Explanatory Statement
Civil Aviation Regulations 1988
Exemption — for seaplanes
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and in relation to the safety of air navigation.
Under subregulation 308 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may, among other things, exempt the pilot in command of an aircraft from compliance with specified provisions of CAR 1988. Under subregulation 308 (2), before CASA decides to give an exemption CASA must take into account all relevant considerations relating to the interests of safety. Subregulation 308 (3) provides that an exemption may be made subject to any conditions necessary in the interests of safety. Under these provisions, it is possible to relax certain aviation rules and provide conditional alternatives if it is safe to do so.
Under subregulation 92 (1) of CAR 1988, among other things, the pilot in command of an aircraft may only land on, or take off from (operate), a place that is an established aerodrome; or a place whose use as an aerodrome is authorised by CASA; or a place that is suitable for use as an aerodrome; and it is safe to operate at that place. Certain bodies of water are suitable and safe as aerodromes for seaplanes. These aerodromes are usually non-controlled.
Background — Amendment Regulations
Commencing on 3 June 2010, the Civil Aviation Amendment Regulations 2010 (No. 1) (the Amendment Regulations) modify certain safety rules in relation to operating on, and in the vicinity of, aerodromes. While modifying some rules, the Amendment Regulations renumbered and redrafted others of the rules.
New regulation 166 set out relevant definitions. New regulation 166A set out general requirements for pilots of aircraft operated on the manoeuvring area of, or in the vicinity of, a non-controlled aerodrome. New subregulation 166B dealt with straight-in approaches. Under new regulation 166C radio-qualified pilots of aircraft carrying VHF radios must make certain broadcasts on the relevant common traffic advisory frequency (CTAF). Under new regulations 166D and 166E, with narrow exceptions, pilots of aircraft operated on the manoeuvring area of, or in the vicinity of, non-controlled (non‑towered) aerodromes that are certified, registered, designated non-controlled, or military aerodromes, may commit an offence if the aircraft is not carrying a radio and the pilot is not radio-qualified. New regulation 167 modified the safety rules for pilots of aircraft that are part of the aerodrome traffic at controlled aerodromes.
Background — previous exemption of seaplanes
CASA EX 01/09 (12 January 2009) had the effect of exempting float-equipped or floating‑hull aeroplanes (seaplanes) from requirements in regulation 166 of CAR 1988 as they were before the Amendment Regulations were made. These requirements related to turns when joining the circuit pattern for landing, straight line descents before landing, and maintaining track after take-off.
The reason for the previous exemption was that there are some circumstances in which strict adherence to these rules by the pilot in command of a seaplane may be inappropriate.
For example, if, when landing, the pilot in command of a seaplane must descend in a straight line starting at least 500 metres from “the runway” (i.e. the water’s edge), or if, after take-off, the pilot must maintain the same track without turning until the aircraft is 500 feet above the terrain, a seaplane would only be able to operate on very large bodies of water. It would often be required to directly overfly houses along the foreshores. It could be required to fly over land at low height immediately after take-off rather than follow the water course until gaining a safe height. This could make a safe water landing impossible in the event of an engine failure. However, if still over water such a landing could be made in relative safety.
The previous exemption, therefore, exempted the pilot in command of a seaplane that is landing on, or taking-off from, water from these requirements. The exemption was subject to conditions. Except in an emergency, the pilot must comply with any directions given by air traffic control (ATC). The pilot may land or take off under the exemption only if he or she considers that, in the particular circumstances, it is safe not to comply with the requirements.
New exemption
The instrument revokes, and replaces in similar terms, instrument CASA EX01/09. Thus, as before, the instrument applies to the pilot in command of a float-equipped or floating‑hull aeroplane which when taking-off from, or landing on, water is flown to avoid an obstacle; or without affecting the safety of air navigation, to avoid undue noise over a populous area; or to enable a water landing in the event of engine failure. The instrument exempts the pilot in command of a seaplane from paragraphs 166A (2) (d), (e) and (f) of CAR 1988.
Paragraph 166A (2) (d) provides that if the pilot joins the circuit pattern for the aerodrome for a landing at the aerodrome, the pilot must, after joining the circuit pattern, make all turns in accordance with subregulation 166A (3). Subregulation 166A (3) provides that for paragraph (2) (d) (and (e)), the turns must be made in accordance with CASA directions, or in accordance with visual signals if these are displayed at the aerodrome indicating a direction to make all turns, or in any other case, to the pilot’s left.
Paragraph 166A (2) (e) provides that if the pilot takes off from the aerodrome, the pilot must, after taking off, make all turns in accordance with subregulation 166A (3) while the aircraft is flying in the circuit pattern for the aerodrome.
Paragraph 166A (2) (f) provides that, subject to subregulation 166A (4), if the pilot takes off from the aerodrome, the pilot must maintain the same track from the take-off until the aircraft is 500 feet above the terrain. (Subregulation 166A (4) provides that the rule in paragraph (2) (f) does not apply if a change to the track is necessary to avoid the terrain.)
The previous requirement that before landing, a pilot must descend in a straight line starting at least 500 metres from the threshold of the runway, has been withdrawn by the Amendment Regulations and, therefore, exemption from it is no longer required for seaplanes.
In granting exemption from these requirements, the new exemption is subject to the same conditions as before. Except in an emergency, the pilot must comply with any directions given by ATC. The pilot may land or take off under the exemption only if he or she considers that, in the particular circumstances, it is safe not to comply with the requirements. Details of the exemption are in Appendix 1.
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. Subregulation 308 (4) of CAR 1988 declares an exemption under regulation 308 to be a disallowable instrument. The exemption is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation, making and commencement
Consultation under section 17 of the LIA has not been undertaken in this case because of the highly specific nature and purpose of the instrument which is designed to replace an earlier instrument in very similar terms consequential on the Amendment Regulations.
The exemption commences on 3 June 2010 and stops having effect at the end of 31 January 2011 (as was the case with the previous exemption).
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, under subsection 73 (2) of the Act.
[Instrument number CASA EX49/10]
Appendix 1
Details of the exemption
1 Duration
Under this section, the instrument commences on 3 June 2010, and stops having effect at the end of 31 January 2011.
2 Revocation
Under this section, the previous exemption in instrument CASA EX01/09 is revoked.
3 Application
Under this section, the instrument applies to the pilot in command of a float-equipped or floating‑hull aeroplane (a seaplane) which when taking-off from, or landing on, water is flown to avoid an obstacle; or, without affecting the safety of air navigation, to avoid undue noise over a populous area; or to enable a water landing in the event of engine failure.
4 Exemption
Under this section, the pilot in command is exempt from compliance with paragraphs 166A (2) (d), (e) and (f) of CAR 1988.
5 Conditions
Under this section, the exemption is subject to the conditions mentioned in Schedule 1.
Schedule 1 Conditions
The exemption is granted subject to conditions set out in the Schedule.
1 Under this condition, except in an emergency, the pilot in command must comply with any directions given by ATC.
2 Under this condition, the pilot in command may land or take off under the exemption only if he or she considers that, in the particular circumstances, it is safe not to comply with paragraph 166 (2) (d), (e) or (f) of CAR 1988.