Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 95.54 Amendment Instrument 2011 (No. 1)
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation.
Subsection 98 (5A) of the Act provides that the regulations may empower CASA to issue instruments in relation to the following:
(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft; or
(b) the airworthiness of, or design standards for, aircraft.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98(5A), CASA may grant an exemption from a provision of these Regulations (including the Civil Aviation Regulations 1988) or a provision of the Civil Aviation Orders (the CAOs) in relation to a matter mentioned in that subsection.
Under subregulation 11.160 (2) an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation.
Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement), or, if no day is specified, 3 years after commencement.
The Civil Aviation Order 95.54 Instrument 2011 replaced the previous Civil Aviation Order 95.54.
The new Civil Aviation Order (CAO) 95.54 applies to manned balloons and hot air airships as did the previous Order. It applies to private operations and flying training whereas the previous Order applied to private operations for recreational purposes only.
The new CAO 95.54 contained in paragraphs 6.4 and 6.5 new conditions relating to flights over closely-settled areas to ensure that balloons of various types can safely leave those areas in the case of an emergency. Paragraph 6.4 banned balloons that did not have duplicated fuel and ignition systems or meet the minimum fuel requirements from flying over closely-settled areas unless they complied with certain height and distance limits set out in paragraph 6.5. Following representations from balloon operators, it was decided that there had been inadequate consultation on the introduction of these new provisions. The industry’s safety record shows that there is no pressing need for their restrictions. Both paragraphs have, therefore, been omitted.
The instrument also makes changes of a drafting nature as required by the Office of Legislative Drafting and Publishing. They alter the presentation of the Civil Aviation Order by removing it from the Schedule in which it was previously included. Similar changes will be made to other CAOs as they are amended.
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 new CAO 95.54 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
CASA consulted with the aviation industry before the introduction of the new Order. These changes are being made subsequent to further representations by the industry.
Office of Best Practice Regulation (OBPR)
OBPR does not require a Regulation Impact Statement. It considered that the original instrument was of a minor and of a machinery nature (OBPR id: 8190). These amendments are of the same nature.
The instrument commences on the day after registration.
The instrument 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 95.54 Amendment Instrument 2011 (No. 1)]