Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 95.55 Amendment Instrument 2015 (No. 1)
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the Regulations, including the Civil Aviation Regulations 1988 (CAR 1988) or a provision of the Civil Aviation Orders, 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.
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.
Details of the instrument
This instrument amends Civil Aviation Order 95.55 (CAO 95.55).
The amendment will replace paragraph 7.4. The purpose is to allow recognition of qualifications issued by Recreational Aviation Australia Incorporated (RAA) or the Hang Gliding Federation of Australia Inc (HGFA) for pilots to tow gliders and to widen the aircraft categories that may be used for that purpose.
The following are the new requirements for towing aircraft:
(a) the pilot in command must be authorised to do so by his or her relevant administering organisation in accordance with a procedure approved by CASA; and
(b) both aircraft must be operated in accordance with limitations in their flight manuals, or equivalent instructions or directions, whether in the form of a placard or some other document; and
(c) the towing aeroplane must be:
(i) certified as suitable for that purpose; or
(ii) mentioned in a Civil Aviation Advisory Publication for this Order or regulation 149 of CAR 1988; or
(iii) accepted by CASA in writing as suitable for that purpose.
The reference to RAA and HGFA qualifications restores what was the previous position. The towing of gliders in ultralight aircraft requires specialist training by the named organisations rather than training for the glider towing endorsement issued under Part 61 of CASR 1998.
The changes in relation to suitable towing aeroplanes reflect what is already permitted by CASA and are needed to ensure that CAO 95.55 reflects the existing situation.
The instrument also corrects a typographical error in some other paragraphs, replacing incorrect references to subparagraph 1.2 (g) with references to subparagraph 1.2 (h).
Legislative Instruments Act 2003 (the LIA)
Under subregulation 5 (1) of CAR 1988, if CAR 1988 empowers CASA to issue instruments such as approvals or directions, CASA may do so in the form of CAOs. Under subsection 98 (5) of the Act, where regulations provide for an instrument to be issued in the form of a CAO, the CAO so made is declared to be a legislative instrument under subsection 98 (5AAA). This instrument is, therefore, a legislative instrument. It is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
In relation to the amendments of CAO 95.55, these reflect what has been accepted as the preferred position. No additional consultation was undertaken as the amendments only affect the aircraft to which CAO 95.55 applies. Most of the amendments are made to correct what is a typographical error. In addition, if the replacement of paragraph 7.4 was not made, the situation would exist where the RAA or HGFA would not be able to approve pilots to tow aircraft that it has registered and supervises, and whose training it has responsibility for. The other change relating to the eligibility to tow aircraft only reflects what is the existing position under other CASA instruments and guidance material.
It is CASA’s view that it is not necessary or appropriate to undertake any further consultation
under section 17 of the LIA in relation to the 2015 instrument.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Regulation Impact Statement
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required (OBPR id: 14507).
Making and commencement
The 2015 instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The 2015 instrument commences on the day after registration. It expires at the end of January 2018.
[Civil Aviation Order 95.55 Amendment Instrument 2015 (No. 1)]
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 95.55 Amendment Instrument 2015 (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 legislative instrument amends Civil Aviation Order 95.55.
The amendment involves the replacement of paragraph 7.4. This amendment is required to allow pilots holding the appropriate Recreational Aviation Australia Incorporated or the Hang Gliding Federation of Australia Inc. qualifications to use aircraft to which the Order applies, and that are appropriately approved by CASA, to tow other aircraft in accordance with approved procedures.
The 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. The instrument does not engage any of the applicable rights or freedoms and is compatible with human rights.
Conclusion
This legislative instrument does not raise any human rights issues.
Civil Aviation Safety Authority