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)]
Overview
The Civil Aviation Order 95.54 Amendment Instrument 2011 (No. 1) amends the Civil Aviation Order 95.54 concerning manned balloons and hot air airships. Enacted by the Commonwealth of Australia under the authority of the Civil Aviation Act 1988, this instrument addresses issues that arose from inadequate consultation with the aviation industry on the introduction of certain safety provisions. These provisions, which were intended to ensure the safe operation of balloons over closely-settled areas, have been omitted due to the industry's satisfactory safety record and insufficient consultation. The changes also include drafting alterations to improve the presentation of the Civil Aviation Order and will be applied consistently across other civil aviation orders as they are amended. The instrument is subject to the requirements of the Legislative Instruments Act 2003, including tabling and disallowance in the Parliament.
Scope and Application
The Civil Aviation Order 95.54 Amendment Instrument 2011 (No. 1) pertains to the Civil Aviation Act 1988, specifically altering the Civil Aviation Order 95.54 concerning manned balloons and hot air airships. The amended Order applies to these aircraft when used in private operations and flying training, expanding the scope from the previous Order which only applied to private recreational operations. The changes, made in response to industry feedback, involve removing provisions that were deemed to have been inadequately consulted on and which did not demonstrate a pressing safety need. These removed provisions related to flights over closely-settled areas, specifically prohibiting balloons without certain safety systems from flying over such areas unless they adhered to specified height and distance limits. The instrument also includes drafting changes required by the Office of Legislative Drafting and Publishing, ensuring the Order is presented in a more streamlined format. Subject to the Legislative Instruments Act 2003, the amended Order is classified as a legislative instrument and must be tabled and may be subject to disallowance in Parliament. This amendment reflects ongoing consultation with the aviation industry and aims to balance regulatory requirements with operational practicality.
Key Provisions
The Civil Aviation Order 95.54 Amendment Instrument 2011 (No. 1) amends the Civil Aviation Order 95.54 to remove previously introduced conditions for flights over closely-settled areas for manned balloons and hot air airships. Specifically, it omits paragraphs 6.4 and 6.5, which had imposed restrictions on such flights unless certain safety requirements were met, following concerns that the new provisions were not necessary given the industry's safety record and due to inadequate consultation with balloon operators. This amendment ensures that the Civil Aviation Order 95.54 continues to apply to private operations and flying training for these types of aircraft, without the added restrictions on flights over closely-settled areas.
Under the amended Civil Aviation Order 95.54, there are no specific obligations or requirements imposed on the parties or entities it governs that differ from those previously in place. The focus of the amendment is to remove certain conditions rather than to impose new ones. However, operators of manned balloons and hot air airships must still comply with all other applicable provisions of the Civil Aviation Order and associated regulations. These include ensuring that their aircraft meet airworthiness standards, adhering to operational and maintenance requirements, and complying with any other conditions or exemptions that may be in place for their specific operations.
There are no specific offences, penalties, or consequences outlined in the Civil Aviation Order 95.54 Amendment Instrument 2011 (No. 1) for non-compliance with the removed provisions. However, operators of manned balloons and hot air airships who do not comply with other applicable Civil Aviation Orders or regulations may face civil or criminal penalties. Under the Civil Aviation Act 1988, non-compliance with regulations can result in enforcement actions by the Civil Aviation Safety Authority (CASA). Penalties for serious non-compliance can include fines of up to $222,200 for individuals and $1,111,000 for corporations, as well as potential imprisonment for more severe violations. Operators must ensure they adhere to all regulatory requirements to avoid these consequences.
The Civil Aviation Order 95.54 Amendment Instrument 2011 (No. 1) is a legislative instrument subject to tabling and disallowance in the Parliament under the Legislative Instruments Act 2003. This means that the instrument must be tabled in both houses of Parliament within a specified period after its registration and can be subject to disallowance by either house. The changes made by this instrument reflect the outcome of consultations with the aviation industry and aim to ensure that the regulations are practical and proportionate to the risks involved. The instrument was made by the Director of Aviation Safety on behalf of CASA, in accordance with the Civil Aviation Act 1988, ensuring that the amendments are implemented by an authorised person.