Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — dropping of articles from an aircraft
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, an exemption must be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Under subregulation 150 (1) of CAR 1988, subject to this regulation, the pilot in command of an aircraft in flight shall not permit anything to be dropped from the aircraft.
Under paragraph 150 (2) (a) of CAR 1988, nothing in this regulation prevents the dropping of packages or other articles or substances:
(a) in the course of agricultural operations; or
(b) in the course of cloud seeding operations; or
(c) in the course of firefighting operations; or
(d) to initiate controlled burning; or
(e) in the course of search and rescue operations; or
(f) to deliver emergency medical supplies; or
(g) to deliver emergency food supplies; or
(h) in the course of other operations;
in accordance with directions issued by CASA:
(i) to ensure the safety of the aircraft as far as practicable; and
(j) to minimise hazard to persons, animals or property.
Instrument
The legislative instrument applies to the pilot in command of an aircraft:
(a) that is registered with Recreational Aviation Australia Incorporated (RAA) or the Hang Gliding Federation of Australia (HGFA); and
(b) to which Civil Aviation Order (CAO) 95.32 or CAO 95.55 applies; and
(c) that is involved in the towing of another aircraft.
The pilot in command of an aircraft to which this instrument applies is exempt from compliance with regulation 150 of CAR 1988 in relation to the dropping of ropes and associated fittings used for towing the other aircraft. The exemption is subject to conditions.
The towing aircraft must be:
(a) certified as suitable for that purpose; or
(b) mentioned in a Civil Aviation Advisory Publication for regulation 149 of CAR 1988; or
(c) accepted by CASA in writing as suitable for that purpose.
The towing must be conducted in accordance with the RAA Operations Manual (in relation to an aeroplane that is registered with the RAA), or the HGFA Operations Manual (in relation to an aeroplane that is registered with the HGFA), acceptable to CASA, and as in force from time to time. The pilot in command of the towing aircraft must satisfy all eligibility and competency requirements for the towing of another aircraft.
Both aircraft must be operated in accordance with limitations in their flight manuals, or equivalent instructions or directions. The pilot in command must ensure that the dropping is conducted so as to minimise the risk of injury or damage to persons, animals and property.
The legislative instrument revokes and replaces instrument CASA 770/02, being a direction on the same subject.
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, namely pilots in command of certain specified aircraft, and is, therefore, a legislative instrument.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The instrument revokes and replaces CASA 770/02, being a direction on the same subject. 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 the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument commences on the day of registration and expires at the end of April 2019, as if it had been repealed by another instrument.
[Instrument number CASA EX72/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — dropping of articles from an aircraft
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 legislative instrument applies to the pilot in command of an aircraft:
(a) that is registered with Recreational Aviation Australia Incorporated or the Hang Gliding Federation of Australia; and
(b) to which Civil Aviation Order (CAO) 95.32 or CAO 95.55 applies; and
(c) that is involved in the towing of another aircraft.
The pilot in command of an aircraft to which this instrument applies is exempt from compliance with regulation 150 of the Civil Aviation Regulations 1988 in relation to the dropping of ropes and associated fittings used for towing the other aircraft. The exemption is subject to conditions.
The legislative instrument revokes and replaces instrument CASA 770/02, being a direction on the same subject.
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