Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX85/22 — The Canungra Cup Instrument 2022
Purpose
The purpose of CASA EX85/22 — The Canungra Cup Instrument 2022 (the instrument) is to enable paragliders to be flown in the Canungra Cup 2022 paragliding competition (the event) without the pilots in command having to comply with certain licencing and radiocommunication regulatory requirements that apply in relation to aircraft to which Civil Aviation Order 95.8 (Exemptions from CAR and CASR — Hang Gliders and Paragliders) Instrument 2021 (CAO 95.8) applies.
The exemption is necessary because paragliders are not typically equipped with VHF radio equipment but during the event paragliders will be flown above 5 000 feet above mean sea level (AMSL) and within restricted airspace where all aircraft to which CAO 95.8 applies are required to carry VHF radio equipment. Paragliders will be operating within Class G airspace and in 2 declared areas within Class C airspace during the event.
The instrument also provides an exemption for a named individual who holds a radio operator endorsement issued by Sports Aviation Federation of Australia Limited (SAFA) to allow the individual to transmit on a radio frequency while operating a ground communications station for the event.
The instrument contains conditions and directions imposed by the Civil Aviation Safety Authority (CASA) in the interest of the safety of air navigation. The conditions include that each pilot possesses the qualifications necessary to participate in the event, and that their gliders are equipped with a UHF radio system. The directions imposed on SAFA include the maintenance during the event of a ground communications station that is active on relevant UHF and certain VHF frequencies.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act in relation to the safety of air navigation. Relevantly, the Governor‑General has made the Civil Aviation Safety Regulations 1998 (CASR).
CASR — Exemptions (Subpart 11.F)
Each provision mentioned in this section is a provision of CASR.
Subpart 11.F provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations or a Civil Aviation Order (CAO), 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 11.160 (3), an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.175 (4), 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.
Under subregulation 11.205 (1), CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.210 of CASR, it is a strict liability offence not to comply with a condition of an exemption.
Under regulation 11.225, an exemption must be published on the internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
CASR — Directions (Subpart 11.G)
Each provision mentioned in this section is a provision of CASR.
Subpart 11.G provides for CASA to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a), CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245 (2) provides that CASA may only issue a direction if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, if the direction is not inconsistent with the Act, and for the purposes of CASA’s functions.
Under paragraph 11.250 (a), a direction ceases to be in force on the day specified in the direction. Under regulation 11.255, it is a strict liability offence for a person to contravene a direction that is applicable to the person.
Parts 91 and 103 of CASR, and the Part 91 MOS
Unless otherwise stated, each provision mentioned in this section is a provision of CASR.
Under regulation 91.400, the pilot in command of an aircraft for a flight commits a strict liability offence if:
(a) the aircraft is operating on the manoeuvring area of, or in the vicinity of, a certified aerodrome (among other kinds of aerodrome); and
(b) the aerodrome is a non-controlled aerodrome; and
(c) if the aircraft is not carrying an operative radio — unless either subregulation 91.400 (3) or (4) is satisfied.
Under regulation 91.625, a person commits a strict liability offence if:
(a) the person transmits on a radio frequency published in the Aeronautical Information Publication or Notices to Airmen that is:
(i) used by Air Traffic Services; or
(ii) used for communications at a certified aerodrome (among other kinds of aerodrome); and
(b) the person is not authorised or qualified to do so, relevantly:
(i)for an Australian aircraft (other than a Part 103 aircraft) — under Part 61, 64 or 65; or
(ii) for a Part 103 aircraft — by a Part 103 approved self-administering aviation organisation (ASAO).
Under subregulation 103.005 (4), an aircraft is a Part 103 aircraft if the aircraft is:
(a) not registered; and
(b) is any of several kinds of aircraft listed in paragraph 103.005 (4) (b) including, relevantly in subparagraph (b) (iv) — a paraglider.
Under regulation 91.630, the pilot in command of an aircraft for a flight commits a strict liability offence if:
(a) the aircraft is fitted with or carries a radio; and
(b) during the flight, the pilot in command does not make a broadcast or a report relating to the flight that is prescribed by the Part 91 (General Operating and Flight Rules) Manual of Standards 2020 (Part 91 MOS) for paragraph 91.630 (1) (b).
Section 21.02 of the Part 91 MOS sets out the purpose of Division 21.2 of the Part 91 MOS. Specifically, section 21.02 provides that, for paragraph 91.630 (1) (b), Division 21.2 of the Part 91 MOS prescribes broadcasts and reports relating to a flight that the pilot in command of an aircraft fitted with or carrying a radio must ensure are made during the flight. Sections 21.03 to 21.09 of the Part 91 MOS prescribe broadcasts and reports of various kinds for paragraph 91.630 (1) (b). However, it is not necessary to describe the effect of those sections of the Part 91 MOS in this Explanatory Statement because the instrument exempts the pilot in command of a paraglider from compliance with regulation 91.630 as a whole.
Under regulation 91.640, the pilot in command of an aircraft for a flight commits a strict liability offence if:
(a) the aircraft is fitted with, or carries, a radio; and
(b) the aircraft is flown by a pilot who is qualified, eligible or authorised to use the radio, relevantly:
(i)for an Australian aircraft (other than a Part 103 aircraft) — under Part 61 or 64; or
(ii) for a Part 103 aircraft — by a Part 103 ASAO; and
(c) the aircraft is outside controlled airspace; and
(d) radio transmissions are not continuously monitored by, relevantly in subparagraph 91.640 (d) (i), the pilot in command of the aircraft for the flight.
CAO 95.8
Unless otherwise stated, each provision mentioned in this section is a provision of CAO 95.8.
CAO 95.8 applies to, relevantly, paragliders that are employed in private operations because of the combined effect of:
(a) subparagraph (c) of the application provision in subsection 4; and
(b) the definition of relevant aircraft in paragraph 5.1.
Paragraph 5.1 defines relevant aircraft as meaning an aircraft to which this Order applies under subsection 4.
Subsection 8 provides an exemption for a person who would, but for that subsection, have an obligation under, relevantly, regulation 91.625 of CASR, in relation to a relevant aircraft, from complying with the obligation if the person complies with the conditions in the Order.
Paragraph 10.1 sets out flight conditions that apply in relation to a relevant aircraft. Under subparagraph 10.1 (k), a relevant aircraft may only be flown in:
(i)Class E or G airspace; or
(ii) Class C or D airspace that is below 300 feet above ground level and not within 10 nautical miles of a controlled aerodrome; or
(iii) Class C or D airspace to which sub-subparagraph (ii) does not refer, or a restricted area — if in accordance with paragraph 10.2.
Paragraph 10.2 provides that, for the purposes of sub-subparagraph 10.1 (k) (iii), a person must not operate a relevant aircraft in Class C or D airspace or a restricted area unless:
(a) the person:
(i)holds a pilot licence with an aircraft category rating, the valid privileges of which include operating in controlled airspace and at a controlled aerodrome; and
(ii) has a valid flight review for the aircraft class rating in accordance with Part 61 of CASR; and
(b) the aircraft is carrying radiocommunications equipment capable of two-way communication with air traffic control.
Under subparagraph 10.3 (a), a relevant aircraft must not be flown at a height of 5 000 feet above mean sea level or higher unless it is equipped with, or carries, serviceable radiocommunications equipment.
Under subparagraph 10.4 (b), any radiocommunications equipment fitted to, or carried by, a relevant aircraft must not be used by a person unless, in any case other than the transmission in VHF frequency, the person is authorised or qualified to transmit in the relevant frequency in accordance with regulation 91.625 of CASR.
The Legislation Act 2003 (the LA) and the Act
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 issued under paragraph 98 (5A) (a) 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, being pilots in command of paragliders participating in the Canungra Cup 2022 during the event period, from compliance with specified provisions of CASR, and of specified provisions of CAO 95.8 to the extent mentioned in the instrument.
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.
Under subsection 14 (1) of the LA, a legislative instrument may make provision in relation to matters by applying, adopting or incorporating provisions of an Act or disallowable legislative instrument as in force at a particular time or as in force from time to time. A legislative instrument may also make provision in relation to matters by applying, adopting or incorporating any matter contained in any other instrument or writing as in force at, or before, the time the legislative instrument commences. Under subsection 14 (2) of the LA, unless the contrary intention appears, the 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. However, subsection 98 (5D) of the Act provides that, despite section 14 of the LA, 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.
As the instrument relates to aviation safety and is made under CASR, the sunsetting provisions in Part 4 of Chapter 3 of the LA do not apply to the instrument — see item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015. However, this instrument will be repealed at the end of 31 January 2023, which will occur before the sunsetting provisions would have repealed the instrument if they had applied. Any renewal of the instrument will be subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA. Therefore, the exemption from sunsetting does not affect parliamentary oversight of this instrument.
Background
The Canungra Hang Gliding Club Inc (the CHGC) usually holds 2 internationally significant gliding competitions annually, with the assistance of SAFA: the Canungra Cup (paragliding) and the Canungra Classic (hang gliding). The Canungra Cup (the event) generally attracts up to 85 participants, and in 2022 is being held from 22 to 29 October. The Canungra Classic will not be held this year.
Due to the location of the town of Canungra in Queensland, the airspace characteristics in that region and the nature of the competition tasks, pilots participating in the event are expected to reach altitudes that infringe Class C airspace (i.e., up to 8 500 feet AMSL). To ensure the safety of the competitors, CASA’s Office of Airspace Regulation declares the Class C airspace in which the competition takes place to be temporary restricted areas (TRAs) (the declared areas) while the competitions are held. A Letter of Agreement (LOA) between Airservices Australia and the CHGC is in place in relation to the event. The LOA sets out airspace arrangements and procedures for the conduct of the event. The LOA provides that the TRAs will be exclusive to paragliders during the event and air traffic control service will not be provided to them within the TRAs.
Because of the classification of the airspace within which the flights are to be conducted, the competitors would normally require licences that are not usually required for sport aviation activities and would normally also be required to carry and use an aeronautical VHF radio. Paragliders (and hang gliders) are typically equipped with UHF, not VHF, radio equipment, and generally do not operate in airspace in which VHF radio equipment is required. The event represents an exception to this circumstance.
The instrument is for a similar purpose as instrument CASA EX124/21 that repealed at the end of 31 January 2022 and CASA EX142/17 that repealed at the end of 30 September 2020.
Overview of instrument
The instrument provides exemptions from specified CASR and CAO 95.8 provisions, and from specified CAO 95.8 provisions to the extent stated, that are intended to enable:
(a) participants in the event to fly a paraglider in the event vicinity above 5 000 feet AMSL in Class G airspace and up to 8 500 feet AMSL in Class C airspace, without complying with the applicable regulatory requirements relating to the carriage and use of an aircraft VHF radio, including licencing and qualification requirements; and
(b) a named holder of a radio operator endorsement issued by SAFA to transmit on a radio frequency while operating a ground communications station for the event.
The instrument requires that the areas in Class C airspace where the competition is to be held must be active declared areas. Schedule 1 to the instrument sets out 2 temporary restricted areas that are the declared areas for the event.
The instrument includes a direction to SAFA to comply with the requirements set out in Schedule 2 to the instrument. These requirements relate to the running of the event. The instrument also imposes conditions on the exemption provided to pilots in command. These conditions are set out in Schedule 3 to the instrument. The requirements of the direction, and the exemption conditions, are described further below.
CASA has assessed SAFA’s application for the instrument including, but not limited to, a risk assessment provided by SAFA. Based on that assessment, CASA is satisfied that there are no adverse safety implications in relation to issuing the direction or granting the exemptions.
Document incorporated by reference
In accordance with subsection 98 (5D) of the Act, the Sports Aviation Federation of Australia Operations Manual, version 20211006, as existing from time to time (the SAFA Operations Manual), is incorporated in this instrument.
The SAFA Operations Manual is freely available from SAFA via SAFA’s website at the following address: http://www.safa.asn.au/. As at commencement of this instrument, the following link provided direct access to the SAFA Operations Manual: SAFA Operations Manual. Also, on request, CASA can provide a copy of the document free of charge.
Instrument
Section 1 of the instrument sets out the name of the instrument.
Section 2 sets out the duration of the instrument. The instrument commences on 22 October 2022 and is repealed at the end of 31 January 2023.
The note located immediately below section 2 sets out when the provisions of the instrument apply and cease to be in force. In particular, the note confirms that, and explains why, the direction in section 4 of the instrument continues to be in force until the instrument is repealed.
Section 3 contains definitions of terms used in the instrument, including of event, declared area and Competition Director. The Competition Director is the person appointed by SAFA to manage the event.
Section 4 is a direction under regulation 11.245 of CASR requiring SAFA to comply with the requirements mentioned in Schedule 2 of the instrument.
Subsection 5 (1) provides an exemption for the pilot in command of a paraglider, when participating in the event during the event period, from compliance with:
(a) regulations 91.400, 91.630 and 91.640 of CASR; and
(b) the following provisions of CAO 95.8:
(i)subparagraph 10.2 (a);
(ii) to the extent that the subparagraphs may require the carriage or use of a VHF radiocommunication system —subparagraphs 10.2 (b) and 10.3 (a);
(iii) subparagraph 10.4 (b).
A note below paragraph (b) states that CAO 95.8 provides an exemption from regulation 91.625 of CASR for persons with obligations under that regulation in relation to aircraft to which CAO 95.8 applies, which includes paragliders employed in private operations.
Subsection 5 (2) provides that the exemption in subsection 5 (1) is subject to the conditions in Schedule 3.
Subsection 5 (3) provides that subsection (1) applies to the pilot in command of a paraglider whether or not the paraglider is equipped with a VHF radiocommunication system.
Under subsection 6 (1), the exemption in subsection 6 (2) applies if the individual named in that subsection is the holder of a radio operator endorsement issued by SAFA in accordance with the SAFA Operations Manual, as it exists at the time the instrument commences.
Subsection 6 (2) exempts the named individual from compliance with regulation 91.625 of CASR when transmitting on a radio frequency while operating a ground communications station in accordance with clause 1 of Schedule 2.
Schedule 1 — Declared areas
Schedule 1 sets out the declared areas for the definition of declared area in section 3.
Schedule 2 — Requirements for direction
Schedule 2 of the instrument contains requirements for SAFA with the aim of ensuring that there is a satisfactory support system to mitigate the safety risks associated with the operation of gliders without a serviceable VHF radio during the event.
The directions in clause 1 of Schedule 2 apply for each day of the event period. They require SAFA to ensure that a declared area is active in the airspace where the event is conducted on that day if flight is higher than 6 500 feet AMSL.
SAFA must also ensure that an effective ground communications station is established and maintained that covers the event vicinity and, if flight higher than 6 500 feet AMSL is possible during the event operations on the day, an effective communications station is established and maintained within 15 nautical miles of the paragliders participating in an event, including any paraglider in Class C airspace. This would enable, for example, an airborne communications station accompanying the gliders to be utilised.
The communications station or stations must advise other aircraft of the event activities and location of the gliders at intervals of no more than 30 minutes. SAFA is responsible for ensuring that the Competition Director or other competent person maintains a listening watch on appropriate VHF frequencies and operates appropriate UHF frequencies, to provide weather, traffic and other pertinent information to event participants. The ground communications station must be active on the relevant frequencies.
Clause 2 of Schedule 2 contains further requirements for the ground communications station mentioned in clause 1. It provides that a hand-held VHF radio without an external antenna is not an effective ground communications station. Back-up radios and batteries are required for the communications station. The communications station must be active on several relevant frequencies commencing 30 minutes before event flights begin on each day of the event and continuing for the duration of event flights.
Clause 3 of Schedule 2 requires SAFA to ensure that, at least 3 days before the commencement of the event period, specified information is provided to CASA about event operations, which CASA will incorporate into a Notice to Airmen (NOTAM) to be published by Airservices Australia.
Clause 4 of Schedule 2 sets out requirements that SAFA must ensure the Competition Director completes. These requirements relate to liaison with Airservices Australia regarding the declared areas.
Clause 5 of Schedule 2 requires SAFA to ensure that a daily briefing is given to event participants that addresses the following:
(a) confirmation of ground communications station set-up and the frequencies in use;
(b) review and explanation of the daily NOTAM, and the airspace restrictions and boundaries of any declared area activated for that day, in relation to the event;
(c) review and explanation of the event vicinity and the requirement to operate within the event vicinity;
(d) review and explanation of the conditions under which the exemptions in the instrument that apply to the participant have been issued;
(e) review and explanation of any airspace in which SAFA expects other aircraft may be operating;
(f) if event participants may fly in the vicinity of an aerodrome — review and explanation of the air traffic and activities which SAFA expects may occur at the aerodrome;
(g) any other matters that SAFA considers appropriate to promote the safety of the event.
Clause 6 of Schedule 2 requires SAFA to ensure that the name of each event participant attending the daily briefing is recorded, and that the record is retained for a period of 3 months.
Clause 7 of Schedule 2 requires SAFA to ensure that event participants are provided with a diagram of air traffic routes in the area where the event is conducted.
While the directions impose obligations on SAFA, it is expected that, in practice, SAFA will ask the Competition Director to fulfil the obligations on its behalf.
Schedule 3 — Conditions on exemption for pilot in command
Schedule 3 of the instrument contains conditions on the exemption in section 5 for the pilot in command of a paraglider participating in the event during the event period.
The conditions include a requirement, in clause 1 of Schedule 3, for the pilots to hold the relevant qualifications for the event. The qualifications are set out in the definition of relevant qualifications for the event mentioned in section 3 of the instrument.
Clause 2 of Schedule 3 requires each paraglider to be equipped with a serviceable UHF radio.
Clause 3 requires that, if the UHF radio becomes unserviceable, the pilot in command must cease the flight as soon as safely practicable.
Clause 4 requires pilots in command to be satisfied that the ground communications station has been established and is operating satisfactorily, that the NOTAM has been published as required. Paragraph 5 (a) requires pilots in command to attend the daily briefing mentioned in the directions to SAFA. In relation to these matters, which are not a pilot in command’s direct responsibility, clause 6 allows the pilot in command to rely on the daily briefing.
Clause 5 also requires pilots in command to operate in accordance with the SAFA Operations Manual during the event period. Among other things, the SAFA Operations Manual contains rules for the operation of paragliders.
Clause 7 requires that flights may only be carried out within a declared area if the declared area is active.
Consultation
CASA provided a copy of a draft of the instrument in October 2022 to SAFA, the applicant for the exemption. SAFA provided some minor comments and these were taken into account when preparing the final draft.
CASA previously consulted with local aerodrome and airspace users through the Regional Airspace and Procedures Advisory Committee (which has since transitioned to the Aviation State Engagement Forum (AvSEF)) in relation to instrument CASA EX142/17. The conditions on the exemptions, and directions to SAFA, in the instrument are similar to those of CASA EX142/17.
The proposed temporary restricted areas for the Canungra Cup 2022 were posted on the AvSEF website for consultation with aviation stakeholders between 5 September 2022 and 1 October 2022.
In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for the instrument for section 17 of the LA.
Sector risk, 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.
As the instrument replaces an expired instrument with the same (or largely the same) provisions and conditions, there will be no change of economic or cost impact on individuals, businesses or the community.
The economic and cost impact of the instrument has been determined by:
(a) the identification of individuals and businesses affected by the instrument; and
(b) consideration of how the requirements to be imposed on individuals and businesses under the instrument will be different compared to existing requirements; and
(c) a valuation of the impact, in terms of direct costs on individuals and businesses affected by the instrument to comply with the different requirements. This valuation is consistent with the principles of best practice regulation of the Australian Government; and
(d) a valuation of the impact the different requirements 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; and
(e) consideration of community impacts, beyond those direct impacts on individuals and businesses affected by the instrument, that are relevant if the instrument were to result in flow-on effects to other aviation businesses, or local non-aviation businesses that experience a change in their activity due to the instrument.
The instrument makes no changes to existing arrangements under which pilots in command have previously voluntarily participated in the Canungra Cup, or to SAFA which is aware of its obligations under the instrument in relation to this event. Therefore, there will be no change to the economic or cost impact on individuals, businesses or the community, except the influx of visitors may be of economic benefit.
Impact on categories of operations
The instrument is likely to have a beneficial effect on paragliding operations and related businesses by promoting those operations and encouraging the use of equipment offered for sale or hire by those businesses.
Impact on regional and remote communities
The instrument is likely to have a beneficial effect on the regional community in which the event will be held because it will lead participants in, and spectators of, the event to visit that community.
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 and directions (OBPR id: 14507).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
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 22 October 2022 and is repealed at the end of 31 January 2023.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX85/22 — The Canungra Cup Instrument 2022
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
The legislative instrument enables competitors in the Canungra Cup 2022 paragliding competition, that is held in Queensland and is organised by Canungra Hang Gliding Club Inc with the assistance of Sports Aviation Federation of Australia Limited (SAFA), to fly in Class C airspace without holding licences and radiocommunications qualifications required for general sport aviation activities.
The instrument provides an exemption for pilots in command of paragliders participating in the event from the following regulatory requirements:
(a) regulations 91.400, 91.630 and 91.640 of the Civil Aviation Safety Regulations 1998 (CASR);
(b) subparagraphs 10.2 (a) and 10.4 (b) of Civil Aviation Order 95.8 (Exemptions from CAR and CASR — Hang Gliders and Paragliders) Instrument 2021 (CAO 95.8);
(c) to the extent that the subparagraphs may require the carriage or use of a VHF radiocommunication system — subparagraphs 10.2 (b) and 10.3 (a) of CAO 95.8.
The exemption is issued subject to conditions.
The instrument also provides an exemption for a named individual, if holding a radio operator endorsement issued by SAFA, from regulation 91.625 of CASR when transmitting on a radio frequency while operating a ground communications station in accordance with specified requirements. This will enable the individual to transmit on a radio frequency while operating a ground communications station for the event.
The instrument also issues directions to SAFA, including the maintenance of a ground communications station active on relevant UHF and certain VHF frequencies.
The conditions and directions are imposed by the Civil Aviation Safety Authority (CASA) in the interest of the safety of air navigation.
Human rights implications
The legislative instrument engages the right to protection against arbitrary and unlawful interferences with privacy (Article 17 of the International Covenant on Civil and Political Rights (the ICCPR)).
The right to protection against arbitrary and unlawful interference with privacy, contained in Article 17 of the ICCPR, provides that no-one shall be subjected to arbitrary or unlawful interference with their privacy.
The right to privacy is engaged by clause 6 of Schedule 2 of the instrument, which requires SAFA to record the name of each participant that attends the daily briefing for the event.
The right to privacy is also engaged because an individual is named in section 6 of the instrument and granted an exemption subject to holding the required qualification. CASA must be able to ensure that the individual holds that qualification. Also, the named individual is the only individual authorised by SAFA to operate the VHF ground communications station for the event. Therefore, the individual is named to enable them to:
(a) exercise functions under the exemption from compliance with regulation 91.625 of CASR; and
(b) comply with a requirement under the direction in section 4 of the instrument.
Naming an individual in an instrument of exemption is not unique to this instrument — it occurs in any other instrument issued to an individual that grants an exemption under regulation 11.160 of CASR, which CASA is required by regulation 11.225 of CASR to publish on the internet.
The protections provided by the Privacy Act 1988 continue to apply to personal information collected.
The personal information collection requirements mentioned in the instrument are necessary to ensure proper administration and enforcement of Australia’s aviation safety system. It is necessary for SAFA to receive that personal information to ensure that only properly-briefed pilots participate in the event. Participating pilots must be aware of how the event will be conducted each day and must attend each briefing. Any potential limitation on the right to privacy is necessary, reasonable and proportionate in promoting the objective of improving aviation safety.
Apart from the impact on the right to privacy, the exemption in the instrument is beneficial in purpose and content, and does not adversely affect the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Conclusion
The legislative instrument is compatible with human rights. To the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate in order to ensure the safety of aviation operations and to promote the integrity of the aviation safety system.
Civil Aviation Safety Authority