Civil Aviation Order 82.6 Amendment Instrument 2020 (No. 2)

Explanatory Statement

Civil Aviation Act 1988

Purpose

The purpose of Civil Aviation Order 82.6 Amendment Instrument 2020 (No. 2) (the CAO amendment) is to amend Civil Aviation Order 82.6 (Night vision imaging system — helicopters) 2007 (CAO 82.6) to redefine the night vision imaging system (NVIS) operation known as aerial fire fighting, to relax a certain crewing requirement, and to broaden the range of locations from which a properly-equipped helicopter may draw water, fire retardant and other similar substances for fire fighting purposes. Australia is currently in the midst of the 2020/2021 fire season and the amendment is urgently required.

Legislation

A wide range of statutory powers was required to make CAO 82.6 and the same powers are used to make the CAO amendment. Given their detail, they are set out in Appendix 1.

Background

CAO 82.6 established operational and airworthiness standards and approval requirements for the use of night vision goggles (NVG) in specialised helicopter aerial work operations. CAO 82.6 operates essentially as a set of conditions on AOCs. It has the effect of rendering an AOC holder in breach of their AOC conditions if they make any unapproved use of NVG as a primary means of terrain avoidance for safe air navigation by means of visual surface reference external to an aircraft. (The use of NVIS in private operations is prohibited by CASA under instrument CASA 288/07, Direction — use of night vision devices prohibited in private operations.)

Prescribed NVIS operations include, for example, search and rescue, law enforcement, aerial fire fighting and aerial fire fighting support, emergency medical services, disaster or emergency relief, marine pilot transfers, Department of Defence support, NVIS positioning, training or demonstration operations.

The CAO amendment modifies the definition of aerial fire fighting. There are 3 reasons for this.

Flight crew

First, it is necessary to permit a flight crew of 2 pilots to crew an operation as an alternative to the former requirement of 1 pilot and 1 air crew member. The rationale for this is that as long as 2 relevantly qualified flight crew are on board that is sufficient. This will give operators a much greater degree of flexibility in crewing aerial fire fighting operations.

Approval for more locations from which to draw water etc.

Secondly, the CAO amendment also modifies the definition of aerial fire fighting to permit a helicopter with a belly tank to draw water, fire retardant or similar substances from approved locations.

Previously, water etc. could be taken from a source on the ground at a helicopter landing site only while the helicopter was on the ground, or from a portable tank on the ground at the landing site only while the helicopter was in the hover and using an on-board pump.

As modified, the definition of aerial fire fighting will now permit an operator to apply to CASA to approve a different location, or kind of location, at which a helicopter equipped with a belly tank may be filled with water, fire retardant or similar substance. CASA may approve the location, or kind of location, based on the operator’s detailed written risk assessment and CASA’s assessment that approval, including with any conditions imposed, would not have an adverse effect on aviation safety.

As explained in a Note, conditions may include limitations on flight time for particular NVIS operations or locations, requirements for underwater escape training at night, collection system and other equipment requirements, including additional search-lighting, prior daylight survey of locations, and requirements for environmental circumstances such as weather and degree of moonlight.

If CASA approves a location, or kind of location, the approval, including any conditions, must be set out in the operator’s operations manual along with any procedures required for the operator to ensure that any conditions are complied with.

Avoidance of legal doubt

Thirdly, CASA has recently been requested to issue exemptions from CAO 82.6 to permit operators to draw water from open water sources for the purposes of fire fighting. Such operations would not be aerial fire fighting operations within the meaning of CAO 82.6 and hence exemptions from the CAO were sought. However, it is, at best, highly doubtful that legislation permits the granting of exemptions from CAO 82.6.

CAO 82.6 is structured as a set of AOC conditions, expressly made under paragraph 28BA (1) (b) and subsection 98 (4A) of the Civil Aviation Act 1988 (the Act) which, combined, contain CASA’s empowerment for the making of Civil Aviation Orders (CAOs) that impose AOC conditions.

In contrast to this power directly under the Act, whereby CASA may issue AOC‑related CAOs, subsection 98 (5) of the Act empowers the making of regulations which provide that CASA may issue CAOs in relation to various matters unrelated to AOC conditions. Under subsection 98 (5A) of the Act, the regulations may empower CASA to issue various instruments, in exercise of which power regulation 11.160 of the Civil Aviation Safety Regulations 1998 (CASR), authorises CASA to grant exemptions, including exemptions from CAOs.

However, there being, in effect, 2 sources of empowerment for CASA to issue CAOs — directly under the Act, or indirectly under the regulations, a power of exemption conferred indirectly under the regulations will not legally extend to allow interference with a CAO made directly under the Act. Such a power of exemption would be analogous to a “Henry VIII clause” — a form of express empowerment which would enable a subordinate regulation to change the effect of its own empowering Act. There are no express words in the Act to such effect.

Despite that, CASA considers that operations to draw water from open water sources or other locations may, in some circumstances and under appropriate safety conditions, be useful for the purposes of aerial fire fighting. There are inherent dangers in such operations and the CAO amendment is intended to address these in a safe and suitable way.

The CAO amendment

Specific details of the CAO amendment are set out in Appendix 2.

Legislation Act 2003 (the LA 2003)

The CAO amendment is a legislative instrument under various requirements, as set out in Appendix 3.

Consultation

Under section 16 of the Act, in performing its functions and exercising its powers, CASA must consult government, industrial, commercial consumer and other relevant bodies and organisations insofar as CASA considers such consultation to be appropriate.

Under section 17 of the LA 2003, before a legislative instrument is made, CASA must be satisfied that it has undertaken any consultation it considers appropriate and practicable, in order to draw on relevant expertise and involve persons likely to be affected by the proposals.

CASA does not consider consultation to be necessary or appropriate in this case for a number of reasons.

First, Australia is currently in the midst of the 2020/2021 fire season. The amendment to broaden the definition of aerial fire fighting is urgently required to facilitate more effective operations in environments already identified to CASA by relevant NVIS operators. These operators have already sought exemptions, as described above, and appropriate and lawful approvals will now be considered as alternatives. In these circumstances, CASA considers that further consultation would delay implementation of the changes and add nothing of value and, therefore, not be appropriate.

Secondly, the amendment to permit a flight crew of 2 pilots to crew an aerial fire fighting NVIS operation, as an alternative to the former requirement of 1 pilot and 1 air crew member, will give operators a much greater degree of flexibility in crewing such operations. CASA has previously received informal feedback to this effect from industry operators and CASA considers that consultation would delay implementation of the changes and add nothing of value and, therefore, not be appropriate. The changes will, of course, be widely published to operators.

Thirdly, during the course of 2021, and before 2 December 2021, CASA proposes to review the entirety of CAO 82.6 with a view to reforms and revisions that will be incorporated into CASR (for empowerment) and then, as amendments, into a Manual of Standards (MOS), most likely the Part 91 MOS (concerning general flying rules) and the Part 138 MOS (concerning aerial work operations). This process, which will include consideration of the amendments in the CAO amendment will be the subject of extensive consultation in the usual way. CASA considers that to advance a very small part of that consultation for the CAO amendments would delay immediate implementation of the changes and add nothing of value and, therefore, not be appropriate.

Thus, consistent with the requirements imposed on it by Parliament under section 16 of the Act and section 17 of the LA 2003, CASA considers that no consultation is appropriate.

Office of Best Practice Regulation (OBPR)

In the circumstances, the CAO amendment may be considered to be of a minor or machinery nature — relaxing a crewing requirements in the interests of flexibility without compromising aviation safety; and broadening locations from which to draw fire fighting liquids, again without compromising aviation safety. A Regulation Impact Statement (RIS) is not, therefore, required because of the standing agreement between CASA and OBPR under which a RIS is not required for minor or machinery directions, approvals, permissions or exemptions (OBPR id: 14507). For relevant operators, these changes will most likely have the effect of reducing some overhead costs.

Statement of Compatibility with Human Rights

The Statement in Appendix 4 of the Explanatory Statement is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that the legislative instrument may indirectly engage any of the applicable rights or freedoms (for example, the right to work and rights at work, the right to enjoyment of just and favourable conditions of work, and the right to life) the limitation to human rights is reasonable, necessary and proportionate to protect aviation safety, and also has the effect of advancing the rights mentioned.

Commencement and making

The CAO amendment commences on the day it is registered. It has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.

Appendix 1

Legislation

A wide range of statutory powers was required to make CAO 82.6 and these are invoked for the CAO amendment. Other provisions required CASA permission or exemption (as embodied in the CAO).

Under section 27 of the Act, CASA may issue AOCs for its functions. Under subsections 27 (2) and (9) of the Act, an aircraft operator must hold an AOC in order to operate for certain prescribed purposes. Paragraph 206 (1) (a) of the Civil Aviation Regulations 1988 (CAR) prescribes aerial work purposes of various kinds.

Under paragraph 28BA (1) (b) of the Act, an AOC has effect subject to any conditions specified in the regulations or the CAOs.

Under subsection 98 (4A) of the Act, CASA may issue CAOs, not inconsistent with the Act, in respect to any matter in relation to which regulations may be made for the purposes of section 28BA of the Act (conditions on AOCs).

Under subregulation 5 (1) of CAR, where CASA is empowered to issue certain instruments, it may do so in a CAO.

Under subregulation 157 (1) of CAR, absent appropriate permission, the pilot in command of an aircraft must not fly over a city, town or populous area at a height lower than 1 000 feet, or over any area at a height lower than 500 feet.

Under subregulation 174B (1) of CAR, except for take-off and landing, absent appropriate exemption, the pilot in command of an aircraft must not fly it at night under the VFR at a height of less than 1 000 feet above the highest obstacle within 10 miles.

Under subregulation 195 (1) of CAR, at night and in conditions of poor visibility, absent appropriate exemption, the operator and pilot in command of an aircraft must comply with the rules in Part 13 of CAR about the lights to be displayed for the aircraft.

Under subregulation 207 (2) of CAR, a person must not use an Australian aircraft in a class of operation if the aircraft is not fitted with the instruments and equipment approved and directed by CASA. In approving or directing, CASA may have regard only to the safety of air navigation.

Under subregulation 215 (3) of CAR, CASA may give directions requiring an operator to include, revise or vary information, procedures or instructions in the operations manual (operating procedures).

Under subregulations 217 (1) and (3) of CAR, CASA may specify operators who must provide an approved training and checking organisation to ensure that members of the operator’s operating crews maintain their competency.

Under subregulation 249 (1) of CAR, absent appropriate exemption, the pilot in command of an aircraft must not practice emergency procedures or fly low when carrying a passenger.

Under subregulation 11.160 (1) of CASR, CASA may grant an exemption from compliance with provisions of CAR and CASR. (The CAO is a vehicle for some such exemptions.)

In essence, CAO 82.6 operates as a set of conditions imposed on relevant AOC holders who wish to use NVIS. As part of this scheme, completion of various forms of NVIS pilot training or NVIS aircrew member training were required under CAO 82.6 in order to obtain NVIS qualifications. Operators approved for NVIS operations could use only qualified NVG pilots or NVG aircrew.

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.

Appendix 2

Civil Aviation Order 82.6 Amendment Instrument 2020 (No. 2)

Details of the CAO amendment are as follows.

1 Name of instrument

The provision names the instrument as the Civil Aviation Order 82.6 Amendment Instrument 2020 (No. 2).

2 Commencement

Under this provision, the instrument commences on the day it is registered.

3 Amendment of Civil Aviation Order 82.6

Under this provision, Schedule 1 amends Civil Aviation Order 82.6 (Night vision imaging system — helicopters) 2007 (as amended).

Schedule 1 Amendments

[1] Subsection 1, definition of aerial fire fighting

This section substitutes a new definition of aerial fire fighting as follows:

aerial fire fighting means an operation, in an operational area for a fire, to fight the fire from the air using:

(a) a flight crew of 2 pilots, or at least 1 pilot and 1 aircrew member; and

(b) either:

(i) a helicopter from which incendiaries for controlled burning are dropped by means of a device operated by a person specifically carried for that purpose (incendiary dropping) provided that the operation is supported by an operational safety case approved in writing by CASA; or

Note If acceptable to CASA, an operational safety case may be in the form of, or include, relevant additions or supplements to the operator’s operations manual for the aerial fire fighting.

(ii) a helicopter in accordance with clause 3C in Appendix 3.

[2] Appendix 3, after clause 3B, new clause 3C Aerial fire fighting — use of belly tank

This amendment is for sub-subparagraph (b) (ii) of the definition of aerial fire fighting. It provides as follows:

A helicopter equipped with a belly tank may be filled and refilled with water, fire retardant or similar substance taken from the following locations:

(a) if the helicopter is on the ground — a source on the ground at a conforming HLS;

(b) if the helicopter is in the hover and using the helicopter’s on-board pump — a portable tank at a conforming HLS;

An operator may apply in writing to CASA to approve a location, or a kind of location, at which a helicopter equipped with a belly tank may be filled and refilled with water, fire retardant or similar substance.

CASA may approve the location, or the kind of location (with or without conditions), if the operator’s application includes a detailed risk assessment and, given the risks identified by the operator or by CASA, approval of the location, or kind of location, and operations in accordance with any conditions, would not have an adverse effect on aviation safety.

If CASA approves the location, or kind of location, the approval, including any conditions, must be set out in the operator’s operations manual along with any procedures required for the operator to ensure that any conditions are complied with.

A Note explains that conditions may include (but are not limited to), for example, limitations on flight time for particular operations or locations, requirements for underwater escape training, collection system and other equipment requirements, including additional search-lighting, prior survey of locations and environmental circumstances such as weather and degree of moonlight.

Appendix 3

Why the CAO is a legislative instrument

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”. By so providing, paragraph 28BA (1) (b) of the Act is considered to be a separate head of power for the making of relevant CAOs. The CAO imposes conditions on AOCs to which it applies.

Under subsection 8 (4) of the LA 2003, an instrument is a legislative instrument if it is made under a power delegated by the Parliament, and any provision determines the law or alters the content of the law, and it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.

The CAO amendment is of a legislative, “law determining” character and is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under sections 15G, and 38 and 42, of the LA 2003.

Under paragraph 28BA (1) (b) of the Act, 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. The CAO imposes conditions on AOCs to which it applies. 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 registration, and tabling and disallowance in the Parliament, under sections 15G, and 38 and 42, of the LA 2003.

Appendix 4

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011

Civil Aviation Order 82.6 Amendment Instrument 2020 (No. 2)

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

Human rights implications

CAO 82.6 is a legislative instrument that, when made, may have indirectly engaged certain rights under the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights by placing restrictions on the use in low-level night flying of night vision imagining systems (NVIS), and on the conduct of NVIS operations, unless particular approvals, aviation qualifications and safety requirements were met.

These rights included:

the right to work and rights at work under Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
the right to enjoyment of just and favourable conditions of work, including safe and healthy working conditions under Article 7 of the ICESCR
the right to life under Article 6 of the International Covenant on Civil and Personal Rights (ICCPR).

However, these rights were more directly engaged by the primary requirements of the Civil Aviation Act 1988, the Civil Aviation Safety Regulations 1998, and the Civil Aviation Regulations 1988 with respect to which the CAO amendment is made and which are designed for aviation safety and conformity with the standards of the International Civil Aviation Organization under the Convention on International Civil Aviation (the Chicago Convention).

Article 6 of the ICESCR

Article 6 of the ICESCR protects the right to work and rights at work.

The right to work includes the right of everyone to the opportunity to gain his or her living by work which he or she freely chooses or accepts. Rights in work include the enjoyment of just and favourable conditions of work and to form and join trade unions.

The UN Committee on Economic Social and Cultural Rights has stated that the right to work affirms the obligation of States parties to assure individuals their right to freely chosen or accepted work, including the right not to be deprived of work unfairly.

The Committee has also stated that, for the right to work, the labour market must be open to everyone. In particular, there can be no discrimination in access to and maintenance of employment on the grounds enumerated in article 2 of ICESCR, namely race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, which has the intention or effect of impairing or nullifying exercise of the right to work. Age should be considered to be a status on which discrimination under article 2 of ICESCR is prohibited. Limiting the work entitlements of non-citizens would not constitute unlawful discrimination under article 2 of ICESCR.

Article 4 of ICESCR provides that countries may subject economic, social and cultural rights only to such limitations “as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society”. The UN Committee has stated that such limitations must be proportional, and must be the least restrictive alternative where several types of limitations are available, and that even where such limitations are permitted, they should be of limited duration and subject to review. Measures that are retrogressive to the realisation of economic, social and cultural rights must also be properly justified. A retrogressive measure is one that reduces the extent to which an economic, social and cultural right is guaranteed.

The CAO amendment is wholly facilitative and, as such, does not directly engage the rights described above. It may, however, indirectly engage the right to work by relaxing the crewing requirement for an aerial work operation by allowing 2 pilots to be an alternative to the previous requirement for 1 pilot and 1 aircrew member. This will provide operators with greater crewing flexibility but it will not deny aircrew members their potential role as they may be economically a more attractive option for an operator than deploying 2 pilots.

The CAO amendment is, therefore, considered to be a reasonable, necessary and proportionate requirement in the context of aviation safety.

Article 7 of the ICESCR

Article 7 of the ICESCR protects the right to enjoyment of just and favourable conditions of work, including safe and healthy working conditions. The imposition of reasonable safety limitations and restraints on the locations to which pilots may fly to draw water etc for fire fighting when using NVIS is considered permissible for safety reasons and protects the right to enjoyment of just and favourable conditions of work, including safe and healthy working conditions, and the right to life.

Article 6 of the ICCPR

Article 6 of the ICCPR protects the right to life.

Under human rights law, countries and agents of the country must not deprive a person of life arbitrarily or unlawfully. In particular, countries also have a duty to take appropriate steps to protect the right to life.

The CAO amendment may also indirectly engage the right to life by providing operators holding a CASA approval with more locations from which to draw fire fighting material and thus produce greater fire fighting efficiency. At the same time, the imposition of reasonable safety limitations and restraints on what pilots may do when flying aircraft using NVIS protects the right to life for them, their crew and persons on the ground in fire zones.

Article 12 of the ICCPR

Article 12 of the ICCPR states that everyone lawfully within the territory of a state shall, within that territory, have the right of liberty of movement. This right shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognised in the present Covenant.

Safety limitations and restraints on the locations that pilots may fly to, to draw water etc. for fire fighting, when flying aircraft using NVIS, indirectly engages the right to freedom of movement but in a way that is balanced by the objectives of achieving and improving aviation safety in night flying using NVIS and thus falls within the exception.

The instrument is otherwise 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. The instrument does not otherwise engage any of the applicable rights or freedoms.

Conclusion

To the extent that the legislative instrument may indirectly engage any of the applicable rights or freedoms mentioned above, the limitation to human rights is reasonable, necessary and proportionate to protect aviation safety, and also has the direct effect of advancing the rights mentioned.

The legislative instrument is, therefore, compatible with human rights and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate to protect aviation safety in the operation of aircraft at night using NVIS.

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