Federal Register of Legislation - Australian Government

Primary content

CASA EX65/21 Exemptions as made
This instrument enables maintenance on manned free balloons, like maintenance on other class B aircraft, to be carried out by unlicensed persons who are authorised by the Civil Aviation Safety Authority and supervised by persons who are themselves qualified to perform the maintenance.
Administered by: Infrastructure, Transport, Regional Development, Communications and the Arts
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 21 Jun 2021
Tabling HistoryDate
Tabled HR23-Jun-2021
Tabled Senate24-Jun-2021
To be repealed 31 May 2024
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Safety Regulations 1998

Civil Aviation Regulations 1988

CASA EX65/21 — Maintenance on Manned Free Balloons (Authorisation of Persons and Exemption) Instrument 2021

Purpose

The purpose of CASA EX65/21 — Maintenance on Manned Free Balloons (Authorisation of Persons and Exemption) Instrument 2021 (the instrument) is to facilitate maintenance on manned free balloons by authorising persons to carry out maintenance on these balloons, or on aircraft components or aircraft material for these balloons, provided it is under the supervision of qualified supervisors. The instrument also exempts authorised maintenance persons and their supervisors from certain requirements of the Civil Aviation Regulations 1988 (CAR) and imposes conditions on supervisors of authorised maintenance persons.

 

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 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.

 

Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.

 

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), the maximum duration of an exemption is 3 years.

 

Paragraph 33B (1) (a) of CAR provides for CASA to issue airworthiness authorities to carry out maintenance on aircraft. Subregulation 33B (4) provides that a person must not contravene a condition to which an airworthiness authority is subject. Subregulation 33B (5) provides that an offence against subregulation 33B (4) is an offence of strict liability.

 

Regulation 42ZC of CAR deals with maintenance on Australian aircraft in Australian territory and operates by reference to class A and class B aircraft. Class A aircraft are defined in regulation 2 of CAR and are either certificated as transport category aircraft or used for commercial purposes as specified in paragraph 206 (1) (c) of CAR. Class B aircraft are defined in regulation 2 of CAR as all aircraft that are not class A aircraft.

Manned free balloons are class B aircraft. As at the time of commencement of the instrument, the CASR Dictionary defines manned free balloon as follows:

manned free balloon means a free balloon that:

(a)   is capable of carrying 1 or more persons; and

(b)   is equipped with controls that enable the altitude of the balloon to be controlled.

 

Item 302 of Schedule 1 to the Civil Aviation Legislation Amendment (Flight Operations—Consequential Amendments and Transitional Provisions) Regulations 2021 (the amending Regulations) will amend the definition of manned free balloon so that it is defined as follows:

manned free balloon means a free balloon that:

(a)   is equipped to carry one or more persons; and

(b)   is equipped with controls that enable the altitude of the balloon to be controlled.

 

Section 2 of the amending Regulations states that Schedule 1 to those Regulations is to commence immediately after the start of 2 December 2021.

 

A manned free balloon must be operated under a standard certificate of airworthiness issued under regulation 21.176 of CASR or an experimental certificate issued under regulation 21.195A of CASR.

 

Under paragraph 42ZC (4) (e) of CAR, a person may carry out maintenance on a class B aircraft if authorised under subregulation 42ZC (6) to do so. Under paragraph 42ZC (5) (a) of CAR, a person may carry out maintenance on an aircraft component, or an aircraft material, if the person is employed by, or working under an arrangement with, the holder of a certificate of approval that covers the maintenance. Under paragraph 42ZC (5) (b) of CAR, a person may carry out maintenance on an aircraft component, or an aircraft material, if, in the case of maintenance that is either an inspection using a non-destructive testing method or manual welding, the person is authorised by CASA under subregulation 42ZC (6) to carry out the maintenance and the maintenance is carried out in accordance with any conditions subject to which the authorisation is given.

 

Under subregulation 42ZC (6) of CAR, CASA may, in writing, authorise a person for the purposes of paragraph (3) (d) or (4) (e) or subregulation (5) of regulation 42ZC.

 

Supervising is defined in clause 30 of Part 3 of the CASR Dictionary. In summary, that definition provides that a person is supervising the carrying out of maintenance by another person if the supervisor is physically present at the place that the maintenance is being carried out, is observing the maintenance being carried out so that the person can form an opinion as to whether it is being carried out properly, and is available to give advice to, and answer questions about the maintenance from, the person carrying it out.

 

Background

Under paragraph 42ZC (4) (c) of CAR, an unlicensed person may carry out maintenance of a class B aircraft under the supervision of a person who holds an appropriate Part 66 aircraft engineer licence.

 

However, there is no Part 66 aircraft engineer licence category that covers maintenance on balloons, meaning that in Australia the maintenance on manned free balloons is performed by holders of an airworthiness authority issued under regulation 33B of CAR.

 

The pool of airworthiness authority holders is supported by persons holding an authorisation under subregulation 42ZC (6) of CAR to carry out the maintenance, who are supervised by the airworthiness authority holders. Since some airworthiness authorities are granted subject to a condition to not supervise another person, an exemption is required for the holders of some airworthiness authorities to enable them to supervise maintenance on manned free balloons.

 

In addition, persons carrying out maintenance on manned free balloons under an authorisation granted under subregulation 42ZC (6) may not be employed by, or work under an arrangement with, a person holding a certificate of approval under regulation 30 of CAR. For example, the person may be a balloon pilot. Accordingly, to carry out maintenance on manned free balloons under the supervision of an airworthiness authority holder, the person requires an exemption against paragraph 42ZC (5) (a) of CAR.

 

CASA previously facilitated this arrangement under instrument CASA EX115/15, and under instrument CASA EX74/18 that repeals at the end of 30 June 2021. CASA is, by the instrument, reissuing CASA EX74/18 and, in doing so, has regarded as paramount the preservation of at least an acceptable level of safety.

 

Overview of instrument

The instrument enables maintenance on manned free balloons, like maintenance on other class B aircraft, to be carried out by unlicensed persons who are authorised by CASA and supervised by persons who are themselves qualified to perform the maintenance. A qualified supervisor is a person who is, or is the employee of, the holder of a certificate of approval under regulation 30 of CAR. The supervisor must also hold a maintenance authority authorisation under subregulation 42ZC (6) or a certificate of approval that covers the maintenance, issued by CASA, depending upon the kind of maintenance being performed.

 

CASA anticipates that the instrument will continue to encourage on-the-job training of persons maintaining balloons, for example, by allowing operators to train balloon pilots to do maintenance tasks.

 

The instrument also exempts a person authorised to carry out this maintenance from the CAR requirement to only carry it out if the person is employed by, or working under an arrangement with, the holder of a certificate of approval that covers the maintenance. It also exempts the holder of a regulation 33B airworthiness authority who is supervising the authorised person from having to comply with the CAR requirement to comply with any condition on the maintenance authority that prevents that supervision.

 

Finally, the instrument sets out conditions for the supervisor to comply with, including for the supervisor to hold specified approvals and authorities issued by CASA that relate to the kind of maintenance being carried out by the authorised person.

 

CASA has assessed the impact the instrument may have on aviation safety and is satisfied that the instrument will have no impact on the safety of balloon maintenance.

 

Content of instrument

Section 1 of the instrument sets out the name of the instrument.

 

Section 2 sets out the duration of the instrument by providing that it commences on 1 July 2021 and is repealed at the end of 31 May 2024.

 

Section 3 sets out some definitions for the instrument.

 

Section 4 authorises, under subregulation 42ZC (6) of CAR, persons who carry out maintenance on manned free balloons, under the supervision of a qualified supervisor, for paragraph 42ZC (4) (e) of CAR, and persons who carry out maintenance on an aircraft component or an aircraft material of a manned free balloon, under the supervision of a qualified supervisor, for subregulation 42ZC (5) of CAR.

 

Section 5 exempts an authorised person who is carrying out maintenance on an aircraft component, or aircraft material, of a manned free balloon from the requirement in paragraph 42ZC (5) (a) of CAR that the person must be employed by, or be working under an arrangement with, the holder of the certificate of approval who is supervising the maintenance. A contract for services would be an example of such an arrangement.

 

Section 6 exempts a person who holds a maintenance authority and who is supervising an authorised maintenance person from the requirement in subregulation 33B (4) of CAR to comply with any condition on the maintenance authority that prevents the supervision of the maintenance. The exemption is subject to the conditions in section 7. The exemption is necessary because a maintenance authority is sometimes subject to a condition that prohibits its holder from supervising maintenance work.

 

Section 7 requires the supervisor to hold, or be an employee of a person who holds, a certificate of approval granted by CASA under regulation 30 of CAR that covers maintenance of class B aircraft. Also, depending upon whether the authorised maintenance person is carrying out maintenance on the balloon or on an aircraft material or an aircraft component, the supervisor must hold either a maintenance authority or be authorised by CASA for subregulation 42ZC (6) of CAR, or hold, or be an employee of a person who holds, a certificate of approval that covers maintenance on aircraft components or aircraft materials of the kind being maintained.

 

Legislation Act 2003 (the LA)

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 instrument exempts a class of persons, being authorised maintenance persons, from the requirement in paragraph 42ZC (5) (a) of CAR to the extent that the person may carry out maintenance on an aircraft component, or aircraft material, of a manned free balloon. The instrument also exempts another class of persons, being persons holding a maintenance authority who are supervising an authorised maintenance person, from the requirement in subregulation 33B (4) of CAR to the extent that the person must not contravene any condition of an airworthiness authority that prevents the supervision.

 

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

The instrument facilitates the supervision of maintenance on manned free balloons and assists the ballooning industry. The instrument reissues instrument CASA EX74/18. Instrument CASA EX74/18 reissued instrument CASA EX115/15 that was prepared on the basis of representations received from the sector of the aviation industry concerned with maintenance on manned free balloons. Holders of a certificate of approval that covers balloon maintenance approached CASA for assurance that expiring instrument CASA EX115/15 would be reissued.

 

On 10 June 2021, CASA emailed a draft of the instrument to the CASR Part 131 Technical Working Group for consideration. This Technical Working Group includes a representative of the Australian Balloon Federation, representatives of large and small Air Operator’s Certificate holders that conduct balloon flights for paying passengers, and Australian balloon manufacturer Kavanagh Balloons. CASA received 7 responses from members of the CASA Part 131 Technical Working Group in relation to the instrument, all strongly supporting the making of the instrument.

 

It is anticipated that the instrument will no longer be required when provisions relating to maintenance are included in Part 131 of CASR. The balloon industry is aware that CASA intends those provisions to rectify the lack of a balloon maintenance licence category and include supervision as a privilege of a balloon maintenance licence.

 

Part 131—Balloons and hot air airships is to be inserted into CASR by Schedule 3 to the Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019 on 2 December 2021. However, the Subpart heading “Subpart 131.M—Continuing airworthiness” is reserved for future use. CASA now does not anticipate that Subpart 131.M of Part 131 will be made before 2023.

 

In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for the instrument for section 17 of the LA.

 

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.

 

As the instrument replaces an expiring instrument with the same (or substantially the same) provisions and conditions, there will be no change of 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 instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for approvals 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 July 2021 and is repealed at the end of 31 May 2024.

Attachment 1

Statement of Compatibility with Human Rights

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

CASA EX65/21 — Maintenance on Manned Free Balloons (Authorisation of Persons and Exemption) Instrument 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

The legislative instrument facilitates the carrying out of maintenance on manned free balloons and on aircraft components or aircraft material of manned free balloons.

 

The instrument authorises persons who are supervised by qualified supervisors to carry out the maintenance. It exempts the authorised maintenance persons and their supervisors from certain requirements of the Civil Aviation Regulations 1988 so that they may carry out the maintenance. The instrument requires that the persons conducting the maintenance are closely supervised by a person qualified in the kind of maintenance being carried out.

 

CASA believes that the instrument will encourage on-the-job training of persons maintaining balloons, for example, by allowing operators to train balloon pilots to do maintenance tasks.

 

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