Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — for seaplanes
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and in relation to the safety of air navigation.
Under regulation 11.160 of the Civil Aviation Safety Regulations 1998 (CASR 1998), CASA may grant an exemption from compliance with a provision of the regulations which includes CASR 1998. Under subregulation 11.205 (1), 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 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 3 years after its commencement) or, if no day is specified, 3 years after commencement.
Under subregulation 92 (1) of the Civil Aviation Regulations 1988 (CAR 1988), among other things, the pilot in command of an aircraft may only land on, or take off from (operate), a place that is an established aerodrome; or a place whose use as an aerodrome is authorised by CASA; or a place that is suitable for use as an aerodrome; and that is safe to operate at that place. Certain bodies of water are suitable and safe as aerodromes for seaplanes. These aerodromes are usually non-controlled.
Regulation 166 of CAR 1988 sets out relevant definitions. Regulation 166A sets out general requirements for pilots of aircraft operated on the manoeuvring area of, or in the vicinity of, a non‑controlled aerodrome. Regulation 166B deals with straight-in approaches. Under regulation 166C, radio-qualified pilots of aircraft carrying VHF radios must make certain broadcasts on the relevant common traffic advisory frequency (CTAF). Under regulations 166D and 166E, with narrow exceptions, pilots of aircraft operated on the manoeuvring area of, or in the vicinity of, non-controlled (non-towered) aerodromes that are certified, registered, designated non-controlled, or military aerodromes, may commit an offence if the aircraft is not carrying a radio and the pilot is not radio-qualified. Regulation 167 modifies the safety rules for pilots of aircraft that are part of the aerodrome traffic at controlled aerodromes.
Paragraph 166A (2) (d) of CAR 1988 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.
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.)
The instrument replaces, in similar terms, instrument CASA EX48/11. It applies to the pilot in command of a float-equipped or floating-hull aeroplane which, when taking-off from, or landing on, water is flown: to avoid an obstacle or, without affecting the safety of air navigation, to avoid undue noise over a populous area; or to enable a water landing in the event of engine failure. The instrument exempts the pilot in command of a seaplane from paragraphs 166A (2) (d), (e) and (f) of CAR 1988.
Legislative Instruments Act
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the Regulations or Civil Aviation Orders. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The instrument applies to a class of aircraft and is, therefore, legislative. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case because of the highly specific nature and purpose of the instrument. It applies only to a small class of aeroplanes and is required to address particular practical and safety considerations arising from the environment in which those aircraft are operated. In addition, the exemption has been issued and reissued at least as far back as exemption EX61/2005. It is required because there are some circumstances in which strict adherence by the pilot in command of a seaplane to the rules the subject of the exemption may be inappropriate. For example, he or she would often be required to directly overfly houses along the foreshores. He or she could also be required to fly over land at low height immediately after take-off rather than follow the water course until gaining a safe height. This could make a safe water landing impossible in the event of an engine failure. However, if still over water, such a landing could be made in relative safety.
The instrument, therefore, exempts the pilot in command of a seaplane that is landing on, or taking-off from, water from paragraphs 166 (2) (d), (e) and (f) of CAR 1988. The exemption is subject to conditions. Except in an emergency, the pilot must comply with any directions given by air traffic control. The pilot must also land or take-off under the exemption only if he or she considers that, in the particular circumstances, it is safe not to comply with the requirements of those paragraphs.
The instrument replaces instrument CASA EX48/11 which ceased to have effect at the end of March 2013.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Commencement and making
The exemption commences on 1 April 2013 and stops having effect at the end of March 2016 as if it had been repealed by another instrument.
The exemption has been issued by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
[Instrument number CASA EX37/13]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — for seaplanes
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
The instrument exempts the pilot in command of a seaplane that is landing on or taking-off from water from paragraphs 166 (2) (d), (e) and (f) of the Civil Aviation Regulations 1988. The exemption is subject to conditions. Except in an emergency, the pilot must comply with any directions given by air traffic control. The pilot must also land or take-off under the exemption only if he or she considers that, in the particular circumstances, it is safe not to comply with the requirements of those paragraphs.
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