Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Direction and permission — operations for the Bright Paragliding Open and Pre PWC, 2017
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Subsection 98 (5A) of the Act provides that the Regulations may empower CASA to issue instruments in relation to the following:
(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft; or
(b) the airworthiness of, or design standards for, aircraft.
For aircraft operated under the V.F.R., regulation 174A of the Civil Aviation Regulations 1988 (CAR 1988) empowers CASA to issue instructions specifying the carriage or installation of (among other things) radiocommunication systems. Section GEN 1.5 of the AIP instructs that aircraft operating in class E airspace must have installed a very high frequency (VHF) radiocommunication system.
Subregulation 174A (3) empowers CASA to grant permissions for an aircraft to be flown if it does not meet the equipment requirements of regulation 174A, subject to any conditions specified in the permission. It is an offence for the pilot in command of an aircraft to fly in contravention of a condition on a permission.
Under subregulation 11.245 (1) of CASR 1998, CASA may issue directions about, among other things, any matter affecting the safe navigation and operation of aircraft. Under subregulation 11.245 (2), CASA may only issue a direction if the direction is for the purpose of CASA’s functions and not inconsistent with the Act, and if CASA is satisfied that the direction is necessary in the interests of the safety of air navigation. Regulation 11.255 makes it an offence for a person to contravene a direction that is applicable to the person.
The instrument is required because of the decision to hold the Bright Paragliding Open and Pre PWC (the event) at Bright, Victoria.
The instrument provides a permission for the pilot in command of a paraglider who is participating in the event to fly the paraglider in class E airspace without carrying a serviceable VHF radiocommunication system as required by the instructions, issued under regulation 174A of CAR 1988, in section GEN 1.5 of the AIP. In the event vicinity, class E airspace is the airspace above 8 500 feet and below approximately 12 500 feet above mean sea level.
The permission for pilots in command is subject to several conditions and is supplemented by directions to the Hang Gliding Federation of Australia (HGFA) that has responsibility for the administration of the event.
The directions to HGFA require it to ensure that there is a satisfactory support system to mitigate the safety risks associated with the operation of paragliders without a serviceable VHF radio. The support system includes requirements for the establishment of a ground communications station that is operated daily during the event. This station will operate on VHF frequencies to monitor traffic information and advise other aircraft of the area of activity and location of the paragliders. The station will operate on UHF frequencies to advise event participants of traffic and weather information. The ground communications station must be active on the relevant frequencies on each day of the event and operated by persons specified in the instrument.
HGFA is also responsible for ensuring that information is provided to CASA about event activities each day, which CASA will use in a Notice to Airmen (NOTAM) to be published by Airservices Australia. If it is possible that event flights will be conducted at an altitude higher than 8 500 feet above mean sea level, the HGFA must ensure that a danger area is active in the relevant class E airspace where the event is conducted. HGFA must also ensure that event participants are provided with a diagram of known air traffic routes in the area where the event is conducted.
HGFA must also ensure that, before aircraft operation on a day, a briefing is provided to event participants that addresses at least the following:
(a) confirmation of ground communication station set-up and applicable frequencies in use;
(b) review and explanation of the applicable NOTAM for that day;
(c) review and explanation of event vicinity boundaries and the requirement to operate only within the boundaries;
(d) review and explanation of the conditions under which the instrument has been issued.
In addition, HGFA must ensure that the name of each event participant attending the daily briefing is recorded, and that the record is retained for a prescribed period.
The conditions on the permission for pilots in command include a requirement for paragliders covered by the permission to be equipped with a serviceable UHF radio. The pilot in command must exit class E airspace as soon as practicable if the UHF radio becomes unserviceable during the flight in that airspace.
Pilots in command of paragliders covered by the permission must attend the daily briefing mentioned in the directions to HGFA. Pilots in command must also be satisfied that the ground communications station has been established and is operating satisfactorily and that the daily NOTAM has been published as required. In relation to these matters, which are not a pilot in command’s direct responsibility, the pilot in command may rely on the daily briefing.
Pilots in command of paragliders covered by the permission must hold at least a HGFA pilot certificate and are required to operate in accordance with the HGFA Operations Manual, as that document exists from time to time.
Among other things, the HGFA Operations Manual contains rules for the operation of paragliders. The HGFA Operations Manual can be accessed from www.hgfa.asn.au/.
Legislation Act 2003 (the LA)
Subsection 8 (4) of the LA provides that an instrument is legislative if it:
(a) determines or alters the content of the law, rather than determining particular cases where the law does or does not apply; and
(b) has the direct or indirect effect of, among other things, creating a right, or varying or removing an obligation or a right.
The permission in the instrument and the conditions on the permission alter the content of the law pertaining to the carriage of radiocommunication systems in class E airspace: the instrument creates a right for pilots of paragliders and removes an obligation for those pilots. The instrument is therefore a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
CASA has consulted with HGFA and the organisers of the event. The organisers also consulted with Airservices Australia and the Gliding Federation of Australia that is holding another event nearby. The terms of the instrument are similar to the terms of other instruments issued in relation to similar events.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required (OBPR id: 14507).
Making and commencement
The instrument has been made by the Acting Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument commences on 13 January 2017 and is repealed at the end of 21 January 2017.
[Instrument number CASA 03/17]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Direction and permission — operations for the Bright Paragliding Open and Pre PWC, 2017
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
This instrument will enable participants in the Bright Paragliding Open and Pre PWC event to fly a paraglider in class E airspace in the vicinity of Bright, Victoria, without carrying a very high frequency radiocommunication system, as required under regulation 174A of the Civil Aviation Regulations 1988.
The permission is subject to conditions on participants.
The instrument also issues directions to the Hang Gliding Federation of Australia Incorporated that is responsible for the administration of the events.
The conditions and directions are imposed by CASA in the interest of air safety.
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