Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Order 100.7 Amendment Instrument 2023
Purpose
The purpose of this legislative instrument is to amend Civil Aviation Order 100.7 (CAO 100.7) to clarify that the following aircraft can be weighed in accordance with approved procedures of an approved self-administering aviation organisation (ASAO) or other sport aviation body (as the case may be), rather than under CAO 100.7:
(a) an aircraft that is listed with a sport aviation body other than an ASAO;
(b) a sailplane that is administered by a sport aviation body (other than an ASAO) and operated under Civil Aviation Order 95.4 or 95.4.1;
(c) an aircraft that is administered by an ASAO whose approved functions include approving procedures for the weight control of the aircraft.
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 Civil Aviation Regulations 1988 (CAR) and the Civil Aviation Safety Regulations 1998 (CASR).
Subregulation 5(1) of CAR provides that where CASA is empowered to issue certain instruments such as permissions, approvals or directions, it may do so in a CAO.
Under regulation 235 of CAR, CASA may give directions setting out the method for estimating the weight of an aircraft (including persons, goods and fuel on board) and the aircraft’s centre of gravity.
CAO 100.7 sets out requirements and procedures for the periodic weighing of aircraft to establish their weight and centre of gravity (weight control measures). Subparagraph 1(c) of CAO 100.7 (the application provision) provides that CAO 100.7 does not apply to:
(c) an aircraft that:
(i) is registered by a sport aviation body; and
(ii)has been weighed in accordance with the sport aviation body’s procedures, as the procedures have been accepted or approved by CASA at the time the aircraft is weighed.
Paragraph 6.6 of CAO 100.7 states that a glider must be weighed or reweighed, as applicable, when, in the opinion of CASA or an authorised person in the Gliding Federation of Australia (the GFA), such a weighing is necessary.
sport aviation body is defined in the CASR Dictionary to include the GFA and an ASAO.
Part 47 of CASR deals with registration of aircraft and other related issues. Regulation 47.015 of CASR sets out which aircraft are required to be registered under CASR. Relevantly for the purposes of the instrument, this includes sailplanes, some sport and recreation aircraft and some Part 149 aircraft within the meaning of the Part 149 Manual of Standards.
Part 149 of CASR deals with ASAOs. Broadly, Part 149 of CASR allows certified ASAOs to carry out aviation administration functions, if such functions are approved in the exposition of the ASAO.
The Part 149 Manual of Standards, made under regulation 149.010 of CASR, sets out requirements to be met by an applicant for ASAO certificate under Part 149 of CASR to perform an aviation administration function. Under subsection 16(2)(c) of the Part 149 Manual of Standards, an aviation administration function includes approving procedures for weight control of a Part 149 aircraft.
Under subsection 14(1) of the Legislation Act 2003 (the LA), a legislative instrument may make provision in relation to matters by applying, adopting or incorporating provisions of an Act or disallowable legislative instrument as in force at a particular time or as in force from time to time. A legislative instrument may also make provision in relation to matters by applying, adopting or incorporating any matter contained in any other instrument or writing as in force at, or before, the time the legislative instrument commences. Under subsection 14(2) of the LA, unless the contrary intention appears, the legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. However, subsection 98(5D) of the LA 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.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Background
The application provision was inserted into CAO 100.7 by Civil Aviation Order 100.7 Amendment Instrument 2018 (No. 1) (the amendment instrument). The application provision specifies the types of aircraft in respect of which the weighing procedures under CAO 100.7 would not apply.
The effect of the application provision, which refers to aircraft “registered by a sport aviation body”, is to apply CAO 100.7 to types of aircraft that are administered by, or listed with, a sports aviation body (which includes an ASAO) but registered under Part 47 of CASR. For example, sailplanes are administered by GFA and registered under Part 47 of CASR. The application provision operates to the effect that such types of aircraft must be weighed in accordance with the procedures set out in CAO 100.7.
CASA’s policy preference is for aircraft that are administered by, or listed with, a sports aviation body (which includes an ASAO) but registered under Part 47 of CASR, to be weighed in accordance with approved procedures of a sport aviation body, rather than under CAO 100.7.
Overview of instrument
The instrument amends subparagraph (c) of the application provision. It substitutes new subparagraphs (c), (d) and (e) to clarify the types of aircraft to which CAO 100.7 does not apply. Further detail is provided in the “Content of instrument” section.
CASA is satisfied the instrument has no negative impact on the safety of civil aviation, as the aircraft to which CAO 100.7 will not apply will still be weighed under procedures that have been approved by CASA.
Documents incorporated by reference
In accordance with subsection 98(5D) of the Act, the application provision, as amended, incorporates Civil Aviation Orders 95.4 and 95.4.1, as in force from time to time, which are freely available on the Federal Register of Legislation website.
In addition, the application provision, as amended, incorporates by reference procedures of an approved self administering aviation organisation (ASAO); or a sport aviation body (that is not an ASAO), for weighing aircraft. These documents are the appropriate repository of procedures for the weighing of aircraft.
In accordance with subsection 98(5D) of the Act, the procedures in these documents are incorporated into the legislative instrument in the form that is accepted or approved by CASA at the time the aircraft is weighed. The provision has no application in relation to an aircraft until procedures are accepted or approved by CASA for the aircraft.
Each of the procedure documents are freely available on the website of the sport aviation body that owns the document.
Content of instrument
Section 1 sets out the name of the instrument.
Section 2 states that the instrument commences on the day after it is registered.
Section 3 sets out that CAO 100.7 is amended as set out in Schedule 1.
Item 1 of Schedule 1 amends subparagraph 1(c) of CAO 100.7 by substituting new subparagraphs 1(c), (d) and (e) such that CAO 100.7 does not apply to:
“(c) an aircraft that:
(i) is listed with a sport aviation body other than an ASAO; and
(ii) has been weighed in accordance with the sport aviation body’s procedures, as the procedures have been accepted or approved by CASA at the time the aircraft is weighed;
(d) a sailplane that:
(i) is administered by a sport aviation body other than an ASAO; and
(ii) is operated under Civil Aviation Order 95.4 or 95.4.1; and
(iii) has been weighed in accordance with the sport aviation body’s procedures, as the procedures have been accepted or approved by CASA at the time the aircraft is weighed;
(e) an aircraft that:
(i) is administered by an ASAO that has an approved function, mentioned in section 16 of the Part 149 Manual of Standards, of approving procedures for the weight control of the aircraft; and
(ii) has been weighed in accordance with the procedures for weight control, as approved by the ASAO.”
Item 2 of Schedule 1 omits paragraph 6.6 of CAO 100.7, as a consequence of the amendment in Item 1.
Legislation Act 2003
Paragraph 10(1)(d) of the LA provides that an instrument will be a legislative instrument if it includes a provision that amends or repeals another legislative instrument. This instrument amends CAO 100.7 that is registered as a legislative instrument and is, therefore, also a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Sunsetting
As the instrument relates to aviation safety and is made under CASR, Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument (as per item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015). The instrument deals with aviation safety matters that, once identified, require a risk response or treatment plan. Generally speaking, item 15, when invoked, is necessary to ensure that, in the interests of aviation safety, a relevant instrument has enduring effect, certainty and clarity for aviation operators, both domestic and international.
In this case, the instrument amends CAO 100.7, and is almost immediately spent and repealed in accordance with the automatic repeal provisions in section 48A of the LA. CAO 100.7 deals with aviation safety matters and is intended to have enduring operation and it therefore would not be appropriate for it to be subject to sunsetting. The exemption from the sunsetting provisions affects parliamentary oversight by not requiring the instrument to be remade and subject to further tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The need for the instrument was raised with CASA by stakeholders such as GFA. The instrument is provided to clarify functions for sports aviation bodies and ASAOs.
CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Sector risk, economic and cost impact
Subsection 9A(1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A(3) of the Act states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9(1)(c), CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.
The instrument makes minor or machinery changes to an existing instrument and there will be no significant change to the economic or cost impact on individuals, businesses or the community. The Office of Impact Analysis (OIA) also made an assessment that an Impact Analysis (IA) was not required.
Impact on categories of operations
The instrument is likely to have a beneficial effect on sports aviation bodies and ASAOs by clarifying their functions and the services they can provide to operators of aircraft administered by them.
Impact on regional and remote communities
The instrument is likely to have a beneficial effect on various regional communities, as many of the affected ASAOs and sports aviation bodies conduct operations in regional areas.
Office of Impact Analysis
An IA is not required in this case, as the instrument corrects an error in CAO 100.7 and the OBPR does not require the preparation of an IA for amendments that relate to correcting errors in drafting or making minor drafting clarifications (OIA id: 22726).
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.
Making and commencement
The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73(2) of the Act.
The instrument commences on the day after it is registered and is automatically repealed in accordance with section 48A of the LA.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Civil Aviation Order 100.7 Amendment Instrument 2023
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 purpose of this legislative instrument is to amend Civil Aviation Order 100.7 (CAO 100.7) to clarify that the following aircraft can be weighed in accordance with approved procedures of an approved self-administering aviation organisation (ASAO) or other sport aviation body (as the case may be), rather than under CAO 100.7:
(a) an aircraft that is listed with a sport aviation body other than an ASAO;
(b) a sailplane that is administered by a sport aviation body (other than an ASAO) and operated under Civil Aviation Order 95.4 or 95.4.1;
(c) an aircraft that is administered by an ASAO whose approved functions include approving procedures for the weight control of the aircraft.
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