Explanatory Statement
Civil Aviation Safety Regulations 1998
Civil Aviation Regulations 1988
CASA EX74/18 — Maintenance on Manned Free Balloons (Appointment of Authorised Persons and Exemption) Instrument 2018
Purpose
The purpose of this instrument is to facilitate maintenance on manned free balloons by authorising persons to carry out maintenance on these balloons, or on aircraft components or aircraft material for these balloons, provided it is under the supervision of qualified supervisors. The instrument also exempts authorised maintenance persons and their supervisors from certain requirements of the Civil Aviation Regulations 1988 (CAR) and imposes conditions on supervisors of authorised maintenance persons.
Legislation
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. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR) and the CAR.
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations. Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons.
Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
Regulation 11.205 provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Regulation 6 of CAR provides that CASA may, in writing, appoint a person to be an authorised person for a provision in which the expression ‘authorised person’ occurs.
Paragraph 33B (1) (a) of CAR provides for CASA to issue airworthiness authorities to carry out maintenance on aircraft. Subregulation 33B (4) provides that a person must not contravene a condition to which an airworthiness authority is subject. Subregulation 33B (5) provides that an offence against subregulation 33B (4) is an offence of strict liability.
Regulation 42ZC of CAR deals with maintenance on Australian aircraft in Australian territory and operates by reference to class A and class B aircraft. Class A aircraft are defined in Regulation 2 of CAR, and are either certificated as transport category aircraft or used for commercial purposes as specified in paragraph 206 (1) (c) of CAR. Class B aircraft are defined in Regulation 2 of CAR as all aircraft that are not class A aircraft.
Manned free balloons are class B aircraft. The CASR Dictionary defines manned free balloon as meaning a free balloon that is capable of carrying 1 or more persons and is equipped with controls that enable the altitude of the balloon to be controlled.
A manned free balloon must be operated under a standard certificate of airworthiness issued under regulation 21.176 of CASR or an experimental certificate issued under regulation 21.195A of CASR.
Under paragraph 42ZC (4) (e) of CAR, a person may carry out maintenance on a class B aircraft if authorised under subregulation 42ZC (6) to do so. Under paragraph 42ZC (5) (a) of CAR, a person may carry out maintenance on an aircraft component, or an aircraft material, if the person is employed by, or working under an arrangement with, the holder of a certificate of approval that covers the maintenance.
Supervising is defined in clause 30 of Part 3 of the CASR Dictionary. In summary, that definition provides that a person is supervising the carrying out of maintenance by another person if the supervisor is physically present at the place that the maintenance is being carried out, is observing the maintenance being carried out so that the person can form an opinion as to whether it is being carried out properly, and is available to give advice to, and answer questions about the maintenance from, the person carrying it out.
Background
Under paragraph 42ZC (4) (c) of CAR, an unlicensed person may carry out maintenance of a class B aircraft under the supervision of a person who holds an appropriate Part 66 aircraft maintenance engineer licence.
However, there is no Part 66 aircraft maintenance engineer licence category that covers maintenance on balloons, meaning that in Australia the maintenance on manned free balloons is performed by holders of an airworthiness authority issued under regulation 33B of CAR.
The pool of airworthiness authority holders is supported by persons holding an authorisation under subregulation 42ZC (6) of CAR to carry out the maintenance, who are supervised by the airworthiness authority holders. Since some airworthiness authorities are granted subject to a condition to not supervise another person, an exemption is required for the holders of some airworthiness authorities to enable them to supervise maintenance on manned free balloons.
In addition, persons carrying out maintenance on manned free balloons under an authorisation granted pursuant to subregulation 42ZC (6) may not be employed by, or working under an arrangement with, a person holding a certificate of approval under regulation 30 of CAR. For example, the person may be a balloon pilot. Accordingly, to carry out maintenance on manned free balloons under the supervision of an airworthiness authority holder, the person requires an exemption against paragraph 42ZC (5) (a) of CAR.
CASA has facilitated this arrangement for a number of years under instrument CASA EX115/15 that expires at the end of June 2018. CASA is, by this instrument, reissuing CASA EX115/15 and, in doing so, has regarded as paramount the preservation of at least an acceptable level of safety.
Overview of instrument
This instrument enables maintenance on manned free balloons, like maintenance on other class B aircraft, to be carried out by unlicensed persons who are authorised by CASA and supervised by persons who are themselves qualified to perform the maintenance. A qualified supervisor is a person who is, or is the employee of, the holder of a certificate of approval under regulation 30 of CAR. The supervisor must also hold a maintenance authority or certificate of approval that covers the maintenance, issued by CASA, depending upon the kind of maintenance being performed.
CASA anticipates that the instrument will continue to encourage on-the-job training of persons maintaining balloons, for example by allowing operators to train balloon pilots to do maintenance tasks.
The instrument also exempts a person authorised to carry out this maintenance from the CAR requirement to only carry it out if the person is employed by, or working under an arrangement with, the holder of a certificate of approval that covers the maintenance. It also exempts the holder of a regulation 33B airworthiness authority who is supervising the authorised person from having to comply with the CAR requirement to comply with any condition on the maintenance authority that prevents that supervision.
Finally, the instrument sets out conditions for the supervisor to comply with, including for the supervisor to hold specified approvals and authorities issued by CASA that relate to the kind of maintenance being carried out by the authorised person.
CASA has assessed the impact the instrument may have on aviation safety and is satisfied that the instrument will have no impact on the safety of balloon maintenance.
Content of instrument
Section 1 of the instrument sets out the name of the instrument.
Section 2 sets out the duration of the instrument by providing that it commences on 1 July 2018 and is repealed at the end of 30 June 2021.
Section 3 sets out some definitions for the instrument.
Section 4 authorises, under subregulation 42ZC (6) of CAR, persons who carry out maintenance on manned free balloons, under the supervision of a qualified supervisor, for paragraph 42 ZC (4) (e) of CAR, and persons who carry out maintenance on an aircraft component or an aircraft material of a manned free balloon, under the supervision of a qualified supervisor, for subregulation 42ZC (5) of CAR.
Section 5 exempts an authorised person who is carrying out maintenance on an aircraft component, or aircraft material, of a manned free balloon from the requirement in paragraph 42ZC (5) (a) of CAR that the person must be employed by, or be working under an arrangement with, the holder of the certificate of approval who is supervising the maintenance. A contract for services would be an example of such an arrangement.
Section 6 exempts a person who holds a maintenance authority and who is supervising an authorised maintenance person from the requirement in subregulation 33B (4) of CAR to comply with any condition on the maintenance authority that prevents the supervision of the maintenance. The exemption is subject to the conditions in section 7. The exemption is necessary because a maintenance authority is sometimes subject to a condition that prohibits its holder from supervising maintenance work.
Section 7 requires the supervisor to hold, or be an employee of a person who holds, a certificate of approval granted by CASA under regulation 30 of CAR that covers maintenance of class B aircraft. Also, depending upon whether the authorised maintenance person is carrying out maintenance on the balloon or on an aircraft material or an aircraft component, the supervisor must hold either a maintenance authority or be authorised by CASA for subregulation 42ZC (6) of CAR, or hold, or be an employee of a person who holds, a certificate of approval that covers maintenance on aircraft components or aircraft materials of the kind being maintained.
Legislation Act 2003 (the LA)
Subsection 8 (4) of the LA provides that an instrument is a legislative instrument if it determines the law or alters the content of the law, rather than determining particular cases in which the law is to apply or is not to apply. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons.
The instrument exempts a class of persons, being authorised maintenance persons, from the requirement in paragraph 42ZC (5) (a) of CAR that the person must be employed by, or work under an arrangement with, the holder of a certificate of approval that covers the maintenance, to the extent that the person may carry out maintenance on an aircraft component, or aircraft material, of a manned free balloon. The instrument also exempts another class of persons, being persons holding a maintenance authority who are supervising an authorised maintenance person, from the requirement in subregulation 33B (4) of CAR that the person must not contravene a condition to which an airworthiness authority is subject, to the extent that the person must not contravene any condition that prevents the supervision.
The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The instrument facilitates the supervision of maintenance on manned free balloons and assists the ballooning industry. The instrument reissues CASA EX115/15, which was prepared on the basis of representations received from the section of the aviation industry concerned with maintenance on manned free balloons. The instrument continues existing arrangements and industry has raised no concerns relating to these arrangements. Also, some holders of a certificate of approval that covers balloon maintenance have approached CASA for assurance that the expiring instrument will be reissued.
It is anticipated that this instrument will no longer be required when Part 131 of CASR is made, as it is proposed that Part 131 will rectify the lack of a balloon maintenance licence category and include supervision as a privilege of a balloon maintenance licence. CASA does not anticipate that Part 131 will be made before 2020.
In these circumstances, CASA is satisfied that no consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for approvals and exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
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.
The instrument commences on 1 July 2018 and is repealed at the end of 30 June 2021.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX74/18 — Maintenance on Manned Free Balloons (Appointment of Authorised Persons and Exemption) Instrument 2018
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 facilitates the carrying out of maintenance on manned free balloons and on aircraft components or aircraft material of manned free balloons.
The instrument authorises persons who are supervised by qualified supervisors to carry out the maintenance. It exempts the authorised maintenance persons and their supervisors from certain requirements of the Civil Aviation Regulations 1988 so that they may carry out the maintenance. The instrument requires that the persons conducting the maintenance are closely supervised by a person qualified in the kind of maintenance being carried out.
CASA believes that the instrument will encourage on-the-job training of persons maintaining balloons, for example by allowing operators to train balloon pilots to do maintenance tasks.
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