EXPLANATORY STATEMENT

ATTACHMENT A

 

Description of various rockets and regulatory responsibilities

 

Rocket description	Groupings / Definition	Regulatory responsibility
small model rocket (regulation 101.440 of CASR)	Grouping A - small model rockets   A small model rocket means a model rocket that weighs less than 500 grams and either: (a)     uses no more than 25 grams of propellant; or (b)     produces no more than 20 newton-seconds of impulse.	Air risk - CASA Ground risk - CASA
model rocket (regulation 101.425 of CASR)	Grouping B - model rockets   A model rocket means a rocket that: (a)     weighs no more than 1 500 grams; and (b)     carries no more than 125 grams of propellant; and (c)     produces no more than 320 newton-seconds of impulse; and (d)     is made of balsa, wood, paper or plastics or a combination of those materials, but contains no metal as structural parts.	Air risk - CASA Ground risk - CASA
not a model rocket (regulation 101.450 of CASR - as amended)   See also section 5 of Space (Launches and Returns) (High Power Rocket) Rules 2019 and Division 2 of the Space (Launches and Returns Act 2018	Grouping C - "medium power rockets" "medium powered rocket" is not defined in legislation, but it is a policy concept that CASA proposes for use in relevant instruments issued by CASA to encompass rockets that are: not a model rocket; and not a high power rocket; and not a space object.	Air risk - CASA Ground risk - CASA
	Grouping D - high power rockets   An object is a high power rocket if: (a)     it is a rocket propelled by a motor or motors with a combined total impulse greater than 889,600 Newton seconds; or (b)     it is a rocket propelled by a motor or motors with a combined total impulse greater than 40,960 Newton seconds and is fitted with a system or systems that allow active control of its trajectory.	Air risk - CASA Ground risk - ASA
	Grouping E - space objects   A space object means: (a)     an object the whole or a part of which is to go into or come back from an area beyond the distance of 100 km above mean sea level; or (b)     any part of such an object, even if the part is to go only some of the way towards or back from an area beyond the distance of 100 km above mean sea level.	Air risk - CASA Ground risk - ASA Space risk - ASA

 

 

 

ATTACHMENT B

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

 

Civil Aviation Safety Amendment (Part 101--High Power Rockets) Regulations 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 Disallowable Legislative Instrument

 

Part 101 of the Civil Aviation Safety Regulations 1998 (CASR) regulates aspects of the operation of, and flight safety requirements for operating, remotely piloted aircraft, model aircraft and rockets.

 

The Civil Aviation Safety Amendment (Part 101--High Power Rockets) Regulations 2020 (the Regulations) amend a small number of provisions in Part 101 of CASR to align regulatory provisions for high power rockets with the Australian Space Agency's (ASA) legislative framework - namely, the Space (Launches and Returns) Act 2018 (the SLRA) and the Space (Launches and Returns) (High Power Rocket) Rules 2019 (the HPR Rules).  The Regulations give effect to government policy for the transfer of responsibilities and oversighting regulatory risk of high power rockets to the ASA.

 

The Regulations:

*         ensure the definition of "high power rocket" in regulation 101.425 of CASR does not overlap with the definition of "high power rocket" in section 5 of the HPR Rules (which commenced on 30 June 2020);

*         clarify the existing regulatory framework to enable CASA to continue regulating model rockets and rockets which are not high power rockets; and

*         limit the location for launch of a rocket that is not a model rocket (which includes launch of a high power rocket) to an area approved by CASA.

 

The Regulations narrow an offence under Subpart 101.B of CASR which prohibits a person from launching a rocket in a way that creates a hazard to another person or property.  This offence, set out in subregulation 101.055 (3) of CASR, only applies to rockets that are not a high power rocket or not a space object under the SLRA.  The rationale is that regulation of ground risk is managed by the ASA through the issue of launch permits under the SLRA.

 

The Regulations also clarify the application of another two offences, in changes made to regulation 101.450 of CASR, that a person may launch a rocket that is not a model rocket only in an approved area, and the associated notification requirements.  The rationale of using the phrase "rocket that is not a model rocket" is so that, firstly, small model rockets and model rockets (defined in regulations 101.440 and 101.425 of CASR respectively) are not captured in this provision; and secondly, to ensure that persons seeking to launch high power rockets and space objects do so only in an area approved by CASA and notify CASA accordingly. 

 

Human rights implications

The Regulations engage the following human rights:

A.    the right to a fair trial and fair hearing under Article 14 of the International Covenant on Civil and Political Rights (ICCPR);

B.     the right to work and rights at work under Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and

C.     the right to life under Article 6 the ICCPR.

A         The right to a fair trial and fair hearing: the presumption of innocence

Article 14 of the ICCPR provides that in the determination of a criminal charge, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Further, in criminal proceedings, people are entitled to a range of protections including minimum guarantees as set out in paragraph 14(3) and following of the ICCPR.

 

The presumption of innocence in paragraph 14(2) of the ICCPR imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proven beyond reasonable doubt. For the charge to be proven beyond reasonable doubt, the legal and evidential burden is on the prosecution.

 

Strict liability offence provisions

 

There are 2 offences of strict liability substituted in the Regulations and another strict liability offence amended by the Regulations. Strict liability offences engage the presumption of innocence through the imposition of liability without the need to prove intentional fault beyond reasonable doubt. However, a strict liability offence will not impermissibly limit the right to the presumption of innocence if the offence pursues a legitimate aim and is reasonable, necessary and proportionate to that aim.

Nature of strict liability provisions

The following is a list of the 3 strict liability offences affected by the Regulations, with a comment and an indication of the penalty.

*         Under subregulation 101.055(3), a person commits an offence of strict liability if the person launches a rocket that is not an aircraft, not a high power rocket (within the meaning of the SLRA), or a space object or part of a space object (within the meaning of the SLRA) in a way that creates a hazard to another person or to property -- 50 penalty units.

*         Under subregulation 101.450(1), a person commits an offence of strict liability if the person launches a rocket that is not a model rocket, or permits such a rocket to be launched, other than in an approved area -- 10 penalty units.

*         Under subregulation 101.450(2), a person commits an offence of strict liability if the person launches a rocket that is not a model rocket, or permits such a rocket to be launched, if the person has not given CASA specified details at least 1 working day before the intended time of the launch -- 10 penalty units.

Reasonableness, necessity and proportionality

The strict liability offences in the Regulations are all either directly or indirectly safety-related regulatory administrative offences, that is, they are offences that may be committed by a person failing to comply with the requirements of the civil aviation regulatory scheme for the launch of rockets, a scheme which exists for the express purpose of promoting and enhancing aviation safety in respect of the use of airspace and other airspace users.

 

The amended offences described may be compared with the more severe penalties, in sections 12 and 13 the SLRA in relation to the launch of high power rockets and space objects without a permit granted under the SLRA.  In both cases, doing so without a permit would be an offence that would attract a penalty of, for an individual - imprisonment for 10 years or 5,500 penalty units or both; or for a body corporate - 100,000 penalty units.  The rationale for this is that the larger component of regulatory responsibility for safety risk is handled by the ASA, consistent with government policy, whereas CASA's oversight would be focused on smaller rockets and model rockets predominantly operated by hobby rocketry clubs.

 

Therefore, although the basis and rationale for the amended strict liability offences is to enhance aviation safety, the offences themselves are essentially administrative in nature and relate to failures to comply with requirements to conduct a launch of a model rocket in a manner, and to only launch rockets which are not a model rockets in an approved area (noting that CASA would work with the ASA in relation to the ASA's grant of relevant launch permits).

 

The strict liability offences in the Regulations are considered reasonable, necessary and proportionate to the objective of ensuring aviation safety. The offences are regulatory in nature, in other words their aim is to insist on reasonable compliance with regulated safety standards by those conducting activities which are otherwise intrinsically or potentially unsafe unless high standards of compliance are met.  As noted, a more severe penalty scheme is set out in the SLRA.

 

Not having to prove deliberate fault in the relevant circumstances aims to provide a strong deterrent. To this extent, and in this context, the offences are consistent with other safety-focussed regulatory regimes and do not unreasonably or impermissibly limit the presumption of innocence. The offences are designed to achieve the legitimate objective of ensuring the safety and integrity of the aviation system for the benefit of the aviation industry and the public.

 

In addition, the offences are also proportionate in that the penalties they attract fall at the lower end of the penalty scale, with the offences each not exceeding 50 penalty units. The framing of the offences is consistent with the guidance set out in A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011.

 

Any limitation on the right to a fair trial and fair hearing is necessary, reasonable and proportionate in order to the safety and integrity of the aviation system for the benefit of the aviation industry and the public.

 

B         Right to work and rights at work

The Regulations may engage the right to work that is contained in paragraph 6(1) of the ICESCR. This right includes the right of everyone tothe opportunity to gain their living by work which they freely choose or accept.

Under the Regulations, the amended subregulation 101.450(1) provides that a person may only launch a rocket that is not a model rocket, or permit such a rocket to be launched, in an approved area.  The imposition of this requirement, to apply for and to hold an area approval granted by CASA (in accordance with regulation 101.030 of CASR) is not unduly burdensome and it is not expected that operators would cease commercial activities because of it. 

The right of relevant persons to the opportunity to gain their living by work using or conducting the launches of rockets is recognised.  However, the lawful exercise of that right requires the person to carry out their responsibilities in the safety-critical aviation industry.  Area approvals granted by CASA take into consideration whether other airspace users are in the proximity of the launch, and impose any limitations or conditions necessary to ensure aviation safety.  Accordingly, any potential limitation on the right to work is necessary, reasonable and proportionate in achieving the aim of protecting and improving aviation safety.

C         The right to life under the ICCPR

The Regulations are crafted and intended as far as possible to promote and enhance aviation safety in the responsible launch of certain rockets, which in some circumstances may have lethal potential to other airspace users or persons on the ground.  By legislating for safer conditions in both general and commercial operations they promote the right to life under Article 6 of the ICCPR

Conclusion

The Amendment Regulations are compatible with human rights because they promote the protection of human rights to the extent that they may limit human rights, those limitations are reasonable, necessary and proportionate.

ATTACHMENT C

 

Details of the Civil Aviation Safety Amendment (Part 101 - High Power Rockets) Regulations 2020

 

Section 1 - Name of Regulations

 

This section provides that the title of the Regulations is the Civil Aviation Safety Amendment (Part 101 - High Power Rockets) Regulations 2020.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after the instrument is registered.

 

Section 3 - Authority

 

This section provides that the Regulations are made under the Civil Aviation Act 1988.

 

Section 4 - Schedule(s)

 

This section provides that each instrument that is specified in a Schedule to the instrument will be amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument will have effect according to its terms.

 

Schedule 1 - Amendments

 

Item 1 Regulation 101.025

 

Item 1 omits "or rocket" wherever occurring from the regulation.  The regulation sets out the meaning of the term "populous area" which is not a term not used in relation to rockets in Subpart 101.H of CASR.

 

Item 2 Subregulation 101.055(3)

 

Item 2 repeals the subregulation and substitutes it with a new subregulation 101.055(3) providing that a person must not launch a rocket that is not an aircraft, and is not a high power rocket within the meaning of the Space (Launches and Returns) Act 2018, and is not a space object or part of a space object within the meaning of that Act - in a way that creates a hazard to another person or to property.

 

 

Item 3 Regulation 101.425 (definition of high power rocket)

 

Item 3 repeals the definition.  The definition for this term is found in section 5 of the Space (Launches and Returns) (High Power Rocket) Rules 2019.

 

Item 4 Regulation 101.450 (heading)

 

 

Item 4 along with items 5 and 6 below, updates regulation 101.450 of CASR to apply to a "rocket other than a model rocket" to clarify that the requirement to hold an area approval under regulation 101.030 of CASR applies to persons seeking to launch a high power rocket (within the meaning given by the Space (Launches and Returns) (High Power Rocket) Rules 2019) as well as a space object (within the meaning given by the Space (Launches and Returns) Act 2018). These machinery changes combined with the changes to subregulation 101.055(3) described in Item 1 have the effect of aligning the regulatory responsibilities and definitions between the CASR and space legislation.

 

Item 5 Subregulation 101.450(1)

 

Item 5 repeals the subregulation and substitutes it with an offence provision stating that a person may launch a rocket that is not a model rocket, or permit such a rocket to be launched, only in an approved area.

 

 

Item 6 Subregulation 101.450(2)

Item 6 omits "a high power rocket, or permit a high power rocket" in the subregulation and substitutes "a rocket that is not a model rocket, or permit such a rocket".

 

Item 7 Regulation 101.455(1)

 

Item 7 makes a minor editorial change to the note in subregulation 101.455(1) of CASR which refers incorrectly to subregulation 101.030(5) of CASR in respect of CASA's responsibility for publishing details of an area approval in a NOTAM or on an aeronautical chart. The correct cross-reference should be to subregulation 101.030(7) of CASR.