Explanatory Statement
Civil Aviation Regulations 1988
Exemption — use of radiocommunication systems in firefighting operations
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the safety of air navigation.
Legislation for exemption from CAR 1988
Under subregulation 308 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may exempt aircraft, or persons in, on, or otherwise associated with the operation of the aircraft, from compliance with specified provisions of CAR 1988. Under subregulation 308 (2), before making an exemption CASA must take into account any relevant considerations relating to the interests of safety.
Under subregulation 308 (3) of CAR 1988, CASA may make an exemption subject to any condition specified in the exemption as being necessary in the interests of safety. Under subregulations 308 (3A) and (3B), it is a strict liability offence to contravene a condition of an exemption that is being relied upon for an operation. Under subregulation 308 (4), an exemption is a disallowable instrument (and hence a legislative instrument).
Radiocommunication systems
Under paragraph 83 (1) (a) of CAR 1988, the pilot in command of an Australian aircraft with an approved radiocommunication system must not use, or allow use of, the system except in accordance with CASA’s directions.
Under paragraph 83 (1) (c), the pilot must not allow a person to use the system in flight if the person does not hold a flight radiotelephone operator licence (FROL).
Under paragraph 83 (1) (d), the pilot must not operate the system while the aircraft is on the ground if the pilot does not hold an aircraft radiotelephone operator certificate of proficiency (AROCOP), a FROL, a Radiocommunications Act 1992 licence, or a student pilot licence.
Under paragraph 83 (1) (e), the pilot must not allow another person to operate the system while the aircraft is on the ground if the person does not hold a certificate or licence mentioned for paragraph 83 (1) (d).
Under paragraph 83 (2) (b) of CAR 1988, the owner of a radiocommunication system used to ensure the safety of air navigation, but not installed in, or carried on, an aircraft, must not allow another person to operate the system, if the person is not a holder of a certificate or licence mentioned for paragraph 83 (1) (d).
Under subregulation 83 (3), a person must not operate (for aviation safety purposes), a radiocommunication system that is not installed in, or carried on, an aircraft, or is installed in, or carried on, an aircraft that is on the ground, if the person does not hold a certificate or licence mentioned for paragraph 83 (1) (d).
Background
During the conduct of aerial firefighting and other aerial emergency operations involving firefighters, such as flood relief, relevant personnel must use radiocommunication systems for tactical aircraft-to-aircraft and air-to-ground communications.
Under regulations 83 of CAR 1988, obligations are imposed on firefighters and emergency control authorities in relation to their use of aviation radios.
State and Territory fire authorities, through their representative body, the National Aerial Firefighting Centre Limited (NAFC), have asked CASA to review and standardise its views and processes for firefighting use of aviation radios.
In light of this, CASA wishes to standardise its relevant approval processes and safety mitigators.
CASA has considered the various options available to it, for example, to require State and Territory firefighters to obtain a FROL or an AROCOP, or offer individual State or Territory-specific exemptions from regulation 83, subject to appropriate safety conditions (see, for example, CASA EX58/08).
Emergency control authorities responsible for firefighting, and for the deployment of firefighters in other emergencies such as flood relief, train their personnel in specific radio requirements for specific tasks. For this purpose, the full syllabus for a FROL or an AROCOP is not required and the imposition of such a requirement is not considered to be justified.
Provided that appropriate safety conditions are in place, CASA considers that it is not essential for fire service personnel to hold a FROL or an AROCOP. (Obviously, different considerations apply for the aircraft pilots.) The exemption instrument is designed to implement this approach.
Exemption
The exemption exempts the pilot in command of an Australian aircraft in a firefighting operation: from the requirements of paragraph 83 (1) (c) of CAR 1988 (permitting operation of the radiocommunication system in flight by a person who does not hold a FROL or a student pilot licence); and from the requirements of paragraph 83 (1) (e) (when on the ground, permitting operation of a radiocommunication system by a person who is not the holder of a FROL, an AROCOP, a Radiocommunications Act licence, or a student pilot licence).
The exemption exempts the owner of a radiocommunication system from compliance with paragraph 83 (2) (b) of CAR 1988 (permitting the operation of a radiocommunication system not installed on an aircraft, for aviation safety purposes, unless the person operating the system holds a FROL, an AROCOP, a Radiocommunications Act licence, or a student pilot licence).
The exemption exempts each firefighter from compliance with subregulation 83 (3) of CAR 1988 (operating a radiocommunication system not installed on an aircraft, or installed on an aircraft that is on the ground, for aviation safety purposes) unless the he or she holds a FROL, an AROCOP or a Radiocommunications Act licence.
Conditions
The exemptions are subject to a condition which is based on a requirement that the firefighter who uses the radiocommunication system must have satisfactorily completed a course of training in accordance with an NAFC syllabus, approved by CASA, and delivered by NAFC or its certified agent.
Additionally, since State and Territory fire authorities have been allocated certain aviation bandwidth VHF AM frequencies by Airservices Australia and the Australian Communications and Media Authority for use during bush firefighting activities, it is also a condition that only these frequencies are used.
Details of the exemption
Details of the exemption are set out in Appendix 1.
Legislative Instruments Act
Under subregulation 308 (4) of CAR 1988, an exemption 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. The exemption is, therefore, a legislative instrument and 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 except with the NAFC. The instrument constitutes an advantageous adjustment to requirements for use of radiocomunications in firefighting operations and beneficially exempts from certain requirements provided compensating safety conditions are met.
Office of Best Practice Regulation (OPPR)
OBPR does not require preparation of a Regulation Impact Statement in this case because a preliminary assessment of business compliance costs in the context of the nature of the instrument indicates that it will have only a nil to low impact on business.
Commencement and making
The instrument commences on the day after it is registered. It stops having effect at the end of 30 November 2011.
The exemption has been made by a delegate of CASA under regulation 7 of CAR 1988.
[Instrument number CASA EX01/10]
Appendix 1
Details of the exemption instrument
Exemption — use of radiocommunication systems in firefighting operations
1 Duration
Under this section, the instrument commences on the day after it is registered and stops having effect at the end of 30 November 2011.
2 Definitions
(1)Under this subsection, the instrument defines certain words and phrases used in it:
aircraft means an aircraft to which regulation 83 of CAR 1988 applies.
approved course means a course of training in aircraft radiocommunication systems and their operation which:
(a) is conducted by the NAFC or a trainer certified by the NAFC to conduct the course for the NAFC; and
(b) is in accordance with a syllabus developed by the NAFC; and
(c) is approved in writing by CASA; and
(d) includes the following:
(i) the issue to each participant of a certificate of competency following individual assessment;
(ii) provision for recurring competency training to maintain currency of the certificate of competency.
emergency control authority or ECA means a State or Territory department or body with official responsibility for firefighting.
firefighter means an employee, volunteer or contractor of an emergency control authority who is authorised by the authority:
(a) to be involved in firefighting; and
(b) to use a radio for firefighting.
firefighting means fighting fire where the activity is authorised by an emergency control authority, and includes a training operation for firefighting similarly authorised.
Note Firefighting is taken to include other emergency operations — see subsection 2 (2).
NAFC means the National Aerial Fire Fighting Centre Limited.
owner means the owner of a radiocommunication system used to ensure the safety of air navigation, but not installed in, or carried on, an aircraft.
pilot means the pilot in command of an Australian aircraft in which a radiocommunication system approved under subregulation 82 (1) of CAR 1988 is installed.
trainer means a person mentioned in paragraph (a) of the definition of approved course.
(2)Under this subsection, for the instrument, firefighting is taken to include another emergency operation in which a firefighter is involved with the authorisation of the relevant ECA.
A Note explains that an example of another emergency operation is flood relief where firefighters are authorised to assist.
3 Application
Under this section, the instrument is expressed to apply to a pilot in a firefighting operation, an owner (of a radiocommunication system not installed on an aircraft), and a firefighter.
4 Exemption
(1)Under this subsection, a pilot is exempt from compliance with paragraphs 83 (1) (c) and (e) of CAR 1988 when engaged in firefighting operations.
(2)Under this subsection, an owner is exempt from compliance with paragraph 83 (2) (b) of CAR 1988 for firefighting by a firefighter.
(3)Under this subsection, a firefighter is exempt from compliance with subregulation 83 (3) of CAR 1988 for firefighting.
5 Conditions
Under this section, each exemption is expressed to be subject to the condition that before a pilot, an owner or a firefighter may claim the benefit of the exemption for themselves, the relevant firefighter must comply with the conditions set out in Schedule 1.
Schedule 1 Conditions
This Schedule sets out the conditions under which the benefit of the exemption may be claimed in accordance with sections 4 and 5. Thus, the firefighter must successfully complete an approved course (as defined), be assessed and certified as competent by the NAFC or a trainer, and undertake the recurring competency training required by the approved course.
In addition, the firefighter may only use the aviation bandwidth VHF AM frequencies allocated to the relevant emergency control authority by Airservices Australia and the Australian Communications and Media Authority for use during firefighting.
Finally, the firefighter may only use the allocated aviation bandwidth VHF AM frequencies for tactical aircraft-to-aircraft and air-to-ground communications during firefighting that is a fire suppression or fire prevention operation, or another emergency operation in which the firefighter is involved with the authorisation of the relevant ECA.
A Note refers the reader to subsection 2 (2), above.