Federal Register of Legislation - Australian Government

Primary content

CASA EX61/19 Exemptions as made
This instrument will continue to enable members of the Australian Parachute Federation Ltd (APF) to transmit on aeronautical radio frequencies while acting in the role of ground control assistants for parachute operations or parachute training operations conducted by other APF members, despite not having the qualifications prescribed under regulation 83 of the Civil Aviation Regulations 1988, provided they are appropriately trained and approved by the APF as competent to perform the responsibilities of a ground control assistant.
Administered by: Infrastructure, Transport, Regional Development and Communications
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 24 Jun 2019
Tabling HistoryDate
Tabled HR02-Jul-2019
Tabled Senate02-Jul-2019
Date of repeal 31 May 2022
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Safety Regulations 1998

CASA EX61/19 — Use of Radiocommunication Systems in Parachute Operations (Australian Parachute Federation Ltd) Instrument 2019

Purpose

The purpose of CASA EX61/19 — Use of Radiocommunication Systems in Parachute Operations (Australian Parachute Federation Ltd) Instrument 2019 (the instrument) is to continue to enable members of the Australian Parachute Federation Ltd (APF) to transmit on aeronautical radio frequencies while acting in the role of ground control assistants (GCAs) for parachute operations or parachute training operations conducted by other APF members, despite not having the qualifications prescribed under regulation 83 of the Civil Aviation Regulations 1988 (CAR), provided they are appropriately trained and approved by the APF as competent to perform the responsibilities of a ground control assistant.

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.

 

Under subregulation 83 (1) of CAR it is an offence if a person transmits on a radio frequency of a kind used for the purpose of ensuring the safety of air navigation, and the person is not qualified to transmit on the radio frequency. Subregulation 83 (2) sets out the circumstances in which a person is qualified to transmit on a radio frequency of a kind used for the purpose of ensuring the safety of air navigation. Subregulation 83 (3) provides that an offence against the regulation is an offence of strict liability.

 

Regulation 64.040 of CASR prescribes requirements for when a person who does not hold an aeronautical radio operator certificate is authorised to transmit on aeronautical radio frequencies. Such a person may transmit on the frequencies for the purpose of receiving training and when under the direct supervision of persons approved to provide training.


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, on application by a person, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.

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.

 

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. Subregulation 11.245 (2) of CASR provides that CASA may issue such 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) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255 it is an offence of strict liability to contravene a direction under regulation 11.245.

 

Subsection 98 (5D) of the Act provides that 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.

 

Background

The instrument replaces instrument CASA EX116/16, Exemption — use of radiocommunication systems during parachute operations (Australian Parachute

Federation).

 

The Australian Communications and Media Authority (ACMA) has authorised the operation of aeronautical mobile stations via the Radiocommunications (Aircraft and Aeronautical Mobile Stations) Class Licence 2016. Under this class licence, the 119.2 MHz radio frequency band may be used for purposes associated with parachute club operations.

 

The instrument is required because during the conduct by APF members of parachute operations, or parachute training operations, other APF members who are acting in the role of GCAs need to use radiocommunication systems for ground-to-air communications with jump aircraft to help ensure the safety of the operations. Although these ground control assistants are trained in the use of radiocommunication systems for use in parachute operations, they do not usually hold licences or certificates of the kind referred to in subregulation 83 (2) of CAR or hold pilot licences of the kind mentioned in regulation 61.435 of CASR. CASA considers that the training required for these licences or certificates is relatively onerous for the normal operating environment of parachuting operations. Radiocommunication systems used in support of parachute operations on the ACMA-approved frequency band and not in congested airspace are considered to have limited impact on other airspace users and CASA considers that a lower level of authorisation is appropriate.

 

CASA anticipates that this instrument will no longer be required on commencement of proposed new Part 105 of CASR. If Part 105 of CASR commences before 31 May 2022, it is expected that this instrument will be repealed.

 

Overview of instrument

The instrument exempts an APF ground control assistant, when operating a radiocommunication system for or in relation to the performance of the person’s responsibilities as a ground control assistant, from compliance with regulations 83 of CAR and 64.040 of CASR. In the absence of the exemption, regulation 83 of CAR would prohibit these APF members from using a radiocommunication system during a parachute operation or a parachute training operation as they do not have the qualifications prescribed under that regulation for transmitting on aeronautical radio frequencies.

 

Also, regulation 64.040 of CASR only authorises persons (such as APF ground control assistants) who do not hold an aeronautical radio operator certificate to transmit on prescribed frequencies for the purpose of receiving training or assessment in the use of an aeronautical radio and under the direct supervision of a specified person. As the course of instruction to be completed by an APF ground control assistant is not the training or assessment in the use of an aeronautical radio required for the grant of an aeronautical radio operator certificate, and may not be under the direct supervision of a person mentioned in subregulation 64.015 (3) or (4) of CASR, the instrument also exempts APF ground control assistants from regulation 64.040 of CASR.

 

The exemption is subject to conditions imposed in the interests of aviation safety. These include that the APF ground control assistant must have completed a course of instruction that meets the GCA candidate training requirements mentioned in the Australian Parachute Federation Ltd Industry Standard Training Operations Manual (TOM), as existing from time to time (the APF Training Operations Manual), and only use aeronautical mobile radio frequency bands allocated or licensed by ACMA for parachute club operations.

The instrument also includes a direction under regulation 11.245 of CASR that the person holding, or acting in, the position of Safety and Training Manager of the APF, or the person’s delegate, must, before a person (the GCA candidate) performs the responsibilities of a ground control assistant, assess the competency of the GCA candidate to transmit ground‑to‑air communications to pilots in command of jump aircraft using aviation protocol and approve their competency in writing.

 

CASA has assessed the impact the instrument will have on aviation safety and is satisfied that it will promote the safety of the operation of jump aircraft and help ensure the safety of parachutists.

 

Documents incorporated by reference

Under subsection 14 (2) of the Legislation Act 2003 (the LA), unless the contrary intention appears, a legislative instrument may not incorporate any matter contained in an instrument or other writing as existing from time to time. 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.

 

In accordance with paragraph 15J (2) (c) of the LA, the following table contains a description of the documents incorporated by reference in the instrument, a description of each document and how they may be obtained. The table also states how the document is incorporated in the legislative instrument.

 

Document

Description

Source

Australian Parachute Federation Ltd Operational Regulations, as approved by CASA and as existing from time to time

Details the safety and training requirements and the duties and responsibilities of those involved in parachute operations and parachute training operations conducted by APF member training organisations

Available for free from the APF website at:

https://www.apf.com.au

Australian Parachute Federation Ltd Industry Standard Training Operations Manual (TOM), as existing from time to time

Details the requirements for parachute training conducted by APF member organisations, including the requirements and competencies for student, novice and advanced parachutists and other persons involved in parachute operations and parachute training operations as required by the APF Operations Regulations

Available for free from the APF website at:

https://www.apf.com.au

 

As at commencement of this instrument the latest version of the Australian Parachute Federation Ltd Operational Regulations approved by CASA is the version dated “Effective 01 April 2019” on the APF website and the latest version of the Australian Parachute Federation Ltd Industry Standard Training Operations Manual (TOM) is the version dated “Effective 01 April 2019” on the APF website.

 

Content of instrument

Section 1 sets out the name of the instrument.

 

Section 2 sets out the duration of the instrument. The instrument commenced on 1 July 2019 and will be repealed at the end of 31 May 2022. A note under section 2 states that for regulation 11.250 of CASR, the direction in section 5 ceases to be in force at the end of 31 May 2022.

 

Section 3 sets out some definitions for the instrument. A key definition is APF ground control assistant, which means a person who meets the requirements of the APF Operational Regulations for a ground control assistant and performs the responsibilities of a ground control assistant that are mentioned in the APF Operational Regulations, for a parachute operation, or a parachute training operation, conducted by a member of the APF.

 

Section 4 provides an exemption for an APF ground control assistant, when operating a radiocommunication system for or in relation to the performance of the person’s responsibilities as a ground control assistant, from compliance with regulation 83 of CAR and regulation 64.040 of CASR.

 

Section 5 sets out a direction made under regulation 11.245 of CASR. The direction is that the person holding, or acting in, the position of Safety and Training Manager of the APF, or the person’s delegate must, before a person (a GCA candidate) performs the responsibilities of a ground control assistant, assess the competency of the GCA candidate to transmit ground-to-air communications to a pilot in command of a jump aircraft using aviation protocol and approve the GCA candidate’s competency to be a ground control assistant.

 

Section 6 sets out conditions on the exemption in section 4. The conditions are that the APF ground control assistant must:

·         have completed a course of instruction in the use of aviation radiocommunication systems, and the responsibilities of the GCA, that meets the GCA candidate training requirements in the APF Training Operations Manual;

·         only use the aeronautical mobile radio frequency band allocated or licensed by ACMA for parachute club operations;

·         only use that frequency for ground-to-air communications with the pilot in command of the jump aircraft during parachute operations or parachute training operations; and

·         only operate a radiocommunication system with a transmitter output power which does not exceed 5 watts.

A note is included which refers to the particular ACMA legislative instrument (the Radiocommunications (Aircraft and Aeronautical Mobile Stations) Class Licence 2016) under which it has licensed the VHF 119.2 MHz frequency band for the purpose of parachute club operations.

 

Legislation Act 2003

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. This instrument exempts certain APF members from compliance with regulation 83 of CAR and regulation 64.040 of CASR. 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

Consultation occurred with the APF when it requested the issue of instrument CASA EX116/16 for the benefit of its members. CASA’s consultations included a review of the safety implications associated with the exemption and assessment of the APF’s proposed aviation radiocommunication systems instructional training that it developed for the instrument. CASA has received no adverse comment in relation to CASA EX116/16 and the APF has applied for renewal of the exemption in CASA EX116/16. In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.

 

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

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.

 

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 1 July 2019 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 EX61/19 — Use of Radiocommunication Systems in Parachute Operations (Australian Parachute Federation Ltd) Instrument 2019

 

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 members of the Australian Parachute Federation Ltd (APF) to communicate with pilots of parachute jump aircraft via radio, although they do not have the qualifications for transmitting on aeronautical radio frequencies required by regulation 83 of the Civil Aviation Regulations 1988 (CAR).

 

The training required to gain the qualifications required by regulation 83 of CAR is relatively onerous, and the use of radiocommunication systems in support of parachute operations on the Australian Communication and Media Authority (ACMA) approved frequency and not in congested airspace will have limited impact on other airspace users. Given this, CASA considers that a lower level of authorisation is appropriate.

 

The instrument exempts an APF ground control assistant, when operating a radiocommunication system for or in relation to the performance of the person’s responsibilities as a ground control assistant (GCA), from compliance with regulation 83 of CAR and regulation 64.040 of CASR. The instrument also includes a direction to the Safety and Training Manager of the APF that they must, before a person performs the responsibilities of a GCA, assess the competency of a GCA candidate and approve in writing the candidate’s competency to be a GCA.

 

Human rights implications

This legislative instrument engages the rights in work (Article 7 (b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)). Rights in work, set out in Article 7 of ICESCR, include safe and healthy working conditions. The instrument may also engage the right to life, under the International Covenant on Civil and Political Rights (the ICCPR).

 

The instrument addresses risks to the life and health of parachutists, pilots and people on the ground that could arise from parachuting accidents and incidents. It does this by imposing conditions on the relevant exemption in the instrument and providing a related direction. The exemption conditions are imposed in the interests of the safety of air navigation and ensure that APF GCAs receive appropriate instruction to perform the responsibilities of a GCA.

 

The instrument promotes the safety of parachutists and other persons engaged in parachute operations and parachute training operations by enabling only appropriately qualified and approved APF members to perform the responsibilities of a GCA and communicate via radio with the jump aircraft only on radio frequencies approved by ACMA.

 

Conclusion

This legislative instrument is compatible with human rights as, to the extent that it engages with applicable rights and freedoms, it promotes those rights and freedoms.

 

 

 

Civil Aviation Safety Authority