CASA EX13/16 - Exemption - aircraft operating without carriage of Mode S transponder equipment (Global Ballooning Australia)

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2016L00068 Not in force Legislative Instrument

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Explanatory Statement

Civil Aviation Safety Regulations 1998

Exemption — aircraft operating without carriage of Mode S transponder equipment (Global Ballooning Australia)

 

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 (1) 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 of CAR 1988 in relation to the instruments and equipment to be carried on board aircraft. Paragraph 9E.2 of CAO 20.18 provides, among other things, that an aircraft first registered on or after 6 February 2014 that is operated in Class A, B, C or E airspace, or above 10 000 feet above mean sea level in Class G airspace, must carry a serviceable Mode S transponder that meets specified standards. Paragraph 9E.2 also applies to an aircraft that is modified by having its transponder installation replaced on or after 6 February 2014.

 

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), 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.

 

Background

Global Ballooning Australia Pty Ltd (the operator) is a Melbourne-based hot air balloon company that operates a fleet of hot air balloons. The fleet of balloons share a small number of transponders. The transponders are fitted to the basket of the balloon, but it is the balloon envelope – not the basket – that bears the aircraft registration marking. It is common for baskets (with variable size and passenger capacity) to be swapped between balloon envelopes to match the needs of each operation and, therefore, there is no specific association between a balloon envelope and a basket. Transponders fitted to baskets may also be removed from baskets and reinstalled in other baskets.

 

The use of Mode S transponders require a 24-bit code to match the envelope registration marking for each flight, but given that baskets and fitted transponders frequently alternate between balloon envelopes, there is reasonable and ongoing commensurate risk that coding errors could be made, therefore, reducing aviation safety. The operator’s balloons are currently fitted with Mode A/C transponders that do not have the requirement for a 24-bit code but still allow visibility on air traffic control radar and by other aircraft equipped with traffic advisory systems.

 

The operator operates 1 balloon registered after 6 February 2014 which is not compliant with the requirements of paragraph 9E.2 of CAO 20.18. The other balloons in the operator’s fleet were registered before 6 February 2014 but are, nevertheless, captured within the scope of paragraph 9E.2 by virtue of having their transponders replaced (that is, swapped with another balloon) on or after 6 February 2014 without being compliant with the Mode S transponder requirements.

 

The operator has requested an exemption from the requirements of paragraph 9E.2 for its fleet of balloons. CASA has, in consultation with Airservices Australia, assessed the operator’s safety case and considers that the exemption will have no significant adverse safety impact, but rather reduces the complexity of the operator’s ballooning operations and the risk of transponder coding errors. The operator’s balloons will have at all times an operative Mode A/C transponder.

 

Instrument

CASA EX13/16 applies to the operator’s balloon aircraft mentioned in Schedule 1 of the instrument. The instrument exempts the aircraft from complying with the Mode S transponder requirements in paragraph 9E.2 of CAO 20.18.

 

The exemption is subject to the condition that a person using the aircraft must ensure that all I.F.R. flight plans in Australian airspace are annotated with the words “RMK/CASA MODE S EXEMPT” in Item 18 of the flight plan. A note has been inserted to advise that the Airservices Australia automated systems will reject a flight plan lodged for these aircraft without this annotation.

 

Legislative Instruments Act 2003 (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. Under subparagraph 6 (d) (i) of 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. CAR 1988 was in force before the commencement of the LIA.

 

This instrument affects the operation of paragraph 9E.2 of CAO 20.18 and is, therefore, a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.

 

Consultation

The operator has requested this instrument and has provided CASA with a satisfactory safety case. CASA has consulted Airservices Australia on the proposed operations and exemption. It is CASA’s view that no further consultation under section 17 of the LIA 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 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 expires at the end of December 2018, as if it had been repealed by another instrument.

 

[Instrument number CASA EX13/16]

Attachment 1

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011

 

Exemption — aircraft operating without carriage of Mode S transponder equipment (Global Ballooning Australia)

 

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 specified balloon aircraft operated by Global Ballooning Australia Pty Ltd (the operator) from compliance with paragraph 9E.2 of Civil Aviation Order 20.18, which requires the aircraft to be equipped with a serviceable Mode S transponder that meets specified standards.

 

The purpose of the instrument is to allow the operator and persons using the aircraft to continue to operate the aircraft without meeting equipment requirements that, due to the nature of the operator’s ballooning operations (such as switching transponders and baskets between different balloon envelopes), would increase the risk of transponder coding errors. The exemption is subject to a condition imposed in the interests of aviation safety.

 

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

Overview

The Civil Aviation Safety Regulations 1998, as amended, were enacted to ensure the safety of air navigation within Australian airspace. This particular legislative instrument, CASA EX13/16, was introduced to address the specific issue faced by Global Ballooning Australia Pty Ltd, a Melbourne-based hot air balloon operator. The operator's balloons frequently swap baskets and transponders between different balloon envelopes, leading to a risk of transponder coding errors which could compromise aviation safety. The exemption allows the operator to continue its ballooning operations without the requirement to carry a Mode S transponder, provided that all flight plans are annotated with "RMK/CASA MODE S EXEMPT." This exemption is intended to reduce the complexity of the operator's operations and the associated risk, while maintaining a level of safety through the continued use of Mode A/C transponders. The instrument was made by the Civil Aviation Safety Authority (CASA) in accordance with the Civil Aviation Act 1988 and is subject to disallowance by the Parliament under the Legislative Instruments Act 2003.

Scope and Application

The Civil Aviation Safety Regulations 1998 (CASR 1998) and associated regulations and orders set out the requirements for the safe operation of aircraft in Australian airspace. Specifically, CASA EX13/16 applies to Global Ballooning Australia Pty Ltd and its fleet of hot air balloons, allowing these aircraft to operate without carrying a Mode S transponder under certain conditions. The exemption applies to the specific aircraft detailed in Schedule 1 of the instrument and is limited in duration until the end of December 2018. The exemption is subject to a condition that all Instrument Flight Rules (IFR) flight plans for these aircraft must be annotated with "RMK/CASA MODE S EXEMPT." This condition aims to maintain aviation safety by ensuring that the exemption is clearly communicated in flight plans, thus avoiding any potential misunderstandings or safety risks. The exemption is made under the authority of the Civil Aviation Act 1988 and Civil Aviation Safety Regulations 1998, and it is subject to the legislative instruments Act 2003 provisions regarding disallowable instruments and parliamentary scrutiny.

Key Provisions

The key operative sections of the Civil Aviation Safety Regulations 1998 (CASR 1998) that pertain to this legislative instrument include sections 11.160 (1) and 11.225. Section 11.160 (1) allows the Civil Aviation Safety Authority (CASA) to grant an exemption from a provision of a Civil Aviation Order (CAO) for matters affecting the safe navigation and operation of aircraft. Section 11.225 mandates that any such exemption must be published on the Internet. This legislative instrument (CASA EX13/16) was made under these provisions, allowing Global Ballooning Australia Pty Ltd to operate their balloon aircraft without the need for Mode S transponders, subject to certain conditions. The instrument also requires the exemption to be published online to ensure transparency and accessibility. Under this Act, Global Ballooning Australia Pty Ltd, as well as any person using the exempted aircraft, is required to comply with the conditions set out in the exemption. Specifically, they must ensure that all Instrument Flight Rules (IFR) flight plans in Australian airspace are annotated with the words “RMK/CASA MODE S EXEMPT” in Item 18 of the flight plan. This annotation is crucial as Airservices Australia's automated systems will reject a flight plan lodged for these aircraft if it lacks this specific annotation. This requirement is intended to maintain situational awareness and safety in the airspace despite the exemption from the transponder equipment requirement. The Civil Aviation Safety Regulations 1998 impose several potential consequences for non-compliance with the terms of this exemption or the underlying regulations. The Legislative Instruments Act 2003 (LIA) provides that if CASA issues a CAO and subsequently issues an exemption affecting the operation of the CAO, the exemption is declared to be a disallowable instrument. Under section 6(d)(i) of the LIA, this instrument is a legislative instrument for the purposes of section 5 of the LIA as it was declared to be a disallowable instrument under legislation in force before the commencement of the LIA. The instrument is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA. Additionally, any failure to comply with the conditions of the exemption, such as not annotating flight plans appropriately, could result in further regulatory action by CASA or other aviation authorities. The instrument includes provisions for potential civil or administrative penalties for non-compliance. Although specific penalties are not detailed in the text, non-compliance with the conditions of the exemption could result in enforcement actions, including fines or suspension of operational authorisations. The exemption itself is time-bound, expiring at the end of December 2018, which underscores the temporary nature of the exemption and the continued need for compliance with other aviation safety regulations. This ensures that the exemption does not become a permanent deviation from established safety standards.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.