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CASA EX86/16 Exemptions as made
This instrument exempts, under Part 61 of the Civil Aviation Safety Regulations 1998, of the prior completion, under Part 5 of the Civil Aviation Regulations 1988, of some or all of the aeronautical knowledge examinations required for the commercial pilot licence and the air transport pilot licence. This is conditional on all relevant aeronautical knowledge examinations for the grant of the relevant licence, whether under Part 5 alone, or under Part 5 and Part 61 together, having been completed within a 3 year period.
Administered by: Infrastructure, Regional Development and Cities
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 02 Jun 2016
Tabling HistoryDate
Tabled HR30-Aug-2016
Tabled Senate30-Aug-2016
Date of repeal 31 Aug 2018
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Safety Regulations 1998

Exemption — CASR Part 61 aeronautical knowledge examinations and completion period

 

Purpose

The exemption is intended to permit recognition under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR 1998) of the prior completion, under Part 5 of the Civil Aviation Regulations 1988 (CAR 1988), of some (or all) of the aeronautical knowledge examinations (AKE) for the commercial pilot licence (CPL) and the air transport pilot licence (ATPL). This is conditional on all relevant AKE for the grant of the relevant licence, whether under Part 5 alone, or under Part 5 and Part 61, having been completed within a 3 year period.

 

Legislation — CASR Part 61

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. Part 61 of CASR 1998 sets out flight crew licensing requirements.

 

Prior to 1 September 2014, Part 5 of CAR 1988 provided for AKE. On and from 1 September 2014, Part 61 of CASR 1998 provides for AKE.

 

Regulation 61.155 of CASR 1998 provides for applications to be made for a flight crew licence (FCL), rating or endorsement. Other relevant provisions are as follows (for ease of reference, numbered to coincide with the numbering in Schedule 1 of the exemption instrument):

 

        1     Under paragraph 61.220 (b), to be eligible to sit the AKE for an ATPL with a particular aircraft category rating (ACR), an applicant must (as one of alternative requirements) have passed the AKE for a CPL with that rating.

        2     Under subregulation 61.225 (1), a requirement in Part 61 for a person to have passed an AKE for an FCL, rating or endorsement is met if the person meets the standards mentioned in the Part 61 Manual of Standards (MOS) for the examination.

        3     Under subregulation 61.225 (2), a person is taken to have passed an AKE only if the person passes all parts of the examination within a period of 2 years.

        4     Under subparagraph 61.235 (2) (a) (ii), for an applicant for an FCL, (other than an applicant who is eligible under provisions for recognition of overseas flight crew authorisations) the applicant is eligible to take a flight test for the licence only if the applicant has (among other things) passed the AKE for the licence.

        5     Under paragraph 61.275 (1) (f), the holder of an overseas FCL is taken to meet the requirements under Part 61 for the grant of an FCL with an ACR if (among other things) the applicant has passed the overseas conversion AKE mentioned in the Part 61 MOS for the Australian licence and ACR.

        6     Under subparagraph 61.285 (f) (i), a member or former member of the Australian Defence Force (ADF) is taken to meet the requirements under Part 61 for the grant of an FCL, rating or endorsement (other than an examiner rating) if for an ATPL the applicant (among other things) passes the ADF conversion AKE for the ATPL mentioned in the Part 61 MOS.

        7     Under paragraph 61.580 (2) (a), an applicant for a CPL must (among other things) have passed the AKE for the CPL and the associated ACR.

        8     Under paragraph 61.700 (3) (a), an applicant for an ATPL must (among other things) have passed the AKE for the ATPL and the associated ACR.

        9     Under subregulation 61.730 (1), an applicant for an ACR must be an applicant for, or the holder of, a pilot licence. Under subregulation 61.730 (2), if the application for the ACR is made at the same time as an application for a pilot licence, the applicant meets the requirements for the grant of the ACR if the applicant meets the requirements for the grant of the pilot licence with the ACR.

      10     Under subregulation 61.730 (3), an applicant for an ACR for an existing pilot licence must meet the requirements for the grant of the pilot licence with the ACR.

      11     Under subparagraph 61.1300 (1) (b) (ii), a flight examiner commits an offence if the examiner conducts a flight test for a pilot licence and when the test begins, the examiner is not satisfied that the applicant has (among other things) passed the AKE for the licence.

      12     Under subparagraph 61.1300 (4) (b) (i), a flight examiner commits an offence if the examiner conducts a flight test for a rating or endorsement on a pilot licence and when the test begins the examiner is not satisfied that the applicant has (among other things) passed the AKE for the rating or endorsement.

 

Legislation — exemptions

Subpart 11.F of CASR 1998 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 1998 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 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 (but not an exceptional circumstances exemption for regulation 11.185 about major emergencies) 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.).

 

Background

CPL and ATPL AKE are comprised of various common parts, and aircraft category specific parts. Thus, a category specific part of an AKE means a part of an AKE that is aircraft category specific. A common part of an AKE means a part of an AKE that is not an aircraft category specific part. The content of these various parts is currently contained in the Part 61 MOS.

 

To qualify for a CPL or ATPL, an applicant must meet the requirements for the grant of an ACR. Thus, the applicant must have passed the common parts and the category specific parts for the licence and the first ACR. Thereafter, to qualify for another ACR, the applicant only needs to pass the category specific parts for the subsequent ACR.

 

The AKE for licences and ACRs are currently specified in the Part 61 MOS. Schedule 4 of the Part 61 MOS currently contains the list of AKEs, including their parts, the duration and pass standard. Schedule 3 of the Part 61 MOS currently contains the aeronautical knowledge standards upon which the parts subject to examination are based.

 

Part 61 of CASR 1998 commenced on 1 September 2014. Prior to 1 September 2014, a small number of pilots had either:

 

·         completed all AKE required for their CPL or ATPL under Part 5 of CAR 1988, but not applied for the licence before 1 September 2014; or

·         held a CPL or ATPL and completed all AKE required for the additional ACR under Part 5 of CAR 1988, but not applied for the additional ACR before 1 September 2014; or

·         not completed all of the AKE required for their CPL or ATPL under Part 5 of CAR 1988.

 

Under Part 5, such licence applicants would have had 3 years in which to complete all of the AKE. That is, all of the required parts of the AKE had to be completed within 3 years from when the first part examination was attempted. If all of the parts were not passed in that 3 year period, the applicant was required to start again and sit all of the part examinations in a new 3 year period, despite passing them on a previous occasion.

 

In 2013, the static 3 year period was changed to a sliding period which was a relaxation of the examination pass standard. The sliding period meant the applicant only had to pass the AKE within an overall 3 year period, regardless of when the first part examination was attempted. This sliding period was introduced in anticipation of the commencement of Part 61 and a change to the licensing management system designed to support the introduction of Part 61.

 

Part 61 of CASR 1998 commenced on 1 September 2014 to regulate flight crew licensing. Part 61 made no specific transitional arrangements to permit the relevant pilots to claim credit for the AKE they had completed prior to 1 September 2014. In content and standards, the Part 5 AKE, and the Part 61 AKE, are essentially the same.

 

In addition, Part 61 reduced to 2 years the former revised period of 3 years in which all relevant AKE could be completed.

 

The exemption will, therefore, in effect, recognise completion of AKE under Part 5 of CAR 1988, provided that all relevant AKE for the grant of the relevant licence and ACR – whether under Part 5 of CAR 1988 alone, or under Part 5 of CAR 1988 and Part 61 of CASR 1998 together – have been completed within a 3 year period.

 

The exemption is an interim measure to protect the relevant pilots from disadvantage pending appropriate amendments to Part 61 to provide for recognition of AKE completed under Part 5 of CAR 1988 (subject to the overall 3 year completion period).

 

Details of the exemption

The exemption instrument is necessarily technical and details of it are set out in Appendix 1.

 

Legislation Act 2003 (the LA)

As noted above, exemptions 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, like exemptions, 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 exemption is clearly one in relation to matters affecting the safe navigation and operation of aircraft. Under subsection 98 (5AA) of the Act, an exemption issued under paragraph 98 (5A) (a), for such matters, is a legislative instrument if 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 exemption applies to a class of persons (the relevant applicants for the CPL or ATPL) 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.

 

Consultation

CASA considers that exemptions from regulatory requirements are beneficial for those to whom they apply, who voluntarily elect to take advantage of them, and who comply with their conditions. In this context, CASA considers that it is rarely necessary to engage in extensive public consultation on a proposed exemption. However, except in urgent circumstances, it is CASA’s policy to consult in an appropriate way with those parts of the aviation industry most likely to be affected by, or avail themselves of, an exemption so that they may have the opportunity to comment on the possible or likely terms, scope and appropriateness of an exemption.

 

CASA was informed by a small number of pilots that the new 2 year examination standard may have unfairly disadvantaged them. They submitted that they were not forewarned of, or aware of, the change to the standard and, for example, were therefore unable to accelerate completion of relevant AKE before 1 September 2014. In response to this, CASA designed a draft exemption to protect from disadvantage this small cohort so that their prior completion of some relevant AKE under Part 5 would, subject to the overall 3 year limitation period for completion of all relevant AKE, be recognised when they apply for the relevant CPL, ATPL and ACRs.

 

Consistent with its consultation policy for exemptions described above, CASA consulted on the proposed exemption with its Part 61 Solutions Taskforce Industry Advisory Panel. This panel is a CASA/industry consultation forum specifically established to consult on issues arising under Part 61. The Panel did not object to the proposal.

 

Office of Best Practice Regulation (OBPR)

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

 

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 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 exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.

 

The exemption commences on the day of registration and is repealed at the end of 31 August 2018.

 

The exemption is an interim measure, pending substantive amendments to Part 61 which will remove the need for the exemption. These amendments will be part of a larger set of amendments to Part 61 for which drafting instructions are being prepared. It is expected that, subject to the capacity of OPC to produce them in the context of competing priorities arising from government drafting demands, the amendments will be made and in force within the next 18 months to 2 years.

 

[Instrument number CASA EX86/16]

Appendix 1

 

Exemption — CASR Part 61 aeronautical knowledge examinations and completion period

1          Duration

                 Under this section, the exemption instrument commences on the day of registration, and is repealed at the end of 30 June 2018.

2          Definitions

                 This section provides some definitions and short-hand expressions.

3          Application

                 To ensure applicability across the range of circumstances that may arise for relevant CPL and ATPL licence applicants wishing to rely, in whole or in part, on Part 5 AKE, section 3 identifies 5 separate classes of persons to whom the exemption applies. Of these, 4 are relevant CPL and ATPL licence applicants, and the fifth is flight examiners conducting flight tests for the applicants.

A          Licence with initial category rating, under CAR Part 5 only

            Under subsection 3 (1), the instrument applies to a person who:

(a)   before 1 September 2014, passed the CAR Part 5 AKE for a CPL or an ATPL with an initial category rating (that is, all parts of the AKE); and

(b)   after the commencement of the exemption instrument, applies to CASA for the grant of a CPL or an ATPL, with the initial category rating; and

(c)   relies on the CAR Part 5 AKE; and

(d)   passed each part of the CAR Part 5 AKE within 3 years of passing each other part of the CAR Part 5 AKE.

B          Licence with additional category rating, under CAR Part 5 only

                 Under subsection 3 (2), the instrument also applies to a person who:

(a)   before 1 September 2014:

             (i)  held a CPL or an ATPL with an initial category rating, under CAR Part 5; and

            (ii)  passed the category specific parts of the AKE for the CPL or the ATPL with an additional category rating, as set under CAR Part 5 (the CAR Part 5 AKE); and

(b)   after the commencement of the instrument, applies to CASA under regulation 61.155 for the grant of the CPL or the ATPL with the additional category rating; and

(c)   for the grant of the licence with the additional category rating relies on the category specific parts of the CAR Part 5 AKE that were passed for the rating; and

(d)   passed each category specific part of the CAR Part 5 AKE for the additional rating within 3 years of passing each other category specific part of the CAR Part 5 AKE for the rating.

C         Licence with initial category rating, under mixed CAR Part 5 and CASR Part 61

                 Under subsection 3 (3), the instrument also applies to a person who:

(a)   before 1 September 2014, passed 1 or more parts of a CAR Part 5 AKE for a CPL or an ATPL, with an initial category rating; and

(b)   after the commencement of the instrument, applies to CASA under regulation 61.155 for the grant of a CPL or an ATPL with the initial category rating; and

(c)   for the grant of the licence with the initial category rating relies on the part or parts of the CAR Part 5 AKE that were passed, in combination with having passed other parts of the AKE under Part 61; and

(d)   passed each part of the Part 61 AKE within 3 years of passing each part of the CAR Part 5 AKE.

D         Licence with additional category rating, under mixed CAR Part 5 and CASR Part 61

                 Under subsection 3 (4), the instrument also applies to a person who:

(a)   before 1 September 2014:

             (i)  held a CPL or an ATPL with an initial category rating, under CAR Part 5; and

            (ii)  passed 1 or more category specific parts for the CPL or the ATPL with an additional category rating, as set under the CAR Part 5 AKE; and

(b)   after the commencement of the instrument, applies to CASA under regulation 61.155 for the grant of a CPL or an ATPL with the additional category rating; and

(c)   for the grant of the additional category rating relies on the category specific part or parts of the CAR Part 5 AKE that were passed for the rating, in combination with having passed other category specific parts of the AKE under Part 61; and

(d)   passed each category specific part of the AKE under Part 61 within 3 years of passing each category specific part of the CAR Part 5 AKE.

E          Flight examiner for flight tests for a pilot licence or aircraft category rating, where the applicant is a person to whom subsections 3 (1) to (4) apply

                 Under subsection 3 (5), the instrument also applies to a flight examiner who, after the commencement of the instrument, conducts a flight test for a pilot licence for a person mentioned in subsections 3 (1) and 3 (3).

                 Under subsection 3 (6), the instrument also applies to a flight examiner who, after the commencement of this instrument, conducts a flight test for an aircraft category rating on a pilot licence for a person mentioned in subsections 3 (2) and 3 (4).

4          Exemption from AKE

                 Under this section, the persons referred to in section 3 are exempted from the requirements of a provision of CASR 1998 mentioned in Schedule 1, to the extent mentioned for the provision.

                 The usual effect of each provision of Part 61 that is now being exempted from has already been set out in items 1 to 12 under Legislation — CASR Part 61 above.

Schedule 1 — Provisions of CASR 1998 for section 4

Schedule 1 references:

·         the provisions of Part 61 from which exemption is given to the various classes of CPL and ATPL licence applicant (and flight examiner) mentioned in section 3

·         the limited extent to which the provision has been made the subject of an exemption.

        1     Paragraph 61.220 (b) — but only to the extent that an applicant for an ATPL with a particular ACR, must pass the AKE for a CPL with that rating.

        2     Subregulation 61.225 (1) — but only to the extent that, for a person to pass an AKE for an FCL, rating or endorsement, from which the person is exempted by an item of the Schedule, the person must meet the standards mentioned in the Part 61 MOS.

        3     Subregulation 61.225 (2) — but only to the extent that, for a person to pass an AKE for an FCL, rating or endorsement, from which the person is exempted by an item of the Schedule, the person must pass all parts of the examination within a period of 2 years.

        4     Subparagraph 61.235 (2) (a) (ii) — but only to the extent that an applicant for an FCL must pass the AKE for the FCL to be eligible to take the flight test for the FCL.

        5     Paragraph 61.275 (1) (f) — but only to the extent that for the holder of an overseas FCL to be taken to meet the requirements for the grant of an equivalent Australian FCL with an ACR, the holder must pass the overseas conversion AKE for the FCL and the ACR mentioned in the Part 61 MOS.

        6     Subparagraph 61.285 (f) (i) — but only to the extent that, for a member or former member of the ADF to be taken to meet the requirements for the grant of an ATPL, the member or former member must pass the conversion AKE mentioned in the Part 61 MOS for an ATPL.

        7     Paragraph 61.580 (2) (a) — but only to the extent that an applicant for a CPL must pass the AKE for the CPL and the associated ACR.

        8     Paragraph 61.700 (3) (a) — but only to the extent that an applicant for an ATPL must pass the AKE for the ATPL and the associated ACR.

        9     Subregulation 61.730 (2) — but only to the extent that to meet the requirements for the grant of an ACR on a pilot licence that is simultaneously being applied for, the applicant for the ACR must pass the AKE for the grant of the pilot licence with the ACR.

      10     Subregulation 61.730 (3) — but only to the extent that to meet the requirements for the grant of an ACR on an existing pilot licence, the applicant for the ACR must pass the AKE for the grant of the pilot licence with the ACR.

      11     Subparagraph 61.1300 (1) (b) (ii) — but only to the extent that a flight examiner commits an offence if, when the flight test for a pilot licence begins, the examiner is not satisfied that the applicant has passed the AKE for the licence.

      12     Subparagraph 61.1300 (4) (b) (i) — but only to the extent that a flight examiner commits an offence if, when the flight test for an aircraft category rating on a pilot licence begins, the examiner is not satisfied that the applicant has passed the AKE for the rating.

Appendix 2

Statement of Compatibility with Human Rights

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

 

Exemption — CASR Part 61 aeronautical knowledge examinations
and completion period

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 exemption is intended to permit recognition, under Part 61 of the Civil Aviation Safety Regulations 1998, of the prior completion, under Part 5 of the Civil Aviation Regulations 1988, of some or all of the aeronautical knowledge examinations required for the commercial pilot licence and the air transport pilot licence. This is conditional on all relevant aeronautical knowledge examinations for the grant of the relevant licence, whether under Part 5 alone, or under Part 5 and Part 61 together, having been completed within a 3 year period. The exemption is of entirely beneficial effect for those to whom it applies who would otherwise be disadvantaged by the absence of the examination recognition that the exemption provides for.

 

Human rights implications

The exemption in 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. The 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