Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 82.0 Amendment Order (No. 2) 2007
Legislation
Under subsection 27 (1) of the Civil Aviation Act 1988 (the Act), CASA may issue Air Operators’ Certificates (AOCs) for aircraft. Under subsections 27 (2) and (9), except as authorised by an AOC, an aircraft shall not fly or operate in Australian territory for prescribed purposes.
Section 98 of the Act empowers the Governor-General to make regulations for the Act and the safety of air navigation. Under subregulation 206 (1) of the Civil Aviation Regulations 1988 (CAR 1988), certain commercial purposes are prescribed for subsection 27 (9) of the Act, namely aerial work of various kinds, charter operations and regular public transport operations.
Under paragraph 28BA (1) (b) of the Act, an AOC has effect subject to any conditions specified in CAR 1988 or the Civil Aviation Orders (the CAOs).
Under subsection 28BA (2A) of the Act, if a condition specified in the CAOs is breached, while the breach continues, the AOC does not authorise any flight or operation to which the condition relates.
Part 82 of the CAOs specifies conditions on AOCs and Civil Aviation Order 82.0 (CAO 82.0) contains the general conditions on all AOCs.
Paragraph 3D.1 of CAO 82.0 (inserted on 15 February 2007) made it a condition of an AOC that night vision devices may only be used as the primary means of terrain avoidance by external visual surface reference if CASA had approved the use. The most common form of night vision device is night vision goggles (NVG, which is used below in this statement to signify all relevant devices).
Before subsection 3D of CAO 82.0 was made, CASA controlled the use of NVG through a Compliance Management Instruction 04/74 — Night Vision Goggles (NVG) for Helicopter Operations (the CMI) and related low flying permissions under subregulation 174B (4) of CAR 1988.
It was thought that a small number of operators had such permissions and, subject to ongoing safety standards, it was intended to protect their position when making paragraph 3D.1.
Therefore, through what was in effect an exemption under paragraph 3D.2, paragraph 3D.1 did not apply to the AOC of a holder who had a current CASA approval to conduct NVG operations in accordance with the CMI or other CASA conditions.
Civil Aviation Order 82.6 (CAO 82.6)
Since subsection 3D was made, CASA has finalised the regulatory framework for a 12 month trial for the safe and controlled use of NVG in specialised civilian helicopter operations, namely those engaged in emergency-type aerial work operations. This framework is contained in CAO 82.6.
Any approval to use NVG will in future only be given in accordance with CAO 82.6. In these circumstances, the CMI is redundant and it was revoked administratively immediately after the commencement of CAO 82.6. Consequentially, it is necessary also to repeal the related exemption from approval that was the effect of paragraph 3D.2 of CAO 82.0.
The CAO Amendment
Civil Aviation Order 82.0 Amendment Order (No. 2) 2007 (the CAO Amendment) amends CAO 82.0 to repeal paragraph 3D.2 and substitute for it a Note stating that approval to use NVG will only be given in accordance with CAO 82.6.
Following thorough checks, CASA is satisfied that there no current NVG approvals issued under the authority of the CMI and subreguation 174B (4) and therefore no person is likely to be disadvantaged by the repeal of the exemption in paragraph 3D.2.
The requirement in paragraph 3D.1 of CAO 82 for approval of NVG use remains as a condition on AOC holders.
Private operations without an AOC
As noted above, the CAO Amendment is made under paragraph 28BA (1) (b) of the Act. To avoid doubt, it is also made under subregulations 5 (1) and 209 (1) of CAR 1988.
Under subregulation 209 (1) of CAR 1988, CASA may, in the interests of safety, issue directions to the operator and pilot in command of an aircraft engaged in private operations. CASA has done so in CASA 30/07 directing that NVG may not be used in private operations. Under subregulation 5 (1) of CAR 1988, where CASA is empowered under CAR 1988 to issue certain instruments like directions under subregulation 209 (1), it may do so in CAOs.
Certain kinds of currency and recency training by an AOC holder constitute private operations notwithstanding the holding of an AOC. In originally making subsection 3D of CAO 82.0, the intention was that such training by an AOC holder, were it to involve use of NVG, would require CASA’s approval under subsection 3D in the same way as AOC operations that were not private operations. The CAO Amendment is made under the same heads of power which were used to avoid any doubt about the scope of the prohibition on NVG use in private operations.
Legislative Instruments Act
Under subsection 98 (4A) of the Act, CAOs made for section 28BA of the Act are declared to be disallowable instruments. Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (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. The CAO Amendment is, therefore, 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 undertaken with representatives of helicopter operators, primarily through the Helicopter Association of Australia, as part of the consultation for CAO 82.6.
Office of Best Practice Regulation (OBPR)
The Office of Best Practice Regulation (OBPR) has advised that CAO 82.6 may proceed without the preparation of a Regulation Impact Statement and the CAO Amendment is merely consequential on CAO 82.6.
Making, registration and commencement
Having been registered, the instrument comes into effect immediately after the commencement of CAO 82.6.
The instrument has been made by the Acting Director of Aviation Safety, on behalf of CASA, in accordance with subsection 84A (2) of the Act.
[Civil Aviation Order 82.0 Amendment Order (No. 2) 2007]