Federal Register of Legislation - Australian Government

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Civil Aviation Order 95.32 Orders/Civil Aviation as made
This instrument remakes the Civil Aviation Order 95.32 (Exemption from the provisions of the Civil Aviation Regulations 1988 — weight shift controlled aeroplanes and powered parachutes) Instrument 2015, providing a scheme of exemptions, subject to conditions, that facilitates the safe operation of weight-shift-controlled aeroplanes and powered parachutes administered by Recreational Aviation Australia Limited and Hang Gliding Federation of Australia Inc.
Administered by: Infrastructure, Transport, Regional Development and Communications
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 29 Jun 2018
Tabling HistoryDate
Tabled HR13-Aug-2018
Tabled Senate13-Aug-2018
Date of repeal 30 Jun 2021
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Regulations 1988

Civil Aviation Safety Regulations 1998

Civil Aviation Order 95.32 (Exemption from Provisions of the Civil Aviation Regulations 1988 — Weight-Shift-Controlled Aeroplanes and Powered Parachutes) Instrument 2018

Purpose

Australian sport aviation operates under a system of self-administration. This system requires self-administering sport aviation organisations to administer and oversee the operation of various sport and recreational aircraft and sport aviation activities, such as parachuting. Persons partaking in sport aviation activities are required to hold membership with, and agree to be bound by, the relevant organisation’s rules.

 

These organisations are oversighted by the Civil Aviation Safety Authority (CASA). Recreational Aviation Australia Limited (RAA) and Hang Gliding Federation of Australia Inc (HGFA) are two of these organisations.

 

Under the system, for persons engaging in sport aviation activities in certain weight-shift-controlled aeroplanes and powered parachutes administered through RAA and HGFA, CASA grants a series of exemptions, subject to conditions, which reflect the risk profile and nature of the activities.

 

From 2015, those exemptions and conditions were set out in the Civil Aviation Order 95.32 (Exemption from the provisions of the Civil Aviation Regulations 1988 — weight shift controlled aeroplanes and powered parachutes) Instrument 2015 (the 2015 instrument), which expires at the end of June 2018.

 

The purpose of Civil Aviation Order 95.32 (Exemption from Provisions of the Civil Aviation Regulations 1988 — Weight-Shift-Controlled Aeroplanes and Powered Parachutes) Instrument 2018 (the instrument) is to remake the 2015 instrument before it expires.

 

CASA has used the renewal process to clarify the legal operation of the exemption and condition provisions, including to accord with Subpart 11.F of the Civil Aviation Safety Regulations 1998 (CASR).

 

Other changes from the 2015 instrument include the following:

(a)   the instrument incorporates technical drafting changes and drafting-style changes;

(b)   the instrument omits spent and superfluous provisions, including the authorisation for paragraph 20AB (1) (a) of the Act, which is now given by regulation 200.025 of CASR;

(c)   the instrument relocates several provisions to more appropriate locations in the instrument.

 

As far as possible, the numbering of the provisions in the 2015 instrument has been replicated in the instrument.

 

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 the Civil Aviation Regulations 1988 (CAR) and CASR. These regulations create a detailed scheme for the safety regulation of aircraft in Australia.

 

Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations in relation to a matter mentioned in that subsection.

 

Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.

 

For an application by a person for the renewal of an exemption, under paragraph 11.175 (4) (b) of CASR, in deciding whether to renew the exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. In deciding whether to renew an exemption, under Division 11.F.1 of CASR, which CASA has granted on its own initiative, CASA has regard to the same consideration.

 

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. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.

 

Under regulation 200.025 of CASR, for paragraph 20AB (1) (a) of the Act, a person is taken to hold a civil aviation authorisation that is in force and authorises the person to perform a duty that is essential to the operation of an unregistered Australian aircraft during flight time if:

(a)   the person holds a pilot certificate granted by a sport aviation body that administers aviation activities in the aircraft; and

(b)   the person operates the aircraft in accordance with the sport aviation body’s operations manual.

 

Under regulation 5 of CAR, if CASA is empowered or required under the regulations to issue a direction, instruction or notification, or give a permission, approval or authority, it may, unless the contrary intention appears in the regulation conferring the power or function or imposing the obligation or duty, issue the direction, instruction or notification, or give the permission, approval or authority, in a Civil Aviation Order.

 

Subparagraph 14 (1) (a) (i) of the Legislation Act 2003 (the LA) allows a legislative instrument to apply, adopt or incorporate the provisions of another legislative instrument, as the other instrument is in force at a particular time or in force from time to time. The other instrument must be of a type mentioned in subsection 14 (3) of the LA, which relevantly includes a disallowable instrument (paragraph 14 (3) (a) of the LA).

 

Subsection 14 (2) of the LA states that, unless a contrary intention appears in the enabling legislation, a 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. This contrary intention appears in subsection 98 (5D) of the Act, which 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.

 

Instrument

Subsection 1A gives the instrument its name.

 

It also states that a reference in a CASA instrument to section 95.32 of the Civil Aviation Orders is taken to be a reference to the instrument. The term CASA instrument is defined in paragraph 2.1 of the instrument.

 

Subsection 1B provides that the instrument commences on 1 July 2018 and is repealed at the end of 30 June 2021.

 

Subsection 1 states the types of aeroplane the instrument applies to. Each of these types of aeroplane is referred to in the instrument as a relevant aeroplane.

 

Subsection 2 contains key definitions of terms used in the instrument. It also explains what is meant by a reference in the instrument to a Class of airspace.

 

Subsection 3 states the persons to whom the exemptions (the exemptions) are granted by CASA under the instrument. The subsection categorises the provisions of the safety regulatory scheme in CAR in relation to which the exemptions are granted as exempted provisions, and lists those provisions. The subsection exempts a person who has an obligation, under an exempted provision, in relation to a relevant aeroplane from compliance with the provision.

 

Subsection 3 also states each exemption is subject to the conditions stated in subsections 4, 6 and 7 of the instrument, to the extent that the conditions apply to a person who is granted the exemption.

 

Subsection 4 states the conditions of the exemptions that apply in relation to a relevant aeroplane that is an aeroplane mentioned in paragraph 1.2 or 1.3 of the instrument.

 

Subsection 6 states the general conditions of the exemptions that apply in relation to a relevant aeroplane.

 

Subsection 7 states the flight conditions of the exemptions that apply in relation to a relevant aeroplane.

 

Subsection 8 contains provisions that qualify the flight height conditions stated in subparagraphs 7.1 (a) and (b) of the instrument.

 

Subsection 9 contains a process for a person who proposes to fly a relevant aeroplane, otherwise than in accordance with any of the flight conditions stated in paragraph 7.1 of the instrument, to apply to CASA for approval of the proposed flight. CASA may grant the approval, for the proposed flight, subject to conditions. The subsection states that if the approval is given, it is a condition of an exemption under subsection 3 that the person only use the aeroplane for the proposed flight in accordance with the terms of the approval, including any conditions stated in the approval.

 

Subsection 10 states that a reference in various stated provisions of the instrument to RAA is taken to include a reference to Recreational Aviation Australia Incorporated (which is the predecessor administering body referred to in the 2015 instrument).

 

Subsection 11 includes provisions dealing with transitional issues arising from the transition from the 2015 instrument to the instrument.

 

In renewing the exemptions, under the instrument, CASA has regarded as paramount the preservation of at least an acceptable level of aviation safety.

 

Documents incorporated by reference

In sub-subparagraph 1.1 (g) (i) of the instrument, a type of relevant aeroplane is described by reference to its compliance with British Civil Airworthiness Requirements, Section S (CAP 482) — Small Light Aeroplanes (BCAR Section S). This document sets out the British civil airworthiness requirements for what are termed “small light aeroplanes”. In accordance with subsection 98 (5D) of the Act, the document is incorporated as it exists from time to time. The document is freely available, and accessible via the Internet on the following webpage: http://publicapps.caa.co.uk/modalapplication.aspx?appid=11&mode=detail&id=5575.

 

The definition active restricted area, in paragraph 2.1 of the instrument, refers to the AIP (which term is defined in CASR). The AIP specifies a range of procedures and other matters of relevance to the safe and efficient conduct of aviation activities. In accordance with subsection 98 (5D) of the Act, the AIP is incorporated as it exists from time to time. The AIP is freely available within the Aeronautical Information Package produced by Airservices Australia, which is accessible via the Internet on the following webpage: https://www.airservicesaustralia.com/aip/aip.asp.

 

The definition HGFA Operations Manual, in paragraph 2.1 of the instrument, refers to a manual issued by HGFA, which manual describes the way operations of relevant aeroplanes under the auspices of HGFA are to be conducted. In accordance with subsection 98 (5D) of the Act, the manual is incorporated as it is approved in writing by CASA from time to time. The manual is freely available, and accessible via the Internet on the HGFA webpage: https://www.hgfa.asn.au/.

 

The definition RAA Operations Manual, in paragraph 2.1 of the instrument, refers to a manual issued by RAA, which manual describes the way operations of relevant aeroplanes under the auspices of RAA are to be conducted. In accordance with subsection 98 (5D) of the Act, the manual is incorporated as it is approved in writing by CASA from time to time. The manual is freely available, and accessible via the Internet on the RAA webpage: https://www.raa.asn.au/.

 

The definition RAA Technical Manual, in paragraph 2.1 of the instrument, refers to a manual issued by RAA, which manual describes matters for the maintenance of aircraft administered by RAA. In accordance with subsection 98 (5D) of the Act, the manual is incorporated as it is approved in writing by CASA from time to time. The manual is freely available, and accessible via the Internet on the RAA webpage: https://www.raa.asn.au/.

 

In paragraph 2.2 of the instrument, a Class of airspace is defined by reference to the Determination of airspace and controlled aerodromes etc. instrument (the airspace instrument). The airspace instrument is a legislative instrument that prescribes the various volumes of airspace that are necessary for the safe conduct of aviation operations in Australia. It is updated approximately every 6 months. Under subparagraph 14 (1) (a) (ii) of the LA, paragraph 2.2 of the instrument applies, adopts or incorporates the airspace instrument, as in force from time to time. The current version of the airspace instrument is freely available, and accessible via the Internet on the following webpage: https://www.legislation.gov.au/Series/F2018L00615.

 

Subparagraph 4.2 (e) of the instrument refers to the LSA standards, as defined in regulation 21.172 of CASR.

 

Paragraph (a) of the definition LSA standards in regulation 21.172 refers to stated standards issued by the American Society for Testing and Materials for aeroplanes defined as “light sport aircraft”. In accordance with subsection 98 (5D) of the Act, the document is incorporated as it exists from time to time. The document may be purchased at: https://www.astm.org/.

 

Paragraph (b) of the definition LSA standards refers to stated standards prescribed by the Part 21 Manual of Standards for aeroplanes described as “light sport aircraft”. Two of the prescribed standards, as far as is relevant to the instrument, are BCAR Section S (Britain) and DS 1014E (Canada). In accordance with subsection 98 (5D) of the Act, both documents are incorporated as they exist from time to time. The first-mentioned document is freely available, and accessible via the Internet on the abovementioned webpage. The second-mentioned document is freely available, and accessible via the Internet on the following webpage: http://upac.ca/wp-content/uploads/2015/10/2004_LAMAC_-DS-10141_ULTRALIGHT_DESIGN_STANDARD.pdf.

 

In sub-subparagraph 7.3 (b) (i) of the instrument, a type of engine of a relevant aeroplane is described by reference to Schedule 1 to the Civil Aviation Amendment Order (No. R94) 2004 (also known as section 101.55 of the Civil Aviation Orders). The Order is a repealed legislative instrument. Under subparagraph 14 (1) (a) (ii) of the LA, sub-subparagraph 7.3 (a) (b) (i) of the instrument applies, adopts or incorporates the Order, as in force on 31 May 2016. The Order is freely available, and accessible via the Internet on the following webpage: https://www.legislation.gov.au/Details/F2005B00953.

 

Under sub-subparagraph 7.4 (b) (ii) of the instrument, a towing aeroplane must be listed in Civil Aviation Advisory Publication 149 (CAAP 149) as acceptable to CASA for towing. CAAP 149 provides guidance from CASA on the safe conduct of aircraft towing activities. In accordance with subsection 98 (5D) of the Act, CAAP 149 is incorporated as it exists from time to time. The publication is freely available, and accessible via the Internet on the following webpage: https://www.casa.gov.au/files/149-1pdf.

 

Legislation Act 2003

Subsection 98 (5) of the Act states that the regulations may provide that CASA may issue a Civil Aviation Order containing a direction, instruction, notification, permission, approval or authority. Subsection 98 (5AAA) of the Act states that a Civil Aviation Order issued under a regulation made under subsection (5) is a legislative instrument.

 

Paragraph 98 (5A) (a) of the Act states that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Paragraphs 98 (5AA) (a) and (b) of the Act state that an instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply in relation to a class of persons or a class of aircraft. The instrument exempts the class of persons who have an obligation, under the exempted provisions, in relation to a relevant aeroplane (a class of aircraft) from complying with the obligation.

 

The instrument is, therefore, a legislative instrument and subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.

 

Consultation

The instrument affects the operation of particular aeroplanes registered with RAA and HGFA. It remakes the 2015 instrument, which has been in effect for several years without adverse comment to CASA from operators of relevant aeroplanes. CASA has consulted on the instrument with RAA and HGFA, which have agreed to the making of the instrument. In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for the instrument for section 17 of the LA.

 

Office of Best Practice Regulation (OBPR)

A Regulation Impact Statement (RIS) is not required in this instance, as the exemptions are 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. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.

 

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 1 July 2018 and is repealed at the end of 30 June 2021.

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 95.32 (Exemption from Provisions of the Civil Aviation Regulations 1988 — Weight-Shift-Controlled Aeroplanes and Powered Parachutes) Instrument 2018

 

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 legislative instrument

The Civil Aviation Order 95.32 (Exemption from provisions of the Civil Aviation Regulations 1988 — weight-shift-controlled aeroplanes and powered parachutes) Instrument 2015 (the 2015 instrument) expires at the end of June 2018. The purpose of this legislative instrument is to remake the 2015 instrument before it expires. It is, in substance, the same as the 2015 instrument, and provides a scheme of exemptions, subject to conditions, that facilitates the safe operation of weight-shift-controlled aeroplanes and powered parachutes administered by Recreational Aviation Australia Limited and Hang Gliding Federation of Australia Inc.

 

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