Federal Register of Legislation - Australian Government

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CASA EX123/21 Exemptions as made
This instrument exempts members of the Northern Rivers Hang Gliding and Paragliding Club Incorporated (the Club) from certain radio broadcast requirements in the designated broadcast area at the Ballina/Byron Gateway aerodrome and directs the Club to follow certain procedures to compensate for the absence of the radio broadcasts.
Administered by: Infrastructure, Transport, Regional Development and Communications
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 11 Oct 2021
Tabling HistoryDate
Tabled HR18-Oct-2021
Tabled Senate18-Oct-2021
To be repealed 30 Sep 2024
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Safety Regulations 1998

CASA EX123/21 – Northern Rivers Hang Gliding and Paragliding Club Incorporated – Broadcasting Exemptions and Directions Instrument 2021

Purpose

The purpose of this instrument is to:

·         exempt the members of the Northern Rivers Hang Gliding and Paragliding Club Incorporated (the Club) from certain radio broadcast requirements in the designated broadcast area at the Ballina/Byron Gateway aerodrome (Ballina)

·         direct the Club to follow certain procedures to compensate for the absence of the radio broadcasts.

 

The objective is to preserve an acceptable level of aviation safety by reducing radio frequency congestion in the airspace by coordinating and thereby reducing otherwise obligatory hang gliding and paragliding radio broadcasts.

 

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 Regulations 1988 (CAR) and the Civil Aviation Safety Regulations 1988 (CASR).

 

Exemptions

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 (which, by definition, includes CAR) 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.

 

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.).

 

In making the instrument, CASA has arrived at exemption provisions which will preserve the highest level of aviation safety that is reasonably practicable in the circumstances. Thus, both the paramountcy of aviation safety, and the practicability of achieving it as the most important consideration in CASA’s assessment, have been preserved in the proportionate approach adopted and the conditions imposed.

 

Directions

Under paragraph 11.245 (1) (a) of CASR, for subsection 98 (5A) of the Act, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Under subregulation 11.24 (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.

 

Broadcast requirements

Under paragraph 99A (1) (b) of CAR, the Civil Aviation Safety Authority (CASA) may designate airspace within defined horizontal and vertical limits as an area in which broadcast requirements apply (a designated area).

 

Under subregulation 99A (3), CASA may give directions specifying for a designated area:

(a)    the broadcast requirements that apply; and

(b)    the radio frequency on which broadcasts must be made.

 

Under subregulation 99A (5), a pilot in command of an aircraft operating in a designated area must not contravene a direction that applies to the area. Subregulation 99A (6) states that an offence against subregulation (5) is an offence of strict liability.

 

VHF radio carriage under CAR

Under subregulations 166E (1) and (2) of CAR, the pilot in command of an aircraft commits an offence if they operate the aircraft on the manoeuvring area of, or in the vicinity of, a non-controlled aerodrome that is a certified aerodrome (like Ballina) unless (among other things) the aircraft is carrying a serviceable aircraft VHF radio, and the pilot holds a radiotelephone qualification.

 

Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

 

Background

Airservices Australia (AA) has introduced a Surveillance Flight Information Service (the SFIS) for Ballina. An SFIS is an AA flight information service, on a common traffic advisory frequency (CTAF), provided remotely from an air traffic control centre by a licensed air traffic controller to IFR and VFR aircraft within a designated area. This replaces the certified air/ground radio service (CA/GRS) that previously served Ballina, performing a somewhat similar kind of service.

 

Made under regulation 99A of CAR, CASA 50/21 – Designation of Airspace for Broadcast Requirements – Locations with Surveillance Flight Information Service designates certain airspace in and around Ballina as a designated area. As a result, pilots in command of aircraft flying through, or landing at, or taking off from, the designated area during the published hours of operation of the SFIS established for the area must make specified broadcasts on a specified radio frequency (mandated radio calls).

 

Ballina Airport shares a CTAF with Lismore, Casino and Evans Head aerodromes. The possibility of radio frequency congestion and over-transmission of radio broadcasts is, therefore, a potential aviation safety issue due to the number of aerodromes, the topography in the area, the numbers of aircraft, and the risk of reduced situational awareness of pilots.

 

For flying operations and pilot training, the Club operates from Pat Morton Lookout, Lennox Head, 2.2 nautical miles north east of the threshold of runway 24 of Ballina (the Lennox Head). For pilot instruction operations, the Club operates from 104 Fairfull Road, Numulgi (Numulgi). Depending on the weather conditions, there could be up to 20 pilots flying at any time, though due to topography and environmental conditions, the hang glider and paraglider pilots must operate below 400 feet above ground level.

 

A consequence of mandated radio calls within the designated broadcast area at Ballina is the requirement for all hang glider and paraglider pilots to carry a VHF radio and to make radio broadcasts every time they take off and land. This further increases the potential for radio frequency congestion. In practice, the aircraft and their pilots do not carry VHF radios but they are equipped with UHF radios.

 

To mitigate the frequency congestion risks, CA/GRS acted as a coordinated broadcaster/monitor for the Club members when flying, using UHF as the means of communicating with the Club pilots.

 

The exemptions and directions instrument is designed to establish a coordinated procedure for Club radio broadcasts in the new SFIS environment, and thereby reduce the number of pilots making radio broadcasts on the CTAF.

 

The instrument exempts the Club’s pilots from the requirement to make mandated radio calls if they are following Club procedures, and directs the Club to establish and follow certain safety procedures. The Club has agreed to the direction and the procedures in order to facilitate the continuation of its flying activities without the need for its members to be equipped with VHF radios and make individual broadcasts.

 

The procedures hinge around the ground-based role of a Club Duty Officer (or equivalent). The Duty Officer must always be on duty when Club members are flying and has responsibility to make coordinated radio broadcasts to, and monitor the air traffic information from, the SFIS.

 

The purpose of the instrument is to exempt Club flyers from carrying VHF radios and making appropriate broadcasts in a mandatory broadcast area. Preservation of an acceptable level of aviation safety in this context is essential and, therefore, the instrument and its procedures are necessarily comparatively detailed setting out procedural steps to be followed, and communication methodologies required, and word formulas to be spoken.

 

An overview of the instrument is in Appendix 1. In brief, the Club’s pilots are exempted from radio carriage and broadcast requirements in the designated area as long as:

·         they are carrying and using UHF radios

·         the Club’s on-the-ground Duty Officer (or equivalent) is following the prescribed safety procedures by communicating to the pilots, using UHF radio, relevant air traffic and other information obtained from the SFIS using VHF radio.

 

Legislation Act 2003 (the LA)

As noted above, exemptions and directions under Subpart 11.F of CASR 1998 are “for subsection 98 (5A)” of the Act, that is, for regulations which empower the issue of certain instruments 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 instrument is clearly one in relation to matters affecting the safe navigation and operation of aircraft. Under subsection 98 (5AA) of the Act, an instrument issued under paragraph 98 (5A) (a), for such matters, is a legislative instrument if it is 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 instrument applies to a class of persons (Club members, as well as the Club itself) and is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under sections 15G, and 38 and 42, of the LA.

 

Incorporations by reference

Under subsection 98 (5D) of the Act, being a legislative instrument, 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 Table below identifies the instruments and documents mentioned in the instrument that are applied, adopted, or incorporated in the MOS. The Table also identifies how the document may be obtained.

 

Incorporation by reference

The expression published hours of operation is a defined term meaning the hours of operation of the SFIS as published in the Aeronautical Information Publication (AIP) Supplement, or the En Route Supplement Australia publication. As noted below, these documents may be freely obtained from AA, which publishes them at the following website address:

 

https://www.airservicesaustralia.com/aip/aip.asp.

 

Document

Description

Manner of incorporation

Source

CASA 50/21 — Designation of Airspace for Broadcast Requirements

This is the designation instrument identifying the Ballina designated area.

As in force at the commencement of the exemptions and directions instrument.

This document is available for free on the Federal Register of Legislation.

Letter of agreement

This is the letter from AA to the Club in relation to facilitating the relevant broadcasting arrangements.

As in force from time to time.

This document is available for free on the Club’s website.

Club operations manual

This is the Sports Aviation Federation of Australia (SAFA) operations manual.

As in force from time to time.

This document is available for free on the internet.

The Aeronautical Information Publication (AIP) Supplement

Part of the AA aeronautical information package.

As in force from time to time.

This document is available for free on the AA website.

The En Route Supplement Australia (ERSA)

Part of the AA aeronautical information package.

As in force from time to time.

This document is available for free on the AA website.

Notices to Airmen (NOTAMs)

Periodic flight operations information.

As in force from time to time.

This document is available for free on the CASA website.

 

Consultation

Under section 16 of the Act, in performing its functions and exercising its powers CASA must “where appropriate” consult government, industrial, commercial, consumer and other relevant bodies and organisations, including ICAO and bodies representing the aviation industry.

 

Under section 17 of the LA, before a legislative instrument is made, CASA “must be satisfied that there has been undertaken any consultation that is considered … to be appropriate and practicable”, in order to draw on relevant expertise and involve persons likely to be affected by the proposals.

 

CASA consulted the Club, the Ballina Shire Council which operates the Ballina aerodrome, and AA about the proposed broadcasting arrangements for the Club. CASA also consulted relevant major airlines, including Qantas, Qantas Link, Jetstar and Virgin.

 

All parties understood the issue of frequency congestion discussed above (under Background) and all agreed that the proposal would reduce the number of radio broadcasts being made and hence contribute to maintaining an acceptable level of safety for all aviation participants using the relevant airspace.

 

Office of Best Practice Regulation (OBPR)

A Regulation Impact Statement (RIS) is not required because the exemption and direction instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for the instrument (OBPR id: 14507).

 

Statement of Compatibility with Human Rights

The Statement of Compatibility with Human Rights at Attachment 2 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. 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. To the extent that the instrument engages certain of these rights, it does so in a way that is reasonable, necessary and proportionate to ensure the aviation safety of relevant aviation personnel.

 

Making and commencement

The instrument have been made by a delegate of CASA, relying on the power of delegation under subregulation 11.260 (1) of CASR.

 

The instrument commences on the day it is registered and is expressed to be repealed at the end of 30 September 2024, unless sooner repealed in the light of future regulatory amendments.

Attachment 1

Overview of CASA EX123/21 – Northern Rivers Hang Gliding and Paragliding Club Incorporated – Broadcasting Exemptions and Directions Instrument 2021

1          Name

                 This section names the legislative instrument.

2          Duration

                 Under this section, the instrument commences on the day it is registered, and is repealed at the end of 30 September 2024.

3          Definitions

                 This section provides a number of key definitions for understanding the instrument.

4          Application

                 Under this section, the instrument applies to a Club member when flying a hang glider or paraglider, that is equipped with UHF radio, at Lennox Head or at 104 Fairfull Road, Numulgi (for pilot instruction operations only) (both in the Ballina designated area in NSW). The exemptions in section 5 (from VHF radio carriage and broadcasting requirements) apply only when the Club has a letter from AA expressing its agreement to facilitate the Club’s broadcasting arrangements. (The Club must provide CASA with a copy of the letter. CASA has placed this letter on its website.)

5          Exemptions

                 Under this section, for the 2 sites in the designated area, a Club member is exempted from compliance with the aforementioned VHF radio carriage and broadcasting requirements.

6          Condition on exemptions

                 Under this section the exemptions are conditioned as follows:

(a)   the Club member must fly at or below 400 feet above ground level;

(b)   the aircraft must be fitted with or carrying a serviceable UHF radio;

(c)   the Club’s Duty Officer (or Reserve Duty Officer) or, for pilot instruction, the Club’s CFI, must be on duty on the ground (the Club’s CFI may double as the Duty Officer when pilot training is underway, or otherwise;

(d)   the Club member must comply with the Club’s operations manual (the SAFA operations manual and the Club’s relevant procedures and rules for compliance with the exemption instrument. In addition, the Club member must have a current subscription to the Club’s internal messaging service to receive flying information updates.

7          Directions

                 Under this section, the Club is directed to comply with prescribed safety procedures and requirements. For example, for flying or instructing operations at the respective sites, a Duty Officer (or a Reserve Duty Officer) or the CFI for flying training, as the case requires, must always be on duty on the ground with the VHF radio for monitoring the SFIS, as well as a UHF radio for communicating with the Club pilots, and a reliable mobile phone for communicating with the Brisbane Air Traffic Control Centre Supervisor.

                 The CFI may be a Duty Officer but when the relevant person is undergoing pilot instruction the Club must have the CFI on duty, whether at Lennox Head or Numulgi. However, for general flying and pilot instruction occurring simultaneously at Lennox Head, the CFI may be taken to be the CFI and the Duty officer (doubling as the Duty Officer).

                 If the Duty Officer (or a Reserve Duty Officer), or the CFI, is not on duty, flying or instructing must cease. The Club must have written procedures and rules to ensure that the more detailed arrangements prescribed under Schedule 1 are followed.

                 Before implementing any of the procedures under Schedule 1, the Club must provide CASA with a copy of the applicable letter of agreement from AA.

8          Conflicts

                 Under this section, if a provision of the instrument is inconsistent with the Club’s operations manual, then the instrument prevails, and the operations manual must be amended.

9          Instructors

                 Provided the CFI is present at a relevant place when pilot instruction is being conducted, an instructor may perform, at the place, any role of the CFI under the instrument except the inherent roles of the CFI, namely:

(a)   the role of the CFI who must be present when pilot instruction is under way at any relevant place;

(b)   the role of the CFI when doubling as the Duty Officer for general flying;

(c)   any role of the CFI that, regardless of anything in the instrument, the CFI would normally carry out, in the capacity of CFI, in relation to pilot instruction anywhere.

 

Schedule 1       Procedures to be complied with for subsection 7 (4)

              Schedule 1 supplies the detailed procedures for Club flying and pilot instruction at the 2 sites mentioned above, in the context of the exemption from radio carriage and broadcasting requirements.

              Part A deals with Procedures during the published hours of operation of the SFIS for the designated area.

                 The Brisbane Air Traffic Service Centre Supervisor must be alerted by telephone to the proposed operations commencing, or ceasing, and confirmation of flying, or cessation, given to the Club members. Any changeovers of Duty Officers or telephones must also be communicated.

                 For the duration of flying operations, the Duty Officer, or the CFI, must:

(a)   monitor the VHF radio for the designated area; and

(b)   using UHF, relay to each relevant person, flight and safety information as appropriate; and

(c)   in the event of an emergency or NOTAM — respond on the VHF radio to the SFIS air traffic controller, as required or necessary.

                 If, for reasons beyond their control, the Duty Officer has to leave the relevant site, they must hand over Duty Officer responsibility to the Reserve Duty Officer. If neither is available, flying must cease, as flying for pilot instruction must cease in the absence of the CFI.

                 Part B deals with Procedures outside the published hours of operation of the SFIS for the designated area. The procedures are very similar to those for published hours. However, for operations that commence before, or cease after, the published hours of operation of the SFIS, the Duty Officer, or the CFI, must actually broadcast on the CTAF frequency (124.2MHz) using a prescribed formula, to alert air traffic control to the commencement or cessation of operations.

Attachment 2

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011

CASA EX123/21 – Northern Rivers Hang Gliding and Paragliding Club Incorporated – Broadcasting Exemptions and Directions Instrument 2021

 

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 purpose of this instrument is to:

·         exempt the members of the Northern Rivers Hang Gliding and Paragliding Club Incorporated (the Club) from certain radio broadcast requirements in the designated broadcast area at the Ballina/Byron Gateway aerodrome (Ballina)

·         direct the Club to follow certain procedures to compensate for the absence of the radio broadcasts.

 

The objective is to preserve an acceptable level of aviation safety by reducing radio frequency congestion in the airspace by coordinating and thereby reducing otherwise obligatory hang gliding and paragliding broadcasts.

 

Human rights implications

CASA EX123/21 – Northern Rivers Hang Gliding and Paragliding Club Incorporated – Broadcasting Exemptions and Directions Instrument 2021 engages the following applicable rights or freedoms:

·         the right to life under Article 6 of the International Covenant on Civil and Political Rights (the ICCPR)

·         the right to safe and healthy working conditions under Article 7 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR).

 

Right to life under the ICCPR

Right to safe and healthy working conditions under the ICESCR

 

Ballina Airport shares a CTAF with Lismore, Casino and Evans Head aerodromes. The possibility of radio frequency congestion and over-transmission of radio broadcasts is, therefore, a potential aviation safety issue due to the number of aerodromes, the topography in the area, the number of aircraft, and the risk of reduced situational awareness of pilots.

 

Relieving hang glider and paraglider pilots of radio broadcast requirements in the Ballina designated area, while ensuring that there are coordinated, vicarious, broadcasts from a qualified safety operative on the ground, will help to reduce the risk of radio transmission congestion in the area. This will contribute to preserving the safety of the relevant airspace during flying and pilot instructing operations, and thereby promote the right to life for all pilots using the relevant airspace, and right to safe and healthy working conditions for flight crew and passengers of relevant commercial aircraft using the airspace.

 

Human rights implications

The legislative instruments are 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. To the extent that the instruments engage certain of these rights, they do so in a way that is reasonable, necessary and proportionate by promoting relevant rights.

 

Conclusion

The legislative instrument is compatible with human rights, and to the extent that it engages certain rights, it does so in a way that promotes rather than limits those rights.

 

 

Civil Aviation Safety Authority