Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — aircraft operating without carriage of Mode S transponder equipment (National Jet Express)
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 9E.4 of CAO 20.18 provides that, on or after 4 February 2016, an aircraft operating at Brisbane, Sydney, Melbourne or Perth aerodrome must carry a serviceable Mode S transponder that meets specified standards.
Under subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of a CAO in relation to matters affecting the safe navigation and operation of aircraft.
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
ADS-B compatible Mode S transponder requirements mandated by CAO 20.18 come into effect on 4 February 2016. National Jet Express Pty Ltd (the operator) operates a BAe 146‑100 aircraft with registration mark VH-NJV. The aircraft is scheduled to undergo a major inspection in early March 2016 that would involve disassembly of the aircraft, at which time it would be a cost-effective opportunity to install the ADS-B capable Mode S transponder. The operator has, therefore, requested a short-term exemption from the Mode S transponder requirements.
CASA has assessed the operator’s safety case and considers that the short duration of the exemption is acceptable in principle since there will be minimal direct safety impact. While operating in this airspace, the aircraft must have an operative transponder (Mode A/C).
The requirement that aircraft operating at Brisbane, Sydney, Melbourne or Perth aerodrome be equipped with ADS-B capable Mode S transponders is being introduced to enable Airservices Australia to use the Advanced Surface Movement Guidance and Control System (ASMGCS) being installed at these aerodromes. Even if not equipped with Mode S transponders, the aircraft specified in the instrument could be handled without significant operational impact.
Instrument
CASA EX10/16 applies to the BAe 146-100 aircraft mentioned in Schedule 1 of the instrument. The instrument exempts a person using the aircraft from compliance with the requirement in paragraph 9E.4 of CAO 20.18 to carry a serviceable ADS-B capable Mode S transponder.
The exemption is subject to the condition that a person using the aircraft must ensure that all I.F.R. flight plans in Australian airspace are annotated with the words “RMK/CASA MODE S EXEMPT” at Item 18 of the flight plan. A note has been inserted to advise that the Airservices Australia automated systems will reject a flight plan lodged for these aircraft without this annotation.
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 9E.4 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 operator has requested this instrument and has provided CASA with a safety case. More broadly, CASA has been working and consulting closely with Airservices Australia on the implementation of ADS-B requirements on 4 February 2016. In these circumstances, it is CASA’s view that no further consultation under section 17 of the LIA is necessary or appropriate.
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 exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on 4 February 2016, when the requirements in paragraph 9E.4 of CAO 20.18 start to apply. The instrument has been made in advance to provide certainty to the operator. The exemption expires at the end of March 2016, as if it had been repealed by another instrument.
[Instrument number CASA EX10/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — aircraft operating without carriage of Mode S transponder equipment (National Jet Express)
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 persons using the specified BAe 146-100 aircraft operated by National Jet Express Pty Ltd (the operator) from compliance with paragraph 9E.4 of Civil Aviation Order 20.18 which, from 4 February 2016, requires aircraft to carry a servicable ADS-B capable Mode S transponder. The purpose of the instrument is to allow the operator and persons using the aircraft to continue to operate the aircraft without meeting the new ADS-B requirements pending a scheduled major inspection of the aircraft, at which time it would be cost‑effective to install the compliant Mode S transponder.
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