Explanatory Statement
Civil Aviation Act 1988
Exemption — carriage of passengers on training flight
Section 98 of the Civil Aviation Act 1988 (the Act) enables the Governor-General to regulate for the purposes of the Act and towards the safety of air navigation.
Subregulation 308 (1) of CAR 1988 provides that CASA may exempt aircraft, or persons in, on, or otherwise associated with the operation of, the aircraft, from compliance with specified provisions of CAR 1988. Subregulation 308 (2) provides that before making an exemption, CASA must take into account any relevant considerations relating to the interests of safety. Subregulation 308 (3) provides that CASA may make an exemption subject to any condition specified in the exemption as being necessary in the interests of safety.
Subregulation 249 (1) of CAR 1988 provides that the pilot in command of an aircraft that carries a passenger must not engage in certain specified types of flying. Among these is flying training given to a person who has not passed a general flying progress flight test for aircraft of the category concerned (paragraph 249 (1) (a)).
In cooperation with a charitable organisation “Wheelies with Wings”, Brindabella Airlines Pty Ltd has, for several years, provided an opportunity for people with lower limb disabilities to participate in flying training, using an approved hand control for rudder operation. The Australian Broadcasting Corporation wishes to record and document the training by having a journalist on the aircraft for that purpose.
Having considered the safety implications of the request for the exemption in the context of a controlled training environment, CASA does not consider that such an exemption would be detrimental to aviation safety and has agreed to grant the exemption from the requirements of paragraph 249 (1) (a) of CAR 1988.
The instrument has been issued subject to several conditions. The exemption will only apply to 1 training flight conducted by a qualified flight instructor. The passenger must be a journalist employed by, or contracted to, the Australian Broadcasting Corporation. The student pilot must be a person suffering from lower limb disabilities and using an approved hand control for rudder operation. There are also other conditions relating to the conduct of the flight and the briefing of the journalist on the degree of risk involved.
Legislative Instruments Act
Subregulation 308 (4) of CAR 1988 provides that an exemption is a disallowable instrument. Under 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 subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
There has been no consultation with the industry. This instrument is issued for the purpose of reporting on a single training flight organised in cooperation with a charitable organisation.
The instrument commences on the day after it is registered and stops having effect at the end of 30 September 2007.
The instrument has been made by the Acting Deputy Chief Executive Officer, Strategy and Support, a delegate of CASA, under subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX34/07]
Overview
The Civil Aviation Act 1988, enacted to regulate civil aviation within Australia and ensure safety in air navigation, provides the legislative framework under which the Civil Aviation Regulations 1988 (CAR 1988) are established. The Act empowers the Governor-General to make regulations for these purposes, with a specific focus on safety. Within this regulatory environment, the Civil Aviation Safety Authority (CASA) has the authority to grant exemptions from certain regulatory provisions to ensure safety remains paramount. This particular exemption, documented in F2007L02213, was introduced to allow Brindabella Airlines, in cooperation with the charitable organisation “Wheelies with Wings”, to carry a journalist from the Australian Broadcasting Corporation on a training flight for individuals with lower limb disabilities. CASA granted this exemption under strict conditions to ensure it did not compromise aviation safety, reflecting the policy objective of balancing safety with the unique opportunity for individuals with disabilities to experience flying training. The exemption is a legislative instrument subject to parliamentary disallowance under the Legislative Instruments Act 2003.
Scope and Application
The Civil Aviation Act 1988 provides the authority for the Civil Aviation Safety Authority (CASA) to issue exemptions from certain regulations in the Civil Aviation Regulations 1988 (CAR 1988) where doing so is deemed not to be detrimental to aviation safety. Subregulation 308 of CAR 1988 allows CASA to exempt aircraft or persons associated with the operation of the aircraft from specified provisions of CAR 1988, subject to conditions deemed necessary for safety. This legislation applies to specific entities such as Brindabella Airlines and the Australian Broadcasting Corporation, and to individuals such as the qualified flight instructor and the journalist who will be on board the aircraft. The exemption granted is limited to a single training flight conducted under specific conditions, including the use of an approved hand control for rudder operation by the student pilot who has lower limb disabilities. The exemption is subject to several conditions relating to the conduct of the flight and the briefing of the journalist on the risks involved, and is only in effect until 30 September 2007. This exemption is subject to disallowance in the Parliament under the Legislative Instruments Act 2003.
Key Provisions
The key operative sections of the legislation focus on the granting of exemptions by the Civil Aviation Safety Authority (CASA) under the Civil Aviation Act 1988. Section 98 of the Act allows the Governor-General to regulate for the purposes of the Act and towards the safety of air navigation. Subregulation 308(1) of the Civil Aviation Regulations 1988 (CAR 1988) specifically provides that CASA can exempt aircraft or persons associated with an aircraft from compliance with specified provisions of CAR 1988. This exemption process must take into account relevant safety considerations as per subregulation 308(2), and it can be made subject to any conditions CASA deems necessary for safety as per subregulation 308(3). The exemption granted in this case is particularly relevant to subregulation 249(1) of CAR 1988, which prohibits the pilot in command from engaging in specified types of flying, including training given to a person who has not passed a general flying progress flight test for the aircraft category concerned.
The obligations and requirements imposed by this Act on the parties involved are primarily concerned with safety and compliance. Brindabella Airlines Pty Ltd, the charitable organisation “Wheelies with Wings”, and the Australian Broadcasting Corporation must adhere to the conditions set forth in the exemption. The exemption applies only to one training flight conducted by a qualified flight instructor, with a specific journalist from the Australian Broadcasting Corporation as the passenger. The student pilot must have lower limb disabilities and use an approved hand control for rudder operation. There are additional conditions related to the conduct of the flight and the briefing of the journalist regarding the risks involved. CASA's role in overseeing the exemption ensures that all safety considerations are met, and the exemption does not compromise aviation safety.
In terms of offences, penalties, or consequences for breach, the legislation does not explicitly state penalties for non-compliance with the exemption conditions. However, the exemption is a disallowable instrument under the Legislative Instruments Act 2003 (LIA). As per subregulation 308(4) of CAR 1988, the exemption is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA. This means that if any party fails to comply with the conditions of the exemption, CASA can take appropriate action, which may include revocation of the exemption or other regulatory measures. There is also the potential for civil or criminal consequences if non-compliance is deemed to be in violation of broader aviation safety regulations.
The instrument commences on the day after it is registered and will cease to have effect at the end of 30 September 2007. The exemption is intended to facilitate a specific training flight in a controlled environment, thus ensuring that it does not remain in effect beyond the necessary timeframe. This time-bound nature of the exemption reflects CASA's commitment to maintaining strict oversight and ensuring that any exemptions granted do not pose undue risks to aviation safety. The instrument was made by the Acting Deputy Chief Executive Officer, Strategy and Support, a delegate of CASA, under subregulation 7(1) of CAR 1988. This delegation of authority underscores CASA's role in regulating and ensuring compliance with aviation safety standards.