Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX43/20 — Use of Radiocommunication System in Firefighting Operations (Victoria) Exemption 2020
Purpose
The instrument exempts persons on board an aircraft performing firefighting services for the Victorian Government Department of Environment, Land, Water and Planning (DELWP) or the Country Fire Authority of Victoria (CFA) from the requirement in regulation 83 of the Civil Aviation Regulations 1988 (CAR) to be qualified to transmit on radio frequencies used for the purpose of ensuring air navigation safety. The exemption is subject to the personnel meeting alternative competency requirements set out in the instrument and other conditions.
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 the Civil Aviation Safety Regulations 1998 (CASR) and CAR.
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, the Civil Aviation Safety Authority (CASA) may grant an exemption from a provision of the regulations.
Under subregulation 11.160 (2) of CASR, 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) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.175 (4) of CASR, in deciding whether to reissue an exemption, 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 provides that 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.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Part 8 of CAR contains provisions relating to the use of radio systems in, or in connection with, aircraft. Regulation 83 of CAR makes it an offence for a person to transmit on a radio frequency of a kind used for the purpose of ensuring the safety of air navigation unless the person is qualified to do so in accordance with subregulation 83 (2).
Background
Personnel from DELWP and CFA use radiocommunication systems for conducting aircraft‑to‑aircraft and air-to-ground communications when on board an aircraft engaged in firefighting operations. Such personnel are not usually engaged in aviation activities and do not usually hold licences or authorisations of the kind referred to in subregulation 83 (2) of CAR.
In this specific situation, CASA has determined that alternative competency requirements and associated conditions are an acceptable alternative to the requirements in regulation 83 of CAR.
Overview of instrument
The effect of the instrument is to exempt personnel performing firefighting operations, on behalf of DELWP or CFA, from compliance with regulation 83 of CAR when on board an aircraft during firefighting operations.
The exemption is subject to conditions that the personnel undertake the training mentioned in the instrument and be assessed as competent by the Chief Fire Officer of DELWP or the Officer’s delegate. In addition, the personnel must use the aviation bandwidth VHF AM frequency allocated by Airservices Australia and the Australian Communications and Media Authority to DELWP and CFA.
Content of instrument
Section 1 sets out the name of the instrument.
Section 2 sets out the duration of the instrument.
Section 3 defines terms used in the instrument.
Section 4 sets out the classes of person to whom the instrument applies.
Section 5 sets out the exemption, subject to the conditions in section 6.
Section 6 sets out the conditions on the exemption, being that the exempted person must have completed the alternative training and assessment requirements set out in section 6, and may only use the specified bandwidth that is allocated to DELWP and CFA by Airservices Australia and the Australian Communications and Media Authority, and may only use the allocated bandwidth for aircraft-to-aircraft and air-to-ground communications.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation or the maintenance of aircraft. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument exempts a class of persons from complying with the provisions in regulation 83 of CAR. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The instrument has been issued at the request of DELWP and is required for firefighting operations. As the instrument is similar to instruments that have previously been issued to DELWP for the same purposes, and DELWP has not sought any changes to the substance of the instrument, CASA understands that the instrument is acceptable to DELWP. In this situation, CASA is of the view that further consultation is not necessary or appropriate.
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
A statement of compatibility is at Attachment 1.
Making and commencement
The exemption has been made by a delegate of CASA, relying on the power of delegation under regulation 11.260 of CASR.
The instrument commences on the day after it is registered and is repealed at the end of 31 May 2022.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX43/20 — Use of Radiocommunication System in Firefighting Operations (Victoria) Exemption 2020
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 instrument exempts persons on board an aircraft performing firefighting services on behalf of the Victorian Government Department of Environment, Land, Water and Planning (DELWP) and the Country Fire Authority of Victoria (CFA) from the requirement in regulation 83 of the Civil Aviation Regulations 1988 to be qualified to transmit on radio frequencies used for the purpose of ensuring air navigation safety.
The exemption is subject to the conditions that such persons are appropriately trained to operate radiocommunication systems, and that they will only transmit on a frequency allocated to DELWP and CFA for use during firefighting operations.
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