Explanatory Statement
Civil Aviation Regulations 1988
Exemption — navigation and anti-collision lights
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.
Subregulation 207 (2) of the Civil Aviation Regulations 1988 (CAR 1988) provides that an Australian aircraft shall not be used in any class of operation unless it is fitted with such instruments and is fitted with or carries such equipment, including emergency equipment, as the Civil Aviation Safety Authority (CASA) approves and directs.
Subregulation 5 (1) of CAR 1988 provides that whenever CASA is empowered by CAR 1988 to give directions or approvals, it may do so in Civil Aviation Orders (the CAOs).
Paragraph 3 of Appendix V to Civil Aviation Order 20.18 requires that aircraft must have 2 landing lights except when engaged in private and aerial work operations and charter operations not carrying passengers for hire and reward when it must have 1 light.
Subregulation 195 (1) of CAR 1988 requires that the pilot in command and the operator of an aircraft must comply with the rules requiring lights to be displayed in relation to the aircraft at night and in conditions of poor visibility.
Subregulation 196 (1A) provides that the operator and pilot in command of an aeroplane in flight, or operating on the manoeuvring area of a land aerodrome, must ensure that the lights required by regulation 196 to be displayed on the aeroplane are displayed. Subregulation 196 (3) provides that unless CASA otherwise directs, an aeroplane in flight or operating on the manoeuvring area of a land aerodrome shall display, in addition to navigation lights, an anti-collision light consisting of a flashing red light.
Exemptions
Under subregulation 11.160 (1) of CASR 1998, CASA may grant an exemption from compliance with a provision of CASR 1998. In deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety.
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 11.210, it is an offence to fail to comply with a condition of an exemption.
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.
U C Aviation Pty Ltd (the operator) conducts covert surveillance operations in support of broader policing and border protection. Some of these operations require that external lights on the aircraft are turned off. The exemption will permit the operator to carry out the covert surveillance operation without displaying some of the required lights. To mitigate against the risks associated with such operations, conditions have been imposed.
Legislative Instrument Act
For subsection 98 (5A) of the Act, CASA may issue instruments in relation to the matters affecting the safe navigation and operation or the maintenance of aircraft. An instrument issued under paragraph 98 (5A) (a) of the Act 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 in command of the operator’s aircraft. The exemption is, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instrument Act 2003.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument is an exemption requested for covert surveillance and border protection operations. It replaces instrument CASA EX20/10 which ceased to have effect at the end of March 2012. A number of similar instruments have been issued for operations of this nature and any operator who is able to meet all requirements would be issued with a similar instrument.
Human Rights Compatibility Statement
This Legislative Instrument does not engage any of the applicable rights or freedoms. It is compatible with human rights as it does not raise any human rights issues.
The instrument comes into effect on 1 April 2012. It stops having effect at the end of March 2015.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX53/12]