Part 149 (Approved Self-administering Aviation Organisations) Amendment Manual of Standards 2022 (No. 1)

Explanatory Statement

Civil Aviation Safety Regulations 1998

Part 149 (Approved Self-administering Aviation Organisations) Amendment Manual of Standards 2022 (No. 1)

Purpose

The purpose of the instrument is to provide for certain sport and recreation aircraft, that are intended to be regulated under Part 103 of the Civil Aviation Safety Regulations 1998 (CASR), and are currently administered by sport aviation bodies that are not approved self‑administering aviation organisations (ASAOs) under Part 149 of CASR, to come within the scope of the aviation administration functions prescribed by the Part 149 Manual of Standards (the Part 149 MOS). This would enable a sport aviation body or other person to apply for a Part 149 certificate to administer the aircraft under the regulations.

The amendments also provide for the airworthiness of an emergency parachute to be an aviation administration function. This reflects the intent, in Part 105 of CASR, that Part 105 ASAOs administer the airworthiness of emergency parachutes.

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 ASAOs. 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

One of the main purposes of the Part 149 MOS is to prescribe aviation administration functions which an ASAO may be authorised to perform under regulation 149.075 of 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 certain 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 “95 series CAOs”. These aircraft are generally the subject of new Parts 103 and 131 of CASR, inserted into 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 making of Manuals of Standards for Parts 103, 105 and 131 was delayed in 2021 for further consultation with the established industry bodies. This necessitated transitional arrangements to be made to enable aircraft subject to, or intended to be covered by, the 3-pack regulations to continue to be operated under the arrangements existing before the commencement of those regulations.

The “95 series” Civil Aviation Orders covering the aircraft were re‑issued to provide for these transitional arrangements. Consequential amendments to the Part 149 MOS made the machinery changes necessary to ensure that any aircraft administered by an ASAO were properly captured by the Part 149 MOS. The interim arrangements support new Parts 103 and 131 of CASR by extending the regime, existing before the commencement of the 3-pack regulations, for safe operation of the aircraft.

As part of that exercise, the 2021 amendments of the Part 149 MOS removed outdated references to aircraft still being administered by sport aviation bodies that had not transitioned to becoming ASAOs, as a temporary measure to be corrected by the time of the issue of a Part 103 Manual of Standards. These aircraft are the subject of the following re‑issued Civil Aviation Orders which provided for transitional arrangements to exempt the aircraft from the operation of Part 103 and certain other provisions in CASR, for the purpose of extending the old regime:

• 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.

The amending instrument makes the changes necessary to ensure the prescribed aviation administration functions cover these aircraft, and to enable the sport aviation bodies that administer them to apply for a Part 149 certificate.

In relation to the airworthiness activities for emergency parachutes, the amendment removes an unintentional outcome of the existing Part 149 MOS in impeding the conduct of such activities for emergency parachutes, which activities have been normal practice for decades.

Overview of instrument

The amendments insert definitions of aircraft that are the subject of the transitional arrangements provided for in the recent re‑issue of Civil Aviation Orders numbered 95.4, 95.8, 95.12 and 95.12.1, being aircraft not currently under ASAO administration. These amendments make the changes necessary to ensure the prescribed aviation administration functions cover these aircraft, and to enable the sport aviation bodies that administer them to apply for a Part 149 certificate.

The aviation administration function of administering the airworthiness of emergency parachutes, is prescribed in the Part 149 MOS. Under Part 105 of CASR, it is a parachuting activity to maintain a parachute (including an emergency parachute). Under regulation 105.065 of CASR, a parachuting activity must not be done without an authorisation from a Part 105 ASAO. The amendments provide for the airworthiness of an emergency parachute to be an aviation administration function.

The amendments also make typographical and other amendments that are consequent on the commencement of the flight operations regulations on 2 December 2021 (including Part 91 of CASR and the 3-pack regulations).

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 the day after it is registered.

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

Items [1], [2] and [3] amend the note to the heading of section 5 to update the list of relevant definitions. The note explains that there are definitions of terms in the regulations, and refers to a selection of defined terms for the aid of the reader.

Item [4] inserts definitions of Civil Aviation Order 95.4 and Civil Aviation Order 95.8. The definitions enable the language of provisions to be shortened, and also incorporates those instruments as in force from time to time.

Item [5] removes a definition that is duplicated in section 5.

Item [6] inserts definitions of Civil Aviation Order 95.12 and Civil Aviation Order 95.12.1. The definitions enable the language of provisions to be shortened, and also incorporates those instruments as in force from time to time.

Item [7] substitutes the definition of Civil Aviation Order 95.54 to update the title.

Item [8] inserts a signpost definition of emergency parachute.

Item [9] removes definitions no longer used in the instrument.

Item [10] amends the definition of Part 149 aircraft so that it includes the aircraft mentioned in section 7. Section 7 is inserted by item [13] and defines sailplanes, powered parachutes, gyrogliders, hang gliders and paragliders to be Part 149 aircraft.

Items [11] and [12] remove definitions no longer used in the instrument or that are referenced by item [1].

Item [13] includes new section 7 which defines sailplanes, powered parachutes, gyrogliders, hang gliders and paragliders as Part 149 aircraft.  Effectively, these are the aircraft that are defined to be Part 103 aircraft to which Part 103 applies, under regulation 103.005 of CASR. The provision is modelled on that regulation.

The note to section 7 explains that the aircraft are Part 103 aircraft under regulation 103.005, and that, at the time of the commencement of section 7, the aircraft are subject to a Civil Aviation Order numbered 95.4, 95.8, 95.12 or 95.12.1, enabling a transitional scheme involving exemptions from provisions in CAR and CASR (including Part 103), under which the aircraft can continue to be administered by sport aviation bodies.

Items [14], [15] and [16] clarify existing definitions of Part 149 aircraft in sections 8, 9 and 10. The definitions required the aircraft to be listed with a sport aviation body and be operated for a purpose mentioned in Civil Aviation Order 95.10, 95.32 or 95.55, respectively. Under the amended definition, the aircraft is a Part 149 aircraft if the relevant Civil Aviation Order applies to the aircraft, and it is operated for a purpose mentioned in the Civil Aviation Order. The Civil Aviation Orders apply to aircraft that are listed with a sport aviation body.

Item [17] substitutes the definition of applicable CAO. The purpose of the amendment is to include references to Civil Aviation Orders numbered 95.4, 95.8. 95.12 and 95.12.1, being the Civil Aviation Orders applying to the new definition of Part 149 aircraft inserted by section 7. Those Civil Aviation Orders are effectively incorporated by reference for the purpose of the aviation administration function prescribed by section 19 of the Part 149 MOS: to establish procedures for safe conduct of flight operations in a Part 149 aircraft, in accordance with any applicable CAO and any other provision of the civil aviation legislation that applies to the aircraft. The item also adds definitions of ASRA-compliant gyroplane and LSA, being terms appearing in the definition of applicable CAO.

Item [18] corrects a typographical error.

Item [19] amends subsection 28(1) to bring emergency parachutes within the scope of the aviation administration function prescribed in section 28. Maintenance of an emergency parachute is a parachuting activity under Part 105 of CASR, and needs to be within the scope of the function to enable Part 105 ASAOs to administer airworthiness of the parachutes and issue authorisations to persons to maintain such parachutes.

Item [20] amends subsection 28(2) to accommodate a restructuring of section 28 because of the amendment to subsection 28(1) by item [19].

Item [21] inserts a definition of emergency parachute for the purposes of the function prescribed in section 28.

Item [22] is a consequential change arising from the amendment of the function prescribed by section 28.

Item [23] corrects a cross-referencing error.

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 instrument 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). However, 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.

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, and to include sport and recreation aircraft that are already under the old form of sport aviation organisation administration, 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 administrative requirements that will apply to a Part 103 ASAO or a Part 105 ASAO once the Manual of Standards for the relevant Part commences.

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 issue of Part 149 ASAO certificates is a regulatory service task under the Civil Aviation (Fees) Regulations 1995 that would normally attract a fee for issuing the ASAO authorisation. For the purposes of section 6 of those regulations, a fee waiver decision has been made by the Director that is valid until 2 December 2022. The instrument therefore enables significant cost savings to be made by an ASAO certificate applicant who submits an application before the end of the fee free period.

Otherwise, 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.

Impact on categories of operations

The amendments will ensure that sport aviation bodies can apply for an ASAO certificate prior to the end of the fee-free period, removing significant costs for these organisations. In relation to the airworthiness activities for emergency parachutes, the amendment removes an unintentional outcome of the extant Part 149 MOS in impeding the conduct of such activities for emergency parachutes, which activities have been normal practice for decades.

Impact on regional and remote communities

The amendments provide a pathway for sport and recreational aircraft that are presently operated in regional and remote communities under the oversight of a sport aviation body to continue to operate in those communities once the body becomes an ASAO.

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, on behalf of CASA, in accordance with subsection 73 (2) of the Act.

The instrument commences on the day after it is registered 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 2022 (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 instrument is to provide for certain sport and recreation aircraft, that are intended to be regulated under Part 103 of the Civil Aviation Safety Regulations 1998 (CASR), and that are currently administered by sport aviation bodies that are not approved self-administering aviation organisations (ASAOs) under Part 149 of CASR, to come within the scope of the aviation administration functions prescribed by the Part 149 Manual of Standards (the Part 149 MOS). These aircraft are generally the subject of new Part 103 of CASR, inserted into 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 making of Manuals of Standards for Parts 103, 105 and 131 was delayed in 2021 for further consultation with the established industry bodies. This necessitated transitional arrangements to be made to enable aircraft subject to, or intended to be covered by, the 3-pack regulations to continue to be operated under the arrangements existing before the commencement of those regulations. The transitional arrangements support new Parts 103, and 131 by extending the regime existing before the commencement of the 3-pack regulations, for safe operation of aircraft. Consequential amendments to the Part 149 MOS in 2021 made the machinery changes necessary to ensure that any aircraft administered by an ASAO were properly captured by the Part 149 MOS at the time the 3-pack regulations commenced.

The amendments insert definitions of aircraft that are the subject of these transitional arrangements provided for in the recent re‑issue of Civil Aviation Orders numbered 95.4, 95.8, 95.12 and 95.12.1, being aircraft not currently under ASAO administration. These amendments make the changes necessary to ensure the prescribed aviation administration functions cover these aircraft, and to enable the sport aviation bodies that administer them to apply for a Part 149 certificate.

The aviation administration function of administering the airworthiness of emergency parachutes is prescribed in the Part 149 MOS. Under Part 105 of the regulations, it is a parachuting activity to main a parachute (including an emergency parachute). Under regulation 105.065 of CASR, a parachuting activity must not be done without an authorisation from a Part 105 ASAO. The amendments provide for the airworthiness of an emergency parachute to be an aviation administration function.

The amendments also make typographical and other amendments that are consequent on the commencement of the flight operations regulations on 2 December 2021 (including Part 91 of CASR and the 3-pack regulations).

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