Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from provisions in Part 172 of CASR 1998
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and in the interests of the safety of air navigation.
Air traffic service providers
Part 172 of the Civil Aviation Safety Regulations 1998 (CASR 1998) makes arrangements for CASA to approve air traffic service (ATS) providers. Under subregulation 172.022 (1), CASA may issue a Manual of Standards (MOS) for Part 172 specifying the standards an ATS provider must meet. Under paragraph 172.065 (1) (a), the provider must ensure that the ATS it provides is in accordance with the MOS.
Under subregulation 172.022 (1) of CASR 1998, CASA has issued Manual of Standards Part 172 — Air Traffic Services (MOS Part 172). Under paragraph 12.2.1.2 (a) of MOS Part 172, tracking instructions must be specified by an air traffic controller (a controller) when standard instrument departures (SIDS) have not been published.
Under paragraphs 12.2.4.1 (b) and (c) of MOS Part 172, a controller must not issue an air traffic clearance which authorises a pilot to descend in I.M.C. below the relevant lowest safe altitude (LSALT) in a manner different from that specified in certain procedures, in particular certain published procedures. The relevant published procedures are first, the procedures, plan and profile diagram of the instrument approach landing (IAL) charts published in AIP/FLIP Terminal and, secondly, the approved instrument approach procedures published in NOTAM.
Under subregulation 172.060 (1) of CASR 1998, an ATS provider must maintain an operations manual that complies with MOS Part 172.
Airservices Australia
Airservices Australia (AA) is an approved ATS provider subject to the requirements of Part 172 of CASR 1998 and MOS Part 172.
Under subregulation 178 (1) of the Civil Aviation Regulations (CAR 1988), the pilot in command of an aircraft must not fly along a route segment at a height lower than the published LSALT for that segment. However, paragraph 178 (4) (c) provides an exemption from these requirements if the flight is during a published authorised instrument approach procedure (IAP) or a published authorised instrument departure procedure (IDP) designed by a certified designer.
Under subregulation 179A (1) of CAR 1988, CASA may issue instructions in relation to Instrument Flight Rules (I.F.R.) flights specifying the method by which an aircraft is to be navigated when in I.F.R. flight.
Paragraphs 12.2.1.2 (a), 12.2.4.1 (b) and 12.2.4.1 (c) of MOS Part 172 impose obligations on AA and its controllers to give tracking instructions for certain departures, and to refrain from issuing certain air traffic clearances. These obligations reflect the requirement that in I.M.C. pilots must not descend below the published LSALT except in accordance with published procedures.
Schedule 1 to the exemption exempts AA and its controllers from these particular requirements, and from subregulation 172.060 (1) of CASR 1998, in relation to the unpublished RNAV (RNP‑AR) procedures.
Exemptions from CASR 1998
Under subregulation 11.160 (1) of CASR 1998, CASA may grant an exemption from compliance with a provision of CASR 1998. In deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety. Under subregulation 11.205 (1), CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225, 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 instrument
The instrument, therefore, relates to RNAV (RNP-AR) approaches and departures by RNP‑capable aeroplanes. It only applies to AA and its controllers. It exempts them from subregulation 172.060 (1) and paragraph 172.065 (1) (a) of CASR 1998 to the extent of the requirements in paragraphs 12.2.1.2 (a), 12.2.4.1 (b) and 12.2.4.1 (c) of MOS Part 172.
Legislative Instruments Act 2003 (the LIA)
Subsection 98 (5AA) of the Act states that an instrument issued under paragraph (5A) (a) is a legislative instrument if it applies to a class of persons or a class of aircraft. This exemption applies to a class of persons and so is a legislative instrument.
Human Rights Compatibility
This legislative instrument does not engage any of the applicable rights or freedoms. It is compatible with human rights as it does not raise any human rights issues.
Consultation
Consultation under section 17 of the LIA has not been undertaken. The instrument is a renewal of instrument CASA EX02/10 which ceases to have effect at the end of 31 January 2012. The instrument commences on 1 February 2012 and stops having effect at the end of 31 January 2014.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX05/12]