Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — use of ADS-B in Aerolineas Argentinas aircraft LV-CSF
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation.
Under section 27 of the Act, CASA may issue Air Operators Certificates (AOCs) with respect to aircraft for the purpose of safety regulation.
Under paragraph 28BA (1) (b) of the Act, an AOC has effect subject to any conditions specified in the regulations or the Civil Aviation Orders (the CAOs).
Part 82 of the CAOs specifies conditions on AOCs. CAO 82.5 contains conditions on those AOCs that authorise regular public transport (RPT) operations in high capacity aircraft.
Subsection 10 of CAO 82.5 sets out obligations on operators who hold foreign aircraft AOCs for high capacity RPT operations in Australia (the relevant foreign operators).
Paragraph 10.8 of CAO 82.5 provides that the operator of a foreign registered aircraft must ensure that if the aircraft is operated in high capacity RPT operations, it complies with the requirements (Directions) in Appendices 4 and 4A to CAO 82.5.
Appendices 4 and 4A of CAO 82.5 apply to Automatic Dependent Surveillance - Broadcast (ADS-B) equipment. Appendix 4, through the definition of approved equipment
configuration, applies the technical standards in Appendix 5.
At present, aircraft do not have to carry compliant ADS-B equipment but those that do must have an approved equipment configuration as defined in Appendix 4. Under clause 7 of Appendix 4 to CAO 82.5, carriage of ADS-B equipment that complies with an approved equipment configuration becomes compulsory at or above FL 290 on and after 12 December 2013.
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, or a provision of 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.
The aircraft to which the exemption applies does not have an approved equipment configuration because it does not comply with the technical standard mentioned in Appendix 5 for the transmission of the geographical position of the aircraft. To enable transmissions to continue in spite of non-compliance with this requirement, this exemption will allow the aircraft to continue to use its ADS-B equipment. The exemption is from Appendices 4 and 5 to CAO 82.5.
The exemption is subject to conditions. Transmissions will be for identification purposes only. The exempted aircraft will be denied access to ADS-B based separation services. The conditions of the exemption state that the pilot in command must not indicate ADS-B equipage on the flight plans for the aircraft.
Legislative Instruments Act
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations. 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 instrument applies to a class of persons, the pilots in command of the exempted aircraft. The exemption is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Consultation under section 17 of the LIA has been undertaken. CASA consulted with Airservices Australia and Aerolineas Argentinas. Aerolineas Argentinas has accepted the conditions in the instrument.
The Aerolineas Argentinas aircraft operates on scheduled passenger service into Sydney from Buenos Aires. It is accepted that the safety impact will be negligible because ADS-B is not used by Air Traffic Control for the surveillance of air traffic in the oceanic areas of airspace to the east of Sydney. Surveillance is by Secondary Surveillance Radar in that airspace.
This instrument replaces instrument CASA EX09/13, a previous instrument issued to Aerolineas Argentinas for the same purpose. Of the 4 aircraft mentioned in that exemption only this one still requires an exemption. The exemption will expire at the end of
11 December 2013, the date after which the carriage of ADS-B equipment in an approved configuration becomes compulsory.
No changes have been made to the previous exemption apart from removing details of the aircraft that now comply with the technical standards in Appendix 5.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
This 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 after registration and expires at the end of
11 December 2013, as if it had been repealed by another instrument.
[Instrument number CASA EX96/13]
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 ADS-B in Aerolineas Argentinas aircraft LV-CSF
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 the use of automatic dependent
surveillance – broadcast (ADS-B) equipment in an aircraft operated by the named operator that does not meet all the specified technical standards for ADS-B equipment. The exemption is subject to conditions directed by CASA in the interest of safety.
The primary purpose of the legislative instrument is to allow the operator to continue limited use of the ADS-B equipment until the aircraft meets the required standards.
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