Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — hang-gliding and paragliding operations at Hooley Dooley launch site within active restricted airspace at Williamtown, NSW
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the safety of air navigation.
Regulation 308 of the Civil Aviation Regulations 1988 (CAR 1988), which was repealed on 27 June 2011, allowed CASA to exempt aircraft or persons from compliance with specified provisions of CAR 1988. Regulation 5 of CAR 1988 allows CASA to issue a permission, approval or authority, if empowered or required under the regulations in Civil Aviation Orders (the CAOs). An exemption issued under this regulation has the same effect as a permission to not comply with regulatory requirements.
Civil Aviation Order 95.8 (CAO 95.8), issued on 22 March 2011 under regulation 308 of CAR 1988, applies to hang‑gliders and paragliders and exempts pilots of those aircraft from various airworthiness, maintenance and operational requirements set out in CAR 1988, subject to a range of conditions specified in the CAO. Despite the repeal of regulation 308 of CAR 1988, CAO 95.8 is continued in force by regulation 202.011 of the Civil Aviation Safety Regulations 1998 (CASR 1998).
Subparagraph 7.1 (i) of CAO 95.8 allows pilots to operate in Class C or Class D airspace below 300 feet above ground level that is not within 16 kilometres of a controlled aerodrome, or otherwise in Class C or Class D airspace in accordance with paragraph 7.6. Paragraph 7.6 of CAO 95.8 specifies a condition that allows an aircraft to operate in Class C or Class D airspace if the pilot holds a valid pilot licence issued under Part 5 of CAR 1988 and has satisfactorily completed a flight review in accordance with relevant Part 5 provisions.
Subregulation 11.160 (1) of CASR 1998 provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including CAR 1988 or a provision of the CAOs, in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.205 (1) of CASR 1998, 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.
Instrument
The instrument applies to pilots (being members or guest members) of Newcastle Paragliding Club (the Club), who are also members of the Hang Gliding Federation of Australia (HGFA), operating a hang-glider or paraglider within military restricted airspace at Williamtown, New South Wales. The instrument exempts those pilots from the requirements of paragraph 7.6 of CAO 95.8, being requirements to hold a valid pilot licence issued under Part 5 of CAR 1988 as well as having completed a flight review before flying in that airspace.
Members of the Club previously operated from Hooley Dooley launch site within the boundary of Williamtown military restricted airspace on weekends when control of that airspace was deactivated. Due to a change in 2013 to operational activation of this airspace, which deemed the airspace to be controlled airspace, members of the Club have been unable to use this launch site without complying with pilot licence requirements under Part 5 of CAR 1988.
The instrument has a range of conditions, including that all pilots must be briefed by the Duty Officer before commencing operations, pilots must comply with other requirements of CAO 95.8, operations must be confined to within a 2 nautical mile radius of the Hooley Dooley launch point and extend no further than a specified road, and the Williamtown Control Tower must be advised of all operations before commencement and after completion. The Club must also sign a letter of agreement with the Williamtown Defence authority requiring compliance with the instrument, in addition to any other requirements set out in the letter of agreement.
Legislative Instruments Act
Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA.
Under regulation 5A of CAR 1988, if CASA has issued a CAO, and CASA later issues an exemption that affects the operation of that CAO, the later document is declared to be a disallowable instrument. This instrument affects the operation of paragraph 7.6 of CAO 95.8 and is therefore declared to be a disallowable instrument.
Additionally, subregulation 11.160 (1) of CASR 1998 provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the CAOs. An instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The exemption applies to a class of persons, being pilots who are members or guest members of the Club.
The exemption is, therefore, also a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The Club has applied for the exemption after consulting Williamtown Defence authority and receiving in-principle approval to operate along the north-western boundary of the restricted airspace. The Club has also consulted with the HGFA, which supported the Club’s application for the exemption. Since members of the Club have regularly operated from Hooley Dooley launch site without incident and the Club has closely engaged with Williamtown Defence authority in seeking this exemption, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
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 (OBPR id: 14507).
Making and Commencement
The exemption has been made by a delegate of CASA relying on the power of delegation in subregulation 11.260 (1) of CASR 1998.
The exemption commences on the day of registration and expires at the end of May 2016, as if it had been repealed by another instrument.
[Instrument number CASA EX43/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — hang-gliding and paragliding operations at Hooley Dooley launch site within active restricted airspace at Williamtown, NSW
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
This legislative instrument exempts pilots (being members or guest members) of Newcastle Paragliding Club (the Club), who are also members of the Hang Gliding Federation of Australia, from the requirements of paragraph 7.6 of Civil Aviation Order 95.8 when operating a hang-glider or paraglider within military restricted airspace at Williamtown, New South Wales.
The purpose of this legislative instrument is to exempt those pilots from requirements to hold a valid pilot licence issued under Part 5 of the Civil Aviation Regulations 1988 and complete a flight review before being able to fly in that airspace.
The Club has received in-principle approval from Williamtown Defence authority to operate along the north-western boundary of the restricted airspace. The instrument specifies a range of conditions, including that the Club must sign a letter of agreement with Williamtown Defence authority requiring compliance with the instrument in addition to any other requirements specified by Williamtown Defence authority.
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