Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX30/19 — Aerodrome Lighting (Green Chromaticity) Exemption 2019
Purpose
The purpose of CASA EX30/19 — Aerodrome Lighting (Green Chromaticity) Exemption 2019 (the instrument) is to grant the operator of a certified aerodrome that has a light-emitting diode (LED) lighting system an exemption from compliance with particular provisions of the Civil Aviation Safety Regulations 1998 (CASR), to the extent the provisions require the operator to provide and maintain a lighting system, for the movement area of the aerodrome, which meets the green chromaticity standard (the MOS standard) stated in subparagraph 9.2.2.1 (c) of the Manual of Standards (MOS) – Part 139 Aerodromes (the MOS). The exemption only applies in relation to the LED lighting system. The exemption is subject to the condition that the operator must ensure the LED lighting system meets the green chromaticity standard (the ICAO standard) for aeronautical ground lights stated in Appendix 1, paragraph 2.3 of Volume I of Annex 14, Aerodromes, to the Chicago Convention.
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 CASR.
Under Part 1 of the CASR Dictionary, a certified aerodrome is an aerodrome in relation to which a certificate, issued under regulation 139.050 of CASR, is in force.
Under subregulation 139.195 (1) of CASR, if a certified aerodrome is available for an aircraft to land or take-off at night, or in less than VMC during the day, the operator of the aerodrome must provide and maintain a lighting system, for the movement area of the aerodrome, that is in accordance with subregulations 139.195 (2) and (3). Paragraph 139.195 (3) (a) states if the lighting system is of a kind for which standards are specified in the MOS, the system must meet those standards.
Subparagraph 9.2.2.1 (c) of the MOS requires the green chromaticity of aerodrome lights to be within stated boundaries.
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of CASR. Subregulation 11.160 (1) of CASR states, for subsection 98 (5A) of the Act, the Civil Aviation Safety Authority (CASA) may grant an exemption from compliance with a provision of CASR.
Under subregulation 11.160 (2), 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), an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption on application by a person, 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 grant an exemption on its own initiative.
Regulation 11.205 of CASR states CASA may impose, on an exemption, any condition necessary in the interests of the safety of air navigation. Under regulation 11.210 of CASR, it is a strict liability offence for a person not to comply with an obligation imposed on the person by a condition of an exemption.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1) of CASR, the maximum duration of an exemption is 3 years.
The term Chicago Convention is defined in section 3 of the Act. The Chicago Convention is the multilateral treaty that establishes the safety regulatory framework for international aviation.
As far as is relevant, subparagraph 14 (1) (a) (ii) of the Legislation Act 2003 (the LA) states a legislative instrument may apply, adopt or incorporate, as in force at a particular time or as in force from time to time, the provisions of a disallowable legislative instrument.
Subsection 14 (2) of the LA states, unless a contrary intention appears in the enabling legislation, a legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. A contrary intention appears in subsection 98 (5D) of the Act, which states 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.
Documents incorporated by reference
The instrument incorporates by reference the following documents:
- the MOS, as in force from time to time;
- Annex 14, Aerodromes, to the Chicago Convention, as it exists from time to time.
The MOS is incorporated by reference as in force from time to time, in accordance with section 10 of the Acts Interpretation Act 1901 and section 13 of the LA.
Under clause 15 of Part 2 of the CASR Dictionary, a reference to an Annex to the Chicago Convention is a reference to that Annex as in force from time to time. Accordingly, in accordance with subsection 98 (5D) of the Act, Annex 14 to the Chicago Convention is incorporated as it exists from time to time.
The following table contains descriptions of the documents incorporated by reference and how the documents may be obtained.
Document | Description | Source |
The MOS | This document is a disallowable legislative instrument made under CASR. | Freely available on the Federal Register of Legislation at: https://www.legislation.gov.au/Details/F2017C00087 |
Annex 14 to the Chicago Convention | This document contains international standards and recommended practices for aerodromes, and applies to a Contracting State to the Chicago Convention. | This document is publicly available but subject to copyright, which belongs to the International Civil Aviation Organization (ICAO). It is made available by ICAO for a fee (https://store.icao.int/). Therefore, the document is not freely available. However, see below for more information. |
In relation to Annex 14 to the Chicago Convention, the cost of obtaining a copy of the document is a matter for a person wishing to review the matter to which the document relates. CASA has no effective control over those costs. However, by prior arrangement with CASA, a copy of the document can be made available for viewing by a person, free of charge, at a CASA office.
Content of the instrument
Section 1 gives the instrument its name.
Section 2 states the instrument’s duration.
Section 3 contains the definition Manual of Standards.
Section 4 states the instrument applies to the operator of a certified aerodrome that:
(a) is available for an aircraft to land, or take-off, at night or in less than VMC during the day; and
(b) has an LED lighting system for the movement area of the aerodrome.
Under section 5, in relation to the LED lighting system, the operator is exempt from compliance with subregulation 139.195 (1) and paragraph 139.195 (3) (a) of CASR, to the extent the provisions require the operator to provide and maintain a lighting system, for the movement area, which meets the MOS standard.
The exemption is subject to the condition stated in section 6. The condition is that the operator must ensure the LED lighting system meets the ICAO standard.
In granting the exemption, CASA has regarded as paramount the preservation of at least an acceptable level of aviation safety. In imposing the condition on the exemption, CASA has determined the condition was necessary in the interests of the safety of air navigation.
Legislation Act 2003
Paragraph 98 (5A) (a) of the Act states CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft.
Paragraphs 98 (5AA) (a) and (b) of the Act state 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.
Sections 5 and 6 of the instrument apply to a class of persons, namely, the operators of particular certified aerodromes. The instrument is, therefore, a legislative instrument, and subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The issue addressed by the instrument became apparent after the operator of a particular certified aerodrome installed an LED lighting system at the aerodrome. It was later identified that the system, whilst compliant with the ICAO standard, did not comply with the MOS standard. Also, it was ascertained that there are no LED lighting systems, for aerodromes, available that are compliant with the MOS standard.
The issue is relevant to the operators of other certified aerodromes with LED lighting systems that are not compliant with the MOS standard. Without the benefit of the exemption under the instrument, the operators would be in breach of subregulation 139.195 (1) of CASR in relation to the lighting systems.
Given the beneficial nature of the instrument, and the application by the instrument of the internationally-recognised ICAO standard, CASA is satisfied no consultation is appropriate or reasonably practicable for the instrument for section 17 of the LA. The ICAO standard is proposed to be adopted into Australian law upon the commencement of the Civil Aviation Safety Amendment (Part 139) Regulations 2019 and associated Manual of Standards.
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 the day after it is registered, and is repealed at the end of 28 February 2022.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX30/19 — Aerodrome Lighting (Green Chromaticity) Exemption 2019
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.
Overview of the legislative instrument
Under the legislative instrument, the operator of a certified aerodrome that has a light-emitting diode (LED) lighting system is exempt from compliance with subregulation 139.195 (1) and paragraph 139.195 (3) (a) of the Civil Aviation Safety Regulations 1998, to the extent the provisions require the operator to provide and maintain a lighting system, for the movement area of the aerodrome, which meets the green chromaticity standard stated in subparagraph 9.2.2.1 (c) of the Manual of Standards (MOS) – Part 139 Aerodromes. The exemption only applies in relation to the LED lighting system.
The exemption is subject to the condition that the operator must ensure the LED lighting system meets the green chromaticity standard for aeronautical ground lights stated in Appendix 1, paragraph 2.3 of Volume I of Annex 14, Aerodromes, to the Chicago Convention.
Human rights implications
The legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
The legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority