Explanatory Statement
Civil Aviation Regulations 1988
Exemption — for aerial display of hang gliders
Section 98 of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in relation to the safety of air navigation.
CAR 1988
Under subregulation 308 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may, among other things, exempt an aircraft, or persons associated with the operation 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 such an exemption may be made subject to any conditions specified by CASA as being necessary in the interests of safety.
CASR 1998
Under subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), CASA may grant an exemption from compliance with a provision of CASR 1998. Under regulation 11.165, a person may apply for an exemption.
Under subregulation 11.170 (3), in deciding whether to grant an exemption CASA must regard as paramount the preservation of an acceptable level of safety. Under subregulation 11.210 (1), 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, an exemption must be published on the World Wide Web. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 2 years after its commencement), or if no day is specified, 2 years after commencement.
Hang gliding operations
Under regulation 308 of CAR 1988, CASA made Civil Aviation Order 95.8 (CAO 95.8) in relation to private operations for recreational purposes of hang gliders. CAO 95.8 exempts a person from various Parts and other provisions of CAR 1988, subject to certain conditions. Under subsection 4 of CAO 95.8, 1 of the conditions is that a person must not act as pilot in command of a hang glider unless he or she holds a pilot certificate issued by the Hang Gliding Federation of Australia (HGFA). Under subparagraph 4.7 (k) of CAO 95.8, a person must not fly a hang glider “at any regatta, race meeting or public gathering”.
Under regulation 200.001 of CASR 1998, a hang glider used solely in private operations and only for recreational purposes is exempt from all of CASR 1998, but only if all of the conditions in subsection 4 of CAO 95.8 are complied with.
Aerial display of hang gliders at Bright
The HGFA proposes to hold an aerial display of hang gliders at Bright in Victoria on 3 January 2006. Since this would be a public gathering, it would be in breach of subparagraph 4.7 (k) of CAO 95.8 which would prevent those participating from enjoying the exemption from compliance with the Parts and provisions of CAR 1988 and all of CASR 1998 (the regulations) that the HGFA would normally enjoy under CAO 95.8.
Having taken into account, for regulation 308 of CAR 1988, any relevant considerations relating to the interests of safety, and, for regulation 11.170, that preservation of an acceptable level of safety is paramount, CASA has issued an exemption for the aerial display. It exempts the hang gliders and persons officially participating in the aerial display from the regulations, but only on condition, that they operate as if the provisions of CAO 95.8 continued to apply to them, other than subparagraph 4.7 (k). For this purpose, the operations must be, among other things, solely private operations and only for recreational purposes.
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. Regulation 11.215 of CASR 1998 declares an exemption under regulation 11.160 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 under section 17 of the LIA has not been undertaken in this case because of the highly specific nature and purpose of the instrument requested by the HGFA.
The exemption commences at 6 a.m. local time on Tuesday, 3 January 2006, and stops having effect at 7.30 p.m. local time on that day. The instrument was registered prior to commencement.
The exemption has been made by the Deputy Chief Executive and Chief Operating Officer, a delegate of CASA, in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX60/05]