Explanatory Statement
Civil Aviation Safety Regulations 1988
Exemption — from provisions of CASR Part 172
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of 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 subregulation 172.060 (1), an ATS provider must also maintain an operations manual that complies with the MOS. 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 MOS Part 172 — Air Traffic Services. Under paragraph 12.2.1.2 (a) of the MOS, 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 the MOS, 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.
Airservices Australia
Airservices Australia (AA) holds a certificate of approval issued by CASA under regulation 172.275 of CASR 1998 and is, therefore, an approved ATS provider subject to the requirements of Part 172 of CASR 1998 and the MOS.
Qantas trial of RNAV (RNP-AR)
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.
On 25 January 2006, CASA issued instrument CASA 19/06 to Qantas Airways Ltd (Qantas) to enable a trial of certain instrument approach and departure procedures in computer-assisted area navigation operations (RNAV (RNP-AR)). Instrument CASA 19/06 contains an exemption from the requirement that to fly lower than the LSALT the relevant IAP or IDP must be published. Instrument CASA 19/06 also contains instructions for the operations for I.F.R. flights as part of the RNAV (RNP-AR) trial.
On 13 January 2006, CASA issued instrument CASA EX01/06 to Naverus Inc, the designer of the RNAV (RNP-AR) IAP and IDP for the Qantas trial, exempting it from the requirements of, among other things, CASR 173.100 in relation to publication of the procedures in AIP. Because the operations are a trial, the relevant procedures have not been published.
The provisions in paragraphs 12.2.1.2 (a), 12.2.4.1 (b) and 12.2.4.1 (c) of the MOS imposing certain obligations on AA and its controllers to give tracking instructions for certain departures, and to refrain from issuing certain air traffic clearances, reflect in part the above requirements that in I.M.C. pilots must not descend below the published LSALT except in accordance with published procedures.
To enable full operation of the Qantas trial, it is necessary to exempt AA and its controllers from these particular requirements because the relevant RNAV (RNP-AR) procedures have not been published.
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. Under subregulation 11.160 (3), CASA may grant an exemption on its own initiative. 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 11.210, it is an offence to fail to comply with a condition of an exemption.
Under regulation 11.225, an exemption must be published on the World Wide Web. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 2 years after its commencement) or, if no day is specified, 2 years after commencement.
The instrument
The instrument, therefore, only applies for RNAV (RNP-AR) approaches and departures by RNP-capable Boeing 737-800 aeroplanes operated by Qantas in the trial. 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 the MOS discussed above.
Legislative Instruments Act
Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (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. Regulation 11.215 of CASR 1998 declares an exemption to be a disallowable instrument. 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 under section 17 of the LIA has not been undertaken. The instrument is for the Qantas trial of RNAV (RNP-AR) underway in Australia and is necessary to enable full implementation of it. The results will be of benefit to other industry operators.
The instrument comes into effect on the day after registration. It stops having effect when instrument CASA 19/06 stops having effect, namely, at the end of 31 January 2008.
The exemption has been made by the Deputy Chief Executive and Chief Operating Officer, a delegate of CASA, in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX10/06]