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]
Overview
The Civil Aviation Regulations 1988, enacted by the Parliament of Australia, were designed to ensure the safety of air navigation and aircraft operations within Australian airspace. They empower the Civil Aviation Safety Authority (CASA) to regulate various aspects of civil aviation, including the mandatory installation and operation of navigation and anti-collision lights on aircraft. This legislation addresses the need for standardised safety protocols to prevent mid-air collisions and ensure safe operations during night and poor visibility conditions. CASA, acting under the authority granted by the Civil Aviation Act 1988, issued the exemption to allow U C Aviation Pty Ltd to conduct covert surveillance operations for policing and border protection without displaying all required lights. The exemption was granted under the authority provided by the Legislative Instrument Act 2003, which allows CASA to issue legislative instruments for the safe navigation and operation of aircraft, subject to parliamentary oversight. The exemption, which is subject to specific conditions to mitigate safety risks, is in effect from 1 April 2012 until the end of March 2015.
Scope and Application
The Civil Aviation Regulations 1988, as amended, establish the requirements for the safe navigation and operation of aircraft within Australia, with the Civil Aviation Safety Authority (CASA) empowered to issue directives and approvals through Civil Aviation Orders (CAOs). This regulatory framework ensures that aircraft must be equipped with approved instruments and equipment, including navigation and anti-collision lights, to maintain safety standards. Specifically, aircraft must comply with the rules regarding the display of lights at night and in poor visibility, and generally, aeroplanes must display anti-collision lights unless otherwise directed by CASA. However, under certain conditions, CASA may grant exemptions from these requirements if safety standards can be preserved, as demonstrated in this case for U C Aviation Pty Ltd, which conducts covert surveillance operations. This exemption allows the operator to turn off some external lights during such operations, provided that conditions are met to mitigate safety risks. The exemption applies to a class of persons, specifically pilots in command of the operator’s aircraft, and is subject to parliamentary review under the Legislative Instrument Act 2003. This instrument replaces a previous exemption and is compatible with human rights as it does not raise any issues in this regard.
Key Provisions
The key provisions of this piece of legislation are primarily concerned with the operation of aircraft in Australian airspace, particularly focusing on navigation and anti-collision lights. Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to create regulations in the interest of air navigation safety. Subregulation 207(2) of the Civil Aviation Regulations 1988 (CAR 1988) stipulates that Australian aircraft must be fitted with instruments and equipment approved by the Civil Aviation Safety Authority (CASA) and must carry emergency equipment as directed. Subregulation 5(1) of CAR 1988 allows CASA to issue directions or approvals through Civil Aviation Orders (CAOs). Furthermore, paragraph 3 of Appendix V to Civil Aviation Order 20.18 mandates that aircraft must have at least two landing lights, except in specific operations like private flights and aerial work where one landing light is sufficient. Subregulation 195(1) imposes a requirement on the pilot in command and the aircraft operator to comply with rules regarding the display of lights at night and during poor visibility. Subregulation 196(1A) mandates that the operator and pilot in command must ensure that required lights are displayed during flight or on the manoeuvring area of a land aerodrome. Unless otherwise directed by CASA, subregulation 196(3) requires an aeroplane to display an anti-collision light, which is typically a flashing red light, in addition to navigation lights.
The obligations and requirements imposed by this legislation are stringent, aimed at ensuring the safety of air navigation. The Civil Aviation Safety Authority (CASA) has the authority to grant exemptions from compliance with certain provisions of the Civil Aviation Safety Regulations 1998 (CASR 1998) under subregulation 11.160(1), provided that doing so does not compromise the acceptable level of safety. Conditions can be attached to such exemptions if necessary for air navigation safety, as per subregulation 11.205(1). CASA must publish any granted exemptions on the internet under regulation 11.225, and the exemption will cease to have effect either on the specified date or three years after its commencement, unless a shorter period is specified, as per subregulation 11.230(1). Exemptions are considered legislative instruments and must be tabled and can be disallowed in the Parliament under sections 38 and 42 of the Legislative Instrument Act 2003.
The legislation also outlines the potential offences and penalties for non-compliance. Under regulation 11.210, failure to comply with the conditions of an exemption is an offence. Additionally, the exemption provided in this legislative instrument applies to pilots in command of the operator’s aircraft, thereby subjecting them to specific regulatory conditions. The exemption is an instrument requested for covert surveillance and border protection operations, replacing CASA EX20/10, which expired at the end of March 2012. This legislative instrument comes into effect on 1 April 2012 and will cease to have effect at the end of March 2015. It has been issued by the Director of Aviation Safety on behalf of CASA in accordance with subsection 73(2) of the Act.