Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Exemption — agricultural rating – aerial baiting
Exemption — CASR Part 137 – aerial baiting
Purpose
The purpose of the exemption is to exempt operations for feral animal aerial baiting from certain pilot qualification and operator requirements.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the safety of air navigation.
Legislation for exemption from CAR 1988
Under subregulation 308 (1) of the Civil Aviation Regulations 1988 (CAR 1988), 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.
Under subregulation 308 (2) of CAR 1988, before making an exemption CASA must take into account any relevant considerations relating to the interests of safety.
Under subregulation 308 (3) of CAR 1988, CASA may make an exemption subject to any condition specified in the exemption as being necessary in the interests of safety.
Under subregulations 308 (3A) and (3B), it is a strict liability offence to contravene a condition of an exemption that is being relied upon for an operation. Under subregulation 308 (4), an exemption is a disallowable instrument (and hence a legislative instrument).
Legislation for exemption from CASR 1998
Under subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), CASA may grant an exemption from compliance with a provision of CASR 1998.
Under regulation 11.160 of CASR 1998, CASA may grant an exemption of its own initiative. Under subregulation 11.170 (3), in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.210, it is an offence to fail to comply with a condition of an exemption.
Under regulation 11.225 of CASR 1998, an exemption must be published on the internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 2 years after its commencement), or if no day is specified, 2 years after commencement.
Other legislation
Commercial agricultural operations
Under subsection 27 (9) of the Act and subparagraph 206 (1) (a) (iii) of CAR 1988, commercial agricultural operations require an AOC.
Aerial baiting operations are considered to be agricultural operations within the meaning of subsection 2 (1) of CAR 1988, that is “the broadcasting of chemicals, seeds, fertilisers and other substances from aircraft for agricultural purposes, including the purposes of pest and disease control”.
Agricultural purposes, therefore, include both private and public agricultural purposes of all kinds (typically cropping, animal husbandry and plantations) and the protection of both private and public agricultural activities from feral pests.
Under paragraph 5.01 (2) (a) and regulation 5.14 of CAR 1988, and Civil Aviation Order (CAO) 40.6, a pilot conducting an agricultural operation must hold an agricultural pilot (aeroplane) rating, or an agricultural pilot (helicopter) rating, if applicable.
Dropping operations
Under paragraph 5.01 (2) (a) of CAR 1988, a flight crew rating is required for flying in agricultural operations.
Under regulation 150 of CAR 1988, the pilot in command of an aircraft may not permit anything to be dropped from the aircraft. However, in the course of agricultural operations, matter may be dropped in accordance with directions issued by CASA. Under regulation 5 of CAR 1988, CASA may issue such directions in the form of Civil Aviation Orders (CAOs).
CASA has issued dropping directions in CAO 29.5. However, these directions are expressed not to apply to aircraft engaged in agricultural operations or agricultural training operations.
Low flying
Under subregulation 157 (1) of CAR 1988, the pilot in command of an aircraft must not fly over a non-populous area at a height lower than 500 feet. Under paragraph 157 (4) (b), CASA may issue a general or specific permit to the owner or operator of an aircraft engaged in aerial work operations that require low flying, to permit flight below 500 ft while engaged in the operations.
CAO 20.21 applies to aircraft engaged in agricultural operations (and related inspection flights). Subject to paragraph 3.2, containing what are in effect conditions on flight patterns, building proximity, and height, paragraph 3.1 of CAO 20.21 grants a standing permission for flight at a height lower than 500 feet over any non-populous area for the purpose of agricultural operations authorised by an AOC. However, use of this on-going low flying permission is not available unless the pilot holds an agricultural pilot (aeroplane) rating, or an agricultural pilot (helicopter) rating, as applicable.
Under subsection 7 of CAO 20.21, a relevant aircraft may, subject to conditions, take advantage of an exemption in relation to turning and maintaining track.
CASR Part 137 for aerial applications
Part 137 of CASR 1998 (CASR Part 137), Aerial application operations — other than rotorcraft, was made by the Civil Aviation Safety Amendment Regulations 2007 (No. 1) (SLI 2007 No. 41) and commenced on 26 May 2007. CASR Part 137 establishes a new, integrated, regulatory framework for aerial application operations for aeroplanes. This replaced the previous regime of oversight which drew on an amalgam of various provisions of CAR 1988.
Under CASR Part 137, an aerial application operation is a flight by an aeroplane, under an aerial work air operator’s certificate (AOC), to apply application material.
Application material means fertilizer, trace elements seeds, baits, water, pesticides and other material. Apply means to drop or spray the material onto the ground or water.
Certain pilot training and checking, aircrew training, transit flights and observation flights with a passenger are also aerial application operations.
CASR Part 137 requires aerial application operators to have specifically approved operations manuals and key personnel (for example, a head of aeroplane maintenance control). The operator must meet certain aeroplane and equipment standards and observe certain operational procedures.
Aerial application operations
Under regulation 137.235 of CASR 1998, an operator must not allow an aeroplane to be used for an application operation unless the pilot in command is authorised to do so. An explanatory Note reminds readers that for this purpose, the pilot must hold: a commercial pilot (aeroplane) licence or an air transport pilot (aeroplane) licence issued under regulation 5.09 of CAR1988; and an agricultural pilot (aeroplane) rating of grade 1 or 2, issued under regulation 5.14 of CAR 1988; and a single engine aeroplane class endorsement; and any special design feature endorsement required for the aeroplane, issued under regulation 5.23 of CAR 1988.
Background
Under instrument CASA EX27/08 (expiring on 25 May 2010, the previous exemption), CASA has previously granted an exemption from Part 137 of CASR 1998 (and the agricultural pilot rating requirements) to certain aeroplane operators (and their pilots) for aerial baiting. This was a grandfathering provision to protect the position of operators who had been in the business before the requirements of Part 137 of CASR 1998 were imposed. (This exemption also extended to dropping incendiaries to initiate controlled burning, a matter now dealt with in CASA EX32/10.)
CASA considers that, provided alternative safety risk mitigators are in place, aerial baiting does not require the pilot in command or the aeroplane operator to satisfy all of the wide range of requirements mentioned above that arise from various legislative sources not directly related to the specific activity of aerial baiting.
Part 137 of CASR 1998 requires that a pilot must be trained in low flying before conducting any aerial baiting. However, aerial baiting is not always conducted at low level. Aerial baiting does not have the same risks as the aerial application of agricultural materials, including, for example, the fact that aerial baiting operations are not conducted at heights typical of other aerial application operations.
Exemption
CASA has, therefore, decided to extend the life, and expand the scope, of the transitional exemption from Part 137 of CASR 1998 and from the agricultural rating requirement of subregulation 5.01 (2) of CAR 1988. It has done this by issuing an exemption for aerial baiting operations.
Thus, a pilot will be exempt from the requirement to have the flight crew rating required for “agricultural operations” whether at, above or below 500 feet.
The pilot will also be exempt from all of Part 137 of CASR 1998. The pilot must, nevertheless, have a commercial pilot licence or an air transport pilot (aeroplane) licence as required under regulations 5.09, 5.105 or 5.166 of CAR 1988. However, for flights, whether at, above or below 500 ft, an agricultural pilot (aeroplane) rating is not required.
The operator will also be exempt from Part 137 of CASR 1998.
Safety conditions
Each exemption is subject to conditions.
The pilot exemption is subject to the condition that, for an operation below 500 ft, the operator for whom the pilot is flying must have a general or specific permit from CASA permitting aerial work in the form of aerial baiting below 500 ft.
The operator exemption is subject to the condition that the operator’s operations manual must have relevant procedures for the conduct of aerial baiting operations, and training for such operations, including for operations below 500 ft, if applicable.
Another condition specifies that for an operation below 500 ft, the operator must also have a general or specific permit from CASA permitting aerial work in the form of aerial baiting below 500 ft. However, for low flying permits issued after the commencement of the exemption, the permit must state the minimum height permitted.
Two explanatory Notes clarify the position for pilots and operators.
The first Note explains that under subregulations 215 (6) and (8) of CAR 1988, an operator must furnish CASA with a copy of his or her operations manual and amendments, including the relevant procedures mentioned in paragraph 8 (a).
The second Note explains that a pilot and an operator cannot take advantage of the exemption instrument unless all of the conditions are complied with, including the condition requiring a specific low flying permit.
In other words, use of the on-going low flying permission in CAO 20.21 is not available because it requires the pilot to hold an agricultural pilot (aeroplane) rating, or an agricultural pilot (helicopter) rating — the very requirement which users of the exemption seek exemption from.
In deciding whether to grant a low flying permit, CASA may take into account appropriate safeguards, and may, for example, have regard to some of the safety requirements under CAO 29.10 for aerial stock mustering operations.
The specific details of the exemptions are set out in Appendix 1.
Legislative Instruments Act
Under subregulation 308 (4) of CAR 1988, and under regulation 11.215 of CASR 1998, respectively, an exemption is declared 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 instrument 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 constitutes a beneficial extension in time and scope of an existing more limited exemption.
A draft of the exemption instrument was provided to the joint CASA/industry Standards Consultative Committee (SCC), for comment if required. The SCC made no adverse comment on the draft instrument.
Office of Best Practice Regulation (OBPR)
OBPR does not require a Regulation Impact Statement in this case because a preliminary assessment of business compliance costs, in the context of the nature of the instrument, indicates that it will have only a nil to low impact on business.
Commencement, making and retrospectivity
The instrument commences on 26 May 2010, the day after the previous exemption, CASA EX27/08, expires. It stops having effect at the end of 30 April 2012.
The instrument was made on 25 May 2010 for registration on or before 26 May 2010, its stated commencement date. However it was not administratively possible to register the instrument until 27 May 2010, giving rise to a retrospective effect.
Under subsection 12 (2) of the LIA, a legislative instrument may not have a retrospective effect if this would disadvantage a person other than the Commonwealth.
This does not arise because the exemption is beneficial, exempting from legislative requirements that would otherwise apply.
While the exemption has conditions, no person is obliged to adhere to the exemption if they chose instead to comply with the exempted provisions.
It is necessary for the instrument to have this lawful retrospective effect to ensure the legality of relevant operations on the day between commencement and registration.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, under subsection 73 (2) of the Act.
[Instrument number CASA EX34/10]
Appendix 1
Details of the exemption instrument
Exemption — agricultural rating – aerial baiting
Exemption — CASR Part 137 – aerial baiting
1 Duration
Under this section, the instrument commences on 26 May 2010 (when CASA EX27/08 expires), and stops having effect at the end of 30 April 2012.
2 Definitions
Under this section, certain words and phrases are defined. Thus, in this instrument:
aerial baiting operation means an aircraft operation that is solely for 1 of the following:
(a) dropping poison bait to eradicate feral animals;
(b) training for such dropping.
operator means a person who is the holder of an air operator’s certificate (AOC) for aerial work, authorising an aircraft to engage in dropping poison bait to eradicate feral animals.
pilot means the pilot in command of an aircraft of an operator engaged in an aerial baiting operation.
3 Application
Under this section, the instrument applies to each of the following in an aerial baiting operation:
(a) the pilot;
(b) the operator.
4 Aerial baiting — pilot exemption
Under this section, for an aerial baiting operation, the pilot is exempt from compliance with paragraph 5.01 (2) (a) of CAR 1988 (which would otherwise require the pilot to hold an agricultural rating) and from subparagraph 150 (2) (a) (i) of CAR 1988 (which constitutes an exemption from the prohibition no dropping in agricultural operations).
5 CASR Part 137 — aerial baiting – pilot exemption
Under this section, the pilot is exempt from compliance with Part 137 of CASR 1998.
6 Condition — pilots
Under this section, each exemption in section 4 and 5 is subject to the condition that, for an operation below 500 ft, the operator for whom the pilot is flying must have a general or specific permit from CASA permitting aerial work in the form of aerial baiting below 500 ft.
7 CASR Part 137 — aerial baiting – operator exemption
Under this section, the operator is exempt from compliance with Part 137 of CASR 1998.
8 Conditions — operators
Under this section, the exemption in section 7 is subject to conditions.
First, the operator’s operations manual must have relevant procedures for the conduct of aerial baiting operations, and training for such operations, including for operations below 500 ft, if applicable.
Secondly, for an operation below 500 ft, the operator must have a general or specific permit from CASA permitting aerial work in the form of aerial baiting below 500 ft. However, for low flying permits issued after the commencement of the exemption, the permit must state the minimum height permitted.
A Note explains that under subregulations 215 (6) and (8) of CAR 1988, an operator must furnish CASA with a copy of his or her operations manual and amendments, including the relevant procedures mentioned in paragraph 8 (a).
A second Note explains that a pilot and an operator cannot take advantage of this exemption instrument unless all of the conditions are complied with, including the condition in paragraph 8 (b). Use of the on-going low flying permission in CAO 20.21 is not available because it requires the pilot to hold an agricultural pilot (aeroplane) rating, or an agricultural pilot (helicopter) rating.