Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX98/18 — Flight in Certain Ultralight Aeroplanes in Class D Airspace at Sunshine Coast Aerodrome (Sunshine Coast Aero Club Queensland) Exemption 2018
Purpose
The purpose of this legislative instrument is to permit pilots to fly certain ultralight aircraft in Class D airspace at Sunshine Coast aerodrome without meeting certain licensing and competency requirements under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR). The flights are limited to pilots operating aircraft under the control of Sunshine Coast Aero Club Queensland Ltd (Sunshine Coast Aero Club).
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 CASR and the Civil Aviation Regulations 1988 (CAR).
Civil Aviation Order 95.55 (CAO 95.55) provides exemptions that enable operation of certain ultralight aeroplanes under a less onerous regulatory scheme than that ordinarily applicable under CAR and CASR. Among other requirements, aeroplanes relying on the alternate scheme must be registered with Recreational Aviation Australia Limited (RAAus). The exemptions place a series of conditions on pilots who fly relevant aeroplanes in reliance on the exemptions. Notably for present purposes, subparagraphs 7.3 (d) and (e) of CAO 95.55 impose requirements for pilots to hold qualifications under Part 61 of CASR in order to fly the aeroplane in specified classes of airspace, including Class D.
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 a Civil Aviation Order.
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.
Subsection 14 (1) of the Legislation Act 2003 (the LA) enables a legislative instrument to apply, adopt or incorporate any matter contained in another legislative instrument of a kind mentioned in subsection 14 (3), as the latter instrument is in force from time to time. Relevantly, the latter instrument must be a disallowable instrument.
Subsection 98 (5D) of the Act provides that, despite section 14 of the LA, a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.
Background
For an RAAus‑registered aeroplane to fly in Class A, C or D airspace, the pilot is required by subparagraphs 7.3 (d) and (e) of CAO 95.55 to meet specified requirements under Part 61 of CASR related to flight crew licensing. There are a limited range of circumstances in which CASA considers it appropriate to relax those Part 61 requirements in relation to the flight in controlled airspace of RAAus‑registered aeroplanes including, subject to conditions, flights in Class D airspace at Sunshine Coast aerodrome.
Instrument
The instrument provides exemptions against the flight crew licensing requirements in subparagraphs 7.3 (d) and (e) in relation to the operation of certain aeroplanes under the control of Sunshine Coast Aero Club within Class D airspace at Sunshine Coast aerodrome.
The exemptions will apply in relation to a Sunshine Coast Aero Club aeroplane, which is defined to be an aircraft of the kind mentioned in subsection 1 of CAO 95.55, that is available for use for flying training by Sunshine Coast Aero Club at Sunshine Coast aerodrome, and that is maintained by a person authorised by Sunshine Coast Aero Club. The intention of the definition is to limit the exemption to operations in aircraft that are under the control of Sunshine Coast Aero Club and to prevent, for example, the use of any aircraft that might be used from time to time by Sunshine Coast Aero Club for its flying training activities.
The exemptions cover Sunshine Coast Aero Club as the entity with control of the relevant aircraft as well as a Sunshine Coast Aero Club pilot and a Sunshine Coast Aero Club restricted pilot.
The term Sunshine Coast Aero Club pilot is defined for the instrument to be the holder of a “pilot certificate” issued by, or under the authority of, RAAus. Such pilots are generally permitted to fly specified kinds of aeroplanes without supervision (but subject to the restrictions in CAO 95.55). However, the instrument will only permit such pilots to operate a Sunshine Coast Aero Club aeroplane in Class D airspace at Sunshine Coast aerodrome, without complying with subparagraphs 7.3 (d) and (e) of CAO 95.55, in the circumstances permitted in the instrument, including in accordance with the conditions mentioned below.
In effect, the instrument permits flights in Class D airspace by Sunshine Coast Aero Club pilots only if criteria specified in the instrument, which are intended to ensure that the flight can be conducted safely, have been met. This is the case even though these pilots are not supervised for the flight by Sunshine Coast Aero Club. The instrument will permit such pilots to hire and operate a Sunshine Coast Aero Club aeroplane for private use within Class D airspace at Sunshine Coast aerodrome, subject to Sunshine Coast Aero Club checks and control.
The latter term, Sunshine Coast Aero Club restricted pilot, covers pilots who hold a “student pilot certificate” or another pilot qualification that is being converted to an RAAus‑issued pilot certificate after testing. Such pilots are only permitted to fly aeroplanes under supervision. In effect, the instrument permits flights by these pilots only under the supervision of Sunshine Coast Aero Club, and if criteria specified in the instrument, which are intended to ensure that the flight can be conducted safely, have been met.
The instrument, therefore, applies if Sunshine Coast Aero Club operates a Sunshine Coast Aero Club aeroplane in Class D airspace at Sunshine Coast aerodrome as part of a flying training activity being conducted by a Sunshine Coast Aero Club restricted pilot, or if it authorises the use of such an aeroplane in an operation conducted by a Sunshine Coast Aero Club pilot in Class D airspace.
The exemption is subject to the conditions mentioned in sections 6 to 9 of the instrument. Subsection 6 (1) imposes conditions on Sunshine Coast Aero Club to ensure that relevant pilots hold appropriate certificates relating to medical fitness and the use of radios.
Subsection 6 (2) imposes conditions on the pilot not to fly in Class D airspace unless the pilot meets specified medical certification and aeronautical radio licensing requirements.
Subsection 7 (1) of the instrument imposes a condition on Sunshine Coast Aero Club to ensure that its chief flying instructor (CFI) authorises pilots before they commence a flight in Class D airspace at Sunshine Coast aerodrome. That authorisation must be in writing.
Subsection 7 (2) imposes a condition on Sunshine Coast Aero Club to ensure that, before any particular pilot first operates a Sunshine Coast Aero Club aircraft in Class D airspace, the pilot is competent to operate at the aerodrome and in the Class D airspace.
Paragraph 7 (2) (a) requires Sunshine Coast Aero Club to ensure that the pilot undertakes practical training, in an aircraft in flight, on the local procedures at Sunshine Coast aerodrome for the use of Class D airspace.
Paragraph 7 (2) (b) requires Sunshine Coast Aero Club to ensure that the CFI conducts a flight with the pilot that involves a:
- take-off or landing at Sunshine Coast aerodrome; and
- transition from Class D airspace at Sunshine Coast aerodrome into the surrounding Class G airspace; and
- transition from Class G airspace back into Sunshine Coast aerodrome Class D airspace.
Paragraph 7 (2) (c) requires Sunshine Coast Aero Club to ensure that the CFI is satisfied that the pilot has attained specified competencies in the Part 61 Manual of Standards Instrument 2014 (Part 61 MOS), including on the basis of the requirements in paragraphs 7 (2) (a) and (b). In relation to competency for the controlled airspace endorsement, there is no requirement for a pilot to be assessed on the use of Class C airspace that exists at Sunshine Coast aerodrome, since that class of airspace cannot be used under the exemption.
Paragraph 7 (2) (d) requires Sunshine Coast Aero Club to ensure that the CFI makes specified notations in the pilot’s logbook before the pilot’s first flight in the Class D airspace, covering the CFI’s authorisation for the flight, training on local airspace procedures in paragraph 7 (2) (a), and the attainment of the particular competencies mentioned in paragraph 7 (2) (c).
Section 8 of the instrument imposes a condition on Sunshine Coast Aero Club in relation to the reporting of accidents and incidents under the Transport Safety Investigation Act 2003. Any such report must be copied to CASA.
Section 9 of the instrument imposes conditions on Sunshine Coast Aero Club in relation to record keeping and access to records related to the instrument. The condition is required to ensure that CASA can adequately monitor compliance with the instrument in the interests of safety.
The instrument incorporates by reference requirements of the Part 61 MOS, as in force from time to time. The Part 61 MOS is a disallowable instrument that prescribes requirements for Part 61 of CASR relating to pilot licensing. It is freely viewable on the Federal Register of Legislation (FRL).
The instrument also incorporates by reference provisions of CAO 95.55, as the CAO is in force from time to time, and also incorporates provisions of any instrument that remakes CAO 95.55, as the remade instrument is in force from time to time. CAO 95.55, described above, is a disallowable instrument that is freely viewable on the FRL.
The instrument also incorporates by reference matter in CASA OAR 027/18 — Determination of Airspace and Controlled Aerodromes Etc. (Designated Airspace Handbook) Instrument 2018 (the Determination), as in force from time to time. The Determination prescribes volumes of classes of airspace and is a legislative instrument made under section 5 of the Airspace Regulations 2007. By operation of regulations made for the purpose of paragraph 44 (2) (b) of the LA, the Determination is not a disallowable instrument and is, therefore, not subject to the permission in section 14 of the LA mentioned above. However, the Determination may be applied, adopted or incorporated, as in force from time to time, in accordance with subsection 95 (5D) of the Act. The Determination is freely viewable on the FRL.
Legislation Act 2003
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. 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 from complying with subparagraphs 7.3 (d) and (e) of CAO 95.55. 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 substantively affects the business of Sunshine Coast Aero Club. CASA consulted Sunshine Coast Aero Club on an advanced draft of the instrument and Sunshine Coast Aero Club expressed satisfaction with its wording. The instrument also affects the management of Class D airspace by Airservices Australia (AA). CASA consulted with AA on the proposal and AA agreed to the instrument, subject to pilots following the relevant instructions and procedures for use of the Class D airspace at Sunshine Coast aerodrome. In these circumstances, CASA is satisfied that no further 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 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 is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
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 the day after registration and is repealed at the end of 31 July 2021.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX98/18 — Flight in Certain Ultralight Aeroplanes in Class D Airspace at Sunshine Coast Aerodrome (Sunshine Coast Aero Club Queensland) Exemption 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
This legislative instrument permits specified pilots to fly certain ultralight aircraft, which are registered with Recreational Aviation Australia Limited (RAAus), in Class D airspace at Sunshine Coast aerodrome without meeting certain competency requirements under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR). Class D airspace is controlled airspace that is also used by passenger transport aircraft. The flights are limited to pilots operating aircraft under the control of Sunshine Coast Aero Club Queensland Ltd.
Human rights implications
This legislative instrument engages with the right to privacy by including conditions about recordkeeping of, and access to, documents that contain personal information about the pilots who wish to operate the ultralight aircraft in Class D airspace at Sunshine Coast aerodrome. The documents include aviation-related licences that indicate that pilots hold certain competencies, and medical certificates that state that pilots meet certain medical standards.
The recordkeeping and access requirements are necessary for CASA to perform its safety regulatory functions in relation to the risk mitigators that are put in place to enable the pilots to fly in the Class D airspace. Further, the requirements are not more onerous than those that apply to pilots who hold licences under Part 61 of CASR.
The engagement with the right to privacy promotes the general welfare of Australian society by ensuring that pilots operating in controlled airspace are competent to do so. The changes are reasonable and proportionate to the risks associated with the exemptions and conditions in the instrument.
Conclusion
This legislative instrument is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
Civil Aviation Safety Authority