Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — carriage of Mode S transponder equipment (Toll Aviation)
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 in relation to the instruments and equipment to be carried on board aircraft. Paragraph 9E.4 of CAO 20.18 provides that, on or after 4 February 2016, an aircraft operating at Brisbane, Sydney, Melbourne or Perth aerodrome must carry a serviceable Mode S transponder that meets specified standards.
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.
Instrument
The instrument exempts persons using specified aircraft operated by Toll Aviation Pty Ltd (the operator) from compliance with paragraph 9E.4 of CAO 20.18 in respect of the requirement to carry a Mode S transponder. The exemption applies until the end of January 2017. The specified aircraft carry Mode A/C transponders. The operator has indicated that the specified aircraft are likely to be retired during 2016.
The requirement that aircraft operating at Brisbane, Sydney, Melbourne or Perth aerodrome be equipped with ADS-B capable Mode S transponders is being introduced to enable Airservices Australia to use the Advanced Surface Movement Guidance and Control System (ASMGCS) being installed at these aerodromes. Even if not equipped with Mode S transponders, the aircraft specified in the instrument could be handled without significant operational impact.
A note has been included in section 3 of the instrument to clarify the interaction between the exemption and paragraph 9B.11 of CAO 20.18. Paragraph 9B.11 of CAO 20.18 defines airspace within a quadrant extending from Perth aerodrome 500 NM north through to east and provides that, from 4 February 2016, aircraft operating in this airspace under the I.F.R (instrument flight rules) must be equipped with ADS-B equipment that meets the requirements of Appendix XI of CAO 20.18. The aircraft specified in the instrument will not be ADS-B equipped. Even though section 3 of the instrument refers to operations at Perth aerodrome, the instrument does not exempt the aircraft from the ADS-B requirement in paragraph 9B.11 of CAO 20.18. Accordingly, this instrument does not grant a permission for the aircraft to operate in the specified airspace at Perth aerodrome without ADS-B equipment.
Legislative Instruments Act 2003 (the LIA)
This instrument affects the operation of paragraph 9E.4 of CAO 20.18. Under regulation 5A of CAR 1988, if CASA has issued a direction in the form of a CAO and later issues another direction or an exemption which affects the operation of anything in the CAO, the later instrument is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. Section 6 of the LIA provides that such an instrument made in the exercise of a power delegated by the Parliament before 1 January 2005 is a legislative instrument.
As a legislative instrument, this instrument is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The operator applied for the exemption. In addition, CASA has consulted with Airservices Australia, which is responsible for air traffic control at Brisbane, Sydney, Melbourne and Perth aerodromes. In these circumstances, 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 exemption commences on 4 February 2016, when the requirement in paragraph 9E.4 of CAO 20.18 starts to apply. The exemption has been made in advance to provide certainty to the operator. The exemption expires at the end of January 2017, as if it had been repealed by another instrument.
[Instrument number CASA EX170/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — carriage of Mode S transponder equipment (Toll Aviation)
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 persons using 8 aircraft operated by Toll Aviation Pty Ltd (the operator) from compliance with paragraph 9E.4 of Civil Aviation Order 20.18 which, from 4 February 2016, requires aircraft to carry a Mode S transponder. The instrument provides an exemption until 31 January 2017.
The purpose of the instrument is to allow the operator to continue to operate the aircraft without meeting the new requirement to carry a Mode S transponder, pending retirement of the 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