Federal Register of Legislation - Australian Government

Primary content

CASA EX86/20 Exemptions as made
This instrument continues to enable pilots of a particular kind to tow a glider or gliders using a powered aircraft without complying with directions related to the miscellaneous dropping of articles from aircraft in flight, mentioned in Civil Aviation Order 29.5 and subregulation 166A (1) of the Civil Aviation Regulations 1988, to the extent that the subregulation requires pilots of that kind to comply with particular rules for aircraft being operated in the manoeuvring area of, or in the vicinity of, a non-controlled aerodrome.
Administered by: Infrastructure, Transport, Regional Development and Communications
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 28 May 2020
Tabling HistoryDate
Tabled HR10-Jun-2020
Tabled Senate10-Jun-2020
To be repealed 31 May 2023
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Regulations 1988

Civil Aviation Safety Regulations 1998

CASA EX86/20 — Aerotowing Operations (Gliding Federation of Australia) Instrument 2020

Purpose

The purpose of the instrument is to continue to enable pilots of a particular kind to tow a glider or gliders using a powered aircraft without complying with:

(a)   directions related to the miscellaneous dropping of articles from aircraft in flight, mentioned in Civil Aviation Order (CAO) 29.5; and

(b)   subregulation 166A (1) of the Civil Aviation Regulations 1988 (CAR), to the extent that the subregulation requires pilots of that kind to comply with particular rules for aircraft being operated in the manoeuvring area of, or in the vicinity of, a non‑controlled aerodrome.

 

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 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 compliance with a provision of the regulations or a provision of a CAO.

 

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 grant an exemption on its own initiative.

 

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.

 

Division 2 of Part 11 of CAR relates to flight rules and includes regulation 149 (which relates to towing) and regulation 150 (which relates to the dropping of articles).

Under subregulation 149 (1) of CAR, the pilot in command of an aircraft commits an offence if:

(a)   the pilot in command permits anything to be towed by the aircraft; and

(b)   the requirement mentioned in subregulation 149 (1A) is not met.

 

Subregulation 149 (1A) of CAR provides that, for paragraph (1) (b), the towing must be:

(a)   permitted by this regulation; or

(b)   authorised under Part 61 of CASR.

 

Subregulation 149 (5) of CAR provides that it is a defence to a prosecution under subregulation (1) if:

(a)   the pilot in command had the written permission of CASA for the towing; and

(b)   the towing was done in accordance with the directions (if any) specified in the permission.

 

Subregulation 150 (1) of CAR provides that, subject to regulation 150, the pilot in command of an aircraft must not permit anything to be dropped from the aircraft. Under subregulation 150 (1A) of CAR, an offence against subregulation (1) is an offence of strict liability. However, subparagraphs 150 (2) (a) (viii), (ix) and (x) of CAR provide that nothing in regulation 150 prevents “the dropping of packages or other articles or substances … in the course of other operations” in accordance with directions issued by CASA “to ensure the safety of the aircraft as far as practicable” and “to minimise hazards to persons, animals or property”.

 

Regulation 166A of CAR sets out the general requirements for aircraft operating on the manoeuvring area of, or in the vicinity of, a non-controlled aerodrome. Under subregulation 166A (1) of CAR, the pilot in command of an aircraft commits an offence if the aircraft is being operated in either of those locations and the pilot engages in conduct that results in the contravention of a rule set out in subregulation (2). The rules set out in subregulation 166A (2) of CAR include, relevantly:

(a)   the rule, mentioned in paragraph 166A (2) (d) of CAR, that the pilot in command of an aircraft must, after joining the circuit pattern for a landing at the aerodrome, make all turns in accordance with subregulation 166A (3); and

(b)   the rule, mentioned in paragraph 166A (2) (e) of CAR, that the pilot in command of an aircraft must, after taking off from the aerodrome, make all turns in accordance with subregulation 166A (3) while the aircraft is flying in the circuit pattern for the aerodrome; and

(c)   the rule, mentioned in paragraph 166A (2) (f) of CAR, that subject to subregulation 166A (4), the pilot in command of an aircraft who takes off from the aerodrome must maintain the same track from the take-off until the aircraft is 500 feet above the terrain.

 

Subregulation 166A (3) of CAR provides that, for paragraphs (2) (d) and (e), the turns must be made:

(a)   if CASA has, under subregulation 92 (2) of CAR, directed that all turns must be made in a particular direction — in accordance with CASA’s directions; or

(b)   if paragraph (a) does not apply and visual signals are displayed at the aerodrome indicating a direction to make all turns — in accordance with the visual signals; or

(c)   in any other case — to the pilot’s left.

 

Subregulation 166A (4) of CAR provides that the rule in paragraph 166A (2) (f) does not apply if a change to the track is necessary to avoid the terrain.

 

Subregulation 166A (6) of CAR provides that an offence against subregulation (1) in relation to any of paragraphs (2) (a) to (g) is an offence of strict liability.

 

CAO 29.5 makes several directions related to the miscellaneous dropping of articles from aircraft in flight, and is expressed to apply to all Australian aircraft except those aircraft engaged in aerial application operations or aerial application training operations.

 

Subsection 98 (5D) of the Act 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.

 

Background

CASA has previously made CASA EX71/17, Permission, directions and exemptions — aerotowing operations (Gliding Federation of Australia) (CASAEX71/17) — Federal Register of Legislation number F2017L00777 refers.

 

Although the instrument would provide the same permission, directions and exemptions for up to an additional 3 years, the following information is relevant:

(a)   although paragraph 149 (1A) (b) of CAR mentions an authorisation of towing under Part 61 of CASR, Part 61 does not provide for an authorisation of that kind;

(b)   CASA will not need to issue instruments of the same kind after related provisions in the new Part 103 of CASR commence. Part 103 of CASR is located in Schedule 1 to the Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019, and expected to commence in 2021.

 

Overview of instrument

The instrument is intended to continue to enable pilots of a particular kind to tow a glider or gliders using a powered aircraft on the manoeuvring area of, or in the vicinity of, a non‑controlled aerodrome without complying with subregulation 166A (1) of CAR, to the extent that the subregulation requires pilots of that kind to comply with particular rules for aircraft being operated in those locations.

 

CASA has assessed the impact on aviation safety of continuing to enable pilots of that kind to tow a glider or gliders without being required to comply with the particular subregulation and rules mentioned in the preceding paragraph. Having made that assessment, because of the directions mentioned in sections 5 and 6 of the instrument and the additional risk mitigators mentioned in the conditions in section 8, CASA is satisfied that renewing the instrument would have no impact on the safety of The Gliding Federation of Australia Incorporated’s (the GFA) operations.

 

The instrument incorporates by reference the relevant standards and procedures for aerotowing operations and dropping a rope or fitting used for towing a glider mentioned in the Aerotowing Manual, GFA document number OPS 0008, as existing in the version approved from time to time by CASA. The Aerotowing Manual is freely available to view or download by using the search term ‘Aerotowing Manual’ in the search window located at the ‘Docs/Forms’ link on the GFA website: www.glidingaustralia.org.

 

Content of instrument

Section 1 names the instrument.

 

Section 2 sets out when the instrument will commence and be repealed.

 

Section 3 contains definitions of terms used in the instrument.

 

The note below the heading of section 3 is a signpost note, intended to assist users of the instrument to identify some relevant definitions in the Act and the regulations.

 

The note below the definition of Aerotowing Manual is intended to assist users of the instrument to locate a freely available copy of that document.

 

Section 4 describes the kind of pilots that the instrument applies to.

Section 5 permits a pilot to whom the instrument applies to engage in aerotowing operations and directs the pilot to conduct the aerotowing operations in accordance with the relevant processes and procedures mentioned in the Aerotowing Manual.

 

The note below section 5 is intended to assist users of the instrument by identifying, and providing the location of, the processes and procedures in the Aerotowing Manual that are most relevant to conducting aerotowing operations.

 

Subsection 6 (1) directs a pilot to whom the instrument applies to drop a rope or fitting used for towing a glider in a particular way, including in accordance with the relevant processes and procedures mentioned in the Aerotowing Manual.

 

The note below subsection 6 (1) is intended to assist users of the instrument by identifying, and providing the location of, the processes and procedures in the Aerotowing Manual that are most relevant to dropping a rope or fitting used for towing a glider.

 

Subsection 6 (2) directs the GFA to amend the Aerotowing Manual only in accordance with the prior written approval of CASA.

 

Subsection 7 (1) exempts a pilot to whom the instrument applies from compliance with CAO 29.5.

 

Subsection 7 (2) exempts a pilot to whom the instrument applies from compliance with subregulation 166A (1) of CAR, to the extent that the subregulation requires the pilot to comply with particular rules, listed in paragraphs 7 (2) (a) to (c), for aircraft being operated on the manoeuvring area of, or in the vicinity of, a non-controlled aerodrome.

 

The note below paragraph 7 (2) (c) is intended to assist users of the instrument by identifying a provision of CAR that sets out circumstances in which the rule mentioned in paragraph 166A (2) (f) of CAR (and referred to in paragraph 7 (2) (c)) does not apply.

 

Subsection 7 (3) provides that the exemptions in subsections 7 (1) and (2) are subject to the conditions mentioned in section 8.

 

Section 8 sets out conditions on the exemptions mentioned in subsections 7 (1) and (2).

 

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. Paragraph 98 (5AA) (a) of the Act 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 permissions, directions, exemptions and conditions in the instrument are expressed to apply to pilots of a particular kind. Therefore, the instrument is a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.

 

Consultation

CASA EX71/17 was developed at the request of the GFA and CASA consulted with the GFA executive management and an operations expert on the terms of the instrument, as well as with an industry participant in the development of that instrument. This instrument has also been prepared at the request of the GFA. Given the beneficial nature of the instrument and the GFA’s request for it, CASA is satisfied that no further consultation is appropriate or reasonably practicable for section 17 of the LA.

 

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 permissions, directions and 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 a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.

 

The instrument commences on 1 June 2020 and is repealed at the end of 31 May 2023.

Attachment 1

Statement of Compatibility with Human Rights

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

 

CASA EX86/20 — Aerotowing Operations (Gliding Federation of Australia) Instrument 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 purpose of the instrument is to continue to enable pilots of a particular kind to tow a glider or gliders using a powered aircraft without complying with:

(a)   directions related to the miscellaneous dropping of articles from aircraft in flight, mentioned in Civil Aviation Order 29.5; and

(b)   subregulation 166A (1) of the Civil Aviation Regulations 1988, to the extent that the subregulation requires pilots of that kind to comply with particular rules for aircraft being operated in the manoeuvring area of, or in the vicinity of, a non-controlled aerodrome.

 

The pilots are instead required to comply with processes and procedures mentioned in the Aerotowing Manual published by The Gliding Federation of Australia Incorporated and specified conditions relating to safety of operations.

 

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