Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX36/21 — Flight in Class D Airspace near Hobart Aerodrome Exemption 2021
Purpose
The purpose of this instrument is to enable the pilots of hang gliders and paragliders to continue to carry out operations at a site near Hobart aerodrome without complying with a condition to which such operations would otherwise be subject under Civil Aviation Order 95.8 (CAO 95.8). Flights have been carried out under similar exemptions for a long period of time.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Subsection 98 (5A) of the Act provides that the Regulations may empower CASA to issue instruments in relation to the following:
(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft; or
(b) the airworthiness of, or design standards for, aircraft.
Part 11 of the Civil Aviation Safety Regulations 1998 (CASR)
Subpart 11.F of CASR deals with the granting of exemptions.
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 Civil Aviation Orders, in relation to a matter mentioned in that subsection, which includes matters affecting the safe navigation and operation, or the maintenance, of aircraft. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.205 (1) of CASR, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225 of CASR, an exemption must be published on the Internet. Under subregulation 11.230 (1) of CASR, the maximum duration of an exemption is 3 years.
Under subregulation 11.245 (1) of CASR, CASA may issue directions about, among other things, any matter affecting the safe navigation and operation of aircraft. Under subregulation 11.245 (2), CASA may only issue a direction if the direction is for the purpose of CASA’s functions and not inconsistent with the Act, and if CASA is satisfied that the direction is necessary in the interests of the safety of air navigation. Under regulation 11.250 of CASR, a direction ceases to be in force on the day specified in the direction. Regulation 11.255 of CASR makes it an offence for a person to contravene a direction that is applicable to the person.
Civil Aviation Order 95.8
CAO 95.8 applies to hang glider and paraglider aircraft and contains exemptions from Part 61 of CASR (relating to flight crew licensing) and the Civil Aviation Regulations 1988, subject to conditions. One of the conditions imposed, under subparagraph 7.1 (i) of CAO 95.8, provides that an aircraft must not be flown except in specified Classes of airspace and in limited circumstances. In particular, the aircraft must not be flown in Class D airspace, unless:
- it is below 300 feet above ground level and not within 16 kilometres of a controlled aerodrome; or
- the pilot meets specified pilot licence, rating and flight review requirements.
Background
Members of the Tasmanian Hang Gliding and Paragliding Association (the THPA) operate hang gliders and paragliders from the hang gliding site at Single Hill in Tasmania. The site consists of an area bounded by the line drawn north-south through the top of Single Hill, northwards to Seven Mile Beach Road and eastwards, following the coastline 100 metres offshore, to a point abeam of the northern end of Lauderdale township.
The site is within 16 kilometres of Hobart aerodrome, which is a controlled aerodrome, and is in Class D airspace. THPA’s members have been able to use the site because their operations have, for many years, been exempted from compliance with sub-subparagraph 7.1 (i) (iii) of CAO 95.8 despite the proximity of the site to Hobart aerodrome.
The most recent exemption, CASA EX33/18 — Flight in Class D Airspace near Hobart Aerodrome Exemption 2018 (CASA EX33/18), will be repealed at the end of 31 March 2021. The THPA has requested that the exemption be renewed.
Instrument
The instrument renews exemption CASA EX33/18. It will permit the pilot in command of a hang glider or paraglider to conduct an operation at the Single Hill site by exempting the pilot from compliance with subparagraph 7.1 (i) of CAO 95.8.
Section 1 of the instrument gives the name by which the instrument may be cited.
Section 2 of the instrument specifies the duration of the instrument.
Section 3 defines expressions appearing in the instrument. It includes a definition of the boundaries of the Single Hill site.
The exemption only applies if each of the 3 circumstances specified in section 4 are met. Firstly, the instrument applies if there is a written agreement in effect between Airservices Australia in its capacity as the air traffic services provider at Hobart aerodrome (AA) and the THPA in relation to the operations at the site (the written agreement). A note to section 4 identifies that the current written agreement is dated 17 August 2020.
Secondly, the instrument only applies if the pilot is either a member of the THPA or a guest of the THPA who is also a financial member of the Sports Aviation Federation of Australia Limited (SAFA) (formerly the Hang Gliding Federation of Australia Inc.).
Thirdly, the instrument only applies if the pilot of the hang glider or paraglider has confirmed with the THPA duty pilot that AA has given air traffic control clearance of the operation. The duty pilot is a THPA member responsible for overseeing and facilitating a session of hang gliding or paragliding operations at the Single Hill site.
Section 5 of the instrument grants an exemption from compliance with subparagraph 7.1 (i) of CAO 95.8 to the pilot of a hang glider or paraglider who is operating the hang glider or paraglider in Class D airspace and within 16 kilometres of Hobart aerodrome.
A possible change to the Class of airspace around Hobart aerodrome is being considered. If the Class of airspace changes from Class D airspace, the exemption in section 5 of the instrument will no longer have effect.
The exemption in the instrument is subject to the conditions in section 6 of the instrument. Among these, the pilot must not conduct an exempt operation higher than 1 000 ft above mean sea level. Also, a pilot operating at the site is required to be informed of, and comply with, any conditions specified in the applicable written agreement.
Section 7 of the instrument contains 2 directions for the duty pilot. One direction requires the duty pilot to obtain clearance from the Hobart tower of AA before a session of operations commences at the Single Hill site. The other direction requires the duty pilot to notify the Hobart tower when a session of operations is completed. These are necessary to ensure that Hobart tower is aware when hang glider or paraglider operations are occurring or have ceased.
Section 8 of the instrument gives a direction to the THPA to ensure that CASA has a copy of the written agreement that is in effect in relation to an operation enabled by the instrument.
In accordance with subsection 98 (5D) of the Act, the instrument has the effect of applying, adopting or incorporating the written agreement by reference as it exists from time to time. It does so by applying the relevant requirements by reference to any written agreement that is in effect in relation to the relevant operations.
The written agreement is intended to describe the terms on which AA and the THPA will cooperate to permit the conduct of the exempted operations and to ensure that the operations do not conflict with aircraft operating at Hobart aerodrome.
The THPA will have a copy of the written agreement and can provide it to pilots wishing to operate in reliance on the exemption in the legislative instrument. By prior arrangement with CASA, a copy of the written agreement in effect can be made available for viewing free of charge at any office of CASA.
CASA has assessed the safety impact of the proposed operations at the Single Hill site and is satisfied that they will not adversely affect the safety of operations at Hobart aerodrome.
Legislation Act 2003 (the LA)
Subsection 98 (5AA) of the Act states that an instrument issued under paragraph (5A) (a) is a legislative instrument if it applies to a class of persons or a class of aircraft. This exemption applies to a class of persons and to a class of aircraft and so is a legislative instrument. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
This instrument is of substantially the same effect as CASA EX33/18. It was issued at the request of the THPA. The THPA has consulted AA’s Hobart Tower which has expressed its continued support for the THPA’s operation at the Single Hill site. SAFA was also consulted and expressed its support for the instrument.
The THPA was consulted on the instrument. In these circumstances, CASA is satisfied that no further consultation on the instrument is necessary or appropriate for section 17 of the LA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Sector risk, economic and cost impact
Subsection 9A (1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A (3) states that, subject to subsection 9A (1), in developing and promulgating aviation safety standards under paragraph 9 (1) (c), CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.
The instrument replaces a repealing instrument and there will be no change to the economic or cost impact on individuals, businesses or the community. The Office of Best Practice Regulation (OBPR) has also made an assessment that a Regulation Impact Statement (RIS) is not required for exemptions and directions.
Office of Best Practice Regulation
A RIS is not required because the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Making and commencement
The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The exemption commences on 1 April 2021 and is repealed at the end of 31 March 2024.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX36/21 — Flight in Class D Airspace near Hobart Aerodrome Exemption 2021
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
Members of the Tasmanian Hang Gliding and Paragliding Association (the THPA) operate hang gliders and paragliders from a site at Single Hill in Tasmania. The site is within 16 kilometres of a controlled aerodrome, Hobart aerodrome. Therefore, hang glider and paraglider operators require an exemption from compliance with subparagraph 7.1 (i) of Civil Aviation Order 95.8 which prohibits the operation of such aircraft in Class D airspace within 16 kilometres of a controlled aerodrome.
The exemption is subject to conditions on pilots who are operating at the Single Hill site.
The instrument also issues directions to the duty pilot and the THPA. The duty pilot is a THPA member responsible for overseeing and facilitating a session of hang gliding or paragliding operations at the Single Hill site.
The conditions and directions are imposed by CASA in the interests of the safety of air navigation.
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