Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 95.12 Amendment Order (No. 3) 2006
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the purposes of the Act and in the interests of the safety of air navigation.
Regulation 5 of the Civil Aviation Regulations 1988 (CAR 1988) empowers CASA to issue any direction or notification or give permission, approval or authority in Civil Aviation Orders (CAOs).
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 (3), the exemptions may be granted subject to conditions. A condition that is imposed on the majority of sports aviation aircraft is that they are not allowed to be flown inside controlled airspace. ICAO definition of controlled airspace includes Class E airspace. However, Class E airspace is different from other classes of controlled airspace in that control is only exercised over aircraft that are operating to the Instrument Flight Rules, so that no A.T.C. clearance is required for an aircraft to operate under the Visual Flight Rules in visual meteorological conditions. The amendment is to allow sport and recreational aircraft operations under V.F.R. to be flown in Class E airspace in V.M.C.
Legislative Instruments Act
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. Under subsection 95 (5) of the Act, CAOs are declared to be disallowable instruments. The amendment Order 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
Consultations under section 17 of the LIA have not been undertaken as the amendment is minor and of a machinery nature.
For the same reason, the Office of Regulation Review does not require a Regulation Impact Statement as the amendment is minor and of a machinery nature.
The instrument commences on the day after it is registered.
The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 84A (2) of the Act.
[Civil Aviation Order 95.12 Amendment Order (No. 3) 2006]
Overview
The Civil Aviation Order 95.12 Amendment Order (No. 3) 2006 was enacted to amend the Civil Aviation Order 1988 to address a specific operational gap for sport and recreational aircraft within controlled airspace. This amendment was introduced under the authority granted by section 98 of the Civil Aviation Act 1988, which allows the Governor-General to make regulations that serve the interests of air navigation safety. The Australian Government, through the Civil Aviation Safety Authority (CASA), enacted this amendment to refine the regulatory framework concerning the operation of sport and recreational aircraft. The policy objective behind this amendment is to enhance operational flexibility and safety for sport and recreational aircraft by allowing them to operate in Class E airspace under Visual Flight Rules during visual meteorological conditions, while maintaining stringent safety protocols.
Scope and Application
The Civil Aviation Order 95.12 Amendment Order (No. 3) 2006 amends provisions under the Civil Aviation Act 1988, specifically affecting the Civil Aviation Regulations 1988 (CAR 1988). This amendment applies to sport and recreational aircraft operations under Visual Flight Rules (VFR) in Class E airspace, a subset of controlled airspace that only requires control over aircraft operating under Instrument Flight Rules (IFR) when in visual meteorological conditions (VMC). The amendment allows such aircraft to fly in Class E airspace without needing ATC clearance, provided they adhere to the conditions stipulated by the Civil Aviation Safety Authority (CASA). This change is intended to enhance flexibility and safety for recreational pilots, allowing them to enjoy more freedom while maintaining the necessary safety standards.
The amendment is made under the authority of section 98 of the Civil Aviation Act 1988, empowering the Governor-General to create regulations for aviation safety. It also operates within the framework of the Legislative Instruments Act 2003, where the amendment is considered a disallowable instrument subject to parliamentary scrutiny. The amendment does not require extensive consultation or a Regulation Impact Statement due to its minor and machinery nature, ensuring a streamlined process while maintaining legislative oversight. The amendment comes into effect on the day it is registered, and is implemented by the Director of Aviation Safety on behalf of CASA, in line with the provisions of the Civil Aviation Act 1988.
Key Provisions
The key provisions of the Civil Aviation Order 95.12 Amendment Order (No. 3) 2006 revolve around modifications to the operation of sport and recreational aircraft within specific airspaces. Regulation 5 of the Civil Aviation Regulations 1988 (CAR 1988) permits the Civil Aviation Safety Authority (CASA) to issue directions, notifications, and approvals in Civil Aviation Orders (CAOs). Subregulation 308(1) of CAR 1988 allows CASA to exempt aircraft from certain provisions of CAR 1988, and these exemptions can be subject to conditions as per subregulation 308(3). The amendment primarily seeks to allow sport and recreational aircraft, operating under Visual Flight Rules (VFR) in visual meteorological conditions (VMC), to be flown in Class E airspace. This is a significant change as previously, such aircraft were not allowed to fly in controlled airspace.
The obligations imposed by this amendment include ensuring that any sport or recreational aircraft operating in Class E airspace under VFR in VMC complies with all other relevant provisions of CAR 1988, except for the specific exemption granted by this amendment. Pilots and operators of these aircraft must be aware of and adhere to the conditions under which the exemption is granted. Additionally, CASA retains the authority to impose further conditions or revoke the exemption if safety concerns arise.
Failure to comply with the provisions of the amended CAO could result in enforcement actions. The Civil Aviation Act 1988 and the Civil Aviation Regulations 1988 provide for various offences related to non-compliance with aviation safety regulations. For example, operating an aircraft in a manner that endangers safety could lead to civil penalties, including fines, and criminal charges, which could result in imprisonment. The exact penalties depend on the severity of the breach and the discretion of the court. While specific maximum penalties are not detailed in the explanatory statement, they are typically outlined in the primary legislation and related regulations.
The amendment falls under the purview of the Legislative Instruments Act 2003 (LIA). As per section 6(d)(i) of the LIA, this amendment is considered a legislative instrument because it is declared to be a disallowable instrument under the Civil Aviation Act 1988. Consequently, the amendment is subject to tabling and disallowance in the Parliament, as per sections 38 and 42 of the LIA. This ensures that the amendment is subject to parliamentary scrutiny and approval before it takes effect.