Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — flight in class D airspace within 16 kilometres of an aerodrome
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in the interests of the safety of air navigation.
Paragraph 7.6 of Civil Aviation Order 95.8 provides that an aircraft to which this Order applies may be flown in Class C or Class D airspace if the pilot holds a valid pilot licence (not being a student pilot licence), issued under Part 5 of CAR 1988, that allows the holder to fly in that airspace and has satisfactorily completed a flight review in accordance with regulation 5.81, 5.108 or 5.169 of CAR 1988. This provision was inserted into the Civil Aviation Order in March 2011.
The Tasmanian hang gliding and paragliding Associations (the Association) who are members of the Gliding Federation of Australia (HGFA) have been operating hang gliders and paragliders at a site on Single Hill in Hobart. With the coming into effect of this new provision the members of the Association cannot legally continue to operate if an exemption is not granted. The Association has applied for an exemption.
Exemptions
Under subregulation 11.160 (1) of CASR 1998, CASA may grant an exemption from compliance with a provision of CASR 1998. AA has applied for an exemption. In deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety.
CASA has agreed to grant the exemption and impose conditions. 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 11.210, it is an offence to fail to comply with a condition of an exemption. Under regulation 11.225, 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.
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 persons 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 (LIA).
Human Rights Compatibility
This Legislative Instrument does not engage any of the applicable rights or freedoms. It is compatible with human rights as it does not raise any human rights issues.
Consultation
CASA consulted the HGFA and the Association. The instrument commences on the day after it is registered and stops having effect at the end of February 2015.
The exemption has been made by the Direction of Aviation Safety CASA in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX 38/12]
Overview
The Civil Aviation Safety Regulations 1998 were enacted to regulate and ensure the safety of air navigation across Australia, thereby implementing the Civil Aviation Act 1988. These regulations address the need to maintain safety standards in the aviation sector, including specific requirements for pilots and aircraft operations within various airspaces. The Civil Aviation Safety Regulations 1998 are administered by the Civil Aviation Safety Authority (CASA), which has the authority to grant exemptions from certain provisions of the regulations where necessary for safety. The exemption discussed in this explanatory statement pertains to the operation of hang gliders and paragliders within 16 kilometres of an aerodrome in Class D airspace, a situation that the Tasmanian hang gliding and paragliding Associations found themselves unable to legally comply with due to recent changes in the Civil Aviation Order. CASA has agreed to grant the exemption and impose conditions to ensure continued operations while preserving an acceptable level of safety.
Scope and Application
The Civil Aviation Safety Regulations 1998 (CASR) pertain to the safety of air navigation and are applicable to all aircraft to which the Civil Aviation Order (CAO) applies, including those operating in Class C and D airspace. This regulation is enforced by the Civil Aviation Safety Authority (CASA) and its application extends across Australia, ensuring uniform safety standards. Exemptions from the provisions of CASR can be granted by CASA, provided that the exemption does not compromise the acceptable level of safety. Such exemptions, when granted, are subject to conditions necessary for maintaining the safety of air navigation and must be published on the internet. These exemptions are legislative instruments and, as such, are subject to parliamentary scrutiny under the Legislative Instruments Act 2003. The exemption in question pertains to the Tasmanian hang gliding and paragliding associations, allowing them to continue their operations within specific parameters to maintain safety standards while accommodating their activities.
Key Provisions
The Civil Aviation Safety Regulations 1998 (CASR 1998) provide for exemptions from certain regulatory requirements, with the primary aim of ensuring air navigation safety. Specifically, subregulation 11.160(1) empowers the Civil Aviation Safety Authority (CASA) to grant exemptions from the provisions of the CASR 1998. In this case, CASA has granted an exemption to the Tasmanian hang gliding and paragliding associations, enabling them to continue their operations at the Single Hill site in Hobart. This exemption was necessary due to the recent introduction of a new provision in Civil Aviation Order 95.8 that would otherwise have prevented the associations from legally operating their hang gliders and paragliders.
The obligations imposed on the parties by this Act are primarily focused on maintaining safety standards. The associations must ensure that all pilots hold a valid pilot licence, not a student pilot licence, issued under Part 5 of the Civil Aviation Regulations 1988 (CAR 1988). Additionally, the pilots must have completed a flight review in accordance with regulation 5.81, 5.108, or 5.169 of CAR 1988. CASA has also imposed certain conditions on this exemption, which the associations must adhere to, as stated in subregulation 11.205(1) of the CASR 1998. These conditions are intended to ensure the safety of air navigation and may include requirements related to operational procedures, equipment standards, and other safety-related measures.
Failure to comply with the conditions of the exemption is an offence under regulation 11.210 of the CASR 1998. This offence carries potential penalties, the specifics of which are not detailed in the provided text. Additionally, under regulation 11.225, the exemption must be published on the internet to ensure transparency and accessibility. The exemption will remain in effect until the specified date, which cannot exceed three years from its commencement, as per subregulation 11.230(1). If no specific date is provided, the exemption will automatically cease three years after its commencement.
From a legislative perspective, this exemption falls under subsection 98(5A) of the Civil Aviation Act 1988, allowing CASA to grant exemptions through an instrument. As the exemption applies to a class of persons, it qualifies as a legislative instrument under the Legislative Instruments Act 2003 (LIA). Consequently, it must be tabled and is subject to disallowance in Parliament, as per sections 38 and 42 of the LIA. Importantly, this Legislative Instrument does not engage any of the applicable rights or freedoms and is considered compatible with human rights, as it does not raise any human rights issues. CASA consulted with the relevant associations, including the Gliding Federation of Australia, before making this decision. The exemption will be effective from the day after it is registered and will cease to have effect at the end of February 2015.