Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — use of ADS-B in aircraft operated by Hi Fly, Lisbon, Portugal
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation.
Under section 27 of the Act, CASA may issue Air Operators Certificates (AOCs) with respect to aircraft for the purpose of safety regulation.
Under paragraph 28BA (1) (b) of the Act, an AOC has effect subject to any conditions specified in the regulations or the Civil Aviation Orders (the CAOs).
Part 82 of the CAOs specifies conditions on AOCs. Civil Aviation Order (CAO) 82.5 contains conditions on those AOCs that authorise regular public transport (RPT) operations in high capacity aircraft.
Subsection 10 of CAO 82.5 sets out obligations on operators who hold foreign aircraft AOCs for high capacity RPT operations in Australia (the relevant foreign operators).
Paragraph 10.8 of CAO 82.5 provides that the operator of a foreign registered aircraft must ensure that, if the aircraft is operated in high capacity RPT operations, it complies with the requirements (Directions) in Appendixes 4 and 4A to Civil Aviation Order 82.5.
Appendixes 4 and 4A of CAO 82.5 apply to Automatic Dependent Surveillance-Broadcast (ADS-B) equipment. Appendix 4, through the definition of approved equipment configuration, applies the technical standards in Appendix 5.
At present aircraft do not have to carry compliant ADS-B equipment but those that do must have an approved equipment configuration as defined in Appendix 4. Under clause 7 of Appendix 4 to CAO 82.5, carriage of ADS-B equipment that complies with an approved equipment configuration becomes compulsory at or above FL 290 on and after 12 December 2013.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including Civil Aviation Regulations 1988, or a provision of the CAOs, in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement) or, if no day is specified, 3 years after commencement.
The aircraft to which the exemption applies do not have an approved equipment configuration because they do not comply with the technical standard mentioned in Appendix 5 for the transmission of the geographical position of the aircraft. To enable transmissions to continue in spite of non-compliance with this requirement, this exemption will allow the aircraft to continue to use their ADS-B equipment. The exemption is from Appendixes 4 and 5 to CAO 82.5.
The exemption is subject to conditions. Transmissions will be for identification purposes only. The exempted aircraft will be denied access to ADS-B based separation services. The conditions of the exemption state that the pilot in command must not indicate ADS-B equipage on the flight plans for either of the aircraft. In addition, the operator must provide CASA with a progress report as the aircraft are replaced with aircraft that are compliant with current ADS-B requirements.
Legislative Instruments Act
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The instrument applies to a class of persons, the pilots in command of the exempted aircraft. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instrument Act 2003 (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 been undertaken. CASA consulted with Airservices Australia and Hi Fly. Hi Fly accepted the conditions in the instrument.
Human Rights Compatibility Statement
A statement of compatibility with human rights is at attachment 1.
Making and commencement
The instrument commences on the day after registration and stops having effect at the end of 11 December 2013.
This exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
[Instrument number CASA EX02/13]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Exemption under regulation 11.160 – use of automatic dependent surveillance —broadcast equipment in certain aircraft
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 legislative instrument permits the use of automatic dependent surveillance —broadcast (ADS-B) equipment in 2 aircraft operated by the named operator that do not meet all the specified technical standards for ADS-B equipment. The exemption is subject to conditions directed by CASA in the interest of safety to allow the equipment to be used subject to limitations.
The primary purpose of the legislative instrument is to allow the operator to continue limited use of the ADS-B equipment until it can replace the 2 identified aircraft.
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