions and authorisation in the instruments are required to authorise the pilots to conduct solo operations in controlled airspace. Similar exemptions have previously been issued to other operators carrying out solo flight training at other Australian aerodromes. The authorisation in the instruments permits a person, for subsection 20AB (1) of the Civil Aviation Act 1988 (the Act), to perform a duty essential to the operation of the aeroplane without holding a flight crew licence.
The directions in the instruments require CHDAC and Pathfinder to comply with a number of competency, operational and record‑keeping requirements relating to operations under this instrument.
Legislation
Section 98 of 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.
Subregulation 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 a CAO.
Exemptions and directions issued under CASR
Subpart 11.F of the Civil Aviation Safety Regulations 1998 (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.
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. Regulation 11.255 prescribes an offence for the contravention of a direction under regulation 11.245.
Civil Aviation Order 95.55 (Exemption from the provisions of the Civil Aviation Regulations 1988 — certain ultralight aeroplanes) Instrument 2015
CAO 95.55 exempts certain ultralight aircraft registered with RAA from various airworthiness, maintenance and operational requirements that are prescribed in CAR. The exemptions provided by CAO 95.55 are subject to a range of conditions further prescribed in that CAO. Regulation 200.014 of CASR additionally provides that an aeroplane to which CAO 95.55 applies (as in force from time to time) is exempt from CASR if the conditions in CAO 95.55 are satisfied.
Paragraph 5.1 of CAO 95.55 provides that a person is authorised to perform a duty essential to the operation of these aircraft without holding a flight crew licence if they comply with the conditions set out in subsections 6 and 7.
Paragraph 7.3 of CAO 95.55 provides that an aeroplane to which the CAO applies may be flown in Class A, B, C or D airspace if all of the conditions further prescribed in paragraph 7.3 are complied with. Among other matters, subparagraph 7.3 (d) of the CAO prescribes that the aeroplane must be flown by the holder of a pilot licence with an aeroplane category rating issued under Part 61 of CASR that allows the pilot to fly in that airspace. Subparagraph 7.3 (e) further prescribes that the pilot must have a valid flight review for the aeroplane class rating in accordance with Part 61 of CASR.
Thus, a pilot of these ultralight aeroplanes may conduct flight training in controlled airspace under CAO 95.55 if the aeroplane is registered with RAA and the pilot is suitably qualified and trained. However, holders of RAA student pilot certificates and RAA pilot certificates cannot conduct solo operations in controlled airspace unless specifically authorised, as they do not hold a valid pilot licence and flight review as required under paragraph 7.3 of CAO 95.55.
Instruments
The instruments allow RAA student pilots and RAA pilot certificate holders to conduct solo flights with CHDAC and Pathfinder using ultralight aeroplanes registered with the RAA.
Section 4 of the instruments exempts the ultralight aeroplanes from CASR and a number of airworthiness, maintenance and operational requirements prescribed in CAR. The exemptions reflect the scheme in CAO 95.55.
The conditions on the exemptions, imposed in the interests of aviation safety, are set out in the schedule to the instruments. It is a condition on the exemptions that the pilots meet all the operational conditions prescribed in sections 4, 6, 7 and 8 of CAO 95.55, except for the requirements to have a valid pilot licence and flight review issued under Part 61 of CASR to fly solo in controlled airspace.
There are also conditions for the aeroplanes to comply with similar aircraft transponder requirements as those prescribed in CAO 95.55 and CAO 100.5 as in force from time to time, as well as to meet the requirements for the fitting of transponders that are prescribed in the Aeronautical Information Package (AIP) for operations in controlled airspace. Among other matters, the AIP Book (within the broader AIP) prescribes the types and operational requirements for the fitting and use of these transponders.
The requirements of the relevant CAOs are incorporated as they exist from time to time. CAOs are legislative instruments published on the Federal Register of Legislation.
In accordance with subregulation 98 (5D) of the Act, the AIP is incorporated as it exists from time to time. The AIP Book is 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.
Other conditions include a requirement that a pilot in command of an aircraft must hold a class 1 or class 2 medical certificate, or a recreational aviation medical practitioner’s certificate (RAMPC).
Section 5 of the instruments authorise a person to operate the aeroplanes in controlled airspace without meeting the licensing requirements in Part 61 of CASR, for the purpose of paragraph 20AB (1) (b) of the Act.
Subsection 6 (1) of the instruments directs CHDAC and Pathfinder, for regulation 11.245 of CASR, to comply with the various operational and competency requirements further prescribed in that section. Under the direction, CHDAC’s and Pathfinder’s chief flying instructor (CFI) and flight instructors must hold a valid RAA flight instructor rating and a valid pilot licence issued under Part 61 of CASR that allows the holder to fly inside controlled airspace. The direction also requires CHDAC and Pathfinder to ensure that the operations conducted under the instruments are authorised in writing by their CFI.
If there is an aviation accident or incident involving an aeroplane engaged in the operation, the direction provides that CHDAC and Pathfinder must report the accident to the Australian Transport Safety Bureau, RAA and the Team Leader of CASA’s Sport Aviation Team.
Subsection 6 (2) of the instruments gives additional directions for use of the Part 61 Manual of Standards or the RAA syllabus when instructing RAA student pilots or RAA pilot certificate holders for operations under this instrument. In these circumstances, paragraph 6 (2) (a) provides that CHDAC’s and Pathfinder’s CFIs must ensure that these pilots have been assessed as competent to the standards specified in the Part 61 Manual of Standards for the controlled aerodrome endorsement, the controlled airspace endorsement relevant to the operation and the flight radio endorsement. The directions also provide that the CFIs must ensure that the attainment of competency for these endorsements mentioned in paragraph 6 (2) (a) are entered in the RAA student pilot’s or RAA pilot’s logbook.
Separate directions in paragraph 6 (3) (a) of the instruments require CHDAC and Pathfinder to retain evidence of compliance with requirements relating to approval of the operations under the instruments, and to retain records regarding the competency and qualifications of the pilots taking part in these operations. In addition, paragraph 6 (3) (b) requires CHDAC and Pathfinder to allow CASA to carry out audits of these records and their facilities to ensure that they are complying with the requirements of this instrument.
In accordance with regulation 11.230 of CASR, the exemptions in the instruments cease within 3 years of the day the instruments commence. The authorisation and the directions in subsections 6 (1) and (2) are also repealed at that time. To ensure the record-keeping and audit requirements of the directions in subsection 6 (3) are enforceable as intended, the other provisions of the instruments remain in force for a further 5 years.
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 instruments apply to a class of persons engaged in flights using ultralight aeroplanes and are, therefore, legislative instruments subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The instruments provide a similar exemption to pilots of CHDAC prescribed under instrument CASA EX164/14, and Pathfinder prescribed under CASA EX123/13, that have expired. Both CHDAC and Pathfinder applied to CASA for new instruments of exemption after consulting with RAA and the respective Unit Tower Managers at Airservices Australia (AA). Both RAA and AA have confirmed their continuing support for both instruments.
In addition, previous instruments have been granted to allow operations of this kind in the same class of airspace using ultralight aeroplanes registered with RAA after initial consultation and agreement. 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 instruments do not engage any of the applicable rights or freedoms, and are compatible with human rights, as they do not raise any human rights issues.
Making and commencement
The instruments have been made by a delegate of CASA, relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instruments commence on the day of registration. Sections 4 and 5 and subsections 6 (1) and (2) are repealed at the earlier of: the repeal of CAO 95.55; or the end of 31 January 2020. The instruments, other than sections 4 and 5 and subsections 6 (1) and (2), are repealed at the end of 31 January 2025.
[Instrument number CASA EX29/17]
[Instrument number CASA EX30/17]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemptions, authorisation and directions — solo flight training at Coffs Harbour aerodrome using ultralight aeroplanes registered with Recreational Aviation Australia
Exemptions, authorisation and directions — solo flight training at Archerfield Aerodrome using ultralight aeroplanes registered with Recreational Aviation Australia
These legislative instruments are 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 instruments
The legislative instruments permit solo flying in controlled airspace by student pilots and pilot certificate holders using ultralight aeroplanes registered with Recreational Aviation Australia (RAA) at Coffs Harbour aerodrome and Archerfield aerodrome.
The purpose of the legislative instruments is to exempt these pilots from the requirement to hold a pilot licence and a valid flight review under Part 61 of the Civil Aviation Safety Regulations 1998 and paragraph 7.3 of Civil Aviation Order 95.55 (Exemption from the provisions of the Civil Aviation Regulations 1988 — certain ultralight aeroplanes) Instrument 2015 before being able to fly in that airspace.
For the instruments to apply, the pilots must be under the control of Coffs Harbour and District Aero Club Limited or Pathfinder Aviation Pty Ltd. The instruments further specify a range of conditions that govern the standards of the pilots and conduct of flights permitted under this exemption, imposed in the interests of aviation safety.
Human rights implications
The legislative instruments do not engage any of the applicable rights or freedoms.
Conclusion
The legislative instruments are compatible with human rights, as they do not raise any human rights issues.
Civil Aviation Safety Authority