CASA EX02/13 - Exemption - use of ADS-B in aircraft operated by Hi Fly, Lisbon, Portugal

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2013L00066 Not in force Legislative Instrument

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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

Overview

The Civil Aviation Safety Regulations 1998 (CASR 1998) were enacted to ensure the safety of air navigation, providing a regulatory framework for civil aviation in Australia. The legislation was introduced to address the need for stringent safety regulations in the aviation industry, ensuring the safety of passengers and crew, as well as the general public. The Civil Aviation Safety Regulations 1998 were established under the Civil Aviation Act 1988, which was enacted by the Australian Parliament. The Act provides the framework for the regulation of civil aviation in Australia, including the issuance of Air Operators Certificates (AOCs) and the establishment of safety standards. The policy objective of the Act is to ensure the safety of air navigation and protect the public from the risks associated with civil aviation. The CASR 1998 provide detailed regulations for the safe operation of aircraft in Australia, including the use of Automatic Dependent Surveillance-Broadcast (ADS-B) equipment in aircraft operated by foreign operators. The regulations allow the Civil Aviation Safety Authority (CASA) to grant exemptions from certain requirements if it is necessary in the interests of the safety of air navigation. The exemption discussed in the explanatory statement is an example of how CASA can exercise its powers under the CASR 1998 to ensure the continued safe operation of aircraft while addressing specific technical compliance issues.

Scope and Application

The Civil Aviation Safety Regulations 1998, as amended, allow the Civil Aviation Safety Authority (CASA) to grant exemptions from certain regulatory provisions under specific conditions, as stipulated in subsection 98(5A) of the Civil Aviation Act 1988. This exemption specifically applies to two aircraft operated by Hi Fly, Lisbon, Portugal, which are not fully compliant with the technical standards for Automatic Dependent Surveillance-Broadcast (ADS-B) equipment as outlined in Appendixes 4 and 5 of Civil Aviation Order 82.5. The exemption allows the continued use of ADS-B equipment in these aircraft for identification purposes only, with certain restrictions, such as prohibiting access to ADS-B based separation services and requiring the pilot in command to omit ADS-B equipage from flight plans. Additionally, the exemption is subject to conditions imposed by CASA to ensure the safety of air navigation, including a requirement for the operator to provide CASA with a progress report on replacing the non-compliant aircraft. The exemption is a legislative instrument subject to tabling and disallowance under the Legislative Instruments Act 2003, and it has been made in consultation with relevant parties, including Airservices Australia and Hi Fly. The exemption is set to expire at the end of 11 December 2013.

Key Provisions

The key provision of this legislative instrument, as referenced in subregulation 11.160(1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), allows for an exemption from the regulatory requirements concerning the use of Automatic Dependent Surveillance-Broadcast (ADS-B) equipment in two specific aircraft operated by Hi Fly, Lisbon, Portugal. These aircraft do not currently meet all the specified technical standards for ADS-B equipment as outlined in Appendix 4 to Civil Aviation Order 82.5 (CAO 82.5). This exemption enables the continued use of ADS-B equipment in these aircraft for identification purposes only, but it does not permit access to ADS-B based separation services. The exemption is subject to certain conditions stipulated by the Civil Aviation Safety Authority (CASA), including limitations on flight plans and a requirement for CASA to be provided with a progress report as the aircraft are replaced with compliant ones. The obligations imposed by this exemption on the parties involved are primarily safety-focused. For Hi Fly, the operator of the exempted aircraft, the primary obligation is to ensure that the use of ADS-B equipment is strictly limited to identification purposes, and that flight plans do not indicate ADS-B equipage for these aircraft. Furthermore, Hi Fly must provide CASA with a progress report regarding the replacement of the non-compliant aircraft with compliant ones. CASA, in turn, must ensure that the exemption is strictly enforced and that the conditions are met to maintain the safety of air navigation. There are no specific offences or penalties outlined for breaching the conditions of this exemption. However, any non-compliance with the conditions could potentially lead to civil or criminal consequences under broader aviation safety regulations. CASA has the authority to impose conditions on the exemption (as per subregulation 11.205(1) of CASR 1998) and to enforce compliance through the revocation or suspension of Air Operators Certificates (AOCs) under section 27 of the Civil Aviation Act 1988 (the Act). The exemption itself is subject to tabling and disallowance in Parliament, as it is considered a legislative instrument under sections 38 and 42 of the Legislative Instruments Act 2003 (LIA). The legislative instrument is also subject to compatibility with human rights, as detailed in the Human Rights Compatibility Statement. The statement confirms that the exemption does not engage any of the applicable rights or freedoms, and therefore, it is compatible with human rights as it does not raise any human rights issues. The instrument will cease to have effect at the end of 11 December 2013, and it is made by a delegate of CASA relying on the power of delegation under subregulation 11.260(1) of CASR 1998.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.