Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 20.21 Amendment Order (No. 1) 2010
Purpose
The purpose of Civil Aviation Order 20.21 Amendment Order (No. 1) 2010 (the CAO Amendment) is to amend Civil Aviation Order 20.21 (CAO 20.21) consequential on the Civil Aviation Amendment Regulations 2010 (No. 1) (the Amendment Regulations). The Amendment Regulations modify certain safety rules in relation to operating on, and in the vicinity of, aerodromes.
Background — the Amendment Regulations
Commencing on 3 June 2010, new regulations 166A and 166B of the Amendment Regulations modify the safety rules for pilots of aircraft operated on the manoeuvring area of, or in the vicinity of, a non-controlled aerodrome, including for carrying out straight-in approaches. For such manoeuvring and flight, under new regulation 166C radio-qualified pilots of aircraft carrying VHF radios must make certain broadcasts on the relevant common traffic advisory frequency (CTAF).
Under new regulations 166D and 166E, with narrow exceptions, pilots of aircraft operated on the manoeuvring area of, or in the vicinity of, non-controlled (non‑towered) aerodromes that are certified, registered, designated non-controlled, or military aerodromes, may commit an offence if the aircraft is not carrying a radio and the pilot is not radio-qualified.
New regulation 167 modifies the safety rules for pilots of aircraft that are part of the aerodrome traffic at controlled aerodromes. A pilot may commit an offence if he or she carries out certain manoeuvres without air traffic control (ATC) authorisation, or if he or she fails to observe certain turning and tracking rules.
CAO 20.21 — legislative background
Exemption
Under subsection 98 (5) of the Civil Aviation Act 1988 (the Act), the regulations may provide that CASA may issue a Civil Aviation Order (CAO) containing a direction, instruction, notification, permission, approval or authority. Under subregulation 5 (1) of Civil Aviation Regulations 1988 (CAR 1988), where CASA is empowered or required under CAR 1988 to issue any direction, instruction or notification, or to give any permission, approval or authority, CASA may do so by CAO.
Under paragraph 98 (5A) (a) of the Act, the regulations may, among other things, empower CASA to issue instruments in relation to matters affecting the safe navigation and operation of aircraft.
Under subregulation 308 (1) of CAR 1988, CASA may exempt aircraft, or persons in, on, or otherwise associated with the operation of the aircraft, from compliance with specified provisions of CAR 1988.
Under subregulation 308 (2) of CAR 1988, before making an exemption, CASA must take into account any relevant considerations relating to the interests of safety.
Under subregulation 308 (3) of CAR 1988, CASA may make an exemption subject to any condition specified in the exemption as being necessary in the interests of safety.
Under subregulations 308 (3A) and (3B), it is a strict liability offence to contravene a condition of an exemption that is being relied upon for an operation. Under subregulation 308 (4), an exemption is a disallowable instrument (and hence a legislative instrument).
Other heads of power
Other heads of power are used in the making of CAO 20.21. For example, under subregulation 157 (1) of CAR 1988, the pilot in command of an aircraft must not fly the aircraft over any city, town or populous area, at a height lower than 1 000 feet, or any other area at a height lower than 500 feet. However, this does not apply if the aircraft is engaged in private, or aerial work, operations that require low flying, and the owner or operator of the aircraft has received CASA permission.
Also, under subregulation 235 (7), CASA may, for the purpose of ensuring the safety of air navigation, give directions with respect to the method of loading of persons and goods (including fuel) on aircraft.
CAO 20.21 — agricultural operations
CAO 20.21 permits low flying in certain agricultural operations. Paragraph 7.1 provided that, subject to certain conditions set out in paragraph 7.2, an aircraft that is engaged in agricultural operations is exempt from compliance with former paragraph 166 (1) (d) of CAR 1988 (turning, but only in so far as that paragraph relates to turns after take-off), and exempt from former paragraph 166 (1) (g) (heading after take-off).
Under paragraph 7.2: after take-off, the aircraft must not turn at a height that is less than 100 feet above ground level; during take-off, the aircraft must not be operated in a manner that causes a danger to persons or livestock; and the pilot in command must, before conducting an operation under this exemption, broadcast his or her intention to do so on the local area frequency.
CAO Amendment
With the commencement of the Amendment Regulations it is necessary to update the references to the relevant Amendment Regulations.
For this purpose, therefore, the CAO Amendment inserts a new paragraph 7.1 stating, in effect, that if the conditions mentioned above are complied with, an aircraft that is engaged in agricultural operations is exempt from compliance with paragraphs 166A (2) (e) and 166A (2) (f) of CAR 1988 (relating respectively to turning and maintaining track).
Legislative Instruments Act 2003 (LIA)
Under subregulation 308 (4) of CAR 1988, an exemption is declared to be a disallowable instrument. Under subparagraph 6 (d) (i) of the LIA, an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA.
Additionally, under subsection 98 (5AAA), a CAO is a legislative instrument. Also, under subsection 98 (5AA) of the Act, an instrument issued under regulations empowered by paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons, aircraft or aeronautical products rather than to a particular person, aircraft or aeronautical product.
On both bases, therefore, 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
Consultation under section 17 of the LIA has been carried out through the broader consultation process associated with making the Amendment Regulations which deal directly with changes to requirements at non-controlled aerodromes. The Amendment Regulations have been the subject of extensive industry consultation and review over the last 3 years, as described in more detail in section 3 of Notice of Proposed Rule Making (NPRM) 0908OS published for comment on 28 September 2009, and the Notice of Final Rule Making (NFRM) published on 9 April 2010.
Regulation Impact Statement (RIS)
The Office of Best Practice Regulation (OBPR) does not require preparation of a RIS in this case because the CAO Amendment is a minor machinery amendment consequential on the Amendment Regulations. The Amendment Regulations have been assessed as not being likely to add significantly to industry costs. OBPR has granted a RIS Exemption (reference 9691) for the changes made by the Amendment Regulations and the CAO Amendment, because of its purely consequential nature, is considered to be covered by that also.
Commencement and making
The CAO Amendment takes effect on 3 June 2010. It has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Civil Aviation Order 20.21 Amendment Order (No. 1) Order 2010]