Federal Register of Legislation - Australian Government

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Other as made
This instrument amends the Civil Aviation Safety Regulations 1998 - Prescription — type ratings for CASR Part 142 flight training (Edition 1) to add an additional type rating, namely that for the Consolidated Vultee PBY – 5 and 6 (Catalina) aircraft.
Administered by: Infrastructure and Regional Development
Exempt from sunsetting by the Legislative Instruments Act 2003 s 54(2) item 9
Registered 19 May 2015
Tabling HistoryDate
Tabled HR25-May-2015
Tabled Senate15-Jun-2015
Date of repeal 21 May 2015
Repealed by Division 1 of Part 5A of the Legislative Instruments Act 2003

Explanatory Statement

Civil Aviation Safety Regulations 1998

Prescription — type ratings for CASR Part 142 flight training (Edition 1) Amendment Instrument 2015 (No. 1)

Purpose

Prescription — type ratings for CASR Part 142 flight training (Edition 1) Amendment Instrument 2015 (No. 1) (the amendment instrument) amends the instrument known as Prescription — type ratings for CASR Part 142 flight training (Edition 1) (the principal instrument) to add an additional type rating for the purpose of relevant provisions in Part 142 of the Civil Aviation Safety Regulations 1998 (CASR 1998).

 

Legislation

Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.

 

Under paragraph 98 (5A) (a) of the Act, such regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation of aircraft.

 

The Civil Aviation Legislation Amendment Regulation 2013 (No. 1) (the amendment regulation) was made under section 98 of the Act to include new Parts 141 and 142 of CASR 1998 (CASR Part 141 and CASR Part 142).

 

CASR Part 141 contains regulations for recreational, private and commercial pilot flight training, other than certain integrated training courses. Such Part 141 flight training may be carried out by a Part 141 operator, that is, a person who holds a Part 141 certificate.

 

CASR Part 142 contains regulations for integrated and multi-crew pilot flight training, training for the grant of a type rating, contracted recurrent training and contracted checking. Such training and checking may only be carried out by a Part 142 operator, that is a person holding a Part 142 authorisation, for example, in the form of an air operator’s certificate (AOC).

 

The rationale behind CASR Parts 141 and 142 is that flying training may be authorised to be conducted for a particular aircraft type rating only if the flying training organisation has a course of training together with sufficient systems and personnel in place to safely manage flying training for the types of aircraft, including their variants.

 

Within the range of available aircraft types, some can be grouped together and treated in a common way under Part 61 of CASR 1998 concerning flight crew licences, rating and endorsements to fly an aircraft. Thus, training to operate one type of aircraft may satisfy the training requirements for a number of other types of aircraft if they have similar characteristics and performance.

 

However, many types of aircraft are sufficiently complex or different from other types as to warrant type specific training to be required to fly these aircraft. These aircraft are identified as type-rated aircraft.

 

In some cases, aircraft types can have variants and the characteristics of the variants can differ, for example, in such areas as operating systems, size, performance or handling. In some cases, the variant differences are such that additional training (differences training) of the pilots is warranted to enable them to fly variants of the original aircraft type.

 

Under paragraph 142.045 (a) of CASR 1998, for paragraph 98 (5A) (a) of the Act, CASA may issue a legislative instrument to prescribe type ratings for certain elements of the definition of Part 142 flight training.

 

Under paragraph 142.015 (2) (d) of CASR 1998, Part 142 flight training is defined as including training for the grant of a CASR Part 61 flight crew rating that is not prescribed in a legislative instrument under regulation 142.045.

 

Under subparagraph 142.015 (g) (i) of CASR 1998, Part 142 flight training is also defined as differences training required under regulations 61.780, 61.835 and 61.1370 of CASR 1998 for a variant covered by a type rating that is not prescribed in a legislative instrument under regulation 142.045.

 

Under paragraph 141.015 (1) (d) of CASR 1998, Part 141 flight training is defined as including training for the grant of a Part 61 flight crew rating that is prescribed in a legislative instrument under regulation 142.045.

 

Under subparagraph 141.015 (g) (i) of CASR 1998, Part 141 flight training is also defined as differences training required under regulations 61.780 and 61.835 of CASR 1998 for a variant covered by a type rating that is prescribed in a legislative instrument under regulation 142.045.

 

Regulation 61.780 of CASR 1998 requires the holder of a pilot type rating in an aircraft with variants to undertake differences training for other variants if the variants are prescribed, and differences training for them is required, under a legislative instrument made under regulation 61.055 or 61.060 of CASR 1998.

 

Regulation 61.835 of CASR 1998 authorises the holder of a cruise relief co-pilot type rating to act as co-pilot in an aircraft (in certain defined circumstances). Again, in particular defined circumstances, including passing a flight test in the aircraft model covered by the rating (the “first variant”), if differences training is required, and completed, for another aircraft model covered by the rating, the holder may exercise the privileges of that second variant.

 

Under regulation 61.1370 of CASR 1998, the holder of a flight engineer type rating in an aircraft, who passed a flight test for the rating in the aircraft model (the “first variant”), may exercise the privileges of the rating in another aircraft model (the “second variant”) covered by the rating if differences training for it is required and has been completed.

 

Instrument

The principal instrument prescribed type ratings for the purposes of CASR Part 142. The effect of this was that the type rating prescriptions made training in the relevant aircraft, and differences training for relevant aircraft, not Part 142 flight training, but Part 141 flight training.

 

The amendment instrument amends the principal instrument to add an additional type rating, namely that for the Consolidated Vultee PBY – 5 and 6 (Catalina) aircraft (the aircraft).

 

The Historical Aircraft Restoration Society (HARS), a Part 141 certificate holder, asked CASA for relief against the requirements of Part 142 of CASR 1998 in relation to conducting flight training for this multi-crew type-rated aircraft.

For more than 10 years, without incident, HARS had been conducting the flight training for the aircraft but can no longer do so because it does not have a Part 142 certificate and is unlikely to have one in the near future. Unless an aircraft is listed in the principal instrument, the training for the type rating must, in future, be conducted by the holder of a Part 142 certificate.

Flight training for type-rated aircraft is designated as Part 142 training because of the relative complexity of operating such aircraft, especially multi-crew types, and the higher risks associated with failures arising from inadequate training.

CASA considered, among other things, the numbers of aircraft (only 2 airworthy in Australia), the complexity of the aircraft, the aeronautical knowledge requirements for it, the risks associated with failures arising from inadequate training, and the kind of operations the aircraft could be used for (in Australia, the aircraft is limited to operating for pleasure and air show flights). CASA considered that, in all the circumstances, assigning this aircraft type for Part 141 operators would be appropriate. This is achieved by prescribing the aircraft type in the amendment instrument.

 

Legislative Instruments Act 2003 (the LIA)

Under paragraph 98 (5A) (a) of the Act, CASA may issue instruments 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) is a legislative instrument if expressed to apply in relation to a class of persons or aircraft.

 

The additional type rating prescription made by the instrument applies to a class of aircraft and, therefore, the instrument is a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under sections 24, 38 and 42, of the LIA.

 

Subject to subsection 98 (5AA) of the Act, the amendment instrument would, in any event be a legislative instrument under section 5 of the LIA because it alters the content of the law and varies rights and obligations.

 

In addition, regulation 142.045 expressly states that the instrument is to be a legislative instrument. Under subsection 15AE (1) of the Acts Interpretation Act 1901, if a provision of a law requires or permits an instrument that is described as a legislative instrument to be made, then an instrument so made must be in writing; and is a legislative instrument.

 

Further, the amendment instrument is a legislative instrument because the principal instrument was a legislative instrument and only a legislative instrument may amend another legislative instrument on the legal principal that only a law may repeal or amend another law.

 

Consultation

The request for the amendment instrument was made by HARS who assisted CASA with information to assess the safety implications of such an amendment. No further consultation was considered necessary.

Office of Best Practice Regulation (OBPR)

A Regulation Impact Statement (RIS) was prepared by CASA for the regulations which constitute the head of power for the legislative instrument. This RIS was assessed as adequate by OBPR (OBPR ID: 2777) and applies for the purpose of the legislative instrument. Part 61 of CASR 1998, including the legislative instrument, has been assessed by CASA as generally benefitting the aviation industry because the reduced number of aircraft covered by type ratings has the effect of reducing compliance costs.

 

Statement of Compatibility with Human Rights

The Statement in Appendix 1 is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The legislative instrument does not directly engage any of the applicable rights and freedoms and is compatible with human rights. To the extent that it may indirectly limit certain human rights, those limitations are necessary and proportionate in the interests of aviation safety.

 

Making and commencement

The instrument has been made by the Acting 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.

 

[Prescription — type ratings for CASR Part 142 flight training (Edition 1) Amendment Instrument 2015 (No. 1)]

Appendix 1

Statement of Compatibility with Human Rights

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

Prescription — type ratings for CASR Part 142 flight training (Edition 1) Amendment Instrument 2015 (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 Prescription — type ratings for CASR Part 142 flight training (Edition 1) (the principal instrument) was a legislative instrument prescribing type ratings for the purpose of relevant provisions in Part 142 of the Civil Aviation Safety Regulations 1998 (CASR 1998), thereby determining whether a Part 141 operator, rather than a Part 142 operator, may deliver flight training for the type ratings. The principal instrument was, therefore, essentially a machinery instrument whose requirements are consistent with Australia’s obligations of conformity to the Chicago Convention on International Civil Aviation, its Protocols and Annexes.

 

The Prescription — type ratings for CASR Part 142 flight training (Edition 1) Amendment Instrument 2015(No. 1) (the amendment instrument) amends the principal instrument to add an additional type rating, namely that for the Consolidated Vultee PBY – 5 and 6 (Catalina) aircraft (the aircraft).

 

Human rights implications

To the extent that certain aircraft are not prescribed, it might be said that the right to work, equality and non-discrimination under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (ICESCR) are engaged for Part 141 flight training organisations since they cannot provide relevant flight training for aircraft types that are not prescribed. However, such differential treatment arises from the requirements of aviation safety for the particular types of specialised aircraft involved.

 

Conclusion

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 it may also limit human rights, those limitations are reasonable and proportionate in the interests of aviation safety.

 

Civil Aviation Safety Authority