Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — temporary relief from requirement to carry serviceable
ADS-B transmitting equipment and GNSS equipment – Solomon Airlines
Legislation
Under section 28BA of the Civil Aviation Act 1988 (the Act), an Air Operator’s Certificate (AOC) has effect subject to any conditions specified in the regulations or Civil Aviation Orders (CAOs).
Section 98 of the Act empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Paragraph 10.8, and clause 7 in Appendix 4, of CAO 82.5 apply to an AOC holder that is the operator of a high-capacity foreign-registered aircraft that operates at or above flight level (FL) 290 (that is, at or above an altimeter height of 29 000 feet at international standard atmosphere). On and after 12 December 2013, those provisions require the operator to ensure that the aircraft carries serviceable automatic dependent surveillance – broadcast (ADS-B) transmitting equipment that complies with the approved equipment configuration.
Under paragraph 9D.5 of CAO 20.18, on and after 4 February 2016, an aircraft that is first registered before 6 February 2014, and that is engaged in regular public transport operations under the Instrument Flight Rules (I.F.R.), must carry serviceable Global Navigation Satellite System (GNSS) equipment.
Exemptions
Subpart 11.F of the Civil Aviation Safety Regulations 1998 (CASR 1998) deals with exemptions. Under subregulation 11.160 (1), for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of the Civil Aviation Regulations 1988 (CAR 1988), CASR 1998 or a CAO in relation to a matter mentioned in subsection 98 (5A).
Under subregulation 11.160 (2) of CASR 1998, an exemption may be granted to a person or a class of persons. Under subregulation 11.160 (3), CASA may grant an exemption on application, or on its own initiative. For an application for an exemption, CASA must regard as paramount the preservation of an acceptable level of safety.
Under regulation 11.205, 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. Under regulation 11.225, CASA must, as soon as practicable, publish on the Internet details of all exemptions under Subpart 11.F.
Under subregulation 11.230 (1), an exemption may remain in force for 3 years or for a shorter period specified in the instrument. Under subregulation 11.230 (3), an exemption in force in relation to a particular aircraft owned by a particular person ceases to be in force when the aircraft ceases to be owned by that person. Under regulation 11.235, an exemption is not transferable (as between operators, aircraft etc.).
Background
ADS-B avionics is a modern aircraft surveillance system for air traffic control (ATC) using ground stations to receive radio signals transmitted by equipped aircraft. Using ADS-B avionics, an aircraft is able to broadcast its identity, position, altitude, velocity and many other flight parameters with a degree of accuracy, integrity and reliability that is better than more conventional secondary surveillance radar (SSR).
The Australian mandate for the carriage of ADS-B equipment enhances the safety and efficiency of air traffic management (ATM). It will enable ATM to better manage both increasing air traffic in upper airspace, and increased use of flexible routing for trans‑continental flights. Thus, in time, ADS-B will become the primary surveillance system for flight over much of the Australian continent.
However, SSR remains the primary surveillance system used by Airservices Australia (AA) in controlled terminal areas, and in the special east-coast radar area (the radar J-curve area, extending from 200 nautical miles north of Cairns to 200 nautical miles west of Adelaide). In addition, most of the Australian-administered airspace outside Australian territory (with the exception of the airspace over the Great Australian Bight, some of Bass Strait and the Gulf of Carpentaria) remains without surveillance. The air traffic separation service continues to be provided procedurally in that airspace.
As the 12 December 2013 mandate date approached, several of the major overseas manufacturers of business jet aircraft advised that there would be delays in providing factory supported supplemental type certificates (STCs) for the installation of ADS-B equipment. Manufacturers had been urged to speed-up the availability of installation kits. For a number of aircraft types, particularly those with highly integrated avionics suites, it was evident that operators would not be able to meet the 12 December 2013 compliance date.
To assist in the management of this contingency, and following consultations with AA, CASA decided to issue a geographically-limited exemption from the relevant ADS-B carriage requirement to cover both Australian and foreign aircraft operators, subject to compliance with requirements and conditions of the exemption (CASA EX113/13 and CASA EX56/14 refer). This would enable non-ADS-B equipped aircraft to operate at or above FL 290 in certain restricted areas of airspace, pending availability and installation of ADS-B equipment. CASA EX56/14 expires at the end of 11 December 2015.
The operator holds an AOC and operates an Airbus A320-211 aircraft, registration H4‑BUS, that does not have the required ADS-B and GNSS equipment. This equipment is expected to be installed in mid-February 2016. The operator has asked that, in effect, the exemption in CASA EX56/14 be extended to allow more time for ADS-B to be installed in the aircraft. The operator has also applied for an exemption from the requirement to carry GNSS equipment to allow more time for that equipment to be installed in the aircraft.
Instrument
This legislative instrument (CASA EX212/15) applies to a particular aircraft after CASA EX56/14 expires. It is made in similar terms to CASA EX56/14, except that it only applies to Solomon Airlines Limited (the operator) when operating the operator’s Airbus A320-211 aircraft, registration H4-BUS, in exempted airspace defined by the instrument.
The exempted airspace is Australian-administered airspace at or above FL 290 in the SSR radar J-curve area; airspace over external territories or outside the territorial seas. Airspace is not exempted over most of mainland Australia (and Tasmania) or within the 12 mile territorial limit (except the radar J-curve); or over specific parts of the Gulf of Carpentaria, Bass Strait and the Great Australian Bight.
Schedule 1 and Attachments 1 and 2 to Schedule 1 provide the coordinate details and pictorial representations of the east coast SSR coverage area and the area of exempted airspace for the purpose of the exemption.
In addition, CASA EX212/15 exempts the operator from the requirement, which commences on 4 February 2016, for the aircraft to be fitted with serviceable GNSS equipment.
The exemptions are subject to conditions, imposed in the interests of the safety of air navigation. The conditions require that the aircraft’s navigation database that is used for radio updating is current, and that the flight plan for each operation include a specified remark advising of the exemption from the requirements to carry ADS-B and GNSS equipment.
Legislative Instruments Act 2003 (the LIA)
Under subparagraph 6 (d) (i) of the LIA, an instrument is a legislative instrument if it is declared to be a disallowable instrument under legislation in force before the commencement of 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 that CAO, the later document is declared to be a disallowable instrument. CASA EX212/15 exempts the operator from specified requirements of CAO 20.18 and CAO 82.5 and, therefore, is declared to be a disallowable instrument.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
For section 17 of the LIA, CASA previously consulted with AA and the Australian Strategic Air Traffic Management Group (ASTRA) (an industry group). On 26 August 2013, CASA also published the first exemption of this kind (CASA EX113/13) on its website for public information and comment by close of business on 20 September 2013. By the closing date, CASA had received responses from industry, and all comments were taken into account. In June 2015, CASA consulted AA on the continuation of the ADS-B exemption policy for the operator with feedback that, while the general exemption renewal was not supported, AA would not oppose limited extension of the ADS-B exemption policy on a case-by-case basis.
CASA EX113/13, and its successor CASA EX56/14, applied broadly to industry, whereas CASA EX212/15 applies only to 1 operator for the operation of 1 aircraft.
Having regard to the circumstances, CASA considers that no further consultation for this instrument is necessary or appropriate.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required for OBPR in this case because 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
A Statement of Compatibility with Human Rights is at Attachment 1.
Commencement and making
The exemption commences on 12 December 2015 and expires at the end of February 2016, as if it had been repealed by another instrument.
The instrument has been made by a delegate of CASA under subregulation 11.260 (1) of CASR 1998.
[Instrument number CASA EX212/15]
Appendix 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Civil Aviation Safety Regulations 1998
Exemption — temporary relief from requirement to carry serviceable
ADS-B transmitting equipment and GNSS equipment – Solomon Airlines
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
Under the Civil Aviation Orders, by 12 December 2013, Australian and foreign-registered aircraft in Australian-administered airspace must carry serviceable automatic dependent surveillance – broadcast (ADS-B) transmitting equipment when operating at or above flight level 290 (that is, at or above an altimeter-related height of 29 000 feet). This is to improve the safety and efficiency of air traffic management.
There were uncontrollable delays associated with the overseas manufacture and supply of some relevant ADS-B equipment and, as a result, some Australian and foreign-registered aircraft operators were not able to meet the 12 December 2013 compliance date.
To assist in the management of this contingency, and following consultations with Airservices Australia (AA) and others, CASA issued a geographically-limited exemption (CASA EX113/13 and its successor CASA EX56/14) from the relevant ADS-B carriage requirement to cover both Australian and foreign aircraft operators, subject to compliance with the requirements and conditions of the exemption. CASA EX56/14 expires at the end of 11 December 2015.
CASA EX212/15 is a new instrument, commencing on 12 December 2015, that continues the exemption policy for Solomon Airlines Limited (the operator). The operator operates an Airbus A320-211 aircraft which has not been equipped with ADS-B or GNSS equipment. It is expected that the required equipment will be installed in the aircraft in mid-February 2016 and, therefore, CASA EX212/15 has effect until the end of February 2016.
Human rights implications
The exemption in the 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. The 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