Explanatory Statement
Civil Aviation Safety Regulations 1998
Repeal of CASA EX53/12 — display of navigation and anti-collision lights
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.
Subregulation 207 (2) of the Civil Aviation Regulations 1988 (CAR 1988) provides that an Australian aircraft shall not be used in any class of operation unless it is fitted with such instruments and is fitted with or carries such equipment, including emergency equipment, as the Civil Aviation Safety Authority (CASA) approves and directs.
Subregulation 5 (1) of CAR 1988 provides that whenever CASA is empowered by CAR 1988 to give directions or approvals, it may do so in Civil Aviation Orders (the CAOs).
Display of lights
Paragraph 3 of Appendix V to Civil Aviation Order 20.18 requires that aircraft must have 2 landing lights except when engaged in private and aerial work operations and charter operations not carrying passengers for hire and reward when it must have 1 light.
Subregulation 195 (1) of CAR 1988 requires that the pilot in command and the operator of an aircraft must comply with the rules requiring lights to be displayed in relation to the aircraft at night and in conditions of poor visibility.
Subregulation 196 (3) provides that unless CASA otherwise directs, an aeroplane in flight, or operating on the manoeuvring area of a land aerodrome, shall display, in addition to navigation lights, an anti-collision light consisting of a flashing red light.
Exemptions
Under subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), CASA exempted U C Aviation Pty Ltd (the operator) from the provisions mentioned above requiring the display of lights.
Under subregulation 11.205 (1) of CASR 1998, CASA imposed conditions on the exemption that were necessary in the interests of the safety of air navigation.
The operator required the exemption for the conduct of covert surveillance operations in support of broader policing and customs work. Some of these operations require that external lights on the aircraft are turned off. The exemption permitted the operator to carry out the covert surveillance operation without displaying some of the required lights.
Legislative Instrument Act (the LIA)
For subsection 98 (5A) of the Act, CASA may issue instruments in relation to the matters affecting the safe navigation and operation or the maintenance of aircraft. 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 exemption applied to a class of persons, being pilots in command of the operator’s aircraft. The exemption was, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instrument Act 2003. It was registered in the Federal Register of Legislative Instruments.
Concern was expressed by an authority using the helicopters that registration of the instrument gave notice of the conduct of surveillance and covert operations which was contrary to the requirement to maintain secrecy in relation to those operations.
As a result, it was decided to replace the instrument with 2 instruments that would not apply to a class of persons, but would apply separately to the operator and the pilot of a helicopter engaged in covert and surveillance operations. As instrument CASA EX53/12 was no longer required, this instrument repealed it concurrently with the commencement of the 2 separate instruments.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument repeals an exemption requested for covert surveillance and customs work operations. A number of exemptions have been issued to operators for the same purpose.
Operations previously carried out under the repealed instrument can continue under the 2 new instruments. The same conditions apply.
In addition, while there was no general consultation, the Office of Parliamentary Counsel was asked for an opinion on the matter. While that opinion did not constitute legal advice, action was taken in accordance with an option that was suggested as possibly being available.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the repeal of the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Making and commencement
The repeal of the exemption has been made by the Acting Director of Aviation of Safety, acting on behalf of CASA, under subsection 73 (2) of the Act.
The instrument commences on 1 October 2014. It expires on 2 October 2014, as if it had been repealed by another instrument
[Instrument number CASA EX78/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Repeal of CASA EX53/12 — display of navigation and anti-collision lights
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 repeals an exemption (CASA EX53/12) which provided an exemption from provisions requiring the display of navigation and anti-collision lights.
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