Explanatory Statement
Civil Aviation Safety Regulations 1998
Civil Aviation Regulations 1988
CASA EX14/18 — 2018 Bright Open Australian Nationals and Paragliding World Cup Instrument 2018
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to 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 the following:
(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft; or
(b) the airworthiness of, or design standards for, aircraft.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the Regulations, including the Civil Aviation Regulations 1988 (CAR), or a provision of the Civil Aviation Orders, 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.
Under subregulation 11.205 (1) of CASR, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.210 of CASR, failure to comply with a condition of an exemption is a strict liability offence.
Under regulation 11.225 of CASR, an exemption must be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Under subregulation 11.245 (1) of CASR, CASA may issue directions about, among other things, any matter affecting the safe navigation and operation of aircraft. Under subregulation 11.245 (2), CASA may only issue a direction if the direction is for the purpose of CASA’s functions and not inconsistent with the Act, and if CASA is satisfied that the direction is necessary in the interests of the safety of air navigation. Under regulation 11.250, a direction ceases to be in force on the day specified in the direction or, if no day is specified, 1 year after the day it commences. Under regulation 11.255, it is an offence for a person to contravene a direction that is applicable to the person.
Under subregulation 83 (1) of CAR, a person commits an 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. Subregulation 83 (2) defines when a person is qualified to transmit on a radio frequency of that kind.
Regulation 166E of CAR contains requirements relating to the carriage of a serviceable aircraft very high frequency (VHF) radio when operating in the vicinity of certified, military, registered or designated aerodromes. The term “in the vicinity of” is given a specific meaning for regulation 166E: see regulation 166 of CAR. It is limited to a distance of 10 miles from the aerodrome and a height such that the aircraft could be in conflict with operations at the aerodrome.
For aircraft operated under the Visual Flight Rules, regulation 174A of CAR empowers CASA to issue instructions specifying the carriage or installation of (among other things) radiocommunication systems. Instrument DASR 2/1994 instructs that aircraft engaged in specified operations must have installed a VHF radiocommunication system.
Subregulation 174A (3) empowers CASA to grant permissions for an aircraft to be flown if it does not meet the equipment requirements of regulation 174A, subject to any conditions specified in the permission. It is an offence for the pilot in command of an aircraft to fly in contravention of a condition of a permission.
Background
For the purposes of regulation 166E of CAR, the aerodrome at Corryong, Victoria is a registered aerodrome.
There are plans to hold the 2018 Bright Open Australian Nationals and Paragliding World Cup (collectively, the event) at Bright, Victoria.
Class E airspace (which is a class of controlled airspace) is the airspace above 8 500 feet and below approximately 12 500 feet above mean sea level.
Hang Gliding Federation of Australia (HGFA), which has responsibility for the administration of the event, has requested an exemption against regulation 166E of CAR so that participants in the event are not required to carry a serviceable aircraft VHF radio when operating in the vicinity of Corryong aerodrome. HGFA has also applied for permission so that participants in the event are not required to carry a VHF radio as required by regulation 174A of CAR. Paragliders typically are not equipped with VHF radio equipment and generally do not operate in airspace in which such radios are required. Paragliders are more commonly flown with ultra high frequency (UHF) radio equipment. The event represents an exception to this circumstance.
A similar instrument was made by CASA for the Corryong 2018 Hang Gliding Cup and the 2018 Paragliding Open (CASA EX174/17).
Instrument
The instrument provides an exemption for the pilot in command of a paraglider who is participating in the event to fly the aircraft in the vicinity of Corryong aerodrome without complying with regulation 166E of CAR.
The instrument also provides an exemption for the operator of a communications station that the HGFA is required by the instrument to establish and maintain. If the operator holds a radio operator endorsement, issued by the HGFA in accordance with the HGFA Operations Manual as it exists from time to time, the operator is exempt from complying with regulation 83 of CAR.
The instrument also provides permission for the pilot in command of a paraglider who is participating in the event to fly the aircraft without carrying a serviceable VHF radiocommunication system as required by the instructions issued under regulation 174A of CAR.
The exemption and the permission for pilots in command are subject to several conditions and are supplemented by directions to HGFA.
Directions
The directions to HGFA require it to ensure that there is a satisfactory support system to mitigate the safety risks associated with the operation of paragliders without a serviceable VHF radio. The support system includes requirements for the establishment of a ground communications station at the launch site for event operations, and at Corryong aerodrome where flight in the vicinity of the aerodrome is possible.
If it is possible that event flights will be conducted in class E airspace, HGFA must ensure that a temporary danger area is active in the relevant class E airspace where the event is conducted, and a communications station that covers the area 15 nautical miles from event aircraft is required.
Back-up radios and batteries are required for each communications station.
The communications station or stations will advise other aircraft of the area of activity and location of the paragliders. HGFA is responsible for ensuring that the Competition Director or other competent person maintains a listening watch. The ground communications station must be active on the relevant frequencies on each day of the event.
HGFA is also responsible for ensuring that information is provided to CASA about event activities each day, which CASA will incorporate into a Notice to Airmen (NOTAM) to be published by Airservices Australia.
HGFA must also ensure that event participants are provided with a diagram of known air traffic routes in the area where the event is conducted.
HGFA must also ensure that, before aircraft operation on a day, a briefing is provided to event participants that addresses at least the following:
(a) confirmation of communication station set-up and applicable frequencies in use;
(b) review and explanation of the applicable NOTAM and temporary danger area for that day;
(c) review and explanation of class E boundaries applicable to event operations on the day, and the requirement to operate only within the boundaries;
(d) review and explanation of the conditions under which the exemption and permission have been issued;
(e) review and explanation of any class G and class E airspace in which HGFA expects other aircraft may be operating during event operations on the day;
(f) if flight in the vicinity of Corryong aerodrome is possible during the event operations on the day — review and explanation of the air traffic and activities that HGFA expects in the vicinity of the aerodrome.
In addition, HGFA must ensure that the name of each event participant attending the daily briefing is recorded, and that the record is retained for a prescribed period.
While the directions impose obligations on HGFA, it is expected as a practical matter that HGFA will ask the Competition Director, as the event organiser, to fulfil the obligations.
Conditions
The conditions on the exemption and permission for pilots in command include a requirement for aircraft covered by the exemption and permission to be equipped with a UHF radio. If the UHF radio becomes unserviceable while the aircraft is in class E airspace, the pilot in command must remain within 15 nautical miles of a communications station or cease the flight. The condition does not require an immediate election to continue the flight or to land, but permits the pilot to remain within the prescribed distance of the communications station for as long as the pilot is willing and able to do so, and to land the aircraft at any time. It is intended that remaining within the prescribed distance will enable the communications station to communicate with non-event aircraft about any paraglider in the vicinity that has an unserviceable UHF radio.
Pilots in command of aircraft covered by the exemption or permission must attend the daily briefing mentioned in the directions to HGFA. Pilots in command must also be satisfied that: the required communications stations will be established and maintained in accordance with the requirements of the instrument; the daily NOTAM has been published as required; and, if flight in class E airspace is possible, that the required temporary danger area is active. In relation to these matters, which are not a pilot in command’s direct responsibility, the pilot in command may rely on the daily briefing.
Pilots in command of aircraft covered by the exemption and permission must hold at least a HGFA pilot certificate (or an overseas equivalent) and are required to operate in accordance with the HGFA Operations Manual, as that document exists from time to time. Among other things, the HGFA Operations Manual contains rules for the operation of paragliders. The HGFA Operations Manual can be freely accessed from www.hgfa.asn.au/.
Operations in class E airspace must only be carried out within the active temporary danger area.
Legislation Act 2003 (the LA)
Subsection 98 (5AA) of the Act states that an instrument issued under paragraph (5A) (a) is a legislative instrument if it applies to a class of persons or a class of aircraft. The exemption in this instrument applies to a class of persons. Therefore, the instrument is a legislative instrument. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
HGFA has requested the instrument. CASA has consulted with HGFA and the organisers of the event. The organisers also consulted with the local aerodrome operators and local aviation operators. The terms of the exemption and permission are substantially similar to the terms of instruments issued in relation to the event held in previous years.
In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
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 made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on 10 February 2018 and is repealed at the end of 24 February 2018.
[Instrument number CASA EX14/18]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX14/18 — 2018 Bright Open Australian Nationals and Paragliding World Cup Instrument 2018
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
This instrument will enable participants in the 2018 Bright Open Australian Nationals and Paragliding World Cup (the event) to fly a paraglider in the vicinity of a registered aerodrome, without complying with regulation 166E of the Civil Aviation Regulations 1988 (CAR). Regulation 166E contains requirements relating to the carriage of aircraft very high frequency (VHF) radio when operating in the vicinity of certified, military, registered or designated aerodromes.
This instrument will also enable participants in the event to fly a paraglider in class E airspace without carrying a VHF radiocommunication system, as may be required under regulation 174A of CAR.
The exemption and permission are subject to conditions on participants.
The instrument also issues directions to Hang Gliding Federation of Australia, which is responsible for the administration of the event.
The conditions and directions are imposed by CASA in the interest of the safety of air navigation.
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