Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption, approval and direction — operation of model aircraft using first person view technology (Australian Miniature Aerosports Society)
Purpose
The purpose of the instrument is to allow members of the Australian Miniature Aerosports Society Inc. (AMAS) to operate model aircraft using first person view (FPV) technology if they do so in accordance with accepted procedures and practices.
Legislative background
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.
Under subsections 98 (5A) and (5AA) of the Act, the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation of aircraft, which, if applicable to a class of persons, would be legislative instruments.
Subregulation 98 (5D) of the Act provides that a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.
Under subregulation 101.073 (1) of the Civil Aviation Safety Regulations 1998 (CASR), a person commits an offence of strict liability if the person operates an unmanned aircraft and the aircraft is not operated within the person’s visual line of sight.
However, subregulation 101.073 (2) provides that subregulation 101.073 (1) does not apply if the person holds an approval under regulation 101.029 to operate the aircraft beyond the person’s visual line of sight and the conditions on the approval (if any) are complied with.
Regulation 101.385 of CASR prohibits a person from operating a model aircraft unless the visibility at the time is good enough for the person to be able to see the model aircraft continuously. Model aircraft are defined in the CASR Dictionary to mean those aircraft that are used for sport or recreation and cannot carry a person.
Exemptions, authorisations and directions issued under CASR
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, 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, and may specify the class by reference to membership of a specified body or any other characteristic.
Regulation 11.205 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.
Subregulation 101.029 (1) of CASR provides that, if a provision in Part 101 refers to a person holding an approval under regulation 101.029, the person may apply to CASA for the approval. Under regulation 11.015 of CASR, an approval of this type is an authorisation under Part 11 of CASR, with Subpart 11.BA of CASR applying to the authorisation.
Regulation 11.055 sets out criteria that apply to CASA when granting an authorisation. Regulation 11.056 provides that an authorisation can be granted subject to any condition that CASA is satisfied is necessary in the interests of the safety of air navigation. Under regulation 11.077, a person commits an offence of strict liability if the person breaches a condition of an authorisation.
Under paragraph 11.245 (1) (a) of CASR, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245 (2) of CASR provides that CASA may issue such a direction if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, if the direction is not inconsistent with the Act, and for the purposes of CASA’s functions.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Regulation 11.255 prescribes an offence for the contravention of a direction under regulation 11.245.
Instrument
The instrument provides members of AMAS (AMAS member) who are operating a model aircraft using FPV technology with an exemption and approval in respect of regulations 101.385 and 101.073 of CASR. This approval and exemption enables the AMAS member to operate model aircraft using FPV technology at a level of visibility that would be prohibited under Part 101 of CASR.
Section 4 of the instrument provides the AMAS member with an exemption from compliance with the requirement prescribed in subregulation 101.385 (1) of CASR. This exempts the AMAS member from the requirement to operate a model aircraft in visibility that is good enough for the person operating the model aircraft to be able to see it continuously.
The exemption mentioned in section 4 is subject to the condition that the AMAS member operates the model aircraft in accordance with the First Person View (FPV) Operation Manual published by AMAS (FPV Manual). The FPV Manual prescribes a set of operating conditions and procedures for the safe operation of model aircraft utilising FPV.
In accordance with subregulation 98 (5D) of the Act, the FPV Manual is incorporated as it exists from time to time. The FPV Manual is freely available from AMAS, and is accessible via the Internet on the following webpage: http://www.amas.org.au/wspDocuments.aspx.
Section 5 of the instrument provides the AMAS member with the approval required under regulation 101.073 of CASR to permit the operation of the model aircraft beyond the AMAS member’s visual line of sight. The approval mentioned in section 5 is subject to the condition that the AMAS member operates the model aircraft in accordance with the FPV Manual as it exists from time to time.
Section 6 of the instrument requires AMAS to obtain CASA’s prior written approval to make any amendments to the FPV Manual.
Legislation Act 2003
Paragraph 98 (5A) (a) of the Act provides that the regulations may empower CASA to issue an instrument in relation to matters affecting the safe navigation, and operation or the maintenance of aircraft. Relevantly, subsection 98 (5AA) provides that an instrument made under paragraph (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons or a class of aircraft.
As the instrument is expressed to apply to a class of persons and to a class of aircraft, the instrument is a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislation Act 2003.
Consultation
AMAS applied to CASA to obtain permission for its members to operate model aircraft using FPV technology. Under this application, AMAS provided CASA with a safety case and the AMAS FPV Manual, which prescribes a set of operating conditions and procedures for the safe operation of model aircraft utilising FPV.
The instrument formalises CASA’s acceptance of AMAS’ FPV Manual as adequate to permit members of the AMAS to utilise FPV technology and operate a model aircraft using a video downlink from a camera instead of maintaining a direct line of sight. AMAS has agreed to the substance of the instrument as reflected in a draft. Having regard to these circumstances, it is CASA’s view that it is not reasonably practicable or appropriate to undertake any further consultation under section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for an exemption (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 exemption commences on the day of registration and is repealed at the end of 29 February 2020.
[Instrument number CASA EX37/17]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption, approval and direction — operation of model aircraft using first person view technology (Australian Miniature Aerosports Society)
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 legislative instrument allows members of the Australian Miniature Aerosports Society Inc. to operate a model aircraft using first person view technology if they do so in accordance with accepted procedures and practices.
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