EXPLANATORY STATEMENT
CIVIL AVIATION REGULATIONS 1988
APPROVAL AND PERMISSION — USE OF CLASS A AIRSPACE BY GLIDERS
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the purposes of the Act and in the interests 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) 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 99AA (7) it is an offence to contravene such a direction or instruction.
Civil Aviation Order 52.1 (CAO 52.1) gives a direction about essential RVSM equipment for an aircraft in Class A airspace in V.F.R. or I.F.R. flight. The equipment must include secondary surveillance radar transponder equipment (SSRT).
Under subregulation 174A (1) CASA may issue instructions specifying SSRT that must be carried on an aircraft in VFR flight. The instructions are in CAO 52.1. Under regulation 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 but only 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. AA exercises certain controls over airspace use.
Gliders do not normally use Class A airspace. However, under club supervision, 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.
Suitable wave soaring conditions cannot be accurately forecast though, in practice, 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 letter of agreement (LOA) or CASA approval and permission means that safe and legal flight cannot take place.
The instrument remedies this problem by creating a standing approval and permission for GFA pilots to fly under VFR in Class A airspace if they comply with conditions, the most critical of which is possession of a current LOA with 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 its affiliated gliding club, as soon as possible after it is agreed and signed to enable appropriate CASA monitoring.
Other proposed conditions in the interests of safety include that the pilots must be Gliding Federation of Australia (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.
Existing individual instruments (CASA 436/04 and CASA 198/05) are revoked.
Legislative Instruments Act
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 Legislative Instruments Act 2003 (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 under section 17 of the LIA has not been undertaken in this case. The instrument is designed to replace periodic, individual instruments that would be issued, subject to the same conditions, without consultation because they are minor or machinery in nature.
The instrument would come into effect on the day after it is registered on the Federal Register of Legislative Instruments.
The instrument has been made by the Group General Manager, General Aviation Operations, a delegate of CASA, in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA 289/05]