Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX128/19 – Approved VASIS (Charter Operations – Relevant Runway Ends for Certified Aerodromes) Exemption 2019
Purpose
The instrument would continue to exempt the aerodrome operator of a certified aerodrome from compliance with subregulation 139.190 (1) of the Civil Aviation Safety Regulations 1998 (CASR) in relation to providing an approved visual approach slope indicator system (VASIS) at a runway end, for a certified aerodrome, that has the following characteristics (a relevant runway end):
(a) the runway end is regularly used as the approach end for jet-propelled aircraft conducting charter operations at the aerodrome;
(b) the runway end is not regularly used as the approach end for jet-propelled aircraft conducting regular public transport operations at the aerodrome;
(c) an approved VASIS is not provided for the runway end immediately before the commencement of the instrument.
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 CASR.
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 a provision of the regulations.
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, 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 grant an exemption on its own initiative.
Regulation 11.205 of CASR provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210 of CASR, 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) of CASR, the maximum duration of an exemption is 3 years.
Under subregulation 139.190 (1) of CASR, the aerodrome operator of a certified aerodrome must, in accordance with the standards for visual approach slope indicator systems set out in the Manual of Standards (MOS) – Part 139 Aerodromes (the Part 139 MOS), provide an approved VASIS for the end of a runway at the aerodrome if that end is regularly used as the approach end for jet-propelled aircraft conducting regular public transport operations or charter operations.
Background
The Explanatory Statement for instrument number CASA EX171/16, Exemption — requirement to provide a VASIS (CASA EX171/16) includes the following background information:
(a) paragraph 1.1.1.2A of the Part 139 MOS provided that the standards set out in the Part 139 MOS for a VASIS applied only to aerodromes used by aeroplanes with a maximum take-off weight in excess of 5 700 kg engaged in regular public transport operations. Paragraph 1.1.1.2A of the Part 139 MOS was removed on 13 November 2014;
(b) in order to preserve the previous position, CASA made CASA instrument number EX150/14, Exemption from subregulation 139.190 (1) of CASR 1998 — requirement to provide a VASIS (CASA EX150/14). CASA EX150/14 exempted operators of aerodromes that are regularly used by jet-propelled aircraft conducting charter operations from providing a VASIS in accordance with subregulation 139.190 (1) of CASR.
CASA EX150/14 was repealed at the end of 30 November 2016. CASA intended the general exemption in CASA EX150/14 to remain in force until regular public transport operations and charter operations were regulated together as air transport operations when Parts 119, 121 and 135 of CASR commenced. However, when none of those Parts of CASR had commenced by the time CASA EX150/14 was repealed, CASA granted an exemption of the same kind in CASA EX171/16. Because Parts 119, 121 and 135 of CASR have not commenced, under section 1 of CASA EX171/16, that instrument will be repealed at the end of 30 November 2019.
However, since CASA EX171/16 commenced, each of the following has been made, and is expressed to commence on 25 March 2021:
(a) the Civil Aviation Safety Amendment (Part 119) Regulations 2018;
(b) the Civil Aviation Safety Amendment (Part 121) Regulations 2018;
(c) the Civil Aviation Safety Amendment (Part 135) Regulations 2018.
Therefore, in the instrument, CASA grants another exemption of the same kind as the exemption in CASA EX171/16, to continue to preserve the abovementioned previous position until those regulations commence.
The exemption in the instrument is granted on CASA’s own initiative.
Overview of instrument
The instrument is intended to continue to exempt the aerodrome operators of a certified aerodrome from compliance with subregulation 139.190 (1) of CASR in relation to providing an approved VASIS at a relevant runway end for the aerodrome.
However, the instrument is not intended to allow an aerodrome operator of a certified aerodrome to decommission an existing approved VASIS provided in relation to a relevant runway end for the aerodrome, and instead rely on the exemption. Rather, the instrument requires an existing approved VASIS to continue to be provided in relation to the runway end, in order for the operator to rely on the exemption (see paragraph (c) of the definition of relevant runway end in section 3 of the instrument).
CASA has assessed that renewing the exemption is not expected to increase the risk disposition already allowable under the arrangement enabled by previous instruments (CASA EX150/14 and CASA EX171/16) or the interpretation of regulation 139.190 of CASR in relation to original paragraph 1.1.1.2A of the Part 139 MOS.
Content of instrument
Section 1 states the name of the instrument.
Section 2 states the duration of the instrument.
Section 3 of the instrument contains definitions of terms used in the instrument.
Section 4 of the instrument exempts the aerodrome operator of a certified aerodrome from compliance with subregulation 139.190 (1) of CASR in relation to providing an approved VASIS in relation to a relevant runway end for the aerodrome.
The note below section 4 states that the exemption does not prevent CASA from exercising its power under subregulation 139.190 (2) of CASR, to direct the aerodrome operator to provide an approved VASIS for the approach end or ends of a runway to which subregulation 139.190 (1) of CASR does not apply, if CASA considers it necessary in the interests of the safety of aircraft.
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 aerodrome operators of certified aerodromes, being a class of persons. 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
Although CASA is renewing the exemption on its own initiative, the renewal is supported by affected operators of aircraft employed in charter operations, and affected aerodrome operators.
The instrument continues the exemption in CASA EX171/16, which in turn preserved the application of paragraph 1.1.1.2A of the Part 139 MOS in relation to the provision of a VASIS for a relevant runway end. In those circumstances, CASA is satisfied that no further consultation is appropriate, or reasonably practicable, for the 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.
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 December 2019, and will be repealed at the earlier of the following:
(a) the end of 30 November 2022;
(b) the commencement of Parts 119, 121 and 135 of CASR.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX128/19 – Approved VASIS (Charter Operations – Relevant Runway Ends for Certified Aerodromes) Exemption 2019
The 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 instrument would continue to exempt the aerodrome operator of a certified aerodrome from compliance with subregulation 139.190 (1) of the Civil Aviation Safety Regulations 1998 in relation to providing an approved visual approach slope indicator system (VASIS) at a runway end, for a certified aerodrome, that has the following characteristics:
(a) the runway end is regularly used as the approach end for jet-propelled aircraft conducting charter operations at the aerodrome;
(b) the runway end is not regularly used as the approach end for jet-propelled aircraft conducting regular public transport operations at the aerodrome;
(c) an approved VASIS is not provided for the runway end immediately before the commencement of the instrument.
Human rights implications
The legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
The legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority