Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — aircraft operating without carriage of Mode S transponder equipment (Balloon Flights Over Melbourne)
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 of CAR 1988 in relation to the instruments and equipment to be carried on board aircraft. Paragraph 9E.2 of CAO 20.18 provides, among other things, that an aircraft first registered on or after 6 February 2014 that is operated in Class A, B, C or E airspace or above 10 000 feet above mean sea level in Class G airspace must carry a serviceable Mode S transponder that meets specified standards. Paragraph 9E.2 also applies to an aircraft that is modified by having its transponder installation replaced on or after 6 February 2014.
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.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Background
Balloon Flights Over Melbourne Pty Ltd (the operator) is a Melbourne-based hot air balloon company that operates a fleet of hot air balloons. The fleet of balloons share a small number of transponders. The transponders are fitted to the basket of the balloon, but it is the balloon envelope – not the basket – that bears the aircraft registration marking. It is common for baskets (with variable size and passenger capacity) to be swapped between balloon envelopes to match the needs of each operation and, therefore, there is no specific association between a balloon envelope and a basket. Transponders fitted to baskets may also be removed from baskets and reinstalled in other baskets.
The use of Mode S transponders require a 24-bit code to match the envelope registration marking for each flight, but given that baskets and fitted transponders frequently alternate between balloon envelopes, there is reasonable and ongoing commensurate risk that coding errors could be made, therefore, reducing aviation safety. The operator’s balloons are currently fitted with Mode A/C transponders that do not have the requirement for a 24-bit code but still allow visibility on air traffic control radar and by other aircraft equipped with traffic advisory systems.
The operator operates 1 balloon registered after 6 February 2014 which is not compliant with the requirements of paragraph 9E.2 of CAO 20.18. The other balloon in the operator’s fleet was registered before 6 February 2014 but is, nevertheless, captured within the scope of paragraph 9E.2 by virtue of having its transponders replaced (that is, swapped with another balloon) on or after 6 February 2014 without being compliant with the Mode S transponder requirements.
The operator requested an exemption from the requirements of paragraph 9E.2 for balloon operations. CASA EX15/16 was issued on 20 January 2016 for this purpose, limited to the balloons in the operator’s fleet. However, the operator has since requested that CASA extend the scope of the exemption to apply to any balloon operated by the operator to allow for future additions to the operator’s fleet. CASA has considered the operator’s proposal and agrees that the intent of the exemption would not be diminished and there would be no significant adverse safety impact. The exemption would lead to a reduction in costs and operational complexity for the operator. The operator’s balloons will have at all times an operative Mode A/C transponder.
Instrument
CASA EX39/16 repeals and replaces CASA EX15/16, and applies to all balloons operated by the operator. The instrument exempts the operator’s balloons from complying with the Mode S transponder requirements in paragraph 9E.2 of CAO 20.18.
The exemption is subject to the condition that the operator must ensure that an exempted balloon carries a serviceable Mode A/C transponder in order for air traffic control to locate the balloon. It is also a condition that the operator must ensure all I.F.R. flight plans for the balloons operating in Australian airspace are annotated with the words “RMK/CASA MODE S EXEMPT” in Item 18 of the flight plan. A note has been inserted to advise that the Airservices Australia automated systems will reject a flight plan lodged for these aircraft without this annotation.
Legislative Instruments Act 2003 (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 the CAO, the later document is declared to be a disallowable instrument. Under subparagraph 6 (d) (i) of the LIA, an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. CAR 1988 was in force before the commencement of the LIA.
This instrument affects the operation of paragraph 9E.2 of CAO 20.18 and is, therefore, a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The operator has requested this revised exemption and has provided CASA with a satisfactory safety case. CASA consulted Airservices Australia on the proposed operations and the original exemption. 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 instrument commences on the day of registration and expires at the end of December 2018, as if it had been repealed by another instrument.
[Instrument number CASA EX39/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — aircraft operating without carriage of Mode S transponder
equipment (Balloon Flights Over Melbourne)
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 all balloons operated by Balloon Flights Over Melbourne Pty Ltd (the operator) from compliance with paragraph 9E.2 of Civil Aviation Order 20.18, which requires the aircraft to be equipped with a serviceable Mode S transponder that meets specified standards.
The purpose of the instrument is to allow the operator and persons using the balloons to continue to operate the balloons without meeting equipment requirements that, due to the nature of the operator’s ballooning operations (such as switching transponders and baskets between different balloon envelopes), would increase the risk of transponder coding errors. The exemption is subject to conditions imposed in the interests of aviation safety.
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