Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX32/19 — Seaplane and Amphibian Aeroplane Exemption 2019
Purpose
The purpose of this instrument is to exempt the pilot in command of a seaplane or an amphibian aeroplane, when the aeroplane is landing on or taking-off from water, from the requirements of the Civil Aviation Regulations 1988 (CAR) for aircraft to make turns in mandated directions when flying a circuit pattern before the landing or after the take-off, and to maintain the same track from the take-off until the aircraft is 500 feet above the terrain. The exemption is necessary for safety reasons given the nature of landing and taking-off from water and the nature of terrain surrounding water.
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. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR) and CAR.
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the Regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, the Civil Aviation Safety Authority (CASA) may grant an exemption from a provision of the Regulations.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons.
Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.175 (4) of CASR, in deciding whether to reissue an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant an exemption on its own initiative.
Regulation 11.205 of CASR 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 subregulation 92 (1) of CAR, among other things, the pilot in command of an aircraft must not land the aircraft on, or engage in conduct that causes it to take off from, a place that is not an established aerodrome, or the use of which as an aerodrome is not authorised by CASA, or that is not suitable for use as an aerodrome. The pilot may only land the aircraft at, or take-off from, the place if the aircraft can land at, or take-off from, the place in safety. Certain bodies of water are suitable and safe as aerodromes for seaplanes and amphibian aeroplanes. These aerodromes are usually non-controlled.
Paragraph 166A (2) (d) of CAR provides that, if the pilot joins the circuit pattern for the aerodrome for a landing at the aerodrome, the pilot must, after joining the circuit pattern, make all turns in accordance with subregulation 166A (3). Subregulation 166A (3) provides that for paragraph (2) (d) (and (e)), the turns must be made in accordance with CASA directions, or in accordance with visual signals if these are displayed at the aerodrome indicating a direction to make all turns, or in any other case, to the pilot’s left.
Paragraph 166A (2) (e) provides that if the pilot takes off from the aerodrome, the pilot must, after taking off, make all turns in accordance with subregulation 166A (3) while the aircraft is flying in the circuit pattern for the aerodrome. CASA issues circuit and turns directions under subregulation 92 (2) of CAR for paragraphs 166A (2) (d) and (e) of CAR and these procedures are described in the Aeronautical Information Publication (AIP) available at https://www.airservicesaustralia.com/aip.
Paragraph 166A (2) (f) provides that, subject to subregulation 166A (4), if the pilot takes off from the aerodrome, the pilot must maintain the same track from the take-off until the aircraft is 500 feet above the terrain. Subregulation 166A (4) provides that the rule in paragraph (2) (f) does not apply if a change to the track is necessary to avoid the terrain.
Background
The instrument replaces CASA EX57/16 which expired at the end of 31 March 2019. CASA previously issued similar instruments from as far back as 2003 (instrument CASA EX09/2003). The instrument will no longer be required on commencement of the Civil Aviation Safety Amendment (Part 91) Regulations 2018 (Part 91 Regulation). Regulation 2 of those regulations states that they are to commence on 25 March 2021.
The instrument is required because there are some circumstances in which it may not be appropriate for the pilot in command of a seaplane or an amphibian aeroplane to adhere to the rules that are the subject of the exemption. Water landing areas are often contained within areas of high public usage and in many cases near built-up areas where bridges and other obstructions may be present. In some cases, the water course used for take-offs and landings in more remote areas are in valleys surrounded by high terrain which does not provide a safe path for the aircraft to be manoeuvred in accordance with regulation 166A of CAR and directions made under that regulation.
For example, the pilot may be required to directly overfly houses along the foreshore, or could be required to fly over land at low height immediately after take-off rather than follow the water course until gaining a safe height. Deviating over land may make a safe water landing impossible in the event of an engine failure.
Overview of instrument
The instrument exempts the pilot in command of a seaplane or an amphibian aeroplane that is flown for specified purposes from compliance with paragraphs 166A (2) (d), (e) and (f) of CAR. The exemption is subject to the condition that the pilot in command may take-off from, or land on, water only if the pilot considers that, in the particular circumstances, it is safe not to comply with the specified CAR provisions.
The exemption applies to seaplanes and amphibian aeroplanes and relies on the standard dictionary definitions of these terms. The application to amphibian aeroplanes in addition to seaplanes reflects the terminology used in proposed new regulations 91.385 and 91.390 of CASR that are set out in the Part 91 Regulation and will remove the need for the instrument. The previous instrument (CASA EX57/16) applied only to seaplanes, as defined in that instrument.
CASA has assessed the effect of the instrument on aviation safety and is satisfied that it will have a positive impact on aviation safety. CASA considers that the exemption provides a means for pilots of seaplanes and amphibian aeroplanes to mitigate safety risks for both the occupants of the aeroplanes and the public on the ground or water without breaching relevant CAR requirements.
Content of instrument
Section 1 of the instrument sets out the name of the instrument.
Section 2 sets out the duration of the instrument. The instrument commenced on 1 April 2019 and will be repealed at the earlier of: the commencement of the Part 91 Regulation or 31 March 2022. The reference to 31 March 2022 has been included in case the commencement of the Part 91 Regulation is delayed past the last date that an exemption instrument may remain in force under regulation 11.230 of CASR.
Section 3 sets out a definition of relevant purpose for the instrument. This term is defined to mean to avoid an obstacle, to avoid undue noise over a populous area without compromising the aeroplane’s safety and, for a single‑engine seaplane or amphibian aeroplane — to enable a single‑engine seaplane or amphibian aeroplane to land on water if its engine fails. This wording is consistent with that of future subregulation 91.385 (2) of CASR.
Section 4 provides an exemption for the pilot in command of a seaplane or an amphibian aeroplane, if it is flown for a relevant purpose, from compliance with paragraphs 166A (2) (d), (e) and (f) of CAR when the aeroplane is taking-off from, or landing on, water.
Section 5 sets out a condition on the exemption in section 4. The condition is that the pilot in command may take-off from, or land on, water only if the pilot considers that, in the particular circumstances, it is safe not to comply with paragraph 166A (2) (d), (e) or (f) of CAR.
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. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument exempts a class of persons, being the pilots in command of seaplanes and amphibian aeroplanes, from complying with paragraphs 166A (2) (d), (e) and (f) of CAR. 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
CASA is satisfied that no consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA. No concerns have been raised with CASA regarding the operation of the previous instrument (CASA EX57/16). The exemption has been in place since at least 2003 and will no longer be required when the Part 91 Regulation commences. The exemption is required to address the particular practical and safety considerations arising from the environment in which those aircraft are operated.
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.
The instrument commenced on 1 April 2019 and is repealed at the earlier of: the commencement of the Part 91 Regulation or 31 March 2022.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX32/19 — Seaplane and Amphibian Aeroplane Exemption 2019
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 instrument exempts the pilot in command of a seaplane or an amphibian aeroplane that is landing on, or taking-off from, water from paragraphs 166A (2) (d), (e) and (f) of the Civil Aviation Regulations 1988 (CAR). Those provisions require aircraft to make turns in mandated directions when flying a circuit pattern before the landing or after the take-off, and to maintain the same track from the take-off until the aircraft is 500 feet above the terrain.
The exemption is required for safety reasons given the nature of landing and taking-off from water and the nature of terrain surrounding water. The exemption is subject to a condition that the pilot take off from, or land on, water only if the pilot considers that, in the particular circumstances, it is safe not to comply with paragraph 166A (2) (d), (e) or (f) of CAR.
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