Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — use of radiocommunication systems in firefighting operations (New South Wales Rural Fire Service)
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.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including the Civil Aviation Regulations 1988 (CAR 1988), or a provision of the Civil Aviation Orders (the CAOs), in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. 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.
Subregulation 83 (1) of CAR 1988 provides that a person commits a criminal offence if the person transmits on a radio frequency of a kind used for the purpose of ensuring the safety of air navigation and the person is not qualified to transmit on the radio frequency. The offence attracts a maximum penalty of 50 penalty units. Subregulation 83 (2) sets out the circumstances in which a person is qualified to transmit on a radio frequency of a kind used for the purpose of ensuring the safety of air navigation. Subregulation (3) provides that an offence against the regulation is an offence of strict liability.
The New South Wales Rural Fire Service (NSW RFS) has been allocated certain aviation bandwidth VHF AM frequencies by Airservices Australia and the Australian Communications and Media Authority for use during bush firefighting activities.
During the conduct of those operations, NSW RFS personnel have a need to use radiocommunication systems for tactical aircraft-to-aircraft and air-to-ground communications. Although trained in the use of radiocommunication systems for use in firefighting operations, those personnel do not usually hold licences or certificates of the kind referred to in subregulation 83 (2) of CAR 1988 or hold pilots licences of the kind mentioned in Paragraph 61.435 of CASR 1998.
The effect of this exemption is to exempt members and staff of the NSW RFS from compliance with regulation 83 of CAR 1988. This exemption will enable the NSW RFS, as the owner of a radiocommunication system not installed in, or carried on, an aircraft, to permit the operation of that system by a person who is not the holder of a certificate or licence of a kind that they would otherwise be required to have completed. The NSW RFS run a training course for the use of aviation radiocommunication systems.
The exemption applies when they are communicating with an Australian aircraft that is engaged in fire suppression and prevention operations or training for such operations. The operators must only use the allocated aviation bandwidth VHF FM frequencies.
Legislative Instruments Act 2003 (the LIA)
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the Regulations or the CAOs. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The exemption applies to classes of persons engaged in firefighting operations. The exemption is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Consultation
Consultation under section 17 of the LIA has been undertaken with the NSW RFS. The instrument is required to enable firefighting operations to take place using staff that have been given appropriate training. It renews instrument CASA EX28/13, issued to pilots in command of firefighting aircraft and the NSW RFS, which will expire at the end of February 2016. It takes into account the repeal and substitution of regulation 83 of CAR 1988 in 2013 and the introduction of Part 61 into CASR 1998 in 2014. It is consistent with other exemptions for fire-fighting services.
Making and commencement
The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on the day of registration. It expires at the end of February 2019, as if it had been repealed by another instrument.
[Instrument number CASA EX40/16]
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 systems in firefighting operations
(New South Wales Rural Fire Service)
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 permits firefighting aircraft and members of the New South Wales Rural Fire Service on the ground to communicate by radio although not holding licences issued under the Civil Aviation Regulations 1988. The systems operators must only use the allocated aviation bandwidth VHF FM frequencies and must undergo specialist training.
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