Replacement Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
CASA 68/18 — GNSS Navigation Under the V.F.R. (CGG Aviation) Instrument 2018
Purpose
The purpose of this legislative instrument is to allow CGG Aviation (Australia) Pty Ltd (the operator) to use Global Navigation Satellite System (GNSS) equipment in lower level flights over the ocean in visual meteorological conditions, with appropriate safeguards.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR) and Civil Aviation Regulations 1988 (CAR).
Under subregulation 174D (1) of CAR, the Civil Aviation Safety Authority (CASA) may issue instructions in relation to Visual Flight Rules (V.F.R.) flights specifying the method by which an aircraft is to be navigated, how a positive position fix for an aircraft is to be obtained, and how often a positive position fix is to be obtained.
Subpart 11.G of CASR provides for CASA to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a) of CASR, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245 (2) of CASR provides that CASA may issue such a direction if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, if the direction is not inconsistent with the Act, and for the purposes of CASA’s functions.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255 it is an offence of strict liability to contravene a direction under regulation 11.245.
Section 14 of the Legislation Act 2003 (the LA) provides that a legislative instrument may apply, adopt or incorporate any matter contained in another legislative instrument as the second instrument is in force from time to time.
Subsection 98 (5D) of the Act provides that, despite section 14 of the LA, a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.
Background
The operator conducts flights under the V.F.R. over the ocean and below 2 000 feet above ground level (AGL). AGL is defined in the CASR Dictionary to cover a height over water. CASA is issuing instructions and directions to the operator, its chief pilot and its pilots in command to ensure that navigation for the flights is conducted safely.
Instrument
Overview of instrument
The instrument gives directions under regulation 11.245 of CASR to the operator and its chief pilot, and instructions under regulation 174D of CAR to the operator’s pilots in command of aircraft flying under the V.F.R. over the ocean below 2 000 feet AGL. The directions and instructions relate to navigation of the flights using GNSS equipment, to ensure that the navigation is safe and that the safety of the flight is maintained in the event of a failure of the GNSS equipment.
Documents incorporated by reference
The instrument incorporates by reference provisions of the following instruments:
- CASA instrument CASA 27/16, as in force from time to time, for section 14 of the LA;
- CASA Advisory Circular 21-36, as it exists on the day the instrument commences, for subsection 98 (5D) of the Act.
In accordance with paragraph 15J (2) (c) of the LA, the following table contains a description of the documents incorporated by reference into the legislative instrument and how they may be obtained.
Document | Description | Source |
Instrument CASA 27/16 | Legislative instrument containing instructions on the use of GNSS equipment, including equipment standards. | Freely available on the Federal Register of Legislation at: https://www.legislation.gov.au/Details/F2016L00475 |
Advisory Circular 21‑36 | Non-legislative instrument containing airworthiness guidelines for GNSS equipment. | Freely available on the CASA website at: https://www.casa.gov.au/files/021c36pdf. |
Content of instrument
Section 1 names the instrument.
Section 2 provides for the duration of the instrument.
Section 3 defines terms for the instrument. An important term is regulated operation, which covers an operation conducted: (1) under the V.F.R.; (2) over the ocean below 2 000 feet AGL; and (3) using GNSS equipment for navigation. “Ocean” is intended to be given the dictionary meaning of the body of salt water covering almost three quarters of the earth’s surface, and excludes rivers and inland water bodies.
Section 4 gives a direction to the operator in relation to the use of GNSS equipment for the regulated operations. It covers operational and regulatory accountability matters.
Section 5 gives a direction to the operator’s chief pilot to be satisfied that a pilot in command of a regulated operation is competent to operate the GNSS equipment on the aircraft.
Section 6 of the instrument gives instructions, for regulation 174D of CAR, to the pilots in command of the operator’s aircraft conducting regulated operations. The instructions specify use of GNSS equipment to navigate the aircraft and to obtain positive position fixes for the aircraft, and additionally cover matters such as equipment standards for the GNSS equipment and normal and emergency procedures for the use of the GNSS navigation equipment.
Legislation Act 2003
Subsection 8 (4) of the LA provides that an instrument is a legislative instrument if it determines the law or alters the content of the law, rather than determining particular cases in which the law is to apply or is not to apply. The instructions to pilots in command in the instrument could be construed as altering the content of the law. On that basis CASA is registering the instrument.
Consultation
The operator has requested this instrument to enable it to satisfactorily carry out its operations. It continues previous arrangements that have not been the subject of adverse feedback. In these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms.
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.
The instrument commences on the day after registration and is repealed at the end of 30 September 2021.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA 68/18 — GNSS Navigation Under the V.F.R. (CGG Aviation) Instrument 2018
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
The purpose of this legislative instrument is to allow CGG Aviation (Australia) Pty Ltd to use Global Navigation Satellite System equipment in lower level flights over the ocean in visual meteorological conditions, with appropriate safeguards.
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