Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from requirement to register an emergency locator transmitter with the Australian Maritime Safety Authority
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor‑General may 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 matters affecting the safe navigation and operation of aircraft. The Governor–General has relevantly made the Civil Aviation Regulations 1988 (CAR) and the Civil Aviation Safety Regulations 1998 (CASR).
Under subregulation 252A (1) of CAR, the pilot in command of an Australian aircraft that is not an exempted aircraft may begin a flight only if the aircraft is fitted with a working approved ELT, or has an accessible working approved portable ELT.
Subregulation 252A (7) defines approved ELT and approved portable ELT as an eligible ELT that meets the requirements set out in subregulation 252A (5) or (6), whichever is applicable.
Subregulation 252A (7) defines exempted aircraft, being aircraft to which regulation 252A does not apply. The definition includes high-capacity regular public transport aircraft and high-capacity charter aircraft.
Subregulation 252A (7) defines high-capacity, in relation to an aircraft, as meaning an aircraft the type certificate for which permits a maximum seating capacity of more than 38 or a maximum payload of more than 4 200 kilograms.
Subregulation 252A (7) defines eligible ELT as meaning an emergency locator transmitter, emergency positioning radio beacon or personal locator beacon that meets the requirements mentioned in subregulation 252A (4). Paragraph 252A (4) (b) requires an ELT to be registered with the Australian Maritime Safety Authority (AMSA).
In addition, regulation 252 of CAR provides that CASA may give directions about the necessary life-saving equipment to be carried on Australian aircraft, contravention of which is an offence of strict liability. This requirement applies in addition to the requirements of regulation 252A.
Regulation 5 of CAR provides that where CASA is empowered to issue directions, it may do so in Civil Aviation Orders (CAOs).
Directions under subregulation 252 (1) of CAR have been issued in Civil Aviation Order 20.11 (CAO 20.11). Paragraph 5.2.1 of CAO 20.11 provides that an aircraft that is flown over water at a distance from land greater than the permitted distance must carry sufficient life rafts to provide a place in a life raft for each person on board the aircraft. The permitted distances are set out in paragraph 5.2.1.1.
Subsection 6 of CAO 20.11 states that an aircraft required to carry life rafts under paragraph 5.2.1 must carry emergency signalling equipment. This equipment includes emergency locator transmitters (ELTs). In the case of an aircraft required to carry more than 1 life raft, it must also carry an approved ELT and an approved portable ELT, or 2 approved portable ELTs. The expressions approved ELT and approved portable ELT are defined in paragraph 6.7 of CAO 20.11 as having the same meanings as in subregulation 252A (7) of CAR. Paragraph 6.6 of CAO 20.11 states that an approved ELT or approved portable ELT carried on an aircraft must be registered with AMSA before it is used.
Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A), CASA may grant an exemption from a provision of CAR or a provision of the CAOs in relation to a matter mentioned in that subsection. 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.
Subregulation 11.175 (4) provides that in deciding whether to reissue an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
Under subregulation 11.205 (1) of CASR, CASA may impose conditions on an exemption in the interests of the safety of air navigation. Under regulation 11.225 of CASR, 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
It is often not practicable to register approved ELTs or approved portable ELTs before delivery of an aircraft because the ELTs are embedded in a slide/raft package. Registration would require the ELT to be unpacked and then sent back to the manufacturer for repacking after registration and entry of the Australian code. The delivery crew does not have the means to carry out this task.
Instrument CASA EX123/14 provided a general exemption from the requirement under regulation 252 of CAR for ELTs on high-capacity regular public transport and charter aircraft to be registered with AMSA. CASA EX123/14 expires at the end of July 2017.
Instrument
Instrument CASA EX105/17 replaces CASA EX123/14 and applies to Australian‑registered, high-capacity aircraft that are flown for purposes associated with the manufacture of the aircraft, or with the preparation of the aircraft for delivery to a purchaser or a new operator, or with the delivery to the purchaser or new operator, or with the positioning of the aircraft from an overseas location to another place at which a new owner or operator will complete the arrangements for the ELTs, including registration with AMSA.
The application section is intended to cover the range of circumstances in which an aircraft newly acquired by an Australian person is flown for testing and positioning purposes prior to the final configuration of the ELTs and their registration with AMSA, including acceptance testing flights, delivery flights and positioning flights to a place where the new owner or operator completes the arrangements of the aircraft ELTs.
The new instrument exempts operators and pilots in command of the aircraft covered by the instrument in 2 situations.
If the high-capacity aircraft is also an exempted aircraft for regulation 252A of CAR, then the operator and pilot are exempt from compliance with regulation 252 of CAR to the extent that the regulation requires an approved ELT or approved portable ELT for the aircraft to be registered with AMSA.
If the high-capacity aircraft is not an exempted aircraft, then the pilot in command is exempt from compliance with subregulation 252A (1) of CAR to the extent that the subregulation requires an approved ELT or approved portable ELT to be registered with AMSA.
In both situations, the operator and pilot in command are exempt from compliance with subsection 6 of CAO 20.11 to the extent that the subsection requires an approved ELT or approved portable ELT for the aircraft to be registered with AMSA.
The exemptions do not affect the operation of other ELT-related requirements in CAR or CAO 20.11 for high-capacity aircraft.
The exemption is subject to conditions imposed under regulation 11.205 of CASR. A condition requires the operator and pilot in command to ensure that fare-paying passengers are not carried on the flight.
A condition on the exemption for exempted aircraft requires the operator and pilot in command to ensure that ELTs that are carried on or fitted to the aircraft to comply with CAO 20.11 are in working order. This condition reflects the requirement for aircraft that are not exempted aircraft prescribed in subparagraph 252A (1) (a) (i).
Legislation Act 2003 (the LA)
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 complying with the specified provisions of regulations 252 and 252A of CAR and CAO 20.11. 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.
Consultation
In September 2014, industry asked CASA to review the predecessor to instrument CASA EX123/14 to ensure there was no inconsistency between the requirement in paragraph 252A (4) (b) of CAR and the exemption from paragraph 6.6 of CAO 20.11. CASA issued CASA EX123/14 in light of that request.
The purpose and legal intention of the instrument has not changed. In these circumstances, it is CASA’s view that it is neither necessary nor appropriate to undertake any further consultation under 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 (OBPR id: 14507).
Making and commencement
The exemption has been issued by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on 1 August 2017 and is repealed at the end of 31 July 2020.
[Instrument number CASA EX105/17]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — from requirement to register an emergency locator
transmitter with the Australian Maritime Safety Authority
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 the operator and the pilot in command of specified aircraft from compliance with regulations 252 and 252A of the Civil Aviation Regulations 1988 and subsection 6 of Civil Aviation Order 20.11 to the extent that those provisions require emergency locator transmitters carried on the aircraft to be registered with the Australian Maritime Safety Authority. The exemption applies, for practical reasons, in a range of circumstances associated with the manufacture and delivery of the aircraft.
The exemption is subject to conditions imposed by CASA in the interest of air safety, including that fare-paying passengers are not to be carried on flights conducted in reliance on the exemption.
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