Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX99/19 — Flight in Class D Airspace near Sunshine Coast Aerodrome (Sunshine Coast Sports Aviators) Instrument 2019
Purpose
The purpose of this legislative instrument is to permit members of Sunshine Coast Sports Aviators Inc. (the Association), an association incorporated in Queensland, to operate hang gliders and paragliders from sites near Point Cartwright, Maroochydore. The site is within 16 kilometres of the controlled aerodrome at Sunshine Coast, which means that the operations are otherwise prohibited under subparagraph 7.1 (i) of Civil Aviation Order 95.8 (CAO 95.8), unless the pilot meets additional pilot licence and flight review requirements.
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 Civil Aviation Regulations 1988 (CAR).
Exemptions
Subpart 11.F of CASR provides for the granting of exemptions from particular legislative provisions. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, the Civil Aviation Safety Authority (CASA) may grant an exemption from a provision of CAR, CASR or a Civil Aviation Order.
Under subregulation 11.160 (2) of CASR, 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) of CASR, 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 reissue an exemption, 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 they are 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.
Directions
Subpart 11.G of CASR provides for CASA to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a) of CASR, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245 (2) of CASR provides that CASA may issue such a direction if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, if the direction is not inconsistent with the Act, and for the purposes of CASA’s functions.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255, it is an offence of strict liability to contravene a direction under regulation 11.245.
Civil Aviation Order 95.8
CAO 95.8 applies to hang glider and paraglider aircraft. It contains exemptions from specified provisions of CASR and CAR subject to conditions, such as the pilot being issued a certificate by Hang Gliding Federation of Australia Inc (HGFA) or being supervised by an instructor approved by HGFA (paragraph 6.1 of CAO 95.8). Another of the conditions imposed, subparagraph 7.1 (i) of CAO 95.8, limits the airspace in which an aircraft may be flown. Relevantly, the aircraft must not be flown in Class C or D airspace within 16 kilometres of a controlled aerodrome unless the pilot:
(a) holds a pilot licence issued under Part 61 of CASR with an aeroplane category rating that allows the holder to fly in that airspace; and
(b) has a valid flight review for the class rating in accordance with Part 61 of CASR.
Subsection 98 (5D) of the Act provides that 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
Members of the Association operate hang gliders and paragliders from the hang‑gliding site at Point Cartwright near Maroochydore, Queensland. The site consists of 2 areas defined by the lengths of coastline and points 100 metres from that coastline.
The site is within 16 kilometres of Sunshine Coast aerodrome, which is a controlled aerodrome. The Association’s members have been able to use the site because their operations have, for many years, been exempted from compliance with relevant provisions of subsection 7 of CAO 95.8 despite the proximity of the site to Sunshine Coast aerodrome.
The Association has requested the grant of a new exemption to replace the current exemption, CASA EX122/18, that expires at the end of 31 August 2019.
Airservices Australia (AA), which is the air traffic service provider at Sunshine Coast aerodrome, has advised CASA that a new runway at Sunshine Coast aerodrome is expected to open on 21 May 2020. AA has advised that the safety of aircraft using flight paths related to the new runway is expected to be affected by hang gliding and paragliding operations at Point Cartwright. AA has agreed to the continuation of the exemption in CASA EX122/18 until 20 May 2020.
Instrument
The instrument exempts the pilot in command of a hang glider or paraglider from compliance with subparagraph 7.1 (i) of CAO 95.8 when conducting an exempt operation.
Section 1 names the instrument.
Section 2 states when the instrument commences and when it will be repealed. A note explains that, for regulation 11.250 of CASR, the directions in sections 6 and 7 cease to be in force when the instrument is repealed.
Section 3 contains definitions for the instrument. An important definition is exempt operation, which is defined to be an operation: (1) conducted wholly within Class D airspace at the Point Cartwright site; and (2) covered by an LoA that is in effect; and (3) the pilot in command for which is a financial member of Sports Aviation Federation of Australia Limited (SAFA) (formerly Hang Gliding Federation of Australia Inc) and a member of the Association.
Another important term is LoA, which is a “letter of agreement” between the Association and AA to describe the terms on which AA and the Association will cooperate to permit the conduct of exempt operations and to ensure that the operations do not conflict with aircraft operating at Sunshine Coast aerodrome. A note identifies that the current LoA is dated 26 February 2015.
Section 3 also defines Point Cartwright site by reference to lines between prescribed coordinates of latitude and longitude along the coast and 100 metres from the coast (in this statement referred to as prescribed lines), as well as lines that connect the corresponding endpoints of the prescribed lines. The effect of the definition is to create 2 roughly rectangular areas that are the “locations” that comprise the Point Cartwright site.
Section 4 contains the exemption, with the effect noted above.
Section 5 imposes conditions on the pilot in relation to the exemption. The pilot must confirm air traffic control clearance for the operations with the duty pilot. Consistent with the operational limitation in sub-subparagraph 7.1 (i) (iii) of CAO 95.8 for operations more than 16 kilometres from a controlled aerodrome, the pilot must not conduct an exempt operation higher than 300 feet above mean sea level. The pilot must also comply with any conditions in the relevant LoA.
Section 6 of the instrument contains 3 directions, under regulation 11.245 of CASR, that apply to the duty pilot, who is defined in section 3 as the member of the Association responsible for overseeing and facilitating hang gliding and paragliding operations at the Point Cartwright site. There are directions that require the duty pilot to obtain clearance from AA before a session of operations commences at the Point Cartwright site, and to notify AA when a session of operations is completed for a day, or a part of a day. These are necessary to ensure that AA’s air traffic controllers are aware of when exempt operations are occurring. A third direction imposes reporting obligations in the event of an incident or accident involving an exempt operation.
Section 7 directs the Association to ensure that CASA has a copy of the LoA that is in effect in relation to an exempt operation.
Document incorporated by reference
In accordance with subsection 98 (5D) of the Act, the instrument has the effect of applying, adopting or incorporating an LoA by reference, as the LoA exists from time to time. It does so by applying any LoA that is in effect in relation to an exempt operation.
The Association will have a copy of each LoA and can provide it to pilots wishing to operate in reliance on the exemption in the legislative instrument. By prior arrangement with CASA, a copy of the LoA in effect can be made available for viewing free of charge at any office of CASA.
Legislation Act 2003 (the LA)
Subsection 98 (5AA) of the Act states that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if it applies to a class of persons or a class of aircraft. This exemption applies to a class of persons, being pilots in command of hang gliders and paragliders operating at the Point Cartwright site, and so is 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
This instrument is of substantially the same effect as previous instruments on this subject, including CASA EX122/18, which expires at the end of 31 August 2019.
A consultation draft of CASA EX122/18 was provided to the Association for acceptance of the conditions. The President of the Association agreed that the members would be able to comply with the instrument.
The instrument is issued at the request of the Association with the support of SAFA Operations Manager. CASA has consulted AA’s air traffic control centre for Sunshine Coast aerodrome and SAFA, both of which expressed support for a new instrument permitting the exempt operations at Point Cartwright. AA recommended that the exemption expire at the end of 20 May 2020, as the operations at Point Cartwright will be affected by the opening of a new runway at Sunshine Coast aerodrome, which is expected to occur on 21 May 2020.
A consultation draft of this instrument was provided to the Association, SAFA and AA. The Association agreed to the instrument and no objection to the instrument was received from SAFA or AA.
In these circumstances, CASA is satisfied that no further consultation on the instrument is necessary or appropriate for 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 exemptions and directions (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 September 2019 and is repealed at the end of 20 May 2020.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX99/19 — Flight in Class D Airspace near Sunshine Coast Aerodrome (Sunshine Coast Sports Aviators) Instrument 2019
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
Members of Sunshine Coast Sports Aviators Inc. (the Association), an association incorporated in Queensland, operate hang gliders and paragliders from a site at Point Cartwright near Maroochydore, Queensland (the site). The site is within 16 kilometres of Sunshine Coast aerodrome, which is a controlled aerodrome.
Subparagraph 7.1 (i) of Civil Aviation Order 95.8 (CAO 95.8) prohibits aircraft, operating under the scheme in CAO 95.8, from flying within 16 kilometres of a controlled aerodrome, unless the pilot meets certain aeroplane pilot licence and flight review requirements. Therefore, many hang glider and paraglider pilots require an exemption for operations at Point Cartwright.
The exemption is subject to conditions on pilots who are operating at the site, and directions to the Association and the Association’s duty pilot. The duty pilot is an Association member responsible for overseeing and facilitating a session of hang gliding and paragliding operations at the site.
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