Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX110/20 – Emergency Locator Transmitters (AMSA Registration Requirement – Relevant High-Capacity Flights) Exemption 2020
Purpose
The purpose of this instrument is to enable operators and pilots in command to carry out a particular kind of flight related to the manufacture or delivery of certain high-capacity aircraft (a relevant high-capacity flight) although one or both of the following does not comply with a requirement to be registered with the Australian Maritime Safety Authority (AMSA):
(a) an approved emergency locator transmitter (ELT) fitted to, or carried on, an aircraft being used to carry out a relevant high-capacity flight;
(b) an approved portable ELT carried on an aircraft of that kind.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Regulations 1988 (CAR) and the Civil Aviation Safety Regulations 1998 (CASR).
Exemptions
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, the Civil Aviation Safety Authority (CASA) may grant an exemption from compliance with a provision of the regulations or a Civil Aviation Order.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.175 (4) of CASR, in deciding whether to reissue an exemption, on application by a person, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to renew an exemption on its own initiative.
Regulation 11.205 provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Requirements for registration of an ELT with AMSA
Subregulation 252 (1) of CAR provides that CASA may give directions with respect to the provision in Australian aircraft of such emergency systems and equipment, and such life‑saving equipment, as CASA considers necessary to safeguard the aircraft and persons on board the aircraft. Subregulations 252 (1A) and (1B) of CAR provide, respectively, that a person must not contravene a direction and that an offence against subregulation (1A) is an offence of strict liability.
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, relevantly:
(a) fitted with an approved ELT that is in working order — see subparagraph 252A (1) (a) (i); or
(b) carries, in a place readily accessible to the operating crew, an approved portable ELT that is in working order — see paragraph 252A (1) (b).
Under paragraph 252A (4) (b) of CAR, for an emergency locator transmitter, emergency position indicating radio beacon or personal locator beacon to be an eligible ELT (and therefore, subject to meeting other requirements, an approved ELT or approved portable ELT), it must be registered with AMSA.
CASA has issued directions under subregulation 252 (1) of CAR 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, as part of its emergency and lifesaving equipment, sufficient life rafts to provide a place in a life raft for each person on board the aircraft. Paragraph 5.2.1.1 of CAO 20.11 sets out the permitted distances.
Paragraph 6.1 of CAO 20.11 provides that an aircraft required to carry life rafts under paragraph 5.2.1 must carry the following emergency signalling equipment:
(a) when 1 life raft is carried — at least 1 approved ELT or 1 approved portable ELT;
(b) when more than 1 life raft is carried — at least:
(i) 1 approved ELT and 1 approved portable ELT; or
(ii) 2 approved portable ELTs;
(c) a supply of pyrotechnic distress signals.
Paragraph 6.6 of CAO 20.11 provides that before an approved ELT or approved portable ELT may be used in an aircraft for subsection 6, it must be registered with AMSA.
Paragraph 6.7 of CAO 20.11 provides that approved ELT and approved portable ELT each has the same meaning as in subregulation 252A (7) of CAR.
Background
It is often not possible to register approved ELTs or approved portable ELTs with AMSA before an aircraft is delivered to its operator for the following reasons:
(a) the ELT is incompatible with the AMSA registration system, and requiring operators to obtain the coding required to overcome the incompatibility before they purchase or lease the aircraft is not a workable solution;
(b) removing the ELT from the slide package or raft package may cause damage to the slide or the raft.
Even if the ELT can be removed without causing damage to the slide or the raft and the incompatibility of an ELT with AMSA’s registration system can be overcome, registering an ELT with AMSA before the aircraft is delivered:
(a) is impracticable because the crew delivering the aircraft is not able to carry out that task; and
(b) would impose an additional economic burden on the operator because it would require the ELT to be unpacked then sent back to the manufacturer for repacking after registration with AMSA and entry of the Australian code, with the related costs passed on to the operator.
CASA has previously made 3 instruments of the same kind: CASA EX63/14, CASA EX123/14 and CASA EX105/17, each named Exemption — from requirement to register an emergency locator transmitter with the Australian Maritime Safety Authority. CASA EX63/14 (Federal Register of Legislation (FRL) number F2014L01047 refers) commenced on 1 August 2014 and was repealed by CASA EX123/14 on 20 October 2014. CASA EX123/14 (FRL number F2014L01369 refers) commenced on 20 October 2014 and self-repealed on 31 July 2017. CASA EX105/17 (FRL number F2017L00979 refers) commenced on 1 August 2017 and is expressed to self-repeal at the end of 31 July 2020.
Although the instrument would reissue the exemptions for up to an additional 3 years, CASA will not need to issue instruments of the same kind after provisions in the new Part 91 of CASR (related to instruments, indicators, equipment or systems) commence. Part 91 of CASR is located in Schedule 1 to the Civil Aviation Safety Amendment (Part 91) Regulations 2018, and is expected to commence in 2021.
Overview of instrument
The instrument is intended to enable operators and pilots in command to carry out a relevant high-capacity flight although one or both of the following does not comply with a requirement to be registered with AMSA:
(a) an approved ELT fitted to, or carried on, an aircraft being used to carry out a relevant high-capacity flight;
(b) an approved portable ELT carried on an aircraft of that kind.
CASA has assessed the impact on aviation safety of carrying out a relevant high-capacity flight in an aircraft that is fitted with or carrying an approved ELT, an approved portable ELT (or both) that is not registered with AMSA. Having made that assessment, because of the additional risk mitigators mentioned in the conditions in section 8 of the instrument, CASA is satisfied that renewing the instrument would have no negative impact on the safety of carrying out a relevant high-capacity flight in those circumstances.
Content of instrument
Section 1 names the instrument.
Section 2 sets out the duration of the instrument.
Section 3 contains definitions of terms used in the instrument.
The note below the definition of approved portable ELT is intended to assist users of the instrument by directing them to information elsewhere in the instrument about the kinds of devices covered by the acronym “ELT”.
The definition of relevant high-capacity flight is based on the content of the more detailed application provision in section 3 of CASA EX105/17. Like that application provision, the definition of relevant high-capacity flight is intended to cover the purposes for which an Australian registered high-capacity aircraft may be flown if the aircraft is fitted with or carrying an approved ELT, an approved portable ELT (or both) that is not registered with AMSA. Those purposes are purposes related to the aircraft’s manufacture, preparing or delivering the aircraft after its purchase or transfer of operator, or positioning the aircraft from a location outside Australia to a place where an approved ELT or approved portable ELT will be registered with AMSA.
The note below the definition of unregistered ELT is intended to assist users of the instrument by:
(a) providing information about the kinds of devices covered by the acronym “ELT”; and
(b) clarifying the relationship between the definitions of approved ELT, approved portable ELT and eligible ELT and the requirement, mentioned in subregulation 252A (4) of CAR, for an eligible ELT to be registered with AMSA.
Section 4 provides that the instrument applies in relation to a relevant high-capacity flight.
Subsection 5 (1) exempts each of the following persons from compliance with subsection 6 of CAO 20.11, to the extent that the subsection requires those persons to ensure that an approved ELT or an approved portable ELT fitted to, or carried on, an aircraft being used to carry out a relevant high-capacity flight is registered with AMSA:
(a) the operator of the aircraft;
(b) the pilot in command of the aircraft.
Subsection 5 (2) imposes the condition mentioned in subsection 8 (1) of the instrument on the exemption in subsection 5 (1).
Subsection 6 (1) exempts each of the following persons from compliance with regulation 252 of CAR, to the extent that the regulation requires those persons to ensure that an approved ELT or an approved portable ELT fitted to, or carried on, an exempted aircraft being used to carry out a relevant high-capacity flight is registered with AMSA:
(a) the operator of the exempted aircraft;
(b) the pilot in command of the exempted aircraft.
Subsection 6 (2) imposes the conditions mentioned in subsections 8 (1) and (2) of the instrument on the exemption in subsection 6 (1).
Subsection 7 (1) exempts the pilot in command of an aircraft, other than an exempted aircraft, being used to carry out a relevant high-capacity flight from compliance with subregulation 252A (1) of CAR to the extent that the subregulation requires the pilot in command to ensure that each of the following is registered with AMSA:
(a) an approved ELT fitted to the aircraft;
(b) an approved portable ELT carried on the aircraft.
Subsection 7 (2) imposes the condition mentioned in subsection 8 (1) of the instrument on the exemption in subsection 7 (1).
Subsection 8 (1) is a condition imposed on each of the exemptions in subsections 5 (1), 6 (1) and 7 (1) of the instrument. It requires the operator and pilot in command of an aircraft being used to carry out a relevant high-capacity flight to ensure that no fare-paying passengers are carried on the aircraft.
Subsection 8 (2) is an additional condition imposed on the exemption in subsection 6 (1) of the instrument. It requires the operator and pilot in command of an exempted aircraft being used to carry out a relevant high-capacity flight to ensure that an unregistered ELT fitted to, or carried on, the aircraft is in working order.
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 applies to classes of persons, being operators and pilots in command of aircraft, including exempted aircraft, being used to carry out a relevant high-capacity flight. 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.
Although it has been revised for consistency with current drafting practices, the purpose and legal intention of the instrument has not changed since CASA EX105/17 commenced. Additionally, the instrument has been issued at the request of industry and would maintain current safety standards while ensuring no increased economic burden for industry. In those circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
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 1 August 2020 and is repealed the earlier of the following:
(a) the commencement of the Civil Aviation Safety Amendment (Part 91) Regulations 2018;
(b) the end of 31 July 2023.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX110/20 – Emergency Locator Transmitters (AMSA Registration Requirement – Relevant High-Capacity Flights) Exemption 2020
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 is intended to enable operators and pilots in command to carry out a particular kind of flight related to the manufacture or delivery of certain high-capacity aircraft (a relevant high-capacity flight) although one or both of the following does not comply with a requirement to be registered with the Australian Maritime Safety Authority (AMSA):
(a) an approved emergency locator transmitter (ELT) fitted to, or carried on, an aircraft being used to carry out a relevant high-capacity flight;
(b) an approved portable ELT carried on an aircraft of that kind.
CASA has assessed the impact on aviation safety of carrying out a relevant high-capacity flight in an aircraft that is fitted with or carrying an approved ELT, an approved portable ELT (or both) that is not registered with AMSA. Having made that assessment, because of the additional risk mitigators mentioned in the conditions in section 8 of the instrument, CASA is satisfied that granting the exemption would have no negative impact on the safety of carrying out a relevant high-capacity flight in those circumstances.
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