Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — operating in vicinity of non-controlled aerodrome, VHF radio broadcasts and maintaining a listening watch
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation.
Subsection 98 (5A) of the Act provides that the regulations may empower CASA to issue instruments in relation to the following:
(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft; or
(b) the airworthiness of, or design standards for, aircraft.
Subregulation 11.160 (1) 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, 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), the maximum duration of an exemption is 3 years.
Regulation 166C of CAR 1988 provides that if an aircraft is operating on the manoeuvring area of, or in the vicinity of, a non-controlled aerodrome and the aircraft is carrying a serviceable aircraft VHF radio and the pilot in command of the aircraft holds a radiotelephone qualification, the pilot is responsible for making a broadcast on the VHF frequency in use for the aerodrome. The pilot must make a broadcast that includes the following information whenever it is reasonably necessary to do so to avoid a collision, or the risk of a collision, with another aircraft:
(a) the name of the aerodrome;
(b) the aircraft’s type and call sign;
(c) the position of the aircraft and the pilot’s intentions.
Subregulation 243 (1) of CAR 1988 provides that when an aircraft is equipped with radio apparatus for use during flight, the pilot in command must maintain a listening watch, or must ensure that a listening watch is maintained, at all times commencing immediately before the time at which the aircraft commences to move on the manoeuvring area before flight and lasting until the aircraft is brought to a stop at the apron or other point of termination of the flight.
The Australian Aerobatic Club Ltd, and its affiliated chapters (the Club), has been organising aerobatic championships for many years. The requirements in regulations 166C and 243 of CAR 1988 for the pilot in command to maintain a listening watch and broadcast on the common traffic advisory frequency when operating in the vicinity of a non-controlled aerodrome has affected its ability to conduct various activities during competitions. The Club has applied for an exemption for its pilots from these requirements while competing in competitions. CASA has approved the request for exemption, subject to conditions which are necessary in the interest of safety.
This instrument renews CASA EX35/13 which expired at the end of March 2016.
Legislation Act 2003 (the LA)
Under subsection 8(4) of the LA, an instrument made under a power delegated by the Parliament is a legislative instrument if any provision of the instrument determines the law or alters the content of the law, rather than determining particular cases or particular circumstances in which a legislative provision is to apply or is not to apply, and the provision has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations. 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 instrument applies to a class of persons, the pilots in command of the aircraft participating in the competitions.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The exemption allows competitions to be held subject to conditions that safeguard the interests of other users of the airspace. This instrument renews CASA EX35/13 which expired at the end of March 2016.
The Club has applied for renewal of the exemption in CASA EX35/13. CASA considers that events organised by the Club have been satisfactorily administered under the previous exemption and there is no reason why it should not be renewed. Therefore, it is expected that the instrument will not have a negative impact on aviation safety.
In these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for subordinate instruments of this kind (OBPR id: 14507).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on the day of registration and expires at the end of March 2019, as if it had been repealed by another instrument.
[Instrument number CASA EX60/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — operating in vicinity of non-controlled aerodrome, VHF radio broadcasts and maintaining a listening watch
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 Australian Aerobatic Club Ltd, and its affiliated chapters (the Club), has been organising aerobatic championships for many years. The requirements in regulations 166C and 243 of the Civil Aviation Regulations 1988 for the pilot in command to maintain a listening watch and broadcast on the common traffic advisory frequency when operating in the vicinity of a non-controlled aerodrome have affected its ability to conduct various activities during competitions.
This legislative instrument exempts pilots from these requirements while competing in competitions. The exemption is subject to conditions imposed in the interests of the safety of air navigation, including conditions relating to the establishment and operation of a ground communications station and briefing of participants in competitions.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority