Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — use of radiocommunication systems in firefighting operations (Western Australia)
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations.
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 1998) provides that, for subsection 98 (5A), CASA may grant an exemption from a provision of the Regulations, including the Civil Aviation Regulations 1988 (CAR 1988) or a provision of the Civil Aviation Orders (the CAOs), 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 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225, 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.
Paragraph 83 (1) (c) of CAR 1988 requires that the pilot in command of an Australian aircraft must not permit the operation of the radiocommunication system during flight time in the aircraft except by a person who holds a flight radiotelephone operator licence or a student pilot licence.
Paragraph 83 (1) (e) of CAR 1988 requires that the pilot in command of an Australian aircraft must not permit the operation of the radiocommunication system while the aircraft is on the ground except by a person who holds a licence or certificate mentioned in paragraph 83 (1) (d).
Paragraph 83 (2) (b) of CAR 1988 requires that the owner of a radiocommunication system not installed in an aircraft but used to ensure the safety of air navigation must not permit persons to operate that system unless they hold such a licence or certificate.
Under subregulation 83 (3) of CAR 1988, a person must not operate a radiocommunication system that is:
(a) not installed in, or carried on, an aircraft; or
(b) installed in, or carried on, an aircraft that is on the ground;
if the person does not hold 1 of the specified licences or certificates.
The State of Western Australia, acting through the Department of Environment and Conservation (the DEC) and the Fire and Emergency Services Authority of Western Australia (the FESA) have been allocated certain aviation bandwidth VHF AM frequencies by Airservices Australia and the Australian Communications and Media Authority for use during bush firefighting activities.
During the conduct of those operations, DEC and FESA personnel have a need to use radiocommunication systems for tactical aircraft-to-aircraft and air-to-ground communications. Although trained in the use of radiocommunication systems for use in firefighting operations, those personnel do not usually hold licences or certificates of the kind referred to in subregulation 83 (1) or (3) of CAR 1988.
The effect of this exemption is to exempt a pilot in command of an Australian aircraft engaged in firefighting or training for firefighting, in which a radiocommunication system approved under subregulation 82 (1) of CAR 1988 is installed, from compliance with the requirements of paragraphs 83 (1) (c) and (e).
In addition, the DEC and the FESA are exempted from compliance with paragraph 83 (2) (b) of CAR 1988. This exemption will enable the DEC and the FESA, as the owners of a radiocommunication system not installed in, or carried on, an aircraft, to permit the operation of that system by a person who is not the holder of a certificate or licence of a kind that would otherwise be required.
This exemption also exempts radio operators who are members or staff of the DEC or the FESA from compliance with subregulation 83 (3) of CAR 1988. Under that regulation, they are required to hold a licence or certificate of a specified kind.
Conditions for the exemption to apply are mentioned in Schedule 1 to the instrument. DEC or FESA operators must have successfully completed a prescribed DEC or FESA training course, including the use of radiocommunication systems. They must also only use the allocated aviation bandwidth frequencies and do so only for fire suppression and prevention operations or training for such operations.
Legislative Instruments Act
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the Regulations or the CAOs. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The instrument applies to a class of persons and is, therefore, legislative. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument is required for firefighting operations and renews an instrument, CASA EX85/10, issued for such operations which expired at the end of 31 October 2012.
Compatibility with human rights and freedoms
This 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 as it does not raise any human rights issues. It does not engage any of the applicable rights or freedoms.
Commencement and making
The instrument commences on the day of registration. It stops having effect at the end of 31 October 2015.
The exemption has been made by a delegate of CASA under regulation 11.260 of CASR 1998.
[Instrument number CASA EX164/12]