Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — aircraft operating without carriage of Mode S transponder equipment (Balloon Flights Over Melbourne)
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
Balloon Flights Over Melbourne Pty Ltd, trading as Balloon Flights Over Melbourne and Balloon Man (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 balloon in the operator’s fleet was registered before 6 February 2014 but is, nevertheless, captured within the scope of paragraph 9E.2 by virtue of having its 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 EX15/16 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 EX15/16]
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 (Balloon Flights Over Melbourne)
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 Balloon Flights Over Melbourne Pty Ltd, trading as Balloon Flights Over Melbourne and Balloon Man (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