Replacement Explanatory Statement
Civil Aviation Safety Regulations 1998
Civil Aviation Order 20.91 Amendment Instrument 2017 (No. 1)
Purpose
The purpose of the Civil Aviation Order 20.91 Amendment Instrument 2017 (No. 1) (the instrument) is to extend the date (the expiry date) for the expiry of anything in Civil Aviation Order 20.91 (Instructions and directions for performance-based navigation) Instrument 2014 (CAO 20.91) that is a direction under regulation 11.245 of the Civil Aviation Safety Regulations 1998 (CASR). The expiry date is extended from 30 November 2017 to 30 November 2024.
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 CASR and the Civil Aviation Regulations 1988 (CAR).
Subpart 11.G of CASR provides for CASA to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a) of CASR, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft.
Under subregulation 5 (1A) of CAR, CASA may, unless the contrary intention appears in the regulation conferring the power to issue a direction, issue the direction in a Civil Aviation Order.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction.
In the absence of the instrument, under paragraph 3.2 of CAO 20.91, anything in the Order that is a direction under regulation 11.245 of CASR would cease to be in force on 30 November 2017.
Instrument
Section 1 provides that the name of the instrument is Civil Aviation Order 20.91 Amendment Instrument 2017 (No. 1).
Section 2 provides that the instrument commences on the day after registration.
Section 3 provides that CAO 20.91 is amended as set out in Schedule 1 of the instrument.
Item 1 of Schedule 1 amends paragraph 3.2 of CAO 20.91 so that anything in the Order that is a direction under regulation 11.245 of CASR would cease to be in force on 30 November 2024 instead of 30 November 2017. The extension of the expiry date will allow further time for the drafting of, and consultation on, proposed Part 91 of CASR and the Part 91 Manual of Standards (MOS), which instruments are proposed to replace the directions in CAO 20.91 made under regulation 11.245 of CASR.
International obligations
Resolution A37-11 of the Assembly of the International Civil Aviation Organisation (ICAO) urged all States to implement the “RNAV” and “RNP” air traffic services routes and approach procedures in accordance with the ICAO “Performance-based Navigation” (PBN) concept laid down in the ICAO PBN Manual (ICAO Doc 9613). States were required to complete a PBN implementation plan by 2016 that provided for approaches with vertical guidance (APV), and for straight-in approaches where there is no local altimeter setting available and where there are no aircraft suitably equipped for APV operations.
Australia’s implementation of PBN
At the time ICAO made Resolution A37-11, Australia had already implemented the “RNP 4” and “RNP 10” (now “RNAV 10”) PBN navigation specifications in CASR Subpart 91.U and the associated MOS, which allowed reduced aircraft separation standards to be used in oceanic airspace.
CASA made CAO 20.91 in 2012 in order to expedite the implementation of the remaining PBN navigation specifications, in accordance with the ICAO PBN Manual, including the “RNP 2”, “RNP 1” and “RNP APCH” PBN specifications.
CAO 20.91 was remade in 2014 removing the need for CASA approval of non-complex PBN operations, excluding RNP APCH AR. This aligned CAO 20.91 with ICAO amendments to the international legal scheme for civil aviation.
Consultation
CASA conducted public consultation on CAO 20.91 in 2012 and 2014 in accordance with CASA’s standards development public consultation procedures. There are no changes in this version of CAO 20.91 other than to extend the applicability date to allow further time for the incorporation of the CAO standards in proposed CASR Part 91 and its MOS.
When CAO 20.91 was made, it was anticipated that, before 30 November 2017, the replacement Part 91 of CASR and the MOS would be made to replicate anything in CAO 20.91 that is a direction under regulation 11.245 of CASR. An extension of CAO 20.91 is required while CASA completes its work on the Part 91 instruments, which is expected to be in the 2018 calendar year.
In these circumstances, CASA is satisfied that no consultation is appropriate or reasonably practicable for the instrument under section 17 of the LA.
Legislation Act 2003 (the LA)
Paragraph 10 (1) (d) of the LA provides that an instrument is a legislative instrument if it includes a provision that amends or repeals another legislative instrument. The instrument amends CAO 20.91, which was registered as a legislative 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.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this instance, as the directions in CAO 20.91 are covered by a standing agreement between CASA and OBPR under which a RIS is not required for directions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Making and commencement
The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument commences on the day after registration.
[Civil Aviation Order 20.91 Amendment Instrument 2017 (No. 1)]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Civil Aviation Order 20.91 Amendment Instrument 2017 (No. 1)
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 purpose of this legislative instrument is to extend the date (the expiry date) for the expiry of anything in Civil Aviation Order 20.91 (Instructions and directions for performance-based navigation) Instrument 2014 (CAO 20.91) that is a direction under regulation 11.245 of the Civil Aviation Safety Regulations 1998 (CASR) from 30 November 2017 to 30 November 2024. The extension of the expiry date maintains existing arrangements.
The extension of the expiry date will allow further time for the drafting of, and consultation on, the replacement Part 91 of CASR and the Part 91 Manual of Standards, which instruments are proposed to replace CAO 20.91.
Human rights implications
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. It 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