Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 82.3 Amendment Order (No. 2) 2010
Purpose
The purpose of Civil Aviation Order 82.3 Amendment Order (No. 2) 2010 (the CAO Amendment) is to make a minor change to Civil Aviation Order 82.3 (CAO 82.3) 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 82.3 — legislative background
Under section 27 of the Civil Aviation Act 1988 (the Act), CASA may issue Air Operators’ Certificates (AOCs) with respect to aircraft, for the purpose of safety regulation. Under section 28 of the Act, CASA must issue the AOC if satisfied that the applicant can comply with the requirements of Australian civil aviation safety legislation.
Under paragraph 28BA (1) (b) of the Act, an AOC has effect subject to any conditions specified in the regulations or the Civil Aviation Orders (the CAOs). Part 82 of the CAOs specifies conditions on AOCs for various kinds of operations. CAO 82.3 contains conditions on all AOCs authorising regular public transport (RPT) in other than high capacity aircraft.
For the purposes of the CAO Part 82 series, a high capacity aircraft is defined in paragraph 2.1 of CAO 82.0 as an aircraft that is certified as having a maximum seating capacity exceeding 38 seats, or a maximum payload exceeding 4 200 kg. By interpretation, therefore, a non-high capacity aircraft is an aircraft that is certified as having a maximum seating capacity not exceeding 38 seats, or a maximum payload not exceeding 4 200 kg.
CAO 82.3 — straight-in approaches
Previously, subsection 5B of CAO 82.3 set out conditions imposed on AOC holders in relation to aircraft making straight-in visual approaches.
An aircraft that was crewed by at least 2 pilots could not make a straight-in visual approach to a non‑controlled aerodrome unless, among other things, the aircraft was equipped with a serviceable VHF radio operating on the CTAF/MBZ frequency, and the aerodrome had a CTAF/MBZ frequency, and various manoeuvring and lighting rules were complied with.
CTAF/MBZ radio frequency, in relation to the terminal airspace of an aerodrome, was defined in CAO 82.0 as meaning the very high radio frequency specified under regulation 99A of the Civil Aviation Regulations 1988 as being the radio frequency for:
(a) communications between aircraft within the terminal airspace of the aerodrome; and
(b) communications between aircraft within the terminal airspace and the aerodrome.
MBZ obsolete
The mention of MBZ refers to “Mandatory Broadcast Zone”. However, this concept of such a zone has now legislatively been made obsolete by the new safety rules in the Amendment Regulations which mandate revised radio carriage and broadcast rules for pilots.
Straight-in approaches
In addition, regulation 166B of the Amendment Regulations deals expressly with carrying out a straight-in approach at a non-controlled aerodrome and establishes rules in relation to wind direction, giving way to certain other aircraft, and manoeuvring.
The CAO Amendment, therefore, deletes all of subsection 5B from CAO 82.3 as being redundant in the light of regulation 166B of the Amendment Regulations.
Legislative Instruments Act 2003 (LIA)
Paragraph 28BA (1) (b) of the Act provides that an AOC has effect subject to any conditions “specified in the regulations or Civil Aviation Orders”.
Subsection 98 (4A) of the Act provides that CASA may issue CAOs with respect to any matter in relation to which regulations may be made for the purposes of section 28BA.
Under subsection 98 (4B) of the Act, a CAO issued under subsection 98 (4A) is stated to be a legislative instrument and is, therefore, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
By providing that an AOC has effect subject to any conditions specified in the regulations or CAOs, paragraph 28BA (1) (b) of the Act is a separate head of power for the making of relevant CAOs. For section 5 of the LIA, such CAOs would be legislative instruments subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
The CAO Amendment is made under both paragraph 28BA (1) (b) of the Act and subsection 98 (4A) of the Act and is a legislative instrument.
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 radio 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 as the vast majority of aircraft operating into certified and registered aerodromes are currently radio-equipped. 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 82.3 Amendment Order (No. 2) 2010]