Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX08/22 — The Bright Open Instrument 2022
Purpose
The purpose of CASA EX08/22 — The Bright Open Instrument 2022 (the instrument) is to enable participants in the Bright Open 2022 (the event) to fly a paraglider at or above a height of 5 000 feet above mean sea level without complying with particular regulatory requirements relating to the carriage of an aircraft very high frequency (VHF) radio.
The instrument also enables the holder of a radio operator endorsement issued by Sports Aviation Federation of Australia Limited (SAFA) to transmit on a radio frequency while operating a ground communications station for the event.
The instrument contains conditions and directions imposed by the Civil Aviation Safety Authority (CASA) in the interest of the safety of air navigation.
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).
CASR — Exemptions (Subpart 11.F)
Each provision mentioned in this section is a provision of CASR.
Subpart 11.F provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from compliance with a provision of the regulations or of a civil aviation order (CAO), 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 11.160 (3), an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.170 (3), in deciding whether to grant an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
Under subregulation 11.205 (1), CASA may impose on an exemption under Subpart 11.F any condition necessary in the interests of the safety of air navigation. Under regulation 11.210, failure to comply with a condition of an exemption is a strict liability offence.
Under regulation 11.225, an exemption must be published on the internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
CASR — Directions (Subpart 11.G)
Each provision mentioned in this section is a provision of CASR.
Subpart 11.G provides for CASA to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a), CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft.
Subregulation 11.245 (2) provides that CASA may issue such a direction only if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, only if the direction is not inconsistent with the Act, and only for the purposes of CASA’s functions.
Under regulation 11.250, a direction ceases to be in force on the day specified in the direction or, if no day is specified, 1 year after the day it commences. Under regulation 11.255, it is a strict liability offence for a person to contravene a direction under regulation 11.245 that is applicable to the person.
Parts 91 and 103 of CASR, along with the Part 91 MOS
Unless otherwise stated, each provision mentioned in this section is a provision of CASR.
Under regulation 91.625, if a person commits a strict liability offence if:
(a) the person transmits on a radio frequency published in the Aeronautical Information Publication or Notices to Airmen (NOTAMs) that is:
(i)used by Air Traffic Services; or
(ii)used for communications at a certified aerodrome (among other kinds of aerodrome); and
(b) the person is not authorised or qualified to do so, relevantly:
(i) for an Australian aircraft (other than a Part 103 aircraft) — under Part 61, 64 or 65; or
(ii) for a Part 103 aircraft — by a Part 103 Approved Self‑Administering Aviation Organisation (ASAO).
Under subregulation 103.005 (4), an aircraft is a Part 103 aircraft if the aircraft is:
(a) not registered; and
(b) is any of several kinds of aircraft listed in paragraph 103.005 (4) (b) including, relevantly in subparagraph (b) (iv), a paraglider.
Under regulation 91.630, the pilot in command of an aircraft for a flight commits a strict liability offence if:
(a) the aircraft is fitted with or carries a radio; and
(b) during the flight, the pilot in command does not make a broadcast or a report relating to the flight that is prescribed by the Part 91 (General Operating and Flight Rules) Manual of Standards 2020 (Part 91 MOS) for paragraph 91.630 (1) (b).
Section 21.02 of the Part 91 MOS sets out the purpose of Division 21.2 of the Part 91 MOS. Specifically, section 21.02 provides that, for paragraph 91.630 (1) (b), Division 21.2 of the Part 91 MOS prescribes broadcasts and reports relating to a flight that the pilot in command of an aircraft fitted with or carrying a radio must ensure are made during the flight. Sections 21.03 to 21.09 of the Part 91 MOS prescribe broadcasts and reports of various kinds for paragraph 91.630 (1) (b). However, it is not necessary to describe the effect of those sections of the Part 91 MOS in this explanatory statement because the instrument exempts the pilot in command of a paraglider from compliance with regulation 91.630 as a whole.
Under regulation 91.640, the pilot in command of an aircraft for a flight commits a strict liability offence if:
(a) the aircraft is fitted with, or carries, a radio; and
(b) the aircraft is flown by a pilot who is qualified, eligible or authorised to use the radio, relevantly:
(i) for an Australian aircraft (other than a Part 103 aircraft) — under Part 61 or 64; or
(ii) for a Part 103 aircraft — by a Part 103 ASAO; and
(c) the aircraft is outside controlled airspace; and
(d) radio transmissions are not continuously monitored by, relevantly in subparagraph 91.640 (d) (i), the pilot in command of the aircraft for the flight.
CAO 95.8
Unless otherwise stated, each provision mentioned in this section is a provision of CAO 95.8.
CAO 95.8 applies to, relevantly, paragliders that are employed in private operations because of the combined effect of:
(a) subparagraph (c) of the application provision in subsection 4; and
(b) the definition of relevant aircraft in paragraph 5.1.
Under subparagraph 10.3 (a), a relevant aircraft must not be flown at a height of 5 000 feet above mean sea level or higher unless it is equipped with, or carries, serviceable radiocommunications equipment.
Under subparagraph 10.4 (b), any radiocommunications equipment fitted to, or carried by, a relevant aircraft must not be used by a person unless, in any case other than the transmission in VHF frequency, the person is authorised or qualified to transmit in the relevant frequency in accordance with regulation 91.625 of CASR.
The Legislation Act 2003 (the LA) and the Act
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument exempts a class of persons from compliance with the following:
(a) regulations 91.625, 91.630 and 91.640 of CASR; and
(b) paragraph 10.3 and subparagraph 10.4 (b) of CAO 95.8, to the extent mentioned in paragraph 5 (1) (b) of the instrument.
The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Under subsection 14 (1) of the LA, a legislative instrument may make provision in relation to matters by applying, adopting or incorporating provisions of an Act or disallowable legislative instrument as in force at a particular time or as in force from time to time. A legislative instrument may also make provision in relation to matters by applying, adopting or incorporating any matter contained in any other instrument or writing as in force at, or before, the time the legislative instrument commences. Under subsection 14 (2) of the LA, unless the contrary intention appears, the legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. However, 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.
As the instrument relates to aviation safety and is made under CASR, the sunsetting provisions in Part 4 of Chapter 3 of the LA do not apply to the instrument — see item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015. However, this instrument will be repealed at the end of 11 May 2022, which will occur before the sunsetting provisions would have repealed the instrument if they had applied. Any renewal of the instrument will be subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA. Therefore, the exemption from sunsetting does not affect parliamentary oversight of this instrument.
Background
The event is scheduled to be held at Bright, Victoria, from 5 February 2022 to 11 February 2022.
Since 2018, CASA has made similar instruments for the event (most recently CASA EX09/21 — The Bright Open Instrument 2021).
Paragliders typically are not equipped with VHF radio equipment. They generally do not operate in airspace in which such radios are required. The event represents an exception to this circumstance. Paragliders are more commonly flown with ultra high frequency (UHF) radio equipment.
Overview of instrument
The instrument is intended to enable:
(a) participants in the event to fly a paraglider at or above a height of 5 000 feet above mean sea level without complying with particular regulatory requirements relating to the carriage of an aircraft VHF radio; and
(b) the holder of a radio operator endorsement issued by SAFA to transmit on a radio frequency while operating a ground communications station for the event.
CASA has assessed SAFA’s application for the instrument including, but not limited to, a risk assessment provided by SAFA. Based on that assessment, CASA is satisfied that there are no adverse safety implications in relation to issuing the direction or granting the exemptions.
Content of instrument
Section 1 names the instrument.
Section 2 sets out the duration of the instrument.
The note located immediately below section 2 sets out when the provisions of the instrument apply and cease to be in force. In particular, the note confirms that, and explains why, the direction in section 4 of the instrument continues to be in force until the instrument is repealed.
Section 3 contains definitions.
The note located immediately below the heading of section 3 is a signpost note, intended to assist users of the instrument to identify particular defined terms located in the Act or the regulations.
Section 4 of the instrument directs SAFA, under regulation 11.245 of CASR, to comply with the requirements mentioned in Schedule 1 to the instrument.
Subsection 5 (1) of the instrument exempts a pilot in command of a paraglider who is participating in the event from compliance with particular provisions of CASR or CAO 95.8 (to the extent that those provisions of CAO 95.8 may require the use of a VHF radiocommunication system).
Subsection 5 (2) provides that the exemption in subsection 5 (1) is subject to complying with the conditions mentioned in Schedule 2.
Subsection 5 (3) provides that subsection 5 (1) applies to the pilot in command of a paraglider whether or not the paraglider is equipped with a VHF radiocommunication system.
Under subsection 6 (1), the exemption in subsection 6 (2) applies if a particular named individual is the holder of a radio operator endorsement issued by SAFA in accordance with the SAFA Operations Manual, as it exists at the time the instrument commences.
Subsection 6 (2) exempts that named individual from compliance with regulation 91.625 of CASR when transmitting on a radio frequency while operating a ground communications station in accordance with clause 1 of Schedule 1.
Schedule 1 — Requirements for direction
Schedule 1 to the instrument sets out, for the direction in section 4, requirements that SAFA must comply with. Those requirements are intended to ensure that SAFA establishes a satisfactory support system to mitigate the safety risks associated with the operation of paragliders without a serviceable VHF radio during the event.
The requirements in clause 1 of Schedule 1 apply for each day of the event. They require SAFA to ensure the following:
(a) that a danger area is active in the airspace where the event is conducted on that day;
(b) if flight from a particular launch site (defined in the instrument) is required on the day — that the Competition Director gives the air traffic control tower at Albury aerodrome sufficient notice that the launch site will be used for the event on that day;
(c) that an effective ground communications station is established and maintained that covers the area within 15 nautical miles of the paragliders participating in the event;
(d) that a particular named individual maintains a listening watch on appropriate VHF frequencies whenever flights are taking place for the purpose of the event;
(e) the Competition Director, or another competent person, operates the appropriate UHF frequencies whenever flights are taking place for the purpose of providing traffic, weather and other pertinent information to event participants;
(f) that a ground communications station advises aircraft not participating in the event, at intervals of no more than 30 minutes, of the particular information about the event listed in subparagraphs (f) (i) to (iv).
The note located immediately below paragraph 1 (b) of Schedule 1 is intended to assist users of the instrument to:
(a) locate the phone number for the air traffic control tower at Albury aerodrome, for the purposes of complying with the requirement mentioned in that paragraph; and
(b) be aware that tower hours at Albury aerodrome may change at short notice.
Clause 2 of Schedule 1 contains further requirements for the ground communications station mentioned in clause 1. It must be supported by available back‑up radios and batteries. The communications station must be active on several relevant frequencies commencing 30 minutes before event flights begin on each day of the event and continuing for the duration of event flights.
Clause 3 of Schedule 1 provides that a hand‑held VHF radio without an external antenna is not an effective ground communications station.
Clause 4 of Schedule 1 requires SAFA to ensure that, at least 5 days before the commencement of the event period, specified information is provided to CASA by the Competition Director about event operations, which CASA will incorporate into a NOTAM to be published by Airservices Australia.
Clause 5 of Schedule 1 requires SAFA to ensure that, before paraglider flights on a day, a briefing is provided to event participants that addresses the matters mentioned in paragraphs 5 (a) to (f) and, under paragraph 5 (g), any other matters that SAFA considers appropriate to promote the safety of the event.
Clause 6 of Schedule 1 requires SAFA to ensure that the Competition Director records the name of each event participant attending the daily briefing, and that SAFA retains the record for a period of 3 months from the end of the event period.
Clause 7 of Schedule 1 requires SAFA to ensure that each event participant is, before first operating a paraglider during the event period, provided with a diagram of air traffic routes in the area where the event is conducted.
Schedule 2 — Conditions on exemption
Schedule 2 of the instrument contains conditions on the exemption in subsection 5 (1) of the instrument that pilots in command of paragliders participating in the event must comply with.
Clause 1 of Schedule 2 requires the paraglider to be equipped with a serviceable UHF radiocommunication system.
Clause 2 of Schedule 2 requires that, if the UHF radio becomes unserviceable, the pilot in command must cease the flight as soon as safely practicable.
Clause 3 of Schedule 2 provides that pilots in command may conduct a flight to which the exemption applies only if satisfied that:
(a) the ground communications station has been established and is operating satisfactorily;
(b) the NOTAM has been published;
(c) the danger area is active; and
(d) for a flight from a particular launch site defined in the instrument — the Competition Director has notified the air traffic control tower at Albury aerodrome in accordance with paragraph 1 (b) of Schedule 1.
Clause 4 of Schedule 2 requires pilots in command to attend the daily briefing mentioned in the directions to SAFA and, under paragraph (b), to operate in accordance with the SAFA Operations Manual as it exists from time to time. Among other things, the SAFA Operations Manual contains rules for the operation of paragliders. Under paragraph 4 (c), pilots in command must hold a relevant qualification, defined in section 3 of the instrument.
Clause 5 of Schedule 2, in relation to those matters which are not a pilot in command’s direct responsibility, allows the pilot in command to rely on the daily briefing to reach the satisfaction mentioned in clause 3.
Clause 6 of Schedule 2 requires that a pilots in command may conduct a flight to which the exemption applies only within the active danger area for each day of the event.
Documents incorporated by reference
Subsection 6 (1) of the instrument incorporates by reference the content of the SAFA Operations Manual related to issuing a radio operator endorsement, as existing at the time this instrument commences.
The condition in paragraph 4 (b) of Schedule 2, in relation to the way a pilot in command is required to operate, incorporates by reference the SAFA Operations Manual, as existing from time to time.
The SAFA Operations Manual is freely available on the internet and can be accessed at: https://members.safa.asn.au/isonic-downloaddoc.php?docid=0X0X1X1X47R2hYQ2t5YU9HL0xlL1RBbjlrM1VEdz09.
Consultation
SAFA has applied for the instrument, which operates in a similar way to instruments issued in relation to the same event held in previous years.
CASA has consulted with SAFA and the organisers of the event. The organisers also consulted with the local aerodrome operators and local aviation operators.
The Office of Airspace Regulation in CASA has also consulted with local aerodrome and airspace users in accordance with Airspace Change Process requirements for the establishment of a temporary danger area.
In those circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for the instrument for section 17 of the LA.
Sector risk, economic and cost impact
Subsection 9A (1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A (3) of the Act states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9 (1) (c), CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.
The instrument makes no changes to existing arrangements under which the event has been taking place. Therefore, there will be no change to the economic or cost impact on individuals, businesses or the community, except that the influx of visitors may be of economic benefit.
Impact on categories of operations
The instrument is likely to have a beneficial effect on paragliding operations and related businesses by promoting those operations and encouraging the use of equipment offered for sale or hire by those businesses.
Impact on regional and remote communities
The instrument is likely to have a beneficial effect on the regional community in which it will be held because it will lead participants in, and spectators of, the event to visit that community.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
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 5 February 2022 and is repealed at the end of 11 May 2022.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX08/22 — The Bright Open Instrument 2022
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 enables participants in the Bright Open 2022 (the event) to fly a paraglider at or above a height of 5 000 feet above mean sea level without complying with particular regulatory requirements relating to the carriage of an aircraft very high frequency (VHF) radio, located in the following:
(a) regulations 91.625, 91.630 and 91.640 of the Civil Aviation Safety Regulations 1998 (CASR);
(b) paragraph 10.3 and subparagraph 10.4 (b) of Civil Aviation Order 95.8, to the extent that those provisions may require the use of a VHF radiocommunication system.
The instrument also enables the holder of a radio operator endorsement issued by Sports Aviation Federation of Australia Limited (SAFA) to transmit on a radio frequency while operating a ground communications station for the event.
The exemptions are issued subject to conditions.
The instrument also issues directions to SAFA.
The conditions and directions are imposed by the Civil Aviation Safety Authority (CASA) in the interest of the safety of air navigation.
Human rights implications
The legislative instrument engages the right to protection against arbitrary and unlawful interferences with privacy (Article 17 of the International Covenant on Civil and Political Rights (the ICCPR)).
The right to protection against arbitrary and unlawful interference with privacy, contained in Article 17 of the ICCPR, provides that no‑one shall be subjected to arbitrary or unlawful interference with their privacy.
The right to privacy is engaged by clause 6 of Schedule 1 of the instrument, which requires SAFA to record the name of each participant that attends the daily briefing for the event.
The right to privacy is also engaged because a single named individual is mentioned in:
(a) subsections 6 (1) and (2) of the instrument; and
(b) paragraph (1) (d) of Schedule 1 to the instrument.
The named individual is granted an exemption that is subject to them holding the required qualification. CASA must be able to ensure that they hold that qualification.
Also, the named individual is the only person authorised by SAFA to operate the VHF ground communications station. Therefore, the named individual is mentioned in those provisions of the instrument to enable them to:
(a) exercise functions under the exemption from compliance with regulation 91.625 of CASR; and
(b) comply with a requirement under the direction in section 4 of the instrument.
Naming an individual in an instrument of exemption is not unique to this instrument — it occurs in any other instrument issued to an individual that grants an exemption under regulation 11.160 of CASR.
The protections provided by the Privacy Act 1988 continue to apply to personal information collected.
The personal information collection requirements mentioned in the instrument are necessary to ensure proper administration and enforcement of Australia’s aviation safety system. It is necessary for SAFA to receive that personal information to ensure that only properly‑briefed pilots participate in the event. Participating pilots must be aware of how the event will be conducted each day and must attend each briefing. Any potential limitation on the right to privacy is necessary, reasonable and proportionate in promoting the objective of improving aviation safety.
Apart from the impact on the right to privacy, the exemption in the instrument is beneficial in purpose and content, and does not adversely affect the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Conclusion
The legislative instrument is compatible with human rights. To the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate in order to ensure the safety of aviation operations and to promote the integrity of the aviation safety system.
Civil Aviation Safety Authority