Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
CASA 24/21 — ASRA National Championships (Dropping of Articles from Gyroplanes) Direction 2021
CASA EX42/21 — ASRA National Championships (Dropping of Things from Gyroplanes) Instrument 2021
Purpose
For consecutive parts of a 3-year period, each instrument enables, and regulates, performance of the following actions by The Australian Sport Rotorcraft Association (ASRA), the ASRA representative and ASRA members:
(a) ASRA — holding a competition, known as “flour bombing”, at the ASRA National Championships (the Championships);
(b) the ASRA representative — assisting with the preparation of the Championships and, in particular, performing actions related to the safe conduct of the Championships, including the competition mentioned in paragraph (a);
(c) ASRA members — taking part in, or assisting with the holding of, that competition.
In the remainder of this Explanatory Statement, the instruments are referred to as the ASRA Championships Direction and the ASRA Championships Instrument.
Legislation
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. Relevantly, the Governor‑General has made the Civil Aviation Safety Regulations 1998 (CASR) and Civil Aviation Regulations 1988 (CAR).
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, the Civil Aviation Safety Authority (CASA) may, by instrument, grant an exemption from compliance with 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.
Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant an exemption on its own initiative.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1) of CASR, the maximum duration of an exemption is 3 years.
Subpart 11.G of CASR provides for CASA to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a) of CASR, for subsection 98 (5A) of the Act, 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 of CASR ceases to be in force on the day specified in the direction. Under regulation 11.255, it is an offence of strict liability to contravene a direction under regulation 11.245.
Division 2 of Part 11 of CAR relates to flight rules and includes regulation 150, which relates to the dropping of articles. Subregulation 150 (1) of CAR provides that, subject to regulation 150, the pilot in command must not permit anything to be dropped from the aircraft. Under subregulation 150 (1A) of CAR, an offence against subregulation (1) is an offence of strict liability. However, paragraphs 150 (2) (viii), (ix) and (x) of CAR provide that nothing in regulation 150 prevents “the dropping of packages or other articles or substances … in the course of other operations” in accordance with directions issued by CASA “to ensure the safety of the aircraft as far as practicable” and “to minimise hazards to persons, animals or property”.
Schedule 1 to the Civil Aviation Legislation Amendment (Flight Operations—Consequential Amendments and Transitional Provisions) Regulations 2021 is expressed to commence immediately after the start of 2 December 2021. Item 33 of Schedule 1 to those Regulations will, at the time Schedule 1 commences, repeal Parts 11 to 13 of CAR, including regulation 150 (located in Part 11 of CAR).
The Civil Aviation Safety Amendment (Part 91) Regulations 2018 are expressed to commence on 2 December 2021. Item 1 of Schedule 1 to those Regulations repeals and replaces Part 91 of CASR (new Part 91). The provisions in the new Part 91 include regulation 91.190, composed of an offence that has the same effect as the to be repealed subregulations 150 (1) and (1A) of CAR. Specifically, after it commences, regulation 91.190 will provide:
(a) in subregulation (1) — that the “pilot in command of an aircraft for a flight contravenes this subregulation if, during the flight, a thing is dropped from the aircraft”; and
(b) in subregulation (2) — that a “person commits an offence of strict liability if the person contravenes subregulation (1)”.
Background
The Championships will take place this year on 1 and 2 May 2021. However, the ASRA Championships Direction and the ASRA Championships Instrument will, jointly, remain in force for a period of approximately 3 years and apply to Championships conducted during that period. Because of the upcoming repeal of regulation 150 of CAR, the ASRA Championships Direction remains in force for only part of that 3-year period and the ASRA Championships Instrument remains in force for the remainder.
Overview of instruments
The ASRA Championships Direction and the ASRA Championships Instrument each enables, and regulates, performance of the following actions by ASRA, the ASRA representative and ASRA members:
(a) ASRA — holding a competition, known as “flour bombing”, at the Championships;
(b) the ASRA representative — assisting with the preparation of the Championships and, in particular, performing actions related to the safe conduct of the Championships, including the competition mentioned in paragraph (a);
(c) ASRA members — taking part in, or assisting with the holding of, that competition.
CASA has assessed ASRA’s application for the reissue of a previous instrument which was repealed at the end of 28 February 2021 — CASA 27/18 — ASRA National Championships (Dropping of Articles from Gyroplanes) Direction 2018 (CASA 27/18) including, but not limited to, a risk analysis provided by ASRA. Based on that assessment, CASA is satisfied that there are no adverse safety implications in relation to issuing the directions or granting the exemption.
Content of instruments
Content common to each instrument
Section 1 names each instrument.
Section 2 sets out the duration of each instrument.
Section 3 contains definitions. In particular, participating ASRA member is defined to mean a current ASRA member, including a member who is the pilot in command of a gyroplane registered with ASRA, who is taking part in, or assisting with the conduct of, the Championships.
The note located immediately below the heading of section 3 is intended to assist users of each instrument to identify particular defined terms located in the Act, CAR or CASR.
Subsections 4 (1), (2), (3) and (4) set out, respectively, the following:
(a) the period when, and the circumstances in which, the direction in clause 1 of Schedule 1 to each instrument applies;
(b) the circumstances in which the directions in clauses 2, 3 and 5 to 8 of Schedule 1 apply;
(c) the circumstances in which the direction in clause 4 of Schedule 1 applies;
(d) the activities and the circumstances to which the directions in Schedule 2 to each instrument apply.
However, subsection 4 (2) of the ASRA Championships Instrument mentions an additional provision, required as a consequence of the upcoming repeal of regulation 150 of CAR. That difference is described in more detail under the heading “The ASRA Championships Instrument”.
Section 5 of each instrument issues directions under regulation 11.245. However, section 5 of the ASRA Championships Instrument issues 2 directions, required as a consequence of the upcoming repeal of regulation 150 of CAR, that are not issued by section 5 of the ASRA Championships Direction. Those differences are described in more detail under the next 2 headings.
The content of the directions in Schedules 1 and 2 to each instrument is identical except for one difference in expression. The directions in Schedules 1 and 2 to the ASRA Championships Direction (for consistency with the expression of regulation 150 of CAR) mentions the dropping of “articles” while the directions in Schedules 1 and 2 to the ASRA Championships Instrument (for consistency with the expression of yet to commence regulation 91.190 of CASR) mentions the dropping of “things”.
Clause 1 of Schedule 1 directs the ASRA representative to, within a specified period before the Championships, ensure that ASRA has obtained written permission from the aerodrome operator or owner (whichever applies) to conduct the Championships at the relevant aerodrome or on the relevant private property.
Clause 2 of Schedule 1 directs ASRA to ensure that the ASRA representative is present throughout the Championships (whether held at a relevant aerodrome or on a relevant private property).
Clause 3 of Schedule 1 directs the ASRA representative to take all reasonable steps to ensure that participating ASRA members comply with the directions in Schedule 2.
Paragraph 4 (a) of Schedule 1 directs the ASRA representative to ensure that onlookers and spectators at the Championships are no closer to the centre of each target area than the distance mentioned in that paragraph.
Paragraph 4 (b) of Schedule 1 directs the ASRA representative to ensure that judges at the Championships are no closer to the centre of each target area than the distance mentioned in that paragraph.
Clause 5 of Schedule 1 directs the ASRA representative to use a particular kind of serviceable radio to communicate with other aircraft operating in the area, and includes the reason for the direction.
Clause 6 of Schedule 1, for clause 5, directs the ASRA representative to hold particular licences, certificates or endorsements related to aviation radiocommunications.
Clause 7 of Schedule 1 directs the ASRA representative to monitor both inbound and outbound traffic calls.
Clause 8 of Schedule 1 directs the ASRA representative to ensure that all debris from dropping articles or things is removed during or after the competition, when it is safe to do so.
Clause 1 of Schedule 2 directs a participating ASRA member taking part in the Championships who is the pilot in command of a gyroplane registered with ASRA to conduct the dropping of articles or things only during daylight hours in which particular meteorological conditions exist.
Clause 2 of Schedule 2 directs a participating ASRA member taking part in the Championships who is the pilot in command of a gyroplane registered with ASRA to conduct the dropping of articles or things in a manner and at a time that avoids conflict with other aircraft operating in the area.
Paragraphs 3 (a) to (d) of Schedule 2 directs a current ASRA member taking part in the Championships who is a pilot in command of a gyroplane registered with ASRA to ensure that the articles or things to be dropped, respectively: are made from particular substances; are contained in a particular kind of container; have a maximum weight of 250 grams; and are aimed at, and dropped vertically onto, a designated target area.
Clause 4 of Schedule 2 directs participating ASRA members to ensure that only 1 gyroplane at a time is permitted to drop an article or a thing.
Clause 5 of Schedule 2 directs participating ASRA members to comply with any instruction that the ASRA representative issues to ensure compliance with the ASRA Championships Direction or the ASRA Championships Instrument.
The notes located immediately below Schedules 1 and 2 of each instrument are identical except for the difference in expression described in the preceding paragraph. Each of those notes mentions, but does not incorporate by reference, other directions related to dropping of articles that are in Civil Aviation Order 29.5. Instead, each is a signpost note, intended to assist users of each instrument to locate other relevant directions.
The ASRA Championships Direction
Note 1, located immediately below section 2, is intended to assist the reader to identify the date of repeal mentioned in paragraph 2 (b) by providing the time at which Schedule 1 to the Civil Aviation Legislation Amendment (Flight Operations—Consequential Amendments and Transitional Provisions) Regulations 2021 is expressed to commence.
Note 2, also located below section 2, specifies (for regulation 11.250 of CASR) when the directions in section 5 and Schedule 1 cease to be in force.
Subsection 4 (2) sets out the circumstances in which the exemption in section 6 applies (in addition to the circumstances in which the directions in clauses 2, 3 and 5 to 8 of Schedule 1 apply).
Section 5 issues directions under regulation 11.245 of CASR. Within that section, paragraph (a) provides that the direction in clause 2 of Schedule 1 is issued to ASRA and paragraph (b) provides that the remainder of the directions in Schedule 1 are issued to the ASRA representative.
Section 6 issues directions under subregulation 150 (2) of CAR. Within that section:
(a) paragraph (a) provides that the direction in clauses 1, 2 and 3 of Schedule 2 are issued to each participating ASRA member who is the pilot in command of a gyroplane registered with ASRA; and
(b) paragraph (b) provides that the remainder of the directions in Schedule 2 are issued to participating ASRA members taking part in, or assisting with the conduct of, the Championships.
Schedule 1 sets out the directions mentioned in paragraphs 5 (a) and (b).
Schedule 2 sets out the directions mentioned in paragraphs 6 (a) and (b).
The ASRA Championships Instrument
Note 1, located immediately below section 2, is intended to assist the reader to identify when the commencement event mentioned in paragraph 2 (a) is expected to take place by providing the date on which the Civil Aviation Safety Amendment (Part 91) Regulations 2018 are expressed to commence.
Note 2, also located below section 2, specifies (for regulation 11.250 of CASR) when the directions in section 5 and Schedules 1 and 2 cease to be in force.
Section 5 issues directions under regulation 11.245 of CASR. Within that section, paragraphs (a) to (d) provide, respectively, the following:
(a) that the direction in clause 2 of Schedule 1 is issued to ASRA;
(b) that the remainder of the directions in Schedule 1 are issued to the ASRA representative;
(c) that the directions in clauses 1, 2 and 3 of Schedule 2 are issued to each participating ASRA member who is the pilot in command of a gyroplane registered with ASRA;
(d) that the remainder of the directions in Schedule 2 are issued to participating ASRA members taking part in, or assisting with the conduct of, the Championships.
Section 6 exempts a participating ASRA member who is the pilot in command of a gyroplane registered with ASRA from compliance with subregulation 91.190 (1) of CASR, to the extent that the subregulation prohibits the pilot in command from dropping a thing from the gyroplane in the competition.
Schedule 1 sets out the directions mentioned in paragraphs 5 (a) and (b).
Schedule 2 sets out the directions mentioned in paragraphs 5 (c) and (d).
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The ASRA Championships Direction and the ASRA Championships Instrument apply to classes of persons composed of the following:
(a) each participating ASRA member who is the pilot in command of a gyroplane registered with ASRA;
(b) participating ASRA members taking part in, or assisting with the conduct of, the Championships.
Therefore, the ASRA Championships Direction and the ASRA Championships Instrument is each a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
General consultation about the ASRA Championships Direction and the ASRA Championships Instrument has not been undertaken with the aviation industry. However, ASRA has requested the reissue of the direction in CASA 27/18, replaced by the ASRA Championships Direction. The ASRA Championships Instrument will, from the commencement of the Civil Aviation Safety Amendment (Part 91) Regulations 2018, replace the ASRA Championships Direction. The ASRA Championships Instrument and the ASRA Championships Direction:
(a) are made in substantially similar terms to each other and to CASA 27/18;
(b) is each issued for the limited purpose of allowing the conduct of a recreational activity by gyroplane pilots for a fixed period at 1 location each year.
Although the ASRA Championships Direction and the ASRA Championships Instrument, jointly, have a duration of approximately 3 years, each only has effect during the preparation for the Championships and while the Championships are being conducted. The operator of the aerodrome at which the competition is to be conducted in 2021 has given consent for the Championships to proceed at that location. In those circumstances, it is CASA’s view that it is not necessary 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 for either the ASRA Championships Direction or the ASRA Championships Instrument because of a standing agreement between CASA and OBPR under which a RIS is not required for directions and exemptions (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. Neither the ASRA Championships Direction nor the ASRA Championships Instrument engages any of the applicable rights or freedoms, and each is compatible with human rights, as each does not raise any human rights issues.
Making and commencement
The ASRA Championships Direction and the ASRA Championships Instrument has each been made by a delegate of CASA, relying on the power of delegation under subregulation 11.260 (1) of CASR.
The ASRA Championships Direction commences on the day after it is registered on the Federal Register of Legislation and is expressed to be repealed immediately after the commencement of Schedule 1 to the Civil Aviation Legislation Amendment (Flight Operations—Consequential Amendments and Transitional Provisions) Regulations 2021. Currently, Schedule 1 to those Regulations is expressed to commence immediately after the start of 2 December 2021.
The ASRA Championships Instrument commences on the commencement of the Civil Aviation Safety Amendment (Part 91) Regulations 2018 and is repealed at the end of 31 March 2024. Currently, those Regulations are expressed to commence on 2 December 2021.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA 24/21 — ASRA National Championships (Dropping of Articles from Gyroplanes) Direction 2021
CASA EX42/21 — ASRA National Championships (Dropping of Things from Gyroplanes) Instrument 2021
These legislative instruments are 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 instruments
Each legislative instrument is issued for the limited purpose of allowing the conduct of a recreational activity by gyroplane pilots for a fixed period at 1 location each year. The activity involves dropping containers of flour and lime onto a target area. The ASRA Championships Direction replaces a previous instrument which was repealed at the end of 28 February 2021 — CASA 27/18 — ASRA National Championships (Dropping of Articles from Gyroplanes) Direction 2018 (CASA 27/18). The ASRA Championships Instrument will, from the commencement of the Civil Aviation Safety Amendment (Part 91) Regulations 2018, replace the ASRA Championships Direction. The ASRA Championships Instrument and the ASRA Championships Direction are made in substantially similar terms to each other and to CASA 27/18.
Although the instruments, jointly, have a duration of approximately 3 years, each only has effect during the preparation for the ASRA National Championships, and while they are being conducted. The operator of the aerodrome at which the competition is to be conducted in 2021 has given consent for the ASRA National Championships to proceed at that location.
Human rights implications
Each legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
Each legislative instrument is compatible with human rights as each does not raise any human rights issues.
Civil Aviation Safety Authority