Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX39/22 – Repeal of Educational, Training or Research Use of Certain RPA as if They were Model Aircraft – Prescription and Exemption Instrument 2022
Purpose
The purpose of CASA EX15/22 – Educational, Training or Research Use of Certain RPA as if They were Model Aircraft – Prescription and Exemption Instrument 2022 (CASA EX15/22) was to ameliorate the effect on educational use of model aircraft, of the delay, until 1 July 2022, of the application of a new definition of model aircraft as contained in regulation 101.023 of the Civil Aviation Safety Regulations 1998 (CASR).
This was so that schools and higher education providers could use remotely piloted aircraft (RPA) with a gross weight of not more than 7 kg as if they were, legally, model aircraft, provided the use was in connection with educational, training or research purposes: in other words, as if the new definition of model aircraft had come into force.
This was intended to allow the educational, training and research use of drones that were, in practical effect, model aircraft, but that, until the new definition of model aircraft commenced on 1 July 2022, would otherwise have to be treated legally as RPA and subject to RPA operational rules which differed from the rules applying to model aircraft as such. To achieve this outcome, the exemption instrument was made with a view to its expiry immediately before 1 July 2022.
CASA EX39/22 – Repeal of Educational, Training or Research Use of Certain RPA as if They were Model Aircraft – Prescription and Exemption Instrument 2022 now repeals CASA EX15/22 because the Civil Aviation Safety Amendment (Parts 47 and 101 No. 2) Regulations 2022, which commenced on 2 April 2022, had the effect of bringing the new definition of model aircraft into effect on 2 April 2022, thus rendering CASA EX15/22 redundant.
Legislation — exemptions
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.
Subpart 11.F of CASR deals with exemptions. Under subregulation 11.160 (1), and for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of CASR in relation to a matter mentioned in subsection 98 (5A). Subsection 98 (5A) matters are, in effect, those affecting the safety, airworthiness or design of aircraft.
Under subregulation 11.160 (2), an exemption may be granted to a person or a class of persons. Under subregulation 11.160 (3), CASA may grant an exemption on application, or on its own initiative. Under subregulation 11.170 (3), for an application for an exemption, CASA must regard as paramount the preservation of an acceptable level of safety. For making a decision on its own initiative, CASA is guided by the requirement in subsection 9A (1) of the Act that in exercising its powers and functions CASA must regard the safety of air navigation as the most important consideration.
Under regulation 11.205, 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 a strict liability offence not to comply with the obligations imposed by a condition. Under regulation 11.225, CASA must, as soon as practicable, publish on the internet details of all exemptions under Subpart 11.F.
Under subregulation 11.230 (1), an exemption may remain in force for 3 years or for a shorter period specified in the instrument.
Under subregulation 11.230 (3), an exemption, in force in relation to a particular aircraft owned by a particular person, ceases to be in force when the aircraft ceases to be owned by that person. Under regulation 11.235, an exemption is not transferable (as between operators, aircraft etc.).
By virtue of subsection 33 (3) of the Acts Interpretation Act 1901, an instrument made in accordance with the above provisions may be repealed in the same manner, and subject to the same conditions, as when the original instrument was made.
Legislation — Unmanned aircraft
Previously, the definition of a model aircraft was contained in the CASR Dictionary which provided that a model aircraft was an aircraft used for sport or recreation but which cannot carry a person.
New regulation 101.023 of CASR contains a new definition of model aircraft which includes (in paragraph 101.023 (1) (b)) that an aircraft is a model aircraft if the aircraft has a gross weight of not more than 7 kg, and is being operated in connection with the educational, training or research purposes of: (a) a school in relation to which there is an approved authority under the Australian Education Act 2013; or (b) a higher education provider within the meaning of the Higher Education Support Act 2003.
However, under regulation 202.466 of CASR, this new definition was expressed not to apply until, in effect, 1 July 2022. Until then, the current CASR Dictionary definition applied and confined the meaning of model aircraft to aircraft used in sport and recreation.
Background
“Model aircraft” used for purposes other than sport and recreation, including educational, training or research purposes of a school or a higher education provider, would, as a consequence of the delayed application of the definition, be subject to relevant RPA registration requirements under Part 47 of CASR, and RPA operating requirements under Part 101 of CASR. In addition to aircraft registration, these requirements include, under regulation 101.252, holding a remote pilot licence (a RePL), under regulation 101.270, holding a remote operator’s certificate (a ReOC) — in each case unless the RPA was an excluded aircraft (that is subject to strict and specific operating rules under regulation 101.237).
These RPA requirements would be onerous for schools and higher education providers who mainly use “model aircraft”, not for sport or recreation, but for education, training and research. The RPA requirements would remain in force requiring such “model aircraft” to be treated as RPA until the start of 1 July 2022 when these RPA “model aircraft” would legally become model aircraft as such and be relieved from the more onerous obligations.
Because of their likely complexity, it was not possible within the time available to obtain regulation amendments to ameliorate these synchronised timing issues for the application of new rules to RPA and model aircraft. Hence, an exemption instrument, CASA EX15/22 was used as explained below.
The exemption instrument
Subsection 5 (2) of the instrument created a category of RPA called relevant class of RPA meaning RPA that are micro RPA, very small RPA, and small RPA whose gross weight is not more than 7 kg, that, but for the delayed timing effect of subregulation 202.466 (1) of CASR, would be defined as model aircraft within the extended meaning in paragraph 101.023 (1) (b) of CASR.
Under subsection 5 (1) of the instrument, for paragraph 47.015 (1) (i) of CASR, the relevant class of RPA was prescribed as not required to be registered.
This was possible because under paragraph 47.015 (1) (i) (as amended) an aircraft was required to be registered unless it was prescribed by an instrument under paragraph 47.015 (1B) (a). This provided that CASA may issue an instrument (in effect, CASA EX15/22) prescribing classes of RPA which then do not require to be registered. Thus, the category of RPA called relevant class of RPA (in practical effect, school/higher education “model aircraft”), were not required to be registered or otherwise subjected to requirements only applicable to actual RPA.
Civil Aviation Safety Amendment (Parts 47 and 101 No. 2) Regulations 2022
The above regulations were registered on 1 April 2022 to commence on 2 April 2022. Amendment No. 17 within that set of regulation amendments had the effect of commencing the applicability of the new definition of model aircraft on that date. Thus, educational-use “RPA” that are in effect model aircraft within the new definition, no longer require temporary exemption from being treated as RPA, and being subject to RPA requirements. (The above regulations also provide that requirements to register a model aircraft, or for its pilot to be accredited, do not take effect until 1 July 2023.)
Legislation Act 2003 (the LA)
CASA EX15/22 was a legislative instrument and consequently its repeal is also a legislative instrument.
Sunsetting and parliamentary oversight
As a repeal instrument, no sunsetting avoidance issues arise and there is no impact on parliamentary oversight.
Consultation
Under section 16 of the Act, in performing its functions and exercising its powers CASA must consult government, industrial, commercial consumer and other relevant bodies and organisations insofar as CASA considers such consultation to be appropriate.
Under section 17 of the LA, before a legislative instrument is made, CASA must be satisfied that it has undertaken any consultation it considers appropriate and practicable, in order to draw on relevant expertise and involve persons likely to be affected by the proposals.
CASA considered that it was not appropriate to formally consult in relation to the repeal instrument because it is a redundant instrument whose repeal makes way for the Civil Aviation Safety Amendment (Parts 47 and 101 No. 2) Regulations 2022 to have unambiguous effect. The effect of the new definition of model aircraft taking effect under the regulations is entirely beneficial for educational-use model aircraft operators.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because repeal instrument, no less than the previous exemption instrument, is covered by a standing agreement between CASA and OBPR under which a RIS is not required for an exemption (OBPR id: 14507).
Sector risk, and economic and cost impact
Under subsection 9 (3) of the Act, subject to the overriding considerations of aviation safety, in developing and promulgating aviation safety standards, CASA must consider the economic and cost impact on individuals, businesses and the community of the standards, and take into account the differing risks associated with different industry sectors.
Because the Civil Aviation Safety Amendment (Parts 47 and 101 No. 2) Regulations 2022 bring the new definition of model aircraft into effect, the repeal instrument has no adverse effect on sector risk, and economic and cost impact.
Rural and regional impacts
The Minister’s Statement of Expectations states: “I expect that CASA will: … (b) fully consider the impact of new regulations on general aviation, with a particular focus on regional and remote Australia. All Explanatory Statements drafted by CASA for subordinate legislation should identify the impact on the various categories of operations as well as on communities in regional and remote Australia served by those operations and how these impacts have been considered.”
There are no identified rural and regional impacts that differ in any material way from the general economic and cost impacts described above.
Statement of Compatibility with Human Rights
The Statement in Appendix 1 is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The exemption instrument is compatible with human rights.
Commencement and making
The new exemption instrument commences on the day after it is registered.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
Appendix 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX39/22 – Repeal of Educational, Training or Research Use of Certain RPA as if They were Model Aircraft – Prescription and Exemption Instrument 2022
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 purpose of CASA EX15/22 – Educational, Training or Research Use of Certain RPA as if They were Model Aircraft – Prescription and Exemption Instrument 2022 (CASA EX15/22) was to ameliorate the effect on educational use of model aircraft, of the delay, until 1 July 2022, of the application of a new definition of model aircraft as contained in regulation 101.023 of the Civil Aviation Safety Regulations 1998 (CASR).
This was so that schools and higher education providers could use remotely piloted aircraft (RPA) with a gross weight of not more than 7 kg as if they were, legally, model aircraft, provided the use was in connection with educational, training or research purposes: in other words, as if the new definition of model aircraft had come into force.
This was intended to allow the educational, training and research use of drones that were, in practical effect, model aircraft, but that, until the new definition of model aircraft commenced on 1 July 2022, would otherwise have to be treated legally as RPA and subject to RPA operational rules which differed from the rules applying to model aircraft as such. To achieve this outcome, the exemption instrument was made with a view to its expiry immediately before 1 July 2022.
CASA EX39/22 – Repeal of Educational, Training or Research Use of Certain RPA as if They were Model Aircraft – Prescription and Exemption Instrument 2022 now repeals CASA EX15/22 because the Civil Aviation Safety Amendment (Parts 47 and 101 No. 2) Regulations 2022, which commenced on 2 April 2022, had the effect of bringing the new definition of model aircraft into effect on 2 April 2022, thus rendering CASA EX15/22 redundant.
Human rights implications
As a repeal instrument, and given the operation of the Civil Aviation Safety Amendment (Parts 47 and 101 No. 2) Regulations 2022, the repeal instrument does not engage any of the relevant human rights.
Human rights implications
The repeal 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.
Conclusion
This legislative instrument is compatible with human rights.
Civil Aviation Safety Authority