Federal Register of Legislation - Australian Government

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Orders/Civil Aviation as made
This instrument enables the continuation of exemptions for operators of hang gliders and paragliders from certain requirements of the Civil Aviation Regulations 1988 and enables the introduction of exemptions for those operators from certain requirements of the Civil Aviation Safety Regulations.
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 01 Dec 2021
Tabling HistoryDate
Tabled HR02-Dec-2021
Tabled Senate08-Feb-2022
To be repealed 01 Dec 2024
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Regulations 1988

Civil Aviation Safety Regulations 1998

 

Civil Aviation Order 95.8 (Exemption CAR and CASR — Hang Gliders and Paragliders) Instrument 2021

Purpose

The purpose of Civil Aviation Order 95.8 (Exemption CAR and CASR — Hang Gliders and Paragliders) Instrument 2021 (the instrument) is to repeal and reissue Civil Aviation Order 95.8 Exemption from provisions of the regulations under the Civil Aviation Act 1988 — hang-gliders) Instrument 2011 (the previous CAO). The instrument continues to exempt operators of Hang Gliders and Paragliders from provisions of the regulations, which involves transitioning from exemptions from CAR to exemptions from their equivalent provisions in Civil Aviation Safety Regulations 1988 (CASR) following the commencement, on 2 December 2021, of the following legislation:

 

    • the Civil Aviation Safety Amendment (Part 91) Regulations 2018;
    • the Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019;
    • the Civil Aviation Legislation Amendment (Flight Operations—Consequential Amendments and Transitional Provisions) Regulations 2021.

 

The instrument reissues the previous CAO and is required for two main reasons: first, because the Part 103 Manual of Standards (MOS) that was originally intended to accompany new Part 103 of CASR will not commence as anticipated on 2 December 2021; and secondly, most of the provisions of CAR are being repealed on that date and as a result, the previous CAO will be ineffective in providing exemptions for operators of relevant aircraft as it refers to the obsolete CAR provisions. The instrument is being remade with exemptions from equivalent provisions in CASR. This will enable reasonable continuity for operators of such aircraft, whilst creating a bridge to the new flight rules under Part 91 of CASR and, eventually, to the new rules for sport and recreation aircraft under Part 103 of CASR. The opportunity has also been taken to make minor drafting improvements and updating or deleting outdated or obsolete provisions.

 

Legislation

Subsection 20AB (1) of the Civil Aviation Act 1988 (the Act) provides that a person must not perform any duty that is essential to the operation of an Australian aircraft during flight time unless the person is authorised to do so under a civil aviation authorisation or is authorised by or under the regulations to perform that duty without the civil aviation authorisation.

 

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 and the instrument.

 

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 CASR and Civil Aviation Regulations 1988 (CAR).

 

Subpart 11.F of the CASR provides for the granting of exemptions from 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.

 

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 reissue 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 reissue 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.

 

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.

 

Background

Part 103 of CASR was made on 12 December 2019 and commences on 2 December 2021. Part 103 of CASR sets out the operating rules for a wide range of non-registered aircraft, referred to as Part 103 aircraft (regulation 103.005), including:

 

         sailplanes

         powered parachutes

         gyroplanes

         gyrogliders

         hang gliders and powered hang gliders

         paragliders and powered paragliders

         rotorcraft that are prescribed in the Part 103 MOS

         weight-shift-controlled aeroplanes that are prescribed in the Part 103 MOS

         any other aeroplane that is prescribed in the Part 103 MOS - these include very light aeroplanes, covered by a range of certification criteria.

 

The purpose of Part 103 is to provide regulations for the operation of sport and recreational aircraft administered by an approved self-administering organisation (ASAO) under Part 149. A Part 149 ASAO certificate would list functions the organisation administers such as personnel authorisations, training, aircraft airworthiness authorisations and systems, oversight, education, enforcement.

 

Prior to 2 December 2021, these aircraft were operated according to a suite of exemptions in the 95 series of Civil Aviation Orders (CAO). Broadly speaking, pilots were allowed to operate the aircraft outside of the generally applied operating rules - in CARs, as long as they comply with the operations manual of the specified sport aviation body of the conditions of the CAO.

 

Part 103 of CASR provides the operating rules for these aircraft in a similar way, although the link to the sport aviation body is replaced by a link to Part 149 where the responsibility for administering the operations is held by the holder of a Part 149 certificate.

 

Regulation 103.015 makes provision for CASA to make a manual of standards (MOS) for various matters referred to in the regulations - for example, the kinds of aeroplanes referred to above.

 

In consultation with an established industry working group, CASA has opted to defer the making of the Part 103 MOS to allow further development of it. Therefore, to ensure operations of Hang Gliders and Paragliders can continue after 2 December 2021, the instrument was remade.

 

This instrument continues the substance of regulatory exemptions from CAR applying under the previous CAO, however, in form, the exemptions are now largely from the equivalent provisions under CASR, in particular, the new Part 91 provisions. Industry and operators should not experience any disruption to operations as a result of this instrument.

 

Overview of instrument

The instrument enables the continuation of exemptions for operators of hang gliders and paragliders from certain requirements of the CAR and enables the introduction of exemptions for those operators from certain requirements of the CASR.

 

The instrument reissues the previous CAO in substantially the same form, with the changes being minor drafting improvements, updating or deletion of outdated or obsolete provisions and the introduction of some new provisions. The commencement of Part 91 of CASR (on 2 December 2021) repealed certain provisions of CAR that impact the operations of hang gliders and paragliders. Therefore, provisions to maintain the operating environment have been drafted into the Part 103 MOS. However, because the making of the Part 103 MOS has been deferred, equivalent provisions have been included in this instrument.

 

The intent of the changes is to maintain the operating environment for hang gliders and paragliders that existed immediately before 2 December 2021.

 

Documents incorporated by reference

In accordance with paragraph 15J (2) (c) of the LA, the following table contains a description of the documents incorporated by reference into the legislative instrument, the organisation responsible for each document and how they may be obtained. The table also states how the document is incorporated.

 

Document

Description

Manner of incorporation

Source

Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019

Called up for the purpose of defining the commencement of the instrument

As in force from time to time.

 

Paragraph 14(1)(a) of the Legislation Act 2003 authorises the incorporation of this instrument as in force from time to time.

This document is available for free on the Federal Register of Legislation.

Civil Aviation Regulations 1988

Various provisions of the instrument call up provisions in the Civil Aviation Regulations 1988.

As in force from time to time.

 

Paragraph 14(1)(a) of the Legislation Act 2003 authorises the incorporation of this instrument as in force from time to time.

This document is available for free on the Federal Register of Legislation.

Civil Aviation Safety Amendment (Part 91) Regulations 2018

Called up for the purpose of defining the commencement of the instrument

As in force from time to time.

 

Paragraph 14(1)(a) of the Legislation Act 2003 authorises the incorporation of this instrument as in force from time to time.

This document is available for free on the Federal Register of Legislation.

Civil Aviation Safety Regulations 1988

Various provisions of the instrument call up provisions in the Civil Aviation Safety Regulations 1988.

As in force from time to time.

 

Paragraph 14(1)(a) of the Legislation Act 2003 authorises the incorporation of this instrument as in force from time to time.

This document is available for free on the Federal Register of Legislation.

Determination of Airspace and Controlled Aerodromes Etc. (Designated Airspace Handbook) Instrument

This instrument determines relevant volumes of airspace as flight information regions and areas, as classifications of airspace, and as control zones, and determines relevant controlled aerodromes.

 

It is a legislative instrument that is revised and reissued by CASA approximately every 6 months.

 

Incorporated for the purpose of avoiding doubt about references made to a class of airspace.

As in force from time to time.

 

Paragraph 14(1)(a) of the Legislation Act 2003 authorises the incorporation of this instrument as in force from time to time.

This document is available for free on the Federal Register of Legislation.

Operations manual (of a Sports Aviation Body)

The manual, approved from time to time by CASA, that contains the practices, procedures, instructions and other information by which the sport aviation body ensures the operational safety of the aircraft in accordance with the civil aviation legislation.

 

Various provisions of the instrument call up an operations manual.

As existing from time to time.

 

Subsection 98 (5D) of the Act authorises the incorporation of this document into the instrument as existing from time to time.

The document is available to members of the relevant Sports Aviation Body.

Part 91 Manual of Standards

The Part 91 MOS prescribes matters relating to general operating and flight rules permitted under Part 91 to be prescribed in the MOS.

 

Various provisions of the instrument call up provisions in the Part 91 MOS.

As in force from time to time.

 

Paragraph 14(1)(a) of the Legislation Act 2003 authorises the incorporation of this instrument as in force from time to time.

This document is available for free on the Federal Register of Legislation.

Technical manual (of a Sports Aviation Body)

The manual, approved from time to time by CASA, that contains:

(a)        airworthiness, design and maintenance standards; and

(b)        aeronautical practices and test procedures and processes;

by which the relevant sport aviation body ensures the technical safety of the aircraft in accordance with the civil aviation legislation.

 

Various provisions of the instrument call up a technical manual.

As existing from time to time.

 

Subsection 98 (5D) of the Act authorises the incorporation of this document into the instrument as existing from time to time.

The document is available to members of the relevant Sports Aviation Body.

 

The operations manual or technical manual of a Sports Aviation Body (SAB) are available to operators and pilots who are members of the applicable SAB. CASA has incorporated the documents in the instrument because aviation safety requires the use of the information and data in the documents by aircraft operators and pilots. SABs administer a wide variety of aircraft types and operations, and to make legislation addressing all the relevant operation and technical aspects would result in lengthy and complex legislation.

 

Content of instrument

 

Subsection 1 sets out the name of the instrument: Civil Aviation Order 95.8 (Exemption from CAR and CASR — Hang Gliders and Paragliders) Instrument 2021. 

  

Subsection 2 provides that the instrument commences on 2 December 2021 after the commencement of both of the following:

 

(i)     Schedule 1 to the Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019; and  

(ii)   the Civil Aviation Safety Amendment (Part 91) Regulations 2018. 

 

It also states that the instrument is repealed at the end of 1 December 2024. 

 

Subsection 3 identifies the repeal of the previous CAO registered with FRL. 

 

Subsection 4 provides that the order applies to hang gliders, powered hang gliders, paragliders and powered paragliders that are employed in private operations and listed with a sport aviation body (other than an ASAO).

  

Subsection 5 provides for definitions of terms used in the instrument. Some of the terminology has been updated since the previous CAO, including the terms single-place aircraft and two-place aircraft.

 

The legal citations of the sporting aviation bodies are updated to remove SAFA. SAFA is now described as a relevant sport aviation body. It is expected that SAFA will be authorised as an ASAOs in relation to relevant aircraft. Definitions regarding operational or technical manuals have also been updated to reflect the relevant sport aviation body rather than be specific to SAFA.

 

Subsection 6 provides that a person performing a duty that is essential to the operation of a relevant aircraft during flight time is authorised to do so without a civil aviation authorisation mentioned in paragraph 20AB(1)(a) of the Act. This is a new provision to ensure pilots of aircraft that were previously encompassed by Subpart 200.B (which will be repealed) remain authorised to fly without being licensed by CASA. It also requires that a person making a broadcast on an aeronautical HF frequency must be authorised to do so under Part 61 or Part 64 of CASR. 

 

Subsection 7 provides that the relevant aircraft is not required to be issued with a certificate of airworthiness. 

  

Subsection 8 states the persons to which the exemptions are granted by CASA under the instrument and sets out which provisions of CASR are the exempt providing the conditions of the Order are abided by. The exemptions include an exemption to 91.190 to permit the dropping of tow ropes and tow cables. The exemptions are mostly the same in purpose as they were in the previous CAO and consistent with the previous CAO, the exemptions are subject to compliance with the conditions in the Order.

  

Subsection 9 sets out the general conditions that apply in relation to relevant aircraft. These include that the aircraft must not be used for commercial purposes and must be operated in accordance with the relevant sport aviation body’s operations manual and technical manual. Maintenance on aircraft must be performed in accordance with the relevant sport aviation body’s technical manual. Apart from that, the subsection is in substantially the same form as it was in the previous CAO, with minor updates and drafting improvements.

 

Subsection 10 sets out the flight conditions which are mostly the same as those in the previous CAO. The conditions include flight height, location and airspace restrictions, requirements to fly only in VMC, during daylight hours and not in acrobatic flight (over a populous area) or over a populous areas or public gatherings (subject to certain requirements), not to use radiotelephone equipment (subject to certain qualifications), conditions regarding flight over a body of water, in various classes of airspace and the requirement to carry and use VHF radio communications equipment.

 

Subsection 11 provides for an approval process for persons wishing to fly a relevant aircraft otherwise than in accordance with the Order. The subsection is in substantially the same form as in the previous CAO. There are no express fetters on the discretionary power. Applications for approvals will be determined on a case by case basis by reference to safety considerations. There may be a range of reasons for an application under this subsection and it would not be practical or necessary for the instrument or ES to specify the factors that the decision-maker should consider in exercising the discretion. General principles of administrative law would restrict the decision-maker to decisions that are reasonable and have regard to relevant considerations. Depending on the nature of the application and the variation sought, the relevant delegate would be any of the following (who are all employees of CASA and SES equivalent officers):

 

·         Executive Manager, National Operations & Standards

·         Executive Manager, Regulatory Oversight

·         Branch Manager, Sport & Recreation Aviation

 

An approval under this provision constitutes an authorisation within the meaning of regulation 11.015 of CASR. Item 1 of the Table 201.004 of CASR (see subregulation 201.004(2) of CASR) deems an adverse decision on an authorisation to constitute a reviewable decision on its merits by the Administrative Appeals Tribunal. CASA will include in any such decisions an AAT merits review notice.

 

Subsection 12 sets out the transitional provisions for the instrument and continues certificates, approvals and authorisations by RAAus or SAFA and approvals by CASA under subsection 9 of the previous CAO.

  

In renewing, amending to equivalent provisions or adding the exemptions under the instrument, CASA has regarded as paramount the preservation of at least an acceptable level of aviation safety.

 

Legislation Act 2003 (the LA)

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 repeals Civil Aviation Order 95.8 (Exemption from provisions of the regulations under the Civil Aviation Act 1988 — hang-gliders) Instrument 2011 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.

 

Subsection 8 (4) of the LA provides that an instrument is a legislative instrument if it determines the law or alters the content of the law, rather than determining particular cases in which the law is to apply or is not to apply. As the instrument exempts hang gliders and paragliders from provisions of the CAR and CASR, the instrument is a legislative instrument. The instrument is therefore 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 the CAR and 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 at the end of 1 December 2024, which will occur before the sunsetting provisions would have repealed the instrument if they had applied. Any renewal of the instrument will be subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA. Therefore, the exemption from sunsetting does not affect parliamentary oversight of this instrument.

 

Consultation

The instrument is a remake of the previous CAO with only minor or machinery changes and affects the operation of hang gliders and paragliders listed with a sport aviation body – the Sports Aviation Federation of Australia (SAFA) formerly known as the Hang Gliding Federation of Australia (HGFA). The SAFA were represented in the industry Technical Working Group (TWG) and were present at the meeting of TWG members where the deferral of the making of the Part 103 MOS, and this subsequent legislative solution, was discussed. 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.

 

The instrument makes minor or machinery changes to the previous requirements of CAO 95.8 to implement the policy of the CASR Part 103 and there will be no change to the economic or cost impact on individuals, businesses or the community. The Office of Best Practice Regulation also made an assessment that a Regulation Impact Statement was not required for the policy requirements of CASR Part 103 (OBPR id: 25640).

 

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

 

The instrument commences on 2 December 2021, immediately after the commencement of both of the following:

 

(i)         Schedule 1 to the Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019;

(ii)        the Civil Aviation Safety Amendment (Part 91) Regulations 2018.

 

The instrument is repealed at the end of 1 December 2024.

 

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 95.8 (Exemption from CAR and CASR — Hang Gliders and Paragliders) 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 purpose of Civil Aviation Order 95.8 (Exemption CAR and CASR — Hang Gliders and Paragliders) Instrument 2021 (the instrument) is to reissue Civil Aviation Order 95.8 (Exemption from provisions of the regulations under the Civil Aviation Act 1988 — hang-gliders) instrument 2011 (the previous CAO).

 

The instrument enables the continuation of exemptions for operators of hang gliders and paragliders from certain requirements of the Civil Aviation Regulations 1988 (CAR) and enables the introduction of exemptions for those operators from certain requirements of the Civil Aviation Safety Regulations (CASR).

 

The instrument reissues the previous CAO in substantially the same form, with the changes being minor drafting improvements, updating or deletion of outdated or obsolete provisions and the introduction of some new provisions. The commencement of Part 91 of CASR (on 2 December 2021) will repeal certain provisions of CAR that impact the operations of hang gliders and paragliders. Therefore, provisions to maintain the operating environment were included in a proposed Part 103 Manual of Standards (MOS). However, because the making of the Part 103 MOS has been deferred, equivalent provisions have been included in this instrument.

 

The intent of the changes is to maintain the operating environment for hang gliders and paragliders that existed immediately before 2 December 2021.

 

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