Explanatory Statement
Civil Aviation Act 1988
Exemption — flying training in amateur-built aircraft
Legislation
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.
Paragraph 11.160 (1) (b) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the Regulations, including the Civil Aviation Regulations 1988 (CAR 1988) or a provision of the Civil Aviation Orders (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.
Under regulation 5 of CAR 1988, if CASA is empowered or required under the Regulations to give a permission, approval or authority, CASA may, unless the contrary intention appears in the regulation conferring the power or function or imposing the obligation or duty, issue the direction, instruction or notification or give the permission, approval or authority in CAOs or otherwise in writing.
Purpose of the instrument
Civil Aviation Order 95.55 (Exemption from the provisions of the Civil Aviation Regulations 1988 — certain ultralight aeroplanes) Instrument 2015 (CAO 95.55) applies to particular kinds of light sport aircraft and exempts the aircraft from compliance with provisions of CAR 1988, subject to conditions set out in the CAO.
The instrument applies to a Brumby 610 aeroplane registered with Recreational Aviation Australia Inc. as 19-7780. It exempts the aeroplane from particular provisions of CAO 95.55 relating to the licensing requirements for pilots of light sport aircraft, if the aeroplane is being operated for training. The exemption is subject to conditions about who may operate the aeroplane as the pilot in command for the purpose of receiving the training.
Legislative instrument
Regulation 5A of CAR 1988 provides that if CASA has issued a CAO that is not an airworthiness directive whether, before, on or after 16 June 1994, a prescribed direction or exemption is issued, given or granted on or after that day and the prescribed direction or exemption has the effect of repealing, amending or otherwise affecting the operation of anything in the CAO, the prescribed direction or exemption is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 (the AIA).
Subparagraph 57AA (a) (i) of the Legislation Act 2003 (the LA) provides that for the purposes of subsection 8 (5) (which defines legislative instrument), an instrument is a legislative instrument if it is made under a power delegated by the Parliament before 1 January 2004 and is declared to be a disallowable instrument for the purposes of section 46A of the AIA in force at any time before 1 January 2005. Section 4 of the LA provides that a disallowable instrument means a legislative instrument to which section 42 of the LA applies.
Accordingly, the instrument must be lodged along with an Explanatory Statement for the instrument under section 15G of the LA.
The requirements for the Explanatory Statement are set out in section 15J of the LA and include that the Explanatory Statement be approved by the rule maker, explain the purpose and operation of the instrument, contain a description of any consultation undertaken in relation to the instrument or an explanation of why consultation was not undertaken. Because the instrument is a disallowable instrument, the Explanatory Statement for the instrument must contain a statement of compatibility prepared under subsection 9 (1) of the Human Rights (Parliamentary Scrutiny) Act 2011.
The instrument will not be enforceable unless it is registered, see section 15K of the LA.
Consultation
The exemption is in relation to an operation that is a requirement for recreational aviation operations only and Recreational Aviation Australia Inc. has been consulted and supports the exemption.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Regulation Impact Statement
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and the Office of Best Practice Regulation (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 instrument commences on the day after registration and expires at the end of April 2017, as if it had been repealed by another instrument.
[Instrument number CASA EX48/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — flying training in amateur-built aeroplane
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 instrument applies to a Brumby 610 aeroplane registered with Recreational Aviation Australia Inc. as 19-7780. It exempts the aeroplane from particular provisions of the Civil Aviation Regulations 1988 relating to the licensing requirements for pilots of light sport aircraft if the aeroplane is being operated for training. The exemption is subject to conditions about who may operate the aeroplane as the pilot in command for the purpose of receiving the training.
Human rights implications
The 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. The instrument does not engage any of the applicable rights or freedoms and is compatible with human rights.
Conclusion
This legislative instrument does not raise any human rights issues.
Civil Aviation Safety Authority