Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 20.16.1 Amendment Order (No. 1) 2007
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation.
Legislation
Under subregulation 235 (7) of the Civil Aviation Regulations 1988 (CAR 1988), for the purpose of ensuring the safety of air navigation, CASA may give directions with respect to the method of loading of persons and goods (including fuel) on aircraft. Under subregulation 235 (7A) of CAR 1988, it is an offence to contravene a direction.
Under subregulation 5 (1) of CAR 1988, CASA may use Civil Aviation Orders (the CAOs) to issue directions mentioned in subregulation 235 (7). Directions were issued in Civil Aviation Order 20.16.1 (CAO 20.16.1).
Background
The directions in CAO 20.16.1 have no direct relevance to balloons for the following reasons.
The recently remade CAO 100.96 deals with the weighing of balloons. Recent amendments to CAO 100.7, which concerns the weight control of aircraft, ensure that CAO 100.7 does not apply to balloons because balloon weighing issues are dealt with in CAO 100.96.
Under subregulation 259 (1), a person must not fly a free balloon (i.e. not fixed to one position) if the person does not have the permission of CASA and then may only fly in accordance with the terms of that permission.
Under subregulation 260 (1), a person must not fly a fixed balloon within 4 000 metres of an aerodrome or above 300 feet if the person does not have the permission of CASA and then may only fly in accordance with the terms of that permission.
Relevant CASA permissions contain conditions to be observed that are similar to matters mentioned in CAO 20.16.1, for example, in relation to passenger lists and other relevant loading matters.
Since, in practice, CAO 20.16.1 has no direct relevance to balloons, CASA has made Civil Aviation Order 20.16.1 Amendment Order (No. 1) 2007 (the CAO amendment). This will avoid any misunderstanding and clarify that CAO 20.16.1 does not apply to balloons.
CAO amendment
The CAO amendment, therefore, amends CAO 20.16.1 to provide that the CAO applies to all Australian aircraft except balloons.
The CAO amendment also clarifies a Note in CAO 20.16.1 about the application of CAO 100.7 in relation to the weight control of aircraft, to make it clear that CAO 100.7 does not apply to balloons.
Legislative Instruments Act
Under subregulation 5 (1) of CAR 1988, CASA may use CAOs to issue directions mentioned in subregulation 235 (7) of CAR 1988. Under subsection 98 (5) of the Act, where regulations provide for directions to be issued in the form of a CAO, the CAO is stated to be a legislative instrument for the purposes of the Legislative Instruments Act 2003 (the LIA). The CAO amendment is a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
There was consultation with the Professional Ballooning Association of Australia (the PBAA), specifically through the CASA/PBAA Joint Technical Committee. The PBAA represents approximately 95% of aerial work, and charter balloon, operators.
Office of Best Practice Regulation (OBPR)
The OBPR does not require a Regulation Impact Statement because a preliminary assessment of the business compliance costs indicates that the amendment will have only a low impact on business.
Making and commencement
The CAO amendment has been issued by the Director of Aviation Safety in accordance with subsection 84A (2) of the Act.
The CAO amendment commences on the day after it is registered.
[Civil Aviation Order 20.16.1 Amendment Order (No. 1) 2007]
Overview
The Civil Aviation Order 20.16.1 Amendment Order (No. 1) 2007 was enacted to address the issue that Civil Aviation Order 20.16.1, which contains directions for the method of loading persons and goods on aircraft, was inadvertently applicable to balloons, despite the fact that balloon-specific regulations already exist. This was identified as a potential source of confusion and inconsistency in compliance requirements. The order was made under subsection 98(1) of the Civil Aviation Act 1988, which empowers the Governor-General to make regulations for the Act and the safety of air navigation. The policy objective of the CAO amendment is to clarify the scope of CAO 20.16.1 and ensure that it does not apply to balloons, thereby avoiding any misunderstanding and ensuring that existing balloon-specific regulations are correctly adhered to. This amendment was developed in consultation with the Professional Ballooning Association of Australia, which represents the majority of aerial work and charter balloon operators. The Office of Best Practice Regulation determined that a Regulation Impact Statement was not necessary as the amendment was expected to have minimal impact on business compliance costs. The amendment is a legislative instrument subject to tabling and disallowance in the Parliament under the Legislative Instruments Act 2003.
Scope and Application
The Civil Aviation Order 20.16.1 Amendment Order (No. 1) 2007 amends the Civil Aviation Order 20.16.1 to clarify that the order applies to all Australian aircraft except balloons. This amendment ensures that the provisions in CAO 20.16.1, which are intended to regulate the loading of persons and goods on aircraft for safety purposes, do not inadvertently apply to balloons. Balloons are subject to separate regulations, notably CAO 100.96 which governs the weighing of balloons, and CAO 100.7, which does not apply to balloons due to the existence of CAO 100.96. The amendment aligns with the existing regulatory framework by ensuring that directions given under the Civil Aviation Regulations 1988 do not create confusion or impose unnecessary requirements on balloon operators. The Civil Aviation Order 20.16.1 Amendment Order (No. 1) 2007 is a legislative instrument under the Civil Aviation Act 1988 and is subject to the provisions of the Legislative Instruments Act 2003, including tabling and disallowance in the Parliament. The amendment was made following consultation with the Professional Ballooning Association of Australia, which represents a significant proportion of the balloon industry.
Key Provisions
The main operative sections of the Civil Aviation Order 20.16.1 Amendment Order (No. 1) 2007 (CAO Amendment) clarify the applicability of Civil Aviation Order 20.16.1 (CAO 20.16.1) to Australian aircraft, specifically excluding balloons. Under the Civil Aviation Act 1988 (section 98(1)), the Governor-General has the power to make regulations for the Act and the safety of air navigation. Section 235(7) of the Civil Aviation Regulations 1988 (CAR 1988) allows the Civil Aviation Safety Authority (CASA) to issue directions concerning the method of loading persons and goods on aircraft, with section 235(7A) criminalising any contravention of these directions. The CAO Amendment modifies subregulation 235(7) of CAR 1988, specifying that CAO 20.16.1 applies to all Australian aircraft except balloons, thus avoiding any misunderstanding or misapplication.
The CAO Amendment imposes specific obligations on the parties or entities it governs. Operators of Australian aircraft, excluding balloons, must comply with the loading directions issued under CAO 20.16.1, ensuring safety and adherence to regulatory standards. Additionally, operators must adhere to the conditions set in their CASA permissions, particularly concerning passenger lists and other loading matters. The Amendment also clarifies that CAO 100.7, which deals with the weight control of aircraft, does not apply to balloons, as these are specifically managed under CAO 100.96.
There are no specific offences, penalties, or civil/criminal consequences outlined in the CAO Amendment itself. However, under section 235(7A) of CAR 1988, any contravention of the directions issued under CAO 20.16.1 may constitute an offence. Penalties for such offences would be determined under the applicable laws governing civil aviation and could potentially include fines and other sanctions as prescribed by the Civil Aviation Act 1988 and associated regulations. The CAO Amendment is a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003, ensuring parliamentary oversight and accountability in the regulatory process.