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]
Overview
The Civil Aviation Regulations 1988 were enacted to ensure the safety and efficiency of air navigation in Australia. The problem this legislation was introduced to address is the safe and legal use of Class A airspace by gliders, which do not normally use this airspace but occasionally fly in wave soaring areas. This issue arises because gliders lack the necessary secondary surveillance radar transponder equipment (SSRT) due to insufficient power sources, and the absence of a Letter of Agreement (LOA) from Airservices Australia can prevent safe and legal flights from occurring. The Civil Aviation Safety Authority (CASA) is the enacting body, and the policy objective is to provide a standing approval and permission for Gliding Federation of Australia (GFA) pilots to fly under Visual Flight Rules (VFR) in Class A airspace, provided they meet certain safety conditions, such as possessing a current LOA and complying with safety briefings and radio communication directives. This legislative instrument aims to streamline the process and ensure gliders can safely utilise Class A airspace when suitable conditions exist.
Scope and Application
The Civil Aviation Regulations 1988, specifically addressing the use of Class A airspace by gliders, apply to pilots in command who wish to engage in visual flight rules (VFR) flights in this airspace. The regulations are designed to ensure the safety of air navigation by imposing conditions and requirements on the use of such airspace. The geographic reach of these regulations is national, applying across Australia, and they are administered by the Civil Aviation Safety Authority (CASA) under the authority granted by the Civil Aviation Act 1988. This legislation does not exempt any specific persons or entities, but it does provide for certain permissions and approvals that can be granted under specified conditions to ensure safety, particularly for gliders that do not typically use Class A airspace but may do so under certain conditions and club supervision. The instrument also revokes existing individual instruments related to these matters, replacing them with a standing approval and permission framework. Additionally, the instrument is subject to disallowance in Parliament as a legislative instrument under the Legislative Instruments Act 2003, although consultation under this Act was not undertaken due to the minor and machinery nature of the instrument.
Key Provisions
The primary sections of the Civil Aviation Regulations 1988, as amended by F2005L02280, establish the framework for gliders to operate in Class A airspace under specific conditions. Section 98 of the Civil Aviation Act 1988 empowers the Governor-General to create regulations to ensure the safety of air navigation. Subregulation 99AA (3) specifies that it is an offence for a pilot to conduct a visual flight rules (VFR) flight in Class A airspace without the Civil Aviation Safety Authority’s (CASA) approval. Furthermore, subregulation 99AA (5) allows CASA to provide directions regarding the use of Class A airspace by aircraft, whether under VFR or instrument flight rules (IFR). Non-compliance with these directions constitutes an offence under subregulation 99AA (7). Civil Aviation Order 52.1 mandates that aircraft in Class A airspace must be equipped with secondary surveillance radar transponder equipment (SSRT) to comply with VFR or IFR flights, a requirement enforced under regulation 174A (1) and (1A).
The obligations imposed by this legislation are comprehensive. Gliders must adhere to conditions that ensure safety during their operation in Class A airspace. This includes being members of the Gliding Federation of Australia (GFA) and receiving safety briefings from a GFA Chief Flying Instructor or their delegate. Pilots must also carry and use a letter of agreement (LOA) from Airservices Australia, which must be presented to CASA as soon as possible after it is signed. Each glider pilot must possess the LOA during the flight and for a period before and after the flight. Additionally, the pilots must comply with CASA’s instructions on using VHF radio to communicate with other aircraft. These stringent conditions aim to mitigate risks associated with glider operations in high-density airspace.
Failing to comply with these regulations can lead to serious consequences. Under subregulation 99AA (7), any contravention of CASA’s directions regarding the use of Class A airspace is an offence. Pilots found not to be equipped in accordance with CASA’s instructions for VFR flights, as outlined in regulation 174A (1A), also face legal penalties. Additionally, operating a glider in Class A airspace without the necessary LOA or CASA approval results in illegal and unsafe flight operations. These breaches can result in enforcement actions by CASA, including potential fines and other sanctions. The severity of the penalties reflects the importance of adhering to these safety measures in high-risk airspace.