Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — to members of Australian Warbirds Association Ltd (AWAL), Aviation Reference Number 568691
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 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 2 of the Civil Aviation Amendment Order (No. R24) 2004 (CAO 29.4), an air display shall not be conducted without the written approval of CASA.
Under paragraph 4.1 of CAO 29.4, an air display shall be conducted in accordance with the following general requirements:
(a) the public shall be prevented from entering any area where aircraft engines are operating;
(b) spectator areas shall not be situated in the approach or take-off areas of an aerodrome;
(c) emergency rescue and first aid facilities shall be provided on a scale approved by CASA as commensurate with the scale and nature of the display;
(d) the air display shall be held at a location approved by CASA;
(e) the program of events shall be approved by CASA;
(f) passengers shall not be carried for hire or reward during any part of the air display except where specifically approved as part of the program;
(g) the program shall not include flying events likely to cause diversion of pilot attention from the aircraft control or which feature disorganised flight by aircraft in close proximity;
(h) the air display shall be conducted in V.M.C. except that a cross-country event may be conducted under the I.F.R.
Under paragraph 4.4 (1) of CAO 29.4, cross-country events shall be held over a route approved by CASA.
Instrument
This instrument applies to an AWAL member who makes an application to AWAL for an air display approval (the applicant) and has received such an approval from the Director of Self-Administration, AWAL, under instrument CASA 49/16, and which correspond to the approvals that would otherwise be required from CASA, for an air display, under the provisions of CAO 29.4.
The instrument exempts the applicant from any provision of CAO 29.4 under which CASA’s approval is required for an air display.
The exemption is subject to the condition that the applicant must notify, in writing, the Self-Administering Sport Aviation Organisations Section, CASA, at least 10 working days before the proposed air display is to take place. The notice must contain the following details:
(a) the date and locality of the proposed display;
(b) the program of events;
(c) organisations participating in the display;
(d) names of the principal participants;
(e) the name of the organiser.
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, AWAL members, 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
AWAL has submitted manuals, forms and a risk assessment matrix in respect of the assessment and approval of air displays for AWAL members. These manuals and supporting documentation have been reviewed by CASA and found acceptable for the purposes of approving an air display. 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 is repealed at the end of 30 April 2019.
[Instrument number CASA EX73/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — to members of Australian Warbirds Association Ltd (AWAL), Aviation Reference Number 568691
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 an AWAL member who makes an application to AWAL for an air display approval (the applicant) and has received such an approval from the Director of Self-Administration, AWAL, under instrument CASA 49/16, and which correspond to the approvals that would otherwise be required from CASA, for an air display, under the provisions of the Civil Aviation Amendment Order (No. R24) 2004 (CAO 29.4).
The instrument exempts the applicant from any provision of CAO 29.4 under which CASA’s approval is required for an air display. The exemption is subject to conditions.
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