Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Approval and permission — use of Class A airspace by gliders
Exemption — from carriage of ADS-B equipment by gliders
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interest of the safety of air navigation.
Under subregulation 99AA (3) of the Civil Aviation Regulations 1988 (CAR 1988), it is an offence for a pilot in command to engage in a visual flight rules (V.F.R.) flight in Class A airspace without CASA’s approval.
Under subregulation 99AA (5) of CAR 1988, CASA may give directions about the use of a class of airspace by aircraft engaged in V.F.R. or instrument flight rules (I.F.R.) flight.
Under subregulation 174A (1) of CAR 1988, CASA may issue instructions specifying the secondary surveillance radar transponder equipment (SSRT) that must be carried on an aircraft in V.F.R. flight. Under subregulation 174A (1A), it is an offence for a pilot to fly an aircraft in V.F.R. flight if not equipped in accordance with the instructions. However, under subregulation 174A (3), CASA may give permission for the flight without the SSRT. CASA has done so in the past, in relation to glider flights in Class A airspace, but subject to strict conditions. One of these is that the pilot must have a letter of agreement (LOA) from Airservices Australia (AA) for the use of the Class A airspace at that time and for that purpose.
Under paragraph 9B.8 of Civil Aviation Order 20.18 (Aircraft equipment — basic operational requirements) Instrument 2014) (CAO 20.18), if an aircraft operates at or above FL 290 it must carry serviceable automatic dependent surveillance-broadcast (ADS-B) transmitting equipment that complies with an approved equipment configuration.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Background
Gliders do not normally use Class A airspace. However, under supervision by officers of the Gliding Federation of Australia Inc. (the GFA), they do so occasionally for high altitude flight in wave-soaring areas in Class A airspace. Gliders do not carry SSRT because they do not have an adequate power source on board — use of
on-board power for SSRT purposes would deplete the power needed for radio and other navigation equipment.
For the same reasons, gliders do not carry ADS-B transmitting equipment as required under paragraph 9B.8 of CAO 20.18. As a result, an exemption under regulation 11.160 of CASR 1998 has been included in the instrument.
The reason for issuing the instrument is that, if the appropriate CASA approvals and permissions are in place, AA can make the relevant airspace available to gliders on a few hours’ notice. However, the absence of, or any delay in obtaining, a current LOA or CASA approval and permission means that safe and legal flight cannot take place.
The instrument is subject to conditions, the most critical of which is possession of a current LOA from AA for the flight in the Class A airspace. An LOA is defined in terms which require it to be given to CASA by the GFA, or a gliding body affiliated with GFA, as soon as possible after it is agreed to by AA and signed.
Other conditions in the interests of safety include that the pilots must be GFA members and, therefore, subject to its rules and discipline. Flights must be preceded by safety briefings from one of the GFA Chief Flying Instructors (GFA CFI) or their delegate, whose directions must be complied with. The pilots must carry and use VHF radio to communicate with other aircraft in accordance with CASA directions under regulation 99A of CAR 1988. Each pilot must carry the LOA during the flight, and for a period before and after it.
The existing instrument, CASA 289/05, is repealed. It contained the same conditions as the current instrument but did not exempt gliders in Class A airspace from compliance with paragraph 9B.8 of CAO 20.18 which postdated the exemption. AA is prepared to allow wave soaring with the new exemption in place.
Legislative Instruments Act 2003 (the LIA)
Subsection 98 (5AA) of the Act states that an instrument issued under paragraph 98 (5AA) (a) of the Act is a legislative instrument if it applies to a class of persons or a class of aircraft. This instrument is a legislative instrument.
Under regulation 5A of CAR 1988, if CASA issues an approval or permission that repeals, amends or otherwise affects anything in a CAO, the permission is declared to be a disallowable instrument. Under subparagraph 6 (d) (i) of the LIA, an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. Therefore, the instrument is a legislative instrument. It is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument is designed to replace a current instrument that has been in place since 2005. AA has procedures in place to allow gliders to use Class A airspace in accordance with the instrument. Other aircraft are excluded from the relevant block of airspace while gliders are operating in it but their operations are not significantly interfered with.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
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 1998.
The instrument commences on the day after registration and expires at the end of December 2017, as if it had been repealed by another instrument.
[Instrument number CASA 07/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Approval and permission — use of Class A airspace by gliders
Exemption — from carriage of ADS-B equipment by gliders
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 allows gliders to use Class A airspace. They do not usually do so, but, under the supervision of the Gliding Federation of Australia Inc., the instrument allows them to carry out high altitude flight in wave-soaring areas, using the existing meteorological conditions. This is a seasonal activity.
The instrument is subject to compliance with a letter of approval issued by Airservices Australia.
It is also subject to conditions 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.
It allows gliders to engage in a particular activity without impeding other operations.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority