Federal Register of Legislation - Australian Government

Primary content

CASA EX25/20 Exemptions as made
This instrument replaces previous exemption CASA EX18/17 relating to aircraft operations for dropping incendiaries for controlled burning.
Administered by: Infrastructure, Transport, Regional Development and Communications
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 31 Jan 2020
Tabling HistoryDate
Tabled HR04-Feb-2020
Tabled Senate04-Feb-2020
To be repealed 25 Mar 2021
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Safety Regulations 1998

CASA EX25/20 — Incendiary Dropping (At or Above 500 Feet) Exemption 2020

 

Purpose

The purpose of CASA EX25/20 — Incendiary Dropping (At or Above 500 Feet) Exemption 2020 (the instrument) is to renew a previous exemption relating to aircraft operations for dropping incendiaries for controlled burning.

 

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 Safety Regulations 1998 (CASR) and the Civil Aviation Regulations 1988 (CAR).

 

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, the Civil Aviation Safety Authority (CASA) may grant an exemption from a provision of the regulations.

 

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.

 

Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.

 

Under subregulation 11.175 (4) of CASR, in deciding whether to renew an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to renew an exemption on its own initiative.

 

Regulation 11.205 of CASR provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210 of CASR, 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) of CASR, the maximum duration of an exemption is 3 years.

 

Background

Part 137 of CASR deals with aerial application operations, other than in rotorcraft. It is construed to cover the aerial application not only of water but also of incendiaries for controlled burning and other firefighting purposes.

 

Under previous instruments (instrument numbers CASA EX27/08, CASA EX13/10, CASA EX32/10, CASA EX02/12, CASA EX24/15 and CASA EX18/17), CASA has granted an exemption from Part 137 of CASR to certain operators, and their pilots, for dropping incendiaries. This was to protect the position of operators who had been in the business of incendiary dropping before the requirements of Part 137 of CASR were imposed. In substance, the instrument renews instrument number CASA EX18/17, which will be repealed at the end of 31 January 2020.

 

Provided that alternative safety risk mitigators are in place, CASA considers that seasonal firefighting involving the dropping of incendiaries on behalf of an emergency control authority from 500 feet or higher does not require the pilot in command or the aeroplane operator to satisfy the wide range of requirements in Part 137. These matters will be provided for in the Civil Aviation Safety Amendment (Part 138) Regulations 2018, which commence on 25 March 2021.

 

Content of instrument

Section 1 names the instrument.

 

Under section 2, the instrument commences on 1 February 2020, and is repealed at the earlier of: the commencement of the Civil Aviation Safety Amendment (Part 138) Regulations 2018; or the end of 31 January 2023.

 

Section 3 contains definitions, including a Note that lists certain terms and expressions in the instrument that have the same meaning as they have in the Act and the regulations.

 

Section 4 provides that the instrument applies to:

(a)     the pilot of an aircraft engaged in an incendiary dropping operation conducted at not less than 500 feet for a State or Territory authority responsible for controlled burning activities (an incendiary dropping operation); and

(b)     the operator of an aircraft engaged in an incendiary dropping operation, if the operator holds an Air Operator’s Certificate authorising aerial work operations, that covers the conduct of an incendiary dropping operation, and the operator has obtained CASA’s prior written approval of the procedures in the operator’s operations manual for the conduct of the incendiary dropping operation.

 

Section 5 provides that the pilot is exempt from compliance with Part 137 of CASR in relation to the incendiary dropping operation. The exemption is subject to the condition that the pilot must comply with Civil Aviation Order 29.5 (CAO 29.5) as if the operation was not an aerial application operation. CAO 29.5 sets out directions in relation to the dropping of articles for paragraph 150 (2) (a) of CAR. The directions include, among other things, a requirement for the pilot to be qualified in accordance with Part 61 of CASR to carry out the operation.

 

CAO 29.5 does not otherwise apply in relation to aircraft engaged in aerial application operations.

 

Section 6 provides that the operator is also exempt from compliance with Part 137 of CASR in relation to the incendiary dropping operation. The exemption is subject to the condition that the operator take reasonable steps to ensure that the pilot complies with the condition relating to compliance with CAO 29.5.

 

Legislation Act 2003 (the LA)

Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Also, paragraph 98 (5AA) (a) provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons The exemptions and conditions on the exemptions apply to classes of persons, being the operators of aircraft engaged in incendiary dropping operations and the pilots in command of the aircraft. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.

 

Consultation

Consultation under section 17 of the LA was undertaken with Australian State and Territory fire authorities, through the National Aerial Firefighting Centre, in relation to a previous instrument mentioned in the “Background” section of this Explanatory Statement. The instrument beneficially exempts operators and pilots from certain requirements, provided that compensating safety conditions are met. In these circumstances, CASA is satisfied that no further consultation is appropriate, or reasonably practicable, for the instrument for section 17.

 

Office of Best Practice Regulation (OBPR)

A Regulation Impact Statement (RIS) is not required in this case, 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.

 

Commencement and making

The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.

 

The instrument commences on 1 February 2020, and is repealed at the earlier of: the commencement of the Civil Aviation Safety Amendment (Part 138) Regulations 2018; or the end of 31 January 2023.

Attachment 1

Statement of Compatibility with Human Rights

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

 

CASA EX25/20 — Incendiary Dropping (At or Above 500 Feet) Exemption 2020

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 would adjust the requirements for incendiary dropping operations for controlled burning and beneficially exempts operators and pilots from certain requirements, provided compensating safety conditions are met.

 

Human rights implications

The legislative instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

The legislative instrument is compatible with human rights as it does not raise any human rights issues.

 

 

Civil Aviation Safety Authority