Explanatory Statement
Civil Aviation Safety Regulations 1998
Civil Aviation Order 95.54 Amendment Instrument 2020 (No. 1)
Purpose
The purpose of Civil Aviation Order 95.54 Amendment Instrument 2020 (No. 1) (the instrument) is to amend Civil Aviation Order 95.54 (Manned balloons and hot air airships — private operations) 2011 (CAO 95.54) so the use of manned balloons and hot air airships for private operations or flying training may continue to be administered, until 14 July 2022, by the Australian Ballooning Federation Inc (the ABF), or by an approved self-administering aviation organisation (ASAO) certified under new Part 149 of the Civil Aviation Safety Regulations 1998 (CASR).
The amendments are required because under new Part 149 of CASR sport aviation bodies that have not yet become ASAOs, such as the ABF, may only administer the use of sport and recreational aircraft until 14 July 2022.
The instrument also removes a requirement specified in CAO 95.54 for the flying in Class D airspace of manned balloons and hot air airships in visual meteorological conditions (V.M.C.) for private operations or flying training. Instrument CASA 143/10 – Determination – flight visibility and distance from cloud in V.F.R. flights – Direction – Special V.F.R. flights states the visual flight rules (V.F.R.) requirements for all aircraft in all classes of airspace and special V.F.R. flights.
The instrument also states more clearly the requirements for the flying of balloons and hot air airships in specified classes of airspace, repeals Civil Aviation Amendment Order (No. R81) 2004 and makes some technical amendments.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made CASR and the Civil Aviation Regulations 1988 (CAR).
Civil Aviation Order 95.54 Instrument 2011 was made under subregulation 308 (1) of CAR and commenced on 16 April 2011. That instrument was amended by Civil Aviation Order 95.54 Amendment Instrument 2011 (No. 1) which named the instrument Civil Aviation Order 95.54 (Manned balloons and hot air airships — private operations) 2011. Civil Aviation Order 95.54 Amendment Instrument 2011 (No. 1) commenced on 6 August 2011 and was made under regulation 11.160 of CASR.
When they commenced on 27 June 2011, the Civil Aviation and Civil Aviation Safety Amendment Regulations 2011 (No. 2) repealed regulation 308 of CAR and substituted the version of subregulation 11.160 (1) of CASR that existed before the current version. That version of subregulation 11.160 (1) of CASR, like the current version:
(a) retained the power, provided by subregulation 308 (1) of CAR before it was repealed, for CASA to grant an exemption from compliance with a provision of CAR; and
(b) enabled CASA to also grant an exemption from compliance with a provision of CASR or a provision of a Civil Aviation Order (CAO).
Subregulation 202.011 (2) of CASR states that despite the repeal of regulation 308 of CAR, an exemption from compliance with a provision of CAR continues to have effect according to its terms.
Subregulation 202.11 (4) states that a person commits an offence if the person contravenes a condition specified in an instrument of exemption continued in force under this regulation.
Subregulation 202.11 (5) states that an offence against regulation 202.11 is an offence of strict liability.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons.
Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant an exemption on its own initiative.
Regulation 11.205 provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition.
Regulation 11.225 of CASR requires an exemption to be published on the Internet.
Subsection 98 (5D) of the Act provides that a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.
Under subsection 33 (3) of the Acts Interpretation Act 1901 (the AIA), 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.
Background
The Civil Aviation Legislation Amendment (Part 149) Regulations 2018 (the Part 149 Amendment Regulations) provided for the regulatory oversight of sport and recreational aviation organisations by CASA. The Part 149 Amendment Regulations inserted a Part 149 into CASR on 14 July 2019. The Part 149 regulatory framework requires organisations that propose to administer sport and recreational aviation activity to hold an approval – an ASAO certificate – that lists its approved aviation administration functions, and requires organisations to satisfy certain requirements for the issue by CASA of an ASAO certificate.
To allow sport aviation organisations the opportunity to transition to Part 149 of CASR, transitional regulation 202.861 of CASR was inserted by the Part 149 Amendment Regulations and operates so that pre-Part 149 sport aviation bodies, such as the ABF, are not required to hold an ASAO certificate to perform aviation administration functions for a period of 3 years from the commencement of Part 149 of CASR on 14 July 2019.
Until Part 149 of CASR commenced, exemptions were provided from the operation of specified regulatory requirements for sport and recreational aviation organisations, with conditions attached to these exemptions that required, in most cases, formal affiliation of the individual operating the relevant kinds of aircraft or registration of these aircraft, with the organisation and compliance with the rules of the organisation that are specified in organisational manuals approved by CASA. These exemptions and conditions are mainly set out in the 95 series CAOs, including CAO 95.54.
CAO 95.54 exempts free or tethered manned balloons, and hot air airships, that are used solely for private operations or flying training from specified provisions of CAR, subject to general conditions and flight conditions. These conditions require, amongst other matters, an aircraft to which the Order applies to not to be operated unless by an individual who is a member of, and subject to the rules, regulations and directions of, the ABF or an affiliated organisation, and in accordance with its flight manual and the ABF Operations Manual.
Now that Part 149 of CASR has commenced, CASA may grant an ASAO certificate to an organisation other than the ABF to perform aviation administration functions in relation to balloons and hot air airships. CAO 95.54, therefore, requires amending so that the general and flight conditions that apply in relation to the operation of these aircraft also apply if the aircraft is flown by members of ASAOs or the ABF.
CASA anticipates that once the ABF transitions to become a Part 149 ASAO (by 14 July 2022), and the Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019 and associated Manuals of Standards commence, CAO 95.54 will no longer be required and will be repealed.
Subparagraph 6.3 (d) of CAO 95.54 only partially describes the V.M.C. requirements for balloons and hot air airships operating in Class D airspace and does not clearly state that they only apply in Class D airspace. The V.M.C. requirements for the operation, for whatever purpose, of manned balloons and hot air airships, as stated in instrument CASA 143/10, have been included in ENR 1.2 – 2 (Visual Flight Rules) of the Aeronautical Information Publication (the AIP) published in accordance with section 14 of the Air Services Regulations 2019, as amended from time to time.
The ABF has requested its members to follow the requirements in the AIP. The removal of the CAO 95.54 requirements will ensure there is no confusion for private balloon pilots as to the relevant requirements for flights under the V.F.R.
Overview of instrument
In accordance with subsection 33 (3) of the AIA, the instrument amends CAO 95.54:
- so that the use of manned balloons and hot air airships for private operations or flying training may be administered, until 14 July 2022, by either the ABF or an ASAO certified to perform relevant aviation administration functions, as provided for by Part 149 of CASR
- to remove the incomplete requirements in CAO 95.54 for the flying of manned balloons and hot air airships in V.M.C. for private operations or flying training, so that it is clear requirements stated elsewhere apply
- to state more clearly the requirements for the flying of these aircraft in specified classes of airspace
- to repeal Civil Aviation Amendment Order (No. R81) 2004
- to make some technical amendments.
In exercising its powers and functions, CASA is guided by the requirement in subsection 9A (1) of the Act that CASA must regard the safety of air navigation as the most important consideration. In deciding to amend CAO 95.54, CASA has considered this requirement and the other matters mentioned in subsection 9A (3) of the Act that CASA must consider in developing and promulgating aviation safety standards under paragraph 9 (1) (c) of the Act. CASA has assessed the impact the instrument will have on aviation safety and considers that the amendments made by the instrument would not adversely affect aviation safety.
Documents incorporated by reference
In accordance with subsection 98 (5D) of the Act, the documents mentioned in the table below are incorporated as mentioned in the table.
In accordance with paragraph 15J (2) (c) of Legislation Act 2003 (the LA), the following table contains a description of the documents incorporated by reference into CAO 95.54 by the legislative instrument, the organisation responsible for each document and how they may be obtained. The table also states how the document is incorporated.
Document | Description | Source |
The ABF Operations Manual, as it exists from time to time. | A manual, prepared by the ABF and approved by CASA, that details:
| Available for viewing free of charge from CASA offices upon request. Available online for ABF members only from the ABF website at: https://www.abf.net.au/. |
The exposition, of an ASAO, as it exists from time to time. At the time this instrument commences, there are no existing ASAO expositions. | The set of documents, prepared by an ASAO and approved by CASA, for the use and guidance of the operations personnel of the ASAO. See definition of “exposition, of an ASAO” in the CASR Dictionary. The exposition must include the matters stated in regulation 149.340 of CASR. These matters include the names and duties and responsibilities of each of the ASAO’s key personnel, and descriptions of the ASAO’s procedures, safety management system and audit and surveillance system. | Retained by the relevant ASAO and CASA. Available for viewing free of charge from CASA offices upon request. |
Content of instrument
Section 1 states the name of the instrument.
Section 2 states the commencement of the instrument.
Section 3 states that CAO 95.54 is amended as set out in Schedule 1.
Section 4 repeals Civil Aviation Amendment Order (No. R81) 2004 (also known by its FRL reference F2005B00922).
Although Section 95.54 (Exemption from Provisions of the Civil Aviation Regulations 1988 — Manned Balloons and Hot Air Airships — Private Operations) set out in Schedule 1 of that Order was repealed by Civil Aviation Order 95.54 Instrument 2011 (F2011L00616), the remainder (or “shell”) of the Order was not repealed and remains in force. Having both Civil Aviation Amendment Order (No. R81) 2004 and CAO 95.54 in force at the same time is confusing for stakeholders.
In the following item descriptions, a reference to a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraph of CAO 95.54.
Item 1 of Schedule 1 inserts a Note after the heading to subsection 2. The new Note relates to terms and expressions used in CAO 95.54.
Item 2 substitutes the definition of ABF Operations Manual in subsection 2 with a new definition that makes clear that the manual is approved by CASA and as existing from time to time.
Item 3 is a technical amendment. The item omits definitions of terms that are not used in the instrument or are referred to in the new Note under the heading to subsection 2.
Item 4 is a technical amendment. The item substitutes subparagraph 3 (i) with a new subparagraph 3 (i) to remove the reference to regulation 174C of CAR because regulation 174C has been repealed.
Item 5 amends paragraph 5.1 to refer to, in addition to directions of the ABF, the directions of an ASAO that holds an ASAO certificate that authorises the ASAO to perform specified aviation administration functions in relation to manned balloons and hot air airships.
Item 6 amends paragraph 5.2 so that an aircraft to which the Order applies must be operated in accordance with the rules, regulations and directions that apply to the aircraft and are specified in the exposition of the ASAO that issued the pilot with the authorisation to operate the aircraft or in the ABF Operations Manual.
Item 7 substitutes paragraph 5.3 with a new paragraph 5.3. The new paragraph enables a pilot to pilot an aircraft if the pilot holds either an authorisation to pilot the aircraft issued by an ASAO in accordance with the ASAO’s exposition, or a pilot certificate (balloon) issued in accordance with the ABF Operations Manual.
Item 8 substitutes subparagraph 5.5 (b) with a new subparagraph 5.5 (b) that allows an aircraft to be used for flying training conducted either by the holder of an instructor authorisation issued by an ASAO or the holder of a certificate issued by the ABF in accordance with the ABF Operations Manual.
Item 9 amends subparagraph 6.1 (a) to refer, in addition to requirements relating to the loading and operation of the aircraft that are specified in the ABF Operations Manual, to such requirements that are specified in the exposition of an ASAO.
Item 10 substitutes sub-subparagraphs 6.1 (b) (i) and (ii) with new sub-subparagraphs 6.1 (b) (i) and (ii) that refer to areas that have been declared as sensitive areas by either an ASAO, in accordance with the exposition of the ASAO, or by the ABF, in accordance with the ABF Operations Manual. The amendment removes the requirement for the pilot in command of a privately-operated balloon or hot air airship to carry a map that has marked sensitive areas that may have been declared by an AOC holder whose AOC authorises the operation of balloons. This is because AOC holders do not have to release information concerning private arrangements with landowners. The ABF, or an ASAO, may retain a register of sensitive areas that it knows of and require a pilot in command to be aware of these sensitive areas in the proposed area of operation.
Item 11 inserts a new Note after paragraph 6.2. The new Note refers to the instrument that determines classes of airspace.
Item 12 substitutes paragraph 6.3 with new paragraphs 6.3 and 6.4. The key changes made by the new paragraphs are:
- to specify that unless permission has been given under paragraph 172 (4) (a) of CAR to conduct a special V.F.R. flight, all flights must be conducted in V.M.C.
- to remove an incomplete requirement for flights of privately-operated balloons and hot air airships that was previously specified in subparagraph 6.3 (d) so that requirements stated elsewhere clearly apply
- to remove a condition relating to the distance from an aerodrome for balloons tethering near aerodromes that is inconsistent with regulation 260 of CAR and to insert a Note referring to regulation 260 of CAR
- to include reference to ASAO authorisations in those subparagraphs that refer to ABF licenses, ratings, endorsements or authorisations.
Item 13 amends specified provisions so that, consistent with current drafting practice, the defined term “CAR” instead of “CAR 1988” is used in the provisions.
Legislation Act 2003
Paragraph 10 (1) (d) of the LA provides that an instrument will be a legislative instrument if it includes a provision that amends or repeals another legislative instrument. This instrument amends CAO 95.54 that was registered as a legislative instrument and is, therefore, also a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The amendments made by the instrument are required to implement Part 149 of CASR in relation to the administration of ballooning by ASAOs, for which consultation has already been undertaken. The ABF is aware of the arrangements for ASAOs under Part 149 of CASR.
The amendments reflect current ballooning practice and legislation. For example, the removal of the CAO 95.54 requirements for flights in V.M.C. ensures that only the requirements already in place under CASA 143/10 for flights in V.M.C. apply to balloons and hot air airships. ABF members already comply with those requirements.
In these circumstances, CASA is satisfied that no consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the instrument amends CAO 95.54 which sets out exemptions and conditions, and there is a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Making and commencement
The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument commences on the day after it is registered.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Civil Aviation Order 95.54 Amendment Instrument 2020 (No. 1)
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
The purpose of the legislative instrument (the instrument) is to amend Civil Aviation Order 95.54 (Manned balloons and hot air airships — private operations) 2011 (CAO 95.54).
CAO 95.54 exempts free or tethered manned balloons, and hot air airships, that are used solely for private operations or flying training from specified provisions of the Civil Aviation Regulations 1988, subject to general conditions and flight conditions.
The amendments made by the instrument regarding approved self-administering aviation organisations (ASAOs) implement amendments made to the Civil Aviation Safety Regulations 1998 (CASR) last year and other amendments reflect current ballooning practice. The instrument amends CAO 95.54:
- so that the use of manned balloons and hot air airships for private operations or flying training may be administered, until 14 July 2022, by either the Australian Ballooning Federation Inc or an ASAO certified to perform relevant aviation administration functions, as provided for by new Part 149 of the CASR that commenced on 14 July 2019
- to remove a requirement in CAO 95.54 for the flying of manned balloons and hot air airships in visual meteorological conditions for private operations or flying training, as requirements stated elsewhere apply
- to state more clearly the requirements for the flying of these aircraft in specified classes of airspace
- to repeal Civil Aviation Amendment Order (No. R81) 2004 so that stakeholders are clear that only CAO 95.54 applies
- to make some technical amendments.
Human rights implications
The instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority