Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX151/20 — RNP 1 and RNP 2 Alternate Means of Compliance (Foreign-registered Aircraft) Exemption 2020
Purpose
The purpose of the instrument is to continue an existing arrangement that allows operators of foreign registered aircraft to demonstrate compliance for operations involving either or both of the following, using alternative equivalent navigation authorisation options issued by the National Aviation Authority (the NAA) of the relevant State of Registration or State of the Operator (the applicable NAA):
(a) Australian Required Navigation Performance (RNP) 2 routes;
(b) RNP 1 procedures.
Apart from some minor drafting improvements, the instrument gives effect to that purpose by extending the operation of the exemption and conditions in instrument CASA EX158/17, Exemption – RNP 1 and RNP 2 alternate means of compliance – foreign registered aircraft (CASA EX158/17).
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 the Civil Aviation Safety Regulations 1998 (CASR).
Subpart 11.G of CASR provides for the Civil Aviation Safety Authority (CASA) to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a) of CASR, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Under regulation 11.255 of CASR, it is an offence of strict liability to contravene a direction under regulation 11.245.
Paragraph 7.2 of Civil Aviation Order 20.91 (Instructions and directions for performance‑based navigation) Instrument 2014 (CAO 20.91) contains a direction issued by CASA under paragraph 11.245 (1) (a) of CASR. Under paragraph 7.2, foreign-registered aircraft operating into or out of, and within, the Brisbane or Melbourne Flight Information Region are directed to have authorisations equivalent to those for Australian-registered aircraft under CAO 20.91 issued by their applicable NAA.
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, CASA may grant an exemption from compliance with 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, on application, 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 reissue an exemption on its own initiative.
Regulation 11.205 provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, 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), the maximum duration of an exemption is 3 years.
Subsection 98 (5D) of the Act provides that a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.
Background
Historically, aircraft navigation specifications have been specified directly in terms of sensors, being navigation beacons and waypoints. A navigation specification that includes an additional requirement for on-board navigation performance monitoring and alerting is referred to as an “RNP” specification. A specification not requiring on-board navigation performance monitoring and alerting is referred to as an “RNAV” specification.
Aircraft RNP and RNAV systems performance requirements are defined in terms of accuracy, integrity, availability, continuity, and functionality required for the proposed operations in the context of a particular airspace, when supported by the appropriate navigation infrastructure.
From 4 February 2016, Global Navigation Satellite System (GNSS) navigation equipment became mandatory for all operations in Australia under the instrument flight rules. From 26 May 2016, the Back-Up Navigation Network became available with consequential route and procedure changes effective from that date. Among other changes, RNP 2 became the standard navigation specification for continental en route operations and RNP 1 became the standard navigation specification for terminal instrument flight procedures.
CASA has become aware of administrative difficulties for some foreign operators in obtaining the required navigation authorisations for RNP 1 and RNP 2 from the applicable NAA. These difficulties arise for various reasons, including that the European Union Aviation Safety Agency has not published airworthiness standards for RNP 2 and, therefore, aircraft manufacturers are not able to include RNP 2 in the aircraft flight manual list of navigation specifications for which the aircraft is compliant. Also, many State regulators do not have RNP 2 regulations in place upon which to base the issue of a navigation authorisation, or they are not able to issue an authorisation because the aircraft flight manual does not list RNP 2.
RNP 2 is a relatively new navigation specification, which is why it is not yet included in the current regulations of many States. It is expected that, over time as more applications of RNP 2 emerge, the situation will resolve itself.
To address that situation, CASA has previously made 2 similar instruments:
(a) CASA EX06/16, Exemption – GNSS-based RNAV 1 and RNAV 2 instead of RNP 1 and RNP 2 – foreign registered aircraft (CASA EX06/16), that commenced on 22 January 2016 and was repealed at the end of 30 November 2017; and
(b) CASA EX158/17, that commenced on 1 December 2017 and is repealed at the end of 30 November 2020.
Because a significant number of national aviation authorities have not yet implemented RNP 2, CASA considers it necessary to extend the operation of the exemption and conditions in CASA EX158/17 until the end of 30 November 2022. Extending the operation of those exemptions and conditions will continue to enable affected operators of foreign-registered aircraft to engage in operations on Australian RNP 2 Continental routes or involving RNP 1 procedures by using equivalent navigation authorisations to RNP 1 and RNP 2 issued by the applicable NAA as an alternate means of compliance.
Overview of instrument
The instrument is intended to continue an existing arrangement that allows operators of foreign-registered aircraft to demonstrate compliance for operations involving either, or both of, RNP 2 routes and RNP 1 procedures by using alternative equivalent navigation authorisation options issued by the applicable NAA.
In considering whether to issue instruments CASA EX06/16 and CASA EX158/17, CASA assessed that the alternative equivalent navigation authorisation options provided an equivalent level of aviation safety to that provided by RNP 1 and RNP 2. CASA’s assessment of the relative levels of aviation safety has not changed and the instrument would extend the operation of an existing exemption and related conditions in CASA EX158/17. Therefore, CASA is satisfied that extending the operation of that exemption and conditions in CASA EX158/17 would have no negative impact on the safety of the related operations.
Documents incorporated by reference
The definition of exempted foreign aircraft in subsection 3 (1) of the instrument incorporates by reference the Brisbane and Melbourne Flight Information Regions, determined from time to time in a legislative instrument made under regulation 5 of the Airspace Regulations 2007. At the time of making the instrument, that legislative instrument is titled CASA OAR 058/20 — Determination of Airspace and Controlled Aerodromes Etc. (Designated Airspace Handbook) Instrument 2020 and is freely available on the Federal Register of Legislation (FRL) at https://www.legislation.gov.au/Details/F2020L01392/Download.
Subsection 3 (2) of the instrument incorporates by reference the meaning of several terms as in CAO 20.91, as in force from time to time. CAO 20.91 is a legislative instrument, freely available on the FRL at https://www.legislation.gov.au/Details/F2018C00889/Download.
Content of instrument
Section 1 names the instrument.
Section 2 sets out when the instrument commences and will be repealed.
Section 3 contains definitions.
The note located below the definition of exempted foreign aircraft is a signpost note, intended to assist users of the instrument to locate the Brisbane and Melbourne Flight Information Regions, determined from time to time in a legislative instrument mentioned, along with a link to its location on the FRL, in the note.
Subsection 4 (1) exempts the operator of an exempted foreign aircraft that is covered by a substitute authorisation issued by an applicable NAA from compliance with:
(a) the direction in paragraph 7.2 of CAO 20.91; and
(b) subregulation 11.255 (1) of CASR, to the extent that the subregulation requires the operator of the aircraft to comply with the direction mentioned in paragraph (a).
Subsection 4 (2) defines, for section 4, substitute authorisation.
Subsection 4 (3) provides that the exemption in subsection (1) is subject to the conditions mentioned in section 5.
Subsection 5 (1) imposes a condition on an operator who intends to first use a type of aircraft for a flight in reliance on the exemption in section 4. It requires the operator to notify CASA of its intention within a particular period and using a particular CASA form.
The note located below subsection 5 (1) is a signpost note, intended to assist users of the instrument to locate the CASA form mentioned in paragraph 5 (1) (b).
Subsection 5 (2) imposes a condition on an operator of an aircraft, requiring the operator to ensure that the flight plan for each operation conducted in reliance on the exemption in section 4 includes a particular statement at a particular item of the flight plan.
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 a class of persons, being operators of exempted foreign aircraft covered by a substitute authorisation issued by an applicable NAA. 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
Before making CASA EX06/16, CASA liaised on the relevant issues with a number of foreign operators, the International Air Transport Association (the trade association for the world’s airlines) and Airservices Australia.
CASA EX158/17 extended the range of alternative authorisations mentioned in CASA EX06/16 that operators of foreign-registered aircraft can rely on if they do not have RNP 1 or RNP 2 authorisations.
By extending the operation of the exemption and conditions in instrument CASA EX158/17, the instrument continues an existing arrangement that is beneficial to the operators of foreign-registered aircraft.
In those circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for this 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, and is compatible with human rights, as it does not raise any human rights issues.
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 2020 and is repealed at the end of 30 November 2022.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX151/20 — RNP 1 and RNP 2 Alternate Means of Compliance (Foreign‑registered Aircraft) Exemption 2020
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 purpose of the instrument is to continue an existing arrangement that allows operators of foreign-registered aircraft to demonstrate compliance for operations involving either or both of the following, using alternative equivalent navigation authorisation options issued by the National Aviation Authority of the relevant State of Registration or State of the Operator:
(a) Australian Required Navigation Performance (RNP) 2 routes;
(b) RNP 1 procedures.
Apart from some minor drafting improvements, the instrument gives effect to that purpose by extending the operation of the exemption and conditions in instrument CASA EX158/17, Exemption – RNP 1 and RNP 2 alternate means of compliance – foreign registered aircraft.
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