Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX73/22 — Amendment of CASA EX81/21 (ADS-B OUT Equipment on Ferry Flights in Certain Foreign-Registered Aircraft) Instrument 2022 (No. 2)
Purpose
The purpose of this instrument is to insert a number of additional exemptions into CASA EX81/21 – Part 91 of CASR – Supplementary Exemptions and Directions Instrument 2021 (CASA EX81/21 or the principal exemptions instrument). These are designed to facilitate certain kinds of foreign aircraft ferry flights into and out of Australia.
Part 91 of the Civil Aviation Safety Regulations 1998 (CASR) is a comprehensive code of general flight and operational safety rules for Australian-registered aircraft wherever located, and for foreign-registered aircraft in Australian territory. Part 91 contains the baseline rules for “private operations”. It commenced on 2 December 2021.
CASA EX81/21 made a number of exemptions against Part 91 of CASR to facilitate implementation of Part 91 in accordance with CASA’s transition policies for Part 91.
The existing exemptions in CASA EX81/21 were designed to correct technical errors and omissions in Part 91 which gave rise to unintended obligations. Those will be rectified in the next set of amendments to the Part but, in the meantime, until those amendments are made, it was considered necessary to use exemptions to provide relevant areas of the aviation industry with relief from having to comply with certain requirements and directions, adherence to which at the time may not have ensured safety compliance.
On further review of Part 91, post-2 December 2021, it was considered that CASA EX73/22 — Amendment of CASA EX81/21 (ADS-B OUT Equipment on Ferry Flights in Certain Foreign-Registered Aircraft) Instrument (No. 2) 2022 (the exemptions instrument) was urgently required to add a number of additional exemptions for specific ferry flights, each subject to safety conditions, as further explained below.
Legislation — exemptions
Section 98 of the Act empowers the Governor-General to make regulations for the Civil Aviation Act 1988 (the Act) and the safety of air navigation.
Subpart 11.F of CASR deals with exemptions. Under subregulation 11.160 (1), and for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of CASR in relation to a matter mentioned in subsection 98 (5A). Subsection 98 (5A) matters are, in effect, those affecting the safety, airworthiness or design of aircraft.
Under subregulation 11.160 (2), 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. Under subregulation 11.170 (3), for an application for an exemption, CASA must regard as paramount the preservation of an acceptable level of safety. For making a decision on its own initiative, CASA is guided by the requirement in subsection 9A (1) of the Act that in exercising its powers and functions CASA must regard the safety of air navigation as the most important consideration.
Under regulation 11.205, CASA may impose conditions on an exemption if this is 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.).
Legislation — directions
Under paragraph 11.245 (1) (a) of CASR, for subsection (5A) of the Act, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Under subregulation 11.245 (2), CASA may issue such a direction only if CASA is satisfied that it is necessary in the interests of safety, only if the direction is not inconsistent with the Act, and only for the purposes of CASA’s functions.
Under regulation 11.250, a direction ceases to be in force on a day specified in the instrument or, if no day is specified, 1 year after the instrument commences. Under subregulation 11.255 (1), it is an offence to contravene a direction under regulation 11.245 that is applicable to the person.
Although the principal instrument contains various directions, no new directions are included in the exemptions instrument.
Legislation — CASR
The exemptions instrument grants exemptions from compliance with the requirements of regulation 91.810 of CASR, but only to the extent of the requirement under:
(a) section 26.68 of the Part 91 Manual of Standards (the MOS) to fit an approved ADS-B OUT equipment configuration required under item 1 of Table 26.68 (2) in the MOS; and
(b) section 26.04 of the MOS — but only in relation the equipment mentioned in paragraph (a).
Under regulation 91.810 (Requirements relating to equipment), the MOS may prescribe requirements relating to:
(a) the fitment and non-fitment of equipment to an aircraft; and
(b) the carrying of equipment on an aircraft; and
(c) equipment that is fitted to, or carried on, an aircraft.
It is an offence to contravene these regulatory requirements.
Chapter 26 of the MOS prescribes the specific requirements for regulation 91.810. Under subsection 26.01 (2), the pilot in command of an aircraft in a private operation (such as the ferry flights in question) must comply with each of the requirements of the Chapter.
Under section 26.24 of the MOS, any equipment required by Chapter 26 to be fitted on an aircraft must be operative unless a section of the Chapter provides otherwise, or the equipment is the subject of a permissible unserviceability.
Section 26.68 deal with required surveillance equipment. Under subsection 26.68 (1), an aircraft for a flight for which surveillance equipment is required under this section must be fitted with surveillance equipment that meets the requirements relevant to the intended operation and class of airspace.
Under Table 26.68 (2) – Surveillance equipment – for IFR flight in any class of airspace, at least 1 approved ADS-B OUT equipment configuration must be fitted.
Under section 26.67, Definitions, approved ADS-B OUT equipment configuration means an equipment configuration capable of ADS-B OUT operation on the ground and in flight, and that is 1 of the following:
(a) an approved Mode S transponder with ADS-B capability connected to an approved GNSS position source;
(b) an alternate ADS-B OUT equipment configuration meeting the requirements mentioned in section 26.72;
(c) another system approved under Part 21 of CASR as having a level of performance equivalent to a system mentioned in paragraph (a) or (b).
Background
The new exemptions are designed to facilitate private ferry operations, under the IFR, into or out of Australia, of a relevant aircraft, that is, a foreign-registered aircraft of a foreign operator that is covered by the operator’s foreign certificate, where the aircraft is not fitted with an approved ADS-B OUT equipment configuration required under the MOS.
The application of the exemption instrument is strictly limited to the target class of operator’s: pilots in command for foreign operators whose relevant aircraft are under a foreign certificate.
Foreign operators are operators who are not Australian operators. An Australian operator is one who has their principal place of business or permanent residence in Australian territory. A foreign certificate means an air operator’s certificate (an AOC) issued by the national aviation authority (NAA) of the foreign country in which the foreign operator has their principal place of business or permanent residence.
Thus, the exemption is not available in relation to the pilot in command of an Australian registered aircraft, or the pilot in command of a foreign-registered aircraft operated under an Australian air operator’s certificate.
Such outbound flights may be for the purpose of, for example only, returning the aircraft to its home base outside Australia following its storage in Australia due to the downturn in aviation activity in the earlier stages of the COVID-19 pandemic but before Part 91 of CASR commenced with its revised ADS-B OUT equipment requirement.
However, such inbound flights can only be for a prescribed purpose, namely, arriving at a final destination, in Australian territory, that is the single place at which 1 or more of the following occurs.
(a) the fitting of an approved ADS-B OUT equipment configuration to the aircraft;
(b) the carrying out of maintenance on the aircraft;
(c) the storing of the aircraft at a dedicated aircraft storage facility.
Whether inbound or outbound, in the interests of safety, no more than 2 intermediate stops in Australian territory are permitted before leaving Australian territory, or before arriving at the final destination in Australian territory. Such intermediate stops may only be for 1 or more of the following reasons:
(a) to refuel;
(b) to flight plan;
(c) to comply with Australian customs or immigration requirements.
Description of the exemptions instrument
Details of the way in which the exemptions instrument operates are given in Appendix 1. (Note: for those choosing to take the benefit of an exemption, an Explanatory Statement is never a substitute for reading the precise terms of the exemption, including the scope of its application, and its conditions.)
Aviation safety
In determining whether to issue the exemption instrument, CASA had regard to the safety of air navigation as the most important consideration. In deciding whether to impose particular conditions on the particular exemptions, CASA considered what would be necessary in the interests of the safety of air navigation. CASA is satisfied that, given the necessary conditions imposed by the instrument, an acceptable level of aviation safety will be preserved. The conditions are explained in Appendix 1.
Legislation Act 2003 (the LA)
Exemptions under Subpart 11.F of CASR are “for subsection 98 (5A)” of the Act, that is, for regulations which empower the issue of certain instruments, like exemptions, in relation to “(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft”, and “(b) the airworthiness of, or design standards for, aircraft”.
The exemptions instrument is clearly one in relation to matters affecting the safe navigation and operation of aircraft. Under subsection 98 (5AA) of the Act, an exemption issued under paragraph 98 (5A) (a), for such matters, is a legislative instrument if expressed to apply in relation to a class of persons, a class of aircraft or a class of aeronautical products (as distinct from a particular person, aircraft or product).
The exemptions instrument applies to classes of persons and is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under section 15G, and sections 38 and 42, of the LA.
Sunsetting
As the exemptions instrument relates to aviation safety and is made under CASR, that means that Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument (as per item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015). The instrument deals with aviation safety matters that, once identified, require a risk response or treatment plan. Generally speaking, item 15, when invoked, is necessary in order to ensure that, in the interests of aviation safety, a relevant instrument has enduring effect, certainty and clarity for aviation operators both domestic and international.
In this case, the instrument amends the principal exemptions instrument and is almost immediately spent and repealed in accordance with the automatic repeal provisions in Subdivision A in Division 1 of Part 3 of Chapter 3 of the LA. The principal exemptions instrument is itself repealed at the end of 1 December 2024 by virtue of the terms of paragraph 2 (b) of the principal exemptions instrument. Thus, in practice, no sunsetting avoidance issues arise. The fact that the instrument is formally not subject to sunsetting does not impact on the potential for parliamentary oversight.
Incorporations by reference
Under subsection 98 (5D) of the Act, the instrument may apply, adopt or incorporate any matter contained in any instrument or other writing. A non-legislative instrument may be incorporated into a legislative instrument made under the Act, as that non‑legislative instrument exists or is in force at a particular time or from time to time (including a non-legislative instrument that does not exist when the legislative instrument is made).
Under paragraph 15J (2) (c) of the LA, the Explanatory Statement must contain a description of the incorporated documents and indicate how they may be obtained. The paragraphs below identify the documents mentioned in the instrument that are applied, adopted, or incorporated, and identify how the document may be obtained.
References to provisions of CASR and the Part 91 MOS are taken to be as they are in force from time to time, by virtue of paragraph 13 (1) (c) of the LA. CASR and the MOS are freely available online on the Federal Register of Legislation.
Consultation
Under section 16 of the Act, in performing its functions and exercising its powers, CASA must consult government, industrial, commercial consumer and other relevant bodies and organisations insofar as CASA considers such consultation to be appropriate.
Under section 17 of the LA, before a legislative instrument is made, CASA must be satisfied that it has undertaken any consultation it considers appropriate and practicable in order to draw on relevant expertise and involve persons likely to be affected by the proposals.
Exemptions from regulatory requirements are considered to be beneficial for those to whom they apply, who voluntarily elect to take advantage of them, and who comply with their conditions. It is, therefore, rarely necessary to engage in extensive public consultation on a proposed exemption. However, it is CASA’s policy to consult, where possible, in an appropriate way with those parts of the aviation industry most likely to avail themselves of, or be affected by, an exemption so that they may have the opportunity to comment on the possible or likely terms, scope and appropriateness of the exemption.
While the current issue was overlooked in preparing the final draft of Part 91 of CASR, there would have been an implicit understanding among all concerned in earlier relevant consultation that relevant ferry flights for the purposes prescribed in the exemption instrument would be accommodated in some safe and reasonable way.
Therefore, CASA considered that further formal consultation was not necessary or appropriate before making for the current exemptions instrument.
Nevertheless, there has been informal consultation with elements of the aviation industry and discussions about the urgent need to consider the further exemptions to ensure that Part 91 of CASR was consistent with previously consulted statements and understandings of its intent.
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 Exemption or Direction instruments (OBPR id: 14507).
Sector risk, economic and cost impact
Economic and cost impact
Subsection 9A (1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A (3) of the Act states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9 (1) (c), CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses, and the community to incur.
The economic impact of a standard refers to the impact a standard would have on the production, distribution, and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.
In terms of economic and cost impacts for subsection 9A (3) of the Act, the exemptions instrument would facilitate the international movement of aircraft into or out of Australia for specific ferrying purposes.
Without the exemption instrument, such movements would be unlawful, causing some foreign aircraft to remain in Australia when there was no safety justification for that, and preventing other foreign aircraft from coming to facilities in Australia for equipment fitment, maintenance or storage.
Thus, the exemption instrument will have the effect of ensuring that Australia remains a commercially suitable place for foreign aircraft storage, and foreign aircraft maintenance.
Sector risk
For aviation safety reasons, the exemption instrument is specific to the foreign aircraft it refers to in the circumstances referred to.
Rural and regional impacts
The Minister’s Statement of Expectations for the CASA Board states: “I expect that CASA will: … (b) fully consider the impact of new regulations on general aviation, with a particular focus on regional and remote Australia. All Explanatory Statements drafted by CASA for subordinate legislation should identify the impact on the various categories of operations as well as on communities in regional and remote Australia served by those operations and how these impacts have been considered.”
Insofar as some major aircraft storage facilities are located in the aircraft-friendly dry air conditions of parts of rural and regional Australia, the exemption instrument will ensure that no unnecessary obstacle is placed in the way of their continued use when the terms of the instrument apply and its conditions are complied with.
There are no other identified rural and regional impacts that differ in any material way from the general economic and cost impacts, or sector risks described above.
Environmental impact
Under subsection 9A (2) of the Act, while regarding the safety of air navigation as the most important consideration, CASA must exercise its powers and perform its functions in a manner that ensures that, as far as practicable, the environment is protected from the effects and associated effects of the operation and use of aircraft.
It is not anticipated there will be any negative environmental impacts as a result of this exemption, as compared to the baseline that existed on 1 December 2021, since the exemption is enabling a continuation of existing practices.
Thus, the exemption instrument as such will have no specific negative effect on the environment.
Statement of Compatibility with Human Rights
The Statement in Appendix 1 is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The exemptions instrument is compatible with human rights: with its aviation safety focus, it promotes the right to life, and the right to work, and it does so in a way that is reasonable, necessary and proportionate in the context of the regulatory aviation safety framework.
Commencement and making
The instrument commences on the day it is registered.
The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
Appendix 1
Details of:
CASA EX73/22 — Amendment of CASA EX81/21 (ADS-B OUT Equipment on Ferry Flights in Certain Foreign-Registered Aircraft) Instrument 2022 (No. 2)
1 Name
This section names the instrument.
2 Commencement
Under this section, this instrument commences on the day after it is registered.
3 Amendment of CASA EX81/21
Under this section, Schedule 1 amends CASA EX81/21 – Part 91 of CASR – Supplementary Exemptions and Directions Instrument 2021.
Schedule 1 Amendment
After section 26
This amendment inserts a new section 26A, ADS-B OUT equipment on certain foreign-registered aircraft in private operations, into Part 3 of the principal exemptions instrument as follows.
(1) Under subsection (1), key terms and expressions are defined, including the following:
ferry operation means a private operation to fly a relevant aircraft from a location:
(a) within Australian territory to a place outside Australian territory (an outbound flight); or
(b) outside Australian territory to a final destination within Australian territory (an inbound flight).
final destination, for an inbound flight, means the single place at which 1 or more of the following occurs.
(a) the fitting of an approved ADS-B OUT equipment configuration to the aircraft;
(b) the carrying out of maintenance on the aircraft;
(c) the storing of the aircraft at a dedicated aircraft storage facility.
intermediate stop means landing a relevant aircraft at a place, within Australian territory:
(a) that:
(i) for an outbound flight — is not the initial point of departure; and
(ii) for an inbound flight — is not the final destination; and
(b) where the sole purpose of the landing is 1 or more of the following:
(i) to refuel;
(ii) to flight plan;
(iii) to comply with Australian customs or immigration requirements.
relevant aircraft means a foreign-registered aircraft of a foreign operator, that is covered by the operator’s foreign certificate.
(2) Under subsection (2), new section 26A is made to apply to the pilot in command of a ferry operation in a relevant aircraft — both expressions are specifically defined as above.
(3) Under subsection (3), the pilot in command is exempted from compliance with the requirements of regulation 91.810, but only to the extent of the requirement under:
(a) section 26.68 of the MOS, to fit an approved ADS-B OUT equipment configuration required under item 1 of Table 26.68 (2) in the MOS; and
(b) section 26.04 of the MOS — but only in relation to the equipment mentioned in paragraph (a).
(4) Under subsection (4), each exemption is subject to the following conditions:
- before the ferry operation commences, the pilot in command of the relevant aircraft must:
- inform ATS that the aircraft is not fitted with an approved ADS‑B OUT equipment configuration; and
- be satisfied that the aircraft is airworthy, and its equipment is serviceable, for the flight;
- a relevant aircraft in a ferry operation must not land within Australian territory at more than 2 intermediate stops unless the landing is a necessary response to an unforeseen emergency or an unavoidable equipment malfunction.
A Note explains that an acceptable means of informing ATS is to insert in the RMK element of the flight plan, the indicator “ADSB EXEMPT”, as stated in AIP ENR 1.10.
A second Note explains that the fact that the relevant aircraft is not fitted with an approved ADS-B OUT equipment configuration may influence whether ATS issues an air traffic control clearance, or may affect the conditions specified in an air traffic control clearance.
A third Note explains that an aircraft that is operated under a special flight permit (SFP) or special flight authorisation (SFA) is considered to be serviceable.
A fourth Note reminds readers of the definition of intermediate stop in subsection (1); and further explains that a stop for the purposes of crew rest is not within the definition of an intermediate stop, and a ferry operation must be planned to avoid any such occurrence.
Appendix 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX73/22 — Amendment of CASA EX81/21 (ADS-B OUT Equipment on Ferry Flights in Certain Foreign-Registered Aircraft) Instrument 2022 (No. 2)
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
Purpose
The purpose of the exemption instrument is to insert a number of additional exemptions into CASA EX81/21 – Part 91 of CASR – Supplementary Exemptions and Directions Instrument 2021 (CASA EX81/21). These are designed to facilitate certain kinds of foreign aircraft ferry flights into and out of Australia.
Part 91 of the Civil Aviation Safety Regulations 1998 (CASR) is a comprehensive code of general flight and operational safety rules for Australian-registered aircraft wherever located, and for foreign-registered aircraft in Australian territory. Part 91 contains the baseline rules for “private operations”. It commenced on 2 December 2021.
CASA EX81/21 made a number of exemptions against Part 91 of CASR to facilitate implementation of Part 91 of CASR in accordance with CASA’s transition policies for Part 91.
The existing exemptions in CASA EX81/21 were designed to correct technical errors and omissions in Part 91 which gave rise to unintended obligations. Those will be rectified in the next set of amendments to the Part but, in the meantime, until those amendments are made, it was considered necessary to use exemptions to provide relevant areas of the aviation industry with relief from having to comply with certain requirements and directions, adherence to which at the time may not have ensured safety compliance.
On further review of Part 91, post-2 December 2021, it was considered that CASA EX73/22 — Amendment of CASA EX81/21 (ADS-B OUT Equipment on Ferry Flights in Certain Foreign-Registered Aircraft) Instrument (No. 2) 2022 (the exemptions instrument) was urgently required to add a number of additional exemptions for specific ferry flights, each subject to safety conditions, as further explained below.
The new exemptions are designed to facilitate private ferry operations, into or out of Australia, of foreign-registered aircraft of foreign operators under the operator’s foreign certificate where the aircraft is not fitted with an approved ADS-B OUT equipment configuration required under Part 91 of CASR.
Such outbound flights may be for the purpose of, for example only, returning the aircraft to its home base outside Australia following its storage in Australia due to the downturn in aviation activity in the earlier stages of the COVID-19 pandemic but before Part 91 of CASR commenced with its revised ADS-B OUT equipment requirement.
However, such inbound flights can only be for a prescribed purpose, namely, arriving at a final destination, in Australian territory, that is the single place at which 1 or more of the following occurs.
(a) the fitting of an approved ADS-B OUT equipment configuration to the aircraft;
(b) the carrying out of maintenance on the aircraft;
(c) the storing of the aircraft at a dedicated aircraft storage facility.
For this purpose, and in the interests of safety, no more than 2 intermediate stops in Australian territory are permitted before leaving Australian territory, or before arriving at the final destination in Australian territory.
Human rights implications
The legislative instrument may indirectly engage the following human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011:
- the right to life under Article 6 of the International Covenant on Civil and Political Rights (ICCPR)
- the right to liberty of movement, including the right to leave any country, under Article 12 of the ICCPR
- the right to work under Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESC).
This engagement is in the context of CASA’s statutory purpose. The aim of CASA and its regulatory framework is to uphold aviation safety by prescribing the conduct of individuals and organisations involved in civil aviation operations, including flight operations. It is, therefore, a threshold requirement for all CASA legislative instruments that they preserve, promote and enhance aviation safety and, thereby, promote the right to life.
Without the exemption instrument, certain foreign aircraft movements into and out of Australia would be in breach of aviation safety rules and hence would be unlawful. This would cause some foreign aircraft to remain in Australia, in storage, for example, when there was no safety justification for that; and it would prevent other foreign aircraft from coming to facilities in Australia for equipment fitment, maintenance or storage when there was no safety impediment to that. Such obstacles could have an indirect effect on the right of aircraft owners and pilots in command to continue to be engaged in their aviation-related work.
Thus, when the reasonable and necessary safety conditions are complied with, the exemption instrument will have the effect of:
- ensuring that the specific pre-existing equipment rule that is the subject of the exemption instrument will not be an impediment to such movement of a relevant foreign aircraft
- avoiding the consequential economic impact of any such restrictions.
As such, the instrument has no negative effect of human rights, and may be said to support the 3 rights mentioned above.
Human rights implications
This legislative instrument is compatible with human rights and to the extent that it may engage certain rights it does so in a way that promotes the right to life, the right to freedom of movement, and the right to work, in relation to the operations of relevant foreign aircraft. These measures are considered to be reasonable, necessary and proportionate in the interests of aviation safety.
Conclusion
This legislative instrument is compatible with human rights.
Civil Aviation Safety Authority