Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — GNSS requirements (Express Freighters Australia)
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the safety of air navigation.
Subregulation 207 (2) of the Civil Aviation Regulations 1988 (CAR 1988) provides that a person must not use an Australian aircraft in a class of operation if it is not fitted with such instruments, or is not fitted with or carrying such equipment, as CASA has approved and directed. Under subregulation 5 (1) of CAR 1988, where CASA may issue directions under CAR 1988, it may do so in the form of a Civil Aviation Order (CAO).
CAO 20.18 sets out directions issued by CASA under regulation 207 of CAR 1988 in relation to the instruments and equipment to be carried on board aircraft. Paragraph 9D.5 of CAO 20.18 provides that, on and after 4 February 2016, an aircraft that is first registered before 6 February 2014 and that is engaged in regular public transport (RPT) operations or charter operations under instrument flight rules (I.F.R.), must carry specified equipment which include GNSS equipment.
Subsection 98 (5A) of the Act empowers CASA to issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. 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 CAOs. 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.
Background
On 4 February 2016, new requirements on GPS/GNSS equipment for aircraft will come into effect that will allow GPS/GNSS to be the primary means of navigation. Australia is one of the first countries to implement this capability and the aviation industry has been aware of the associated GNSS equipment requirements for several years. However, overseas aircraft manufacturers and manufacturers of aircraft equipment have not issued updated service bulletins in response to the pending requirements. This is in part due to the manufacturers not being required to comply with GPS/GNSS requirements in their own countries until later this decade. As a result, Australian operators of foreign manufactured aircraft have encountered delays in sourcing the expertise and materials required.
Express Freighters Australia Pty Limited (the operator) operates a fleet of 4 B737-300 aircraft. The aircraft manufacturer, The Boeing Company (Boeing), has not provided assurance that updated service bulletins will be available for the operator to implement before 4 February 2016. Accordingly, the operator has requested that CASA issue a short-term exemption from GNSS equipment requirements for its fleet of B737 aircraft until late May 2016, after which time it is expected that the operator and Boeing will have made and implemented the necessary arrangements to comply with paragraph 9D.5 of CAO 20.18.
Instrument
CASA EX09/16 is an instrument that applies to each of the operator’s B737-300 aircraft that was first registered in Australia before 6 February 2014 and is engaged in RPT, or charter, operations under the I.F.R. The instrument exempts the operator’s aircraft from complying with paragraph 9D.5 of CAO 20.18, therefore, allowing these aircraft to be operated notwithstanding that they are not equipped with the GNSS equipment required under paragraph 9D.5.
The exemption is subject to a number of conditions imposed in the interests of navigational accuracy and aviation safety. The operator must ensure that each aircraft is equipped with 2 serviceable inertial reference systems and a serviceable flight management computer. Each aircraft must have DME/DME updating available for the aircraft (a DME/DME/IRU solution is the normal operating mode for these aircraft). The operator must identify any navigation aids necessary to achieve the accuracy required for the planned flight route or flight procedure (termed a critical navigation aid). If a critical navigation aid is not available for the flight route or procedure, then the operator must reschedule the flight until the critical navigation aid is available, or use an alternative route or procedure that does not require the use of the unavailable critical navigation aid. Finally, the operator must include a copy of the instrument in the operator’s operations manual.
Legislative Instruments Act 2003 (the LIA)
Under regulation 5A of CAR 1988, if CASA has issued a CAO, and CASA later issues an exemption that affects the operation of the CAO, the later document is declared to be a disallowable instrument. Under subparagraph 6 (d) (i) of 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. CAR 1988 was in force before the commencement of the LIA.
This instrument affects the operation of paragraph 9D.5 of CAO 20.18 and is, therefore, a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The exemption has been issued at the request of the operator. It is of beneficial effect to the operator’s business. CASA has consulted Airservices Australia on the limited duration of the exemption (around 4 months) and conditions on the use of distance measuring equipment and critical navigation aids. More broadly, CASA is working closely with Airservices Australia on the implementation of GNSS navigation capability and discussions are continuing on clarifying aspects surrounding the operation of non-GNSS equipped aircraft along continental Australian routes after 4 February 2016. It is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required (OBPR id: 14507).
Making and commencement
The instrument has been made by the Acting Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument commences on 4 February 2016 and expires, as if it had been repealed by another instrument, at the end of 25 May 2016. It is expected that on 26 May 2016, Airservices Australia will implement route changes and decommission navigational aids.
[Instrument number CASA EX09/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — GNSS requirements (Express Freighters Australia)
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 exempts B737-300 aircraft operated by Express Freighters Australia Pty Limited (the operator) from complying with GNSS equipment requirements that come into effect on 4 February 2016. The instrument is a short-term exemption of 3 months that allows the operator to make appropriate arrangements with the aircraft manufacturer to facilitate updating of aircraft equipment to meet the new standards. A number of conditions have been imposed in the interests of aviation safety, including conditions on route planning and the serviceability of flight management systems.
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