Explanatory Statement
Civil Aviation Order 95.7 Amendment Order (No. 1) 2006
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.
Rules of the air
Under regulation 166 of the Civil Aviation Regulations 1988 (CAR 1988), the pilot in command of an aircraft being operated in the vicinity of a non-controlled aerodrome has certain obligations to maintain a look-out and conform to certain traffic patterns and procedures.
Specifically, when approaching an aerodrome to land, the pilot in command must join the appropriate direction of the circuit pattern (paragraph 166 (2) (d)). After joining the circuit pattern, the pilot must make all turns to the left or consistently with alternative CASA directions or on-ground visual signals (paragraph 166 (2) (e)). He or she must descend in a straight line, commencing at the appropriate distance from the runway (paragraph 166 (2) (g)). Also, after take-off, except to avoid terrain, the pilot must maintain the same track until the aircraft is 500 feet above the terrain (paragraph 166 (2) (h)).
Under subregulation 166 (7) of CAR 1988, the pilot in command of an aircraft must not take-off from, or land on, a part of an uncontrolled aerodrome outside the landing area of the aerodrome.
However, under paragraph 167 (1) (c) of CAR 1988, the pilot in command of an aircraft that is part of the aerodrome traffic at a controlled aerodrome must, among other things, obtain prior authorisation from air traffic control for any manoeuvre preparatory to, or associated with taxiing, landing or taking off of the aircraft.
Exemptions for helicopters
Some of the rules in subregulations 166 (2) and 166 (7) of CASR 1988 are not necessary or appropriate for helicopters.
Under subregulation 308 (1) of CAR 1988, CASA may exempt an aircraft, and persons in it or associated with its the operation, from compliance with specified provisions of CAR 1988. Under subregulation 308 (2), before CASA decides to give an exemption, CASA must take into account all relevant considerations relating to the interests of safety. Subregulation 308 (3) provides that an exemption may be made subject to any conditions necessary in the interests of safety. Under these provisions, it is possible to relax certain aviation rules and provide conditional alternatives if it is safe to do so.
Subsections 5 and 6 of Civil Aviation Order 95.7 (CAO 95.7) contain exemptions from these rules for helicopters made under regulation 308.
Under subsection 5 of CAO 95.7, a helicopter is exempt from compliance with the circuit pattern, straight-in approach and tracking rules. Under subsection 6 of CAO 95.7, a helicopter is exempt from compliance with the landing area restrictions subject to differing conditions depending on whether the aerodrome is controlled or uncontrolled.
New legislation
However, the references in subsections 5 and 6 of CAO 95.7 to these matters are no longer accurate since regulations 166 and 167 were amended by the Civil Aviation Amendment Regulations 2005 (No. 3). This amendment commenced on 24 November 2005 to implement the Commonwealth Government’s policy for the safe management of airspace. For example, regulation 166 now applies only to non-controlled aerodromes (previously it was considered to apply to all aerodromes, including controlled aerodromes), and paragraph references to the circuit pattern, straight line descent and tracking are altered, and regulation 167 applies to controlled aerodromes.
The CAO Amendment, therefore, makes consequential changes to CAO 95.7 to take account of the changes made by Civil Aviation Amendment Regulations 2005 (No. 3). The changes are intended to be consequential only and are not intended to substantially alter the scope of the helicopter exemptions as they were before the Civil Aviation Amendment Regulations 2005 (No. 3) were made.
CAO Amendment
The CAO Amendment inserts correct references to the relevant paragraphs of subregulation 166 (2) of CAR 1988.
The CAO Amendment also preserves the helicopter exemption from the requirement to use the landing area of an uncontrolled aerodrome, subject to the same conditions as before.
Thus, the helicopter may land on, or take-off, from, a part of an uncontrolled aerodrome that is outside the landing area only if the pilot is satisfied that the place is a HLS, or only if the landing or take-off is immediately after or before an air transit or air taxi within the aerodrome.
However, the helicopter may land on, or take-off from, a part of a controlled aerodrome only in accordance with prior authorisation from air traffic control (ATC) under paragraph 167 (1) (c). This is the case whether or not the landing or take-off is immediately after or before an air transit or air taxi within the aerodrome. Under CAO 95.7 prior to the amendment, there was a possible conflict between it and the requirement to obey ATC for an air transit or air taxi within the aerodrome. This possible conflict has been removed.
Legislative Instruments Act
Under subregulation 308 (1) of CAR 1988, an exemption is declared to be a disallowable instrument. Also, under subregulation 5 (1) of CAR 1988, CASA may issue instruments 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 is declared to be a disallowable instrument. 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. The CAO Amendment is, therefore, a legislative instrument. It is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation under section 17 of the LIA has not been undertaken in this case. The CAO Amendment is consequential on the making of Civil Aviation Amendment Regulations 2005 (No. 3) which were the subject of extensive consultation.
The CAO Amendment will not substantially alter existing arrangements and is regarded as being of a minor or machinery nature. The Office of Regulation Review has agreed, therefore, that it may proceed without the preparation of a Regulation Impact Statement.
The instrument comes into effect at the start of 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 95.7 Amendment Order (No. 1) 2006]