CASA EX44/09 - Exemption - display of lights at night and in poor visibility

Overview

The Civil Aviation Regulations 1988, amended by F2009L02076, introduces an exemption concerning the display of lights on aircraft during night operations and in conditions of poor visibility. This exemption was enacted to address the unique requirements of the Police Integrity Commission of New South Wales, which undertakes covert surveillance operations that necessitate the deactivation of external aircraft lights to maintain the integrity of the surveillance. Enacted by the Parliament of Australia, the policy objective of this regulation is to ensure the safety of air navigation while allowing law enforcement agencies to perform their duties effectively. The exemption is subject to specific conditions, including adherence to Instrument Flight Rules and the display of external lights upon request by Air Traffic Control, thereby mitigating the safety risks associated with these operations. This legislative instrument, declared under the Legislative Instruments Act 2003, comes into effect on the day after registration and ceases to have effect by the end of 31 May 2011.

Scope and Application

The Civil Aviation Regulations 1988, under Section 98 of the Civil Aviation Act 1988, enable the Governor-General to enact regulations that ensure the safety of air navigation. Specifically, Subparagraph 195(1) mandates that at night and in poor visibility conditions, aircraft operators and pilots in command must display lights on their aircraft. However, an exemption has been granted to the Police Integrity Commission of New South Wales, a law enforcement agency that performs covert physical surveillance of designated targets. This exemption allows the Commission to operate its aircraft without displaying external lights when necessary for covert surveillance, though these operations are infrequent. To mitigate the associated risks, conditions have been imposed, such as requiring these operations to be conducted under Instrument Flight Rules, displaying external lights when requested by Air Traffic Control (ATC), and notifying ATC when external lights are not in use. The exemption is a legislative instrument under subparagraph 6(d)(i) of the Legislative Instruments Act 2003, and as such, it is subject to tabling and disallowance in Parliament as per sections 38 and 42 of the LIA. This exemption, which remakes a previous instrument (CASA EX20/07) that ceased on 31 May 2009, commences on the day after its registration and will cease to have effect on 31 May 2011. The instrument has been made by a delegate of CASA in accordance with subregulation 7(1) of CAR 1988. It is noteworthy that consultation under section 17 of the LIA was not undertaken in this instance, as the exemption pertains to a specific operator for law enforcement purposes.

Key Provisions

The Civil Aviation Regulations 1988 (CAR 1988) include specific provisions governing the display of lights on aircraft at night and in poor visibility conditions. According to subparagraph 195(1) of CAR 1988, it is mandatory for the operator and the pilot in command of an aircraft to ensure that the appropriate lights are displayed under these circumstances. However, subregulation 308(4) introduces an exemption that allows the Police Integrity Commission (PIC) of New South Wales, operating under the NSW Police, to turn off the external lights on their aircraft during certain covert surveillance operations. This exemption is specifically tailored to the unique needs of the PIC, which holds an Air Operator’s Certificate that authorises it to conduct such operations. The obligations imposed by this exemption are quite specific. The PIC must conduct these operations under the Instrument Flight Rules (IFR). Furthermore, they must ensure that the external lights are displayed if requested by Air Traffic Control (ATC). The PIC is also required to inform ATC whenever the external lights will not be displayed. These conditions are designed to mitigate the risks associated with conducting covert operations without external lighting, ensuring that air traffic management can still safely monitor and manage the aircraft in the airspace. There are significant consequences for non-compliance with these regulations. Under the Civil Aviation Act 1988, breaches of the Civil Aviation Regulations can lead to both civil and criminal penalties. While the specific offences and penalties are not detailed in the explanatory statement, it is clear that any failure to adhere to the conditions set out for this exemption could result in enforcement action. Such action might include fines, suspension of the Air Operator’s Certificate, or even prosecution under criminal law, depending on the severity and circumstances of the breach. The instrument itself is subject to disallowance under the Legislative Instruments Act 2003, which requires that it be tabled in Parliament and allows for its disallowance within a specified period. The instrument was made by a delegate of the Civil Aviation Safety Authority (CASA) and is in effect from the day after its registration until the end of 31 May 2011. It is worth noting that while consultation under the Legislative Instruments Act was not undertaken in this instance, the exemption relates to a specific operator and law enforcement activities, and it remakes a previous exemption (CASA EX20/07) that ceased to have effect at the end of May 2009.