Explanatory Statement
Civil Aviation Regulations 1988
Exemption — use of radiocommunication system in firefighting operations (Victoria)
Purpose
The instrument exempts persons on board an aircraft performing firefighting services for the Victorian Government Department of Environment, Land, Water and Planning (DEWLP) or the Country Fire Authority of Victoria (CFA) from the requirement in regulation 83 of the Civil Aviation Regulations 1988 (CAR 1988) to be qualified to transmit on radio frequencies used for the purpose of ensuring air navigation safety. The exemption is subject to the personnel meeting alternative competency requirements set out in the instrument and other conditions.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations.
Part 8 of CAR 1988 contains provisions relating to the use of radio systems in, or in connection with, aircraft. Regulation 83 of CAR 1988 makes it an offence for a person to transmit on a radio frequency of a kind used for the purpose of ensuring the safety of air navigation unless the person is qualified to do so in accordance with subregulation 83 (2). Paragraph 83 (2) (b) provides that a person is qualified to transmit on the radio frequency if the person holds a flight radiotelephone operator licence.
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 compliance with a provision of CASR 1998 or CAR 1988.
Subregulation 11.170 (3) of CASR 1998 provides that, in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of aviation safety. Under subregulation 11.205 (1), CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation.
Requirement for exemption
Personnel from DEWLP and CFA use radiocommunication systems for conducting aircraft‑to-aircraft and air-to-ground communications when on board an aircraft engaged in firefighting operations. Such personnel are not usually engaged in aviation activities and do not usually hold licences of the kind referred to in paragraph 83 (2) (b).
In this specific situation, CASA has determined that alternative competency requirements and associated conditions are an acceptable alternative to the requirements in regulation 83.
Instrument
The effect of the instrument is to exempt personnel performing firefighting operations, on behalf of DEWLP or CFA, from compliance with regulation 83 of CAR 1988, specifically the qualifications mentioned in paragraph 83 (2) (b), when on board an aircraft during firefighting operations.
The exemption is subject to conditions that the personnel undertake the training mentioned in the instrument and be assessed as competent by the Chief Fire Officer of DEWLP or the Officer’s delegate. In addition, the personnel must use the aviation bandwidth VHF AM frequency allocated by Airservices Australia and the Australian Communications and Media Authority to DEWLP and CFA.
Legislation Act 2003 (the LA)
Subsection 8 (4) of the LA provides that certain instruments that determine the law or alter the content of the law are legislative instruments. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument is a legislative instrument if the instrument is expressed to apply to a class of persons. As the instrument exempts a class of persons from complying with the provisions in regulation 83 of CAR 1988, the instrument is a legislative instrument.
Consultation
The instrument has been issued at the request of DEWLP and is required for firefighting operations. As the instrument is similar to instruments that have previously been issued to DEWLP for the same purposes, and DEWLP has not sought any changes to the substance of the instrument, CASA understands that the instrument is acceptable to DEWLP. In this situation, CASA is of the view that further consultation is not necessary or appropriate.
Statement of Compatibility with Human Rights
A statement of compatibility is at Attachment 1.
Making and commencement
The exemption has been made by a delegate of CASA, relying on the power of delegation under regulation 11.260 of CASR 1998.
The instrument commences on the day of registration and is repealed at the end of 31 October 2019.
[Instrument number CASA EX166/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — use of radiocommunication system in firefighting operations (Victoria)
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 instrument exempts persons on board an aircraft performing firefighting services on behalf of the Victorian Government Department of Environment, Land, Water and Planning (DEWLP) and the Country Fire Authority of Victoria (CFA) from the requirement in regulation 83 of the Civil Aviation Regulations 1988 to be qualified to transmit on radio frequencies used for the purpose of ensuring air navigation safety.
The exemption is subject to the conditions that such persons are appropriately trained to operate radiocommunication systems, and that they will only transmit on a frequency allocated to DEWLP and CFA for use during firefighting operations.
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