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.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A), CASA may grant an exemption from a provision of these Regulations (including the Civil Aviation Regulations 1988 (CAR 1988)) or a provision of the Civil Aviation Orders (the CAOs) in relation to a matter mentioned in that subsection.
Regulation 252 of CAR 1988 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.
Regulation 5 of CAR 1988 provides that where CASA is empowered to issue directions, it may do so in Civil Aviation Orders.
Directions under subregulation 252 (1) of CAR 1988 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 1988, being an eligible ELT that meets the requirements set out in subregulation 252A (5) or (6), whichever is applicable.
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).
Under regulation 11.160 of CASR 1998, 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.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. 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.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Instrument
Instrument CASA EX63/14 commenced on 1 August 2014 and exempted operators and pilots in command of high-capacity aircraft from compliance with regulation 252 of CAR 1988, with respect to paragraph 6.6 of CAO 20.11. 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. In the case of high-capacity regular public transport aircraft, or high‑capacity charter aircraft, that have not yet been delivered to their operator, it is not practicable to register their approved ELTs, or approved portable ELTs, before delivery because they 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 do not have the means to carry out this task.
Under subregulation 252A (2) of CAR 1988, aircraft that are on a flight for a purpose associated with its manufacture, preparation or delivery are exempt from compliance with having to carry, under regulation 252A, approved ELTs, or approved portable ELTs, that are in working order. It should also be noted that exempted aircraft, as defined in subregulation 252A (7), do not have to comply with regulation 252A. The exempted aircraft include high-capacity aircraft. It is CAO 20.11 that makes the regulation 252A requirements applicable to those aircraft. As a result, the exemption is from that CAO.
Notably, instrument CASA EX63/14 did not otherwise exempt operators and pilots in command from subregulation 252A (7) of CAR 1988 in relation to the definition of approved ELT or approved portable ELT which both mean an eligible ELT that meets the requirements of subregulation 252A (4). Under paragraph 252A (4) (b), an eligible ELT must be registered with AMSA. Because CASA EX63/14 did not include an exemption from paragraph 252A (4) (b), there was some ambiguity as to whether the exemption was completely effective. To resolve this ambiguity, this instrument repeals and replaces CASA EX63/14 and includes an exemption from paragraph 252A (4) (b).
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.
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. This instrument affects the operation of paragraph 6.6 of CAO 20.11. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
In September 2014, industry asked CASA to review CASA EX63/14 to ensure there was no inconsistency between the requirement in paragraph 252A (4) (b) of CAR 1988 and the exemption from paragraph 6.6 of CAO 20.11. After an internal review, CASA decided that, to avoid ambiguity, the exemption should be reissued to include paragraph 252A (4) (b) of CAR 1988. The purpose and function of the instrument has not changed but has improved with industry feedback. It is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
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 1998.
The instrument commences on the day of registration and expires at the end of July 2017, as if it had been repealed by another instrument.
[Instrument number CASA EX123/14]
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 a high-capacity regular public transport or charter aircraft and the pilot in command of that aircraft from compliance with paragraph 6.6 of Civil Aviation Order 20.11 and paragraph 252A (4) (b) of the Civil Aviation Regulations 1988 which require emergency locator transmitters carried on the aircraft to be registered with the Australian Maritime Safety Authority. The exemption applies, for practical reasons, when the aircraft is on a flight associated with its manufacture, preparation for delivery or delivery to its operator.
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 taking advantage of 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