Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — carriage of Mode S transponder equipment (Rawlings)
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 (1A) 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 in relation to the instruments and equipment to be carried on board aircraft. Paragraph 9E.2 of CAO 20.18 applies to an aircraft that is first registered, or is modified by having its transponder installation replaced, on or after 6 February 2014. When such aircraft are operated in Class A, B, C or E airspace, or above 10 000 feet in Class G airspace, they 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), the maximum duration of an exemption is 3 years.
Instrument
The instrument exempts persons using the specified aircraft operated by Graham Clive Rawlings (the operator) from compliance with paragraph 9E.2 of CAO 20.18. The aircraft was under construction for several years. The Mode A/C transponder for the aircraft was purchased before the requirement for a Mode S transponder was announced. However, the aircraft was registered after the requirement for a Mode S transponder started to apply.
The exemption does not affect the requirement in paragraph 9E.4 of CAO 20.18 that aircraft operating at Brisbane, Sydney, Melbourne or Perth aerodromes must carry an ADS-B capable Mode S transponder.
CASA considers that granting the exemption to the operator, having regard to how the aircraft will be used, does not give rise to any significant adverse safety impact.
The exemption is repealed when the aircraft is modified by having its transponder installation replaced, or, if it is not so modified by the end of 31 July 2019, the instrument is repealed at that time. Accordingly, for continued operation of the aircraft in Class A, B, C or E airspace, or above 10 000 feet in Class G airspace, after the transponder installation is replaced, the replacement will need to be a Mode S transponder that complies with paragraph 9E.2 of CAO 20.18.
Legislation Act 2003 (the LA)
Under section 57A of the LA, an instrument is a legislative instrument for section 8 of the LA if it is declared to be a disallowable instrument under legislation in force before 1 January 2005. Under regulation 5A of CAR 1988 (which was in force before 1 January 2005), if CASA has issued a CAO that is not an airworthiness directive, and CASA later issues an exemption that affects the operation of the CAO, the exemption is declared to be a disallowable instrument.
The exemption in this instrument affects the operation of paragraph 9E.2 of CAO 20.18. 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
The operator applied for the exemption. In addition, CASA has consulted with Airservices Australia, which is responsible for air traffic control in relation to the aircraft. In these circumstances, it is CASA’s view that no further consultation under section 17 of the LA 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 the day of registration. It is repealed at the end of 31 July 2019 or when the aircraft is modified by having its transponder installation replaced before that date.
[Instrument number CASA EX127/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — carriage of Mode S transponder equipment (Rawlings)
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 person using a specified aircraft operated by Graham Clive Rawlings (the operator) from compliance with paragraph 9E.2 of Civil Aviation Order 20.18 (CAO 20.18), which requires certain aircraft to carry a Mode S transponder when operating in specified airspace.
The instrument provides an exemption until the end of 31 July 2019, or until the aircraft is modified by having its transponder installation replaced.
The exemption does not affect the requirement in paragraph 9E.4 of CAO 20.18 that aircraft operating at Brisbane, Sydney, Melbourne or Perth aerodromes must carry an ADS-B capable Mode S transponder.
Having regard to how the aircraft will be used, CASA considers that granting the exemption to the operator does not give rise to any significant adverse safety impact.
The purpose of the instrument is to allow the operator to operate the aircraft in the specified airspace without meeting the requirement to carry a Mode S transponder, until its transponder is replaced.
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