Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — use of radiocommunication systems during parachute operations (Australian Parachute Federation)
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.
Subregulation 83 (1) of the Civil Aviation Regulations 1988 (CAR 1988) provides that a person commits a criminal 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. The offence attracts a maximum penalty of 50 penalty units. Subregulation 83 (2) sets out the circumstances in which a person is qualified to transmit on a radio frequency of a kind used for the purpose of ensuring the safety of air navigation. Subregulation 82 (3) provides that an offence against the regulation is an offence of strict liability.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations 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.
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 1998 requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Instrument
The Australian Communications and Media Authority (the ACMA) has authorised the operation of aeronautical mobile stations via the Radiocommunications (Aircraft and Aeronautical Mobile Stations) Class Licence 2006. Under this class licence, the 119.2 MHz radio frequency band may be used for purposes associated with parachute club operations.
During the conduct of those parachute operations, ground control assistants have a need to use radiocommunication systems for air-to-ground communications in order to communicate with jump aircraft and help ensure the safety of the operation. Although these ground control assistants are trained in the use of radiocommunication systems for use in parachute operations, they do not usually hold licences or certificates of the kind referred to in subregulation 83 (2) of CAR 1988 or hold pilot licences of the kind mentioned in regulation 61.435 of CASR 1998.
The effect of this exemption is to exempt members of the Australian Parachute Federation Ltd (the APF) from compliance with regulation 83 of CAR 1988 if they are acting as ground control assistants during a parachute operation. In the absence of this exemption, regulation 83 of CAR 1988 would otherwise prohibit these members from using a radiocommunication system during these operations as a result of not having the qualifications prescribed under that regulation for transmitting on aeronautical radio frequencies.
The exemption is subject to a number of conditions in the interests of aviation safety. These conditions include the requirement for the member to have completed an APF‑prescribed training course for the use of aviation radiocommunication systems, and be assessed and approved as competent to transmit ground-to-air communications by the APF’s Manager of Safety and Training (or their delegate). The member must only use the aeronautical mobile radio frequency band allocated or licensed by the ACMA for parachute club operations, and this radio frequency band may only be used for ground-to-air communications with the pilot in command of the jump aircraft. In addition, the member must only operate a radiocommunication system with a transmitter output power which does not exceed 5 watts.
Legislation Act 2003 (the LA)
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft.
The instrument applies to a class of persons engaged in parachuting operations. Accordingly, the instrument is a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Consultation
Consultation under section 17 of the LA has taken place with the APF, who requested the issuing of this exemption for the benefit of their members. The instrument is required to enable ground control assistants to communicate with jump aircraft during parachute operations and help ensure the safety of these operations.
CASA’s consultations included a review of the safety implications associated with the exemption and assessment of the APF’s proposed radiocommunication systems training developed in support of the APF’s request for the instrument. In light of this consultation process, CASA is satisfied that there are no adverse safety implications associated with the grant of this exemption.
Making and commencement
The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument commences on the day of registration, and is repealed at the end of 30 June 2019.
[Instrument number CASA EX116/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — use of radiocommunication systems during parachute operations
(Australian Parachute Federation)
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 permits members of the Australian Parachute Federation Ltd to communicate with pilots of parachute jump aircraft via radio, despite not having the qualifications for transmitting on aeronautical radio frequencies required by regulation 83 of the Civil Aviation Regulations 1988. The exemption will help these members maintain the safety of parachute operations by enabling them to communicate with the jump aircraft via radio.
The exemption is subject to a number of conditions requiring these members to be adequately trained and assessed as competent to use these radiocommunication systems. In addition, these members must use the radio frequency band identified for parachute club operations when communicating with pilots of jump aircraft.
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