Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
CASA EX09/21 — The Bright Open Instrument 2021
Purpose
The purpose of CASA EX09/21 — The Bright Open Instrument 2021 (the instrument) is to enable participants in the Bright Open 2021 (the event) to fly a paraglider at or above a height of 5 000 feet without complying with regulatory requirements relating to the carriage of an aircraft very high frequency (VHF) radio.
The instrument also allows 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 the safety of air navigation.
Subsection 98 (5A) of the Act provides that the regulations may empower CASA to issue instruments in relation to the following:
(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft;
(b) the airworthiness of, or design standards for, aircraft.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including the Civil Aviation Regulations 1988 (CAR), 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, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.210 of CASR, failure to comply with a condition of an exemption is a strict liability offence.
Under regulation 11.225 of CASR, an exemption must be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Under subregulation 11.245 (1) of CASR, CASA may issue directions about, among other things, any matter affecting the safe navigation and operation of aircraft. Under subregulation 11.245 (2), CASA may only issue a direction if the direction is for the purpose of CASA’s functions and not inconsistent with the Act, and if CASA is satisfied that the direction is necessary in the interests of the safety of air navigation.
Under regulation 11.250 of CASR, 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 of CASR, it is an offence for a person to contravene a direction that is applicable to the person.
Under subregulation 83 (1) of CAR, a person commits an offence if the person transmits on a radio frequency of a kind used for the purpose of ensuring the safety of air navigation and the person is not qualified to transmit on the radio frequency. Subregulation 83 (2) defines when a person is qualified to transmit on a radio frequency of that kind.
For aircraft operated under the Visual Flight Rules, regulation 174A of CAR empowers CASA to issue instructions specifying the carriage or installation of (among other things) radiocommunication systems. Instrument DASR 2/1994 instructs that aircraft engaged in specified operations must have a VHF radiocommunication system installed.
Subregulation 174A (3) empowers CASA to grant permissions for an aircraft to be flown if it does not meet the equipment requirements of regulation 174A, subject to any conditions specified in the permission. It is an offence for the pilot in command of an aircraft to fly in contravention of a condition of a permission.
Background
There are plans to hold the event at Bright, Victoria.
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.
To ensure regulatory compliance for the event, CASA is granting permission so that participants in the event are not required to carry a serviceable aircraft VHF radio when operating at a height at or above 5 000 feet.
Similar instruments were made by CASA for previous editions of the Bright Open (for example, CASA EX01/19 — The 2019 Bright Open Australian Nationals Instrument 2019).
Instrument
Section 1 of the instrument specifies the name by which the instrument may be cited.
Section 2 of the instrument specifies the period during which the instrument is in operation. It commences on 30 January 2021 and is repealed at the end of 5 May 2021. Although the event period concludes on 5 February 2021 and most of the provisions of the instrument, by their terms, cease to apply at the end of the event period, the instrument is not repealed until 3 months later to ensure the enforceability of the record keeping requirement in paragraph 5 (b) of Schedule 1 of the instrument.
Section 3 of the instrument contains definitions of terms used in the instrument.
Section 4 of the instrument is a direction under regulation 11.245 of CASR that directs SAFA to comply with the requirements mentioned in Schedule 1 of the instrument.
Section 5 of the instrument provides an exemption for the operator of a ground communications station that SAFA is required by the instrument to establish and maintain. If the operator holds a radio operator endorsement, issued by SAFA in accordance with the SAFA Operations Manual, as it exists from time to time, then the operator is exempt from complying with regulation 83 of CAR.
Subsection 6 (1) of the instrument provides a permission for the pilot in command of a paraglider who is participating in the event to fly the paraglider without carrying a serviceable VHF radiocommunication system as may otherwise be required by the instructions issued by CASA under regulation 174A of CAR.
Subsection 6 (2) of the instrument makes the permission in subsection 6 (1) subject to the conditions in Schedule 2 of the instrument.
Schedule 1 — Requirements for direction
Schedule 1 of the instrument contains requirements for SAFA with the aim of ensuring that there is a satisfactory support system to mitigate the safety risks associated with the operation of paragliders without a serviceable VHF radio during the event.
The directions in clause 1 of Schedule 1 apply for each day of the event. They require SAFA to ensure that a danger area is active in the airspace where the event is conducted on that day.
SAFA must also ensure that a ground communications station is established and maintained that covers the area within 15 nautical miles of the paragliders participating in the event.
The communications station or stations must advise other aircraft of the event activities and location of the paragliders at intervals of no more than 30 minutes. SAFA is responsible for ensuring that the Competition Director or other competent person maintains a listening watch on appropriate VHF frequencies and operates appropriate UHF frequencies, to provide weather, traffic and other pertinent information to event participants. The ground communications station must be active on the relevant frequencies.
Clause 2 of Schedule 1 contains further requirements for the ground communications station mentioned in clause 1. It provides that a hand-held VHF radio without an external antenna is not an effective ground communications station. Back-up radios and batteries are required for the communications station. 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 requires SAFA to ensure that, at least 5 days before the commencement of the event period, specified information is provided to CASA about event operations, which CASA will incorporate into a Notice to Airmen (NOTAM) to be published by Airservices Australia.
Clause 4 of Schedule 1 requires SAFA to ensure that, before paraglider flights on a day, a briefing is provided to event participants that addresses at least the following:
(a) confirmation of communications station set-up and applicable frequencies in use;
(b) review and explanation of the applicable NOTAM and danger area for that day;
(c) review and explanation of the danger area boundaries and the requirement to operate only within the boundaries;
(d) review and explanation of the conditions under which the permission in the instrument that apply to the participant have been issued;
(e) review and explanation of any airspace in which SAFA expects other aircraft may be operating;
(f) review and explanation of the air traffic and activities which SAFA expects may occur at any aerodrome in the vicinity of which the event participants may fly.
Clause 5 of Schedule 1 requires SAFA to ensure that the name of each event participant attending the daily briefing is recorded, and that the record is retained for a period of 3 months.
Clause 6 of Schedule 1 requires SAFA to ensure that event participants are provided with a diagram of air traffic routes in the area where the event is conducted.
While the directions impose obligations on SAFA, it is expected that, in practice, SAFA will ask the Competition Director, as the event organiser, to fulfil the obligations on its behalf.
Schedule 2 — Conditions on permission
Schedule 2 of the instrument contains conditions on the permission in subsection 6 (1) of the instrument for pilots in command of paragliders participating in the event. They include a requirement, in clause 1, for the paraglider to be equipped with a serviceable UHF radio. Clause 2 requires that, if the UHF radio becomes unserviceable, the pilot in command must cease the flight as soon as safely practicable.
Clause 3 requires pilots in command of paragliders covered by the permission to be satisfied that the ground communications station has been established and is operating satisfactorily, that the NOTAM has been published as required and that the danger area is active. Paragraph 4 (a) requires pilots in command to attend the daily briefing mentioned in the directions to SAFA. In relation to these matters, which are not a pilot in command’s direct responsibility, clause 5 allows the pilot in command to rely on the daily briefing.
Clause 4 also requires pilots in command of paragliders covered by the permission to hold a SAFA pilot certificate and to operate in accordance with the SAFA Operations Manual, as that document exists from time to time. Among other things, the SAFA Operations Manual contains rules for the operation of paragliders. The SAFA Operations Manual is freely available and can be accessed at: https://members.safa.asn.au/isonic-downloaddoc.php?docid=0X0X1X1X47R2hYQ2t5YU9HL0xlL1RBbjlrM1VEdz09.
Clause 6 requires that flights must only be carried out within the active danger area.
Legislation Act 2003 (the LA)
Subsection 98 (5AA) of the Act states that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if it applies to a class of persons or a class of aircraft. The exemption in the instrument applies to a class of persons. Therefore, the instrument is a legislative instrument. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The Office of Airspace Regulation in CASA has consulted with local aerodrome and airspace users in accordance with Airspace Change Process requirements for the establishment of a temporary danger area.
The terms of the exemption and permission are similar to the terms of instruments issued in relation to the same event held in previous years.
In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for the instrument for section 17 of the LA.
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 for exemptions (OBPR id: 14507).
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 30 January 2021 and is repealed at the end of 5 May 2021.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX09/21 — The Bright Open Instrument 2021
The 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 2021 (the event) to fly a paraglider at or above a height of 5 000 feet without complying with regulatory requirements relating to the carriage of an aircraft very high frequency (VHF) radio, as may also be required under regulation 174A of the Civil Aviation Regulations 1988 (CAR).
The permission is issued subject to conditions.
The instrument also allows 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, despite regulation 83 of CAR.
The instrument also issues directions to SAFA.
The conditions and directions are imposed by the Civil Aviation Safety Authority 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 5 of Schedule 1 of the instrument, which requires SAFA to record the name of each participant that attends the daily briefing for the event. It is necessary for SAFA to receive this information to ensure that only properly-briefed pilots participate in the event.
The protections provided by the Privacy Act 1988 continue to apply to personal information collected.
The requirements of the instrument are necessary in order to ensure proper administration and enforcement of Australia’s aviation safety system. 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 and permission in the instrument are beneficial in purpose and content, and do 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