Part 149 (Approved Self-administering Aviation Organisations) Amendment Manual of Standards 2021

Explanatory Statement

Civil Aviation Safety Regulations 1998

Part 149 (Approved Self-administering Aviation Organisations) Amendment Manual of Standards 2021

Purpose

One of the purposes of the Part 149 (Approved Self-administering Aviation Organisations) Manual of Standards 2018 (the Part 149 MOS) is to prescribe aviation administration functions which an Approved Self-administering Aviation Organisation (an ASAO) may be authorised to perform under regulation 149.075 of the Civil Aviation Safety Regulations 1998 (CASR). The functions are prescribed in relation to aircraft that have been defined in the Part 149 MOS as Part 149 aircraft. These include the sport and recreation aircraft that have historically been exempted from provisions of CASR under Part 200 of CASR, and from provisions of the Civil Aviation Regulations 1988 (CAR) under exemptions made by various Civil Aviation Orders known as the “Part 95 series CAOs”. These aircraft are generally the subject of new Parts 103 and 131 of CASR, inserted into the CASR by the Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019 (the 3‑pack regulations) that commenced on 2 December 2021.

The purpose of the Part 149 (Approved Self-administering Aviation Organisations) Amendment Manual of Standards 2021 (the amendment MOS) is to make consequential amendments of the Part 149 MOS necessary to ensure that the prescribed aviation administration functions that have been approved for existing ASAOs are correct following the commencement of the 3‑pack regulations and the interim arrangements that have been established to deal with the delay of the making of Manuals of Standards to support new Parts 103 and 131 of CASR by extending the current regime for safe operation of the aircraft.

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.

The Part 149 MOS is made under Part 149 of CASR. The Part 149 MOS prescribes matters in relation to an ASAO. The matters that the Part 149 MOS deals with include:

• the aviation administration functions that an ASAO may be authorised to perform under regulation 149.075 of CASR
• the kinds of aircraft that are Part 149 aircraft for the purposes of functions prescribed in the Part 149 MOS.

Under subsection 14 (1) of the Legislation Act 2003 (the LA), a legislative instrument may make provision in relation to matters by applying, adopting or incorporating provisions of an Act or disallowable legislative instrument as in force at a particular time or as in force from time to time. A legislative instrument may also make provision in relation to matters by applying, adopting or incorporating any matter contained in any other instrument or writing as in force at, or before, the time the legislative instrument commences. Under subsection 14 (2) of the LA, unless the contrary intention appears, the legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. However, subsection 98 (5D) of the Act provides that, despite section 14 of the LA, 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, 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

Subparagraphs 103.005 (4) (b) (v), (vi) and (vii) of CASR provide for the Part 103 Manual of Standards (the Part 103 MOS) to prescribe rotorcraft, weight-shift controlled aeroplanes and any other aeroplane, for the purposes of the definition of Part 103 aircraft, effectively bringing those aircraft into the Part 103 scheme. With the delay of the Part 103 MOS, CASA reissued the following Civil Aviation Orders to provide for the necessary mechanisms required for aeroplanes and powered parachutes currently administered by an ASAO to continue to be operated under existing arrangements. As aircraft of these types are administered by an ASAO under Part 149, the amendment MOS makes the changes necessary for the prescribed functions in the Part 149 MOS to apply correctly to the aircraft as covered by the following reissued Civil Aviation Orders:

• Civil Aviation Order 95.10 (Exemptions from CAR and CASR — Microlight Aeroplanes) Instrument 2021
• Civil Aviation Order 95.32 (Exemptions from CAR and CASR — Powered Parachutes and Weight-shift-controlled Aeroplanes) Instrument 2021
• Civil Aviation Order 95.55 (Exemptions from CAR and CASR — Certain Light Sport Aircraft, Lightweight Aeroplanes and Ultralight Aeroplanes) Instrument 2021.

The following Civil Aviation Orders have been recently reissued to provide transitional arrangements for the operation of certain aircraft used for sport and recreation, to enable their operation under the oversight of sport aviation bodies that are yet to become ASAOs to continue as at present until the Part 103 MOS is issued, proposed to be during 2022. The transitional arrangements exempt the aircraft from the operation of Part 103, and certain other provisions in CASR, for that purpose.

• Civil Aviation Order 95.4 (Exemptions from CAR and CASR — Sailplanes and Towing Aircraft) Instrument 2021
• Civil Aviation Order 95.8 (Exemptions from CAR and CASR — Hang Gliders and Paragliders) Instrument 2021
• Civil Aviation Order 95.12 (Exemptions from CAR and CASR — Gyroplanes Not Exceeding 250 kg) Instrument 2021
• Civil Aviation Order 95.12.1 (Exemptions from CAR and CASR — LSA Gyroplanes and ASRA-compliant Gyroplanes) Instrument 2021.

These Orders deal with the transitional issues arising from the commencement of the flight operations regulations relevant to these aircraft (Parts 91 and 103 of CASR). The aircraft to which these Orders apply are not currently administered by an ASAO under the Part 149 scheme. To avoid the administrative complexity and associated regulatory burdens of updating the Part 149 scheme to include these aircraft for the purposes only of the interim period before the Part 103 MOS is issued in 2022, the amendment MOS removes the references to those aircraft. CASA proposes to fully update the Part 149 scheme to deal with all the sport and recreation aircraft that are subject to the 3-pack regulations in further amendments of the Part 149 MOS to be issued concurrently with the making of the Part 103 MOS during 2022.

Civil Aviation Order 95.54 has been reissued as Civil Aviation Order 95.54 (Part 131 Recreational Activity and Specialised Balloon Operations) Instrument 2021 to deal with the delay of the making of the Part 131 Manual of Standards. The reissued Order provides a scheme of requirements on persons conducting Part 131 recreational activities (defined in Part 131) and specialised balloon operations using Part 131 aircraft, upon holding an authorisation from the Australian Ballooning Federation until that body becomes a Part 149 ASAO. The amendment MOS updates the definition of Part 149 aircraft for balloons used for a relevant activity, therefore, accommodating that transition.

Overview of instrument

The amendments substitute definitions of aircraft that are currently administered by an ASAO and are the subject of reissued Civil Aviation Orders numbered 95.10, 95.32 and 95.55, dealing with rotorcraft and aeroplanes that are used for sport and recreation. These aircraft will be prescribed as Part 103 aircraft by the Part 103 MOS, the making of which has been delayed for the purpose of further consultation with the established industry group.

The amendments substitute the definition in section 11 of the Part 149 MOS that deals with balloons that are Part 149 aircraft, making it consistent with Part 131 of CASR that commences on 2 December 2021. A Part 131 aircraft is now subject to the reissued Civil Aviation Order 95.54, which provides a scheme for the safe operation of Part 131 aircraft conducting Part 131 recreational activities and specialised balloon operations while the making of the Part 131 MOS is delayed for further consultation with the established industry group.

The amendments remove the references in the Part 149 MOS to aircraft that are the subject of the transitional arrangements provided for in the reissue of the Civil Aviation Orders numbered 95.4, 95.8, 95.12 and 95.12.1, being aircraft that are not currently under ASAO administration. This is an interim measure intended to reduce administrative complexity and possible regulatory burdens on a sport aviation body that may apply for a Part 149 certificate in the period before the Part 103 MOS is issued. An exposition prepared under the transitional scheme would not be sufficient to meet the requirements of the Part 103 framework and would need to be resubmitted with significant amendment. The Part 149 MOS will be amended concurrently with the issue of the Part 103 MOS to include the aircraft. Part 103 requires a person who undertakes a Part 103 activity (defined in regulation 103.010 of CASR) to hold an authorisation from a Part 103 ASAO unless otherwise required under the regulations.

The function in section 25 of the Part 149 MOS relates to the administration of parachute operators (other than parachute training operators). Following feedback from the established industry group that the function has not been, and is unlikely to be, taken up by parachuting ASAOs for the purposes of the Part 149 MOS, the MOS is amended to remove the function.

Documents incorporated by reference

Under paragraph 15J (2) (c) of the LA, the Explanatory Statement must contain a description of the incorporated documents and indicate how they may be obtained. The instrument incorporates the instruments set out in the following table:

Each of the instruments is freely available on the Federal Register of Legislation.

Content of instrument

Section 1 sets out the name of the instrument.

Section 2 provides that the instrument commences on 3 December 2021.

Section 3 provides that the instrument is made under CASR.

Section 4 provides that the Part 149 MOS is amended as set out in Schedule 1.

Schedule 1 sets out the various amendments to the Part 149 MOS. A more detailed description of the amendments is set out in Attachment 2.

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 the Part 149 MOS 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.

As the Part 149 MOS relates to aviation safety and is made under CASR, Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument (item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015). The Part 149 MOS deals with aviation safety matters that, once identified, require a risk response or treatment plan. As such, the Part 149 MOS is intended to have enduring operation and it would not be appropriate for it to be subject to sunsetting.

The exemption from the sunsetting provisions affects parliamentary oversight by not requiring the Part 149 MOS to be remade at the end of the sunsetting period (remaking would have the effect that the whole instrument must be re-tabled and would become subject to disallowance in the Parliament under sections 38 and 42 of the LA). However, in future, it is envisaged that further amendments to the Part 149 MOS will be made and these will be subject to tabling and disallowance in the Parliament in the normal way.

This instrument will be repealed in accordance with section 48A of the LA. Therefore, the exemption from sunsetting does not affect parliamentary oversight of this instrument. In addition, the measures provided by this instrument will remain in force within the Part 149 MOS.

Consultation

Under regulation 11.280 in Subpart 11.J of CASR, if CASA intends to issue a MOS, CASA must, in effect, engage in public consultation on the draft MOS. This requirement also applies to a MOS amendment.

However, under paragraph 11.275 (1) (d), CASA is not obliged to consult if the Director of Aviation Safety (the Director) determines that the MOS is of a minor or machinery nature that does not substantially alter existing arrangements. In such circumstances, under subregulation 11.275 (2), CASA must publish the determination, and a statement of reasons for it, on the internet within 28 days after making the determination. The Director has made such a determination because the purpose of the instrument is to make a range of corrections and updates to the Part 149 MOS, with equivalent safety outcomes.

There has, nevertheless, been considerable consultation, both formal (through the relevant Technical Working Groups) and informal (with industry stakeholders) in the consideration of the 3‑pack regulations and the reissue of the Civil Aviation Orders numbered 95.10, 95.32, 95.54 and 95.55, that resulted in the consequential need for these amendments to the Part 149 MOS. The amendment that removes section 25 of the Part 149 MOS arose from feedback received by CASA during consideration of a Part 149 certificate application that the function would remain unused because it included oversight of activities not properly within the remit of an ASAO. Accordingly, repealing the function makes no change to existing arrangements.

Sector risk, economic and cost impact

Subsection 9A (1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A (3) of the Act states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9 (1) (c), CASA must:

(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and

(b) take into account the differing risks associated with different industry sectors.

The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.

The instrument makes minor or machinery changes to an existing instrument and there will be no change to the economic or cost impact on individuals, businesses or the community.

Office of Best Practice Regulation (OBPR)

A Regulation Impact Statement (RIS) is not required in this case, as the exemption is covered by 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 3 December 2021 and is automatically repealed in accordance with section 48A of the LA.

Attachment 1

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011

Part 149 (Approved Self-administering Aviation Organisations) Amendment Manual of Standards 2021

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

One of the main purposes of the Part 149 (Approved Self-administering Aviation Organisations) Manual of Standards 2018 (the Part 149 MOS) is to prescribe aviation administration functions which an Approved Self-administering Aviation Organisation (an ASAO) may be authorised to perform under regulation 149.075 of the Civil Aviation Safety Regulations 1998 (CASR). The functions are prescribed in relation to aircraft that have been defined in the Part 149 MOS as Part 149 aircraft. These include the sport and recreation aircraft that have historically been exempted from provisions of CASR under Part 200 of CASR, and from provisions of the Civil Aviation Regulations 1988 under exemptions made by various Civil Aviation Orders known as the “Part 95 series CAOs”. These aircraft are generally the subject of new Parts 103 and 131 of CASR, inserted into the CASR by the Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019 (the 3‑pack regulations) that commenced on 2 December 2021.

The Part 149 (Approved Self-administering Aviation Organisations) Amendment Manual of Standards 2021 makes only the consequential amendments of the Part 149 MOS necessary to ensure that the prescribed aviation administration functions that have been approved for existing ASAOs are correct following the commencement of the 3‑pack regulations and the interim arrangements that have been established to deal with the delay of the making of Manuals of Standards to support new Parts 103 and 131 of CASR and therefore to continue, broadly speaking, the existing arrangements for the safe operation of the affected aircraft. The making of the Parts 103 and 131 Manuals of Standards has been delayed in consultation with the established industry groups.

The amendments remove the references in the Part 103 MOS to sport and recreation aircraft that are not currently administered by an ASAO, but that, unless otherwise exempted, will be required to be administered under the Part 103 and 149 schemes when the Part 103 MOS is issued. Transitional arrangements for these aircraft are provided in the reissue of the Civil Aviation Orders numbered 95.4; 95.8; 95.12 and 95.12.1.

This is an interim measure intended to reduce administrative complexity and possible regulatory burdens on a sport aviation body that may apply for a Part 149 certificate in the period before the Part 103 MOS is issued, proposed to be in 2022. An exposition prepared under the transitional scheme would not be sufficient to meet the requirements of the Part 103 framework and would need to be resubmitted or significantly amended to do so. The Part 149 MOS will be amended concurrently with the issue of the Part 103 MOS in 2022 to include the aircraft. Part 103 requires a person who undertakes a Part 103 activity (defined in regulation 103.010 of CASR) to hold an authorisation from a Part 103 ASAO unless otherwise required under the regulations.

Also, the amendments substitute the definition in section 11 (relating to balloons or hot air airships that are Part 149 aircraft) to make it consistent with Part 131 of CASR which commenced on 2 December 2021. A Part 131 aircraft is now subject to the reissued Civil Aviation Order 95.54, which provides a scheme for the safe operation of Part 131 aircraft conducting Part 131 recreational activities and specialised balloon operations while the making of the Part 131 MOS is delayed for further consultation with the established industry group.

The function in section 25 of the Part 149 MOS relates to the administration of parachute operators (other than parachute training operators). Following feedback from the established industry group that the function has not been, and is unlikely to be, taken up by parachuting ASAOs for the purposes of the Part 149 MOS, the instrument amends the MOS to remove the function.

Human rights implications

This legislative 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

Attachment 2

Part 149 (Approved Self-administering Aviation Organisations) Amendment Manual of Standards 2021

Explanation of Schedule 1 Amendments