Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX85/20 — Small and Light Unmanned Free Balloons (Beyond Visual Line of Sight) Exemption 2020
Purpose
The purpose of the instrument is to enable operators of small and light unmanned free balloons to continue to release a small and light unmanned free balloon, without the approval of the Civil Aviation Safety Authority (CASA) to operate the balloon beyond visual line of sight.
Legislation — unmanned aircraft
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).
Part 101 of CASR sets out requirements for the operation of unmanned aircraft.
Regulation 101.030 of CASR provides for the approval of areas, defined in regulation 101.150 as approved areas, for the operation or release of unmanned free balloons.
Regulation 101.155 of CASR provides for the release of small balloons subject to approval or notice requirements.
Regulation 101.160 of CASR provides for the release of light balloons outside approved areas subject to notice requirements.
Regulation 101.073 requires unmanned aircraft to be operated within visual line of sight unless the operator is approved by CASA to operate the unmanned aircraft beyond visual line of sight.
Legislation — exemptions
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 compliance with a provision of the regulations.
Under subregulation 11.160 (2), an exemption may be granted to a person or a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic. Under subregulation 11.160 (3), an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.175 (4) of CASR, in deciding whether to renew an exemption on application by a person, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to renew an exemption on its own initiative.
Regulation 11.205 of CASR 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.
Background
The instrument reissues instrument CASA EX65/17 which was issued for the same purpose and expires at the end of 31 May 2020.
Overview of instrument
The instrument is intended to remove an unnecessary burden on operators of small and light unmanned balloons to obtain CASA approval before operating such balloons beyond visual line of sight outside approved areas.
Operating such balloons without CASA approval is accepted as safe practice when the balloon is either a small balloon released in accordance with regulation 101.155 of CASR or a light balloon that is released outside an approved area in accordance with regulation 101.160 of CASR.
The instrument is intended to enable operators of small and light unmanned balloons to continue to operate their aircraft as is the current practice, subject to compliance with the any relevant notice or approval requirement in regulation 101.155 or 101.160.
CASA is satisfied that issuing the exemption will preserve at least an acceptable level of safety, as required under subregulation 11.175 (4) of CASR. CASA considers that not to grant the exemption would be unduly restrictive.
Content of instrument
Section 1 sets out the name of the instrument, namely, the CASA EX85/20 — Small and Light Unmanned Free Balloons (Beyond Visual Line of Sight) Exemption 2020.
Section 2 sets out the duration of the instrument which is from 1 June 2020 to the end of 31 May 2021.
Section 3 sets out a definition for the instrument. In this instrument approved area has the meaning given by regulation 101.150 of CASR. The note in section 3 also alerts readers that certain terms and expressions in the instrument have the same meaning as they have in the Act and the regulations. For example, light balloon and small balloon are defined in regulation 101.145 of CASR.
Section 4 states whom the exemption applies to, namely, the operator of an unmanned free balloon that is a small balloon released in accordance with regulation 101.155 of CASR or a light balloon that is released outside an approved area in accordance with regulation 101.160 of CASR.
Section 5 sets out the exemption, namely, that the operator is exempt from compliance with regulation 101.073 of CASR. It effectively removes the need for the operator of an unmanned free balloon to whom the exemption applies to obtain approval from CASA before operating the balloon beyond the operator’s visual line of sight.
Legislation Act 2003 (the LA)
Subsection 98 (1) of the Act empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Subsection 98 (5AA) of the Act provides that an instrument issued in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft is a legislative instrument if the instrument is expressed to apply to a class of persons or a class of aircraft.
The exemption is expressed to apply to classes of persons, that is, operators of small unmanned free balloons and light unmanned free balloons. The instrument is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Consultation under section 17 of the LA has not been undertaken in this case.
The instrument is provided to remove an unnecessary burden requiring operators of small and light unmanned balloons to obtain CASA approval before operating such balloons beyond visual line of sight outside approved areas. It renews a previous instrument, CASA EX65/17. This maintains the position as it was before the introduction of new regulations in Part 101 of CASR which imposed a requirement on all unmanned aircraft to obtain CASA approval for operating beyond visual line of sight.
In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
The exemption has been reissued pending the amendment of Part 101 of CASR to remove the restriction on the release of small and light unmanned balloons beyond visual line of sight. The necessary amendments to regulation 101.073 are planned to come into effect later in 2020. Therefore, the issue of the legislative instrument is required pending the commencement of the amendments. The instrument is not repealed until 31 May 2021 in case there are delays in the making and commencement of the amendments. Once the amendments to Part 101 of CASR commence, this instrument will no longer have any operation.
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.
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 exemptions (OBPR id: 14507).
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 June 2020 and is repealed at the end of 31 May 2021.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX85/20 — Small and Light Unmanned Free Balloons (Beyond Visual Line of Sight) Exemption 2020
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
This exemption continues to enable operators of small and light unmanned free balloons to release a balloon without CASA’s approval to operate the balloon beyond visual line of sight, provided other applicable approval and notification requirements are met.
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