Federal Register of Legislation - Australian Government

Primary content

CASA EX106/16 Exemptions as made
This instrument exempts holders of an approval under Civil Aviation Order (CAO) 82.0 to conduct an operator proficiency check from the requirement to hold a flight examiner rating under Part 61 of the Civil Aviation Safety Regulations 1998. In effect, this grants each holder of a CAO 82.0 check pilot approval a transitional period to adjust to the new Part 61 requirements.
Administered by: Infrastructure, Regional Development and Cities
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 30 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Repealed by Self Repealing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 — flight examiner rating for holders of CAO 82.0 check pilot approvals

 

Legislation

Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor‑General may make regulations for the Act and the safety of air navigation. Subsection 98 (5A) of the Act provides that the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation of aircraft.

 

On 1 September 2014, new arrangements dealing with flight crew licensing commenced under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR 1998). These arrangements replaced the previous regulatory framework under Part 5 of the Civil Aviation Regulations 1988 (CAR 1988). Transitional provisions were included in Part 202 of CASR 1998 to accommodate industry feedback on facilitating the changes in requirements.

 

Among other things, subregulation 202.263 (1) of CASR 1998 provides that an old authorisation that was in force immediately before 1 September 2014 is continued in force on and after 1 September 2014 according to its terms. Subregulation 202.263 (2) provides that Part 61 applies to the continued authorisation as if it were the equivalent new authorisation. An “old authorisation” is defined in regulation 202.261 as meaning a civil aviation authorisation to carry out an activity essential to, or associated with, the operation of an aircraft in flight issued under Part 5 of CAR 1988 or a relevant Civil Aviation Order (CAO). A “relevant CAO” is set out in a list under the definition of old authorisation, and includes a CAO made under Part 5 of CAR 1988, as well as CAO 26.6, CAO 29.10, CAO 29.11 and CAO 82.6.

 

CAO 82.0 prescribes application and general requirements for Air Operators’ Certificates. Paragraph 2.1 of CAO 82.0 defines “check pilot” as meaning a person approved by CASA to conduct flight training and proficiency checks. By virtue of this provision, a person may be approved as a CAO 82.0 check pilot. CAO 82.0 is not included in the list of relevant CAOs for the purposes of transitioning an old authorisation under regulation 202.263 of CASR 1998.

 

Subregulation 61.375 (7) states that the holder of a pilot licence is authorised to conduct an activity mentioned in Table 61.375, only if the pilot licence holder also holds the requisite rating. For the conduct of an activity mentioned in regulation 61.1255 of CASR 1988, Table 61.375 requires the pilot licence holder to hold a flight examiner rating. Subparagraph 61.1255 (c) (v) of CASR 1998 provides that a flight examiner is authorised to conduct operator proficiency checks.

 

The effect of subregulation 61.375 (7) and regulation 61.1255 of CASR 1998 is that each operator proficiency check referred to in Part 61 is required to be conducted by a Part 61 flight examiner. This precludes the checks being conducted by a CAO 82.0 check pilot. Since authorisations under CAO 82.0 are not transitioned under the Part 61 framework, holders of a CAO 82.0 check pilot approval do not hold a flight examiner rating for the purposes of subregulation 61.375 (7) of CASR 1998. An exemption is, therefore, required to allow a holder of a CAO 82.0 check pilot approval to continue performing check pilot duties under Part 61.

 

Subregulation 11.160 (1) of CASR 1998 provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of these Regulations, including a provision of the CAOs, in relation to a matter mentioned in that subsection.

 

Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.

 

Instrument

The instrument exempts a holder of a CAO 82.0 check pilot approval from holding a Part 61 flight examiner rating for subregulation 61.375 (7) of CASR 1998, but only for the purpose of conducting an operator proficiency check within the scope of his or her approval. The scope of the exemption is also limited to the conduct of an operator proficiency check, other than an operator proficiency check for the purposes of regulation 61.650 (multi-crew pilot licence instrument proficiency check), regulation 61.695 (air transport pilot licence instrument proficiency check) or regulation 61.880 (instrument rating proficiency check). The instrument ensures that, despite there being no applicable regulatory transitional provision in Part 202 of CASR 1998, the intention that old authorisations continue to have effect for a period of time after introduction of Part 61 is preserved.

 

The exemption is subject to 3 conditions. The operator proficiency check must be conducted: while the holder of the CAO 82.0 check pilot approval is working for the operator; in accordance with the operator’s approved training and checking system; and in accordance with the conditions specified in the check pilot’s CAO 82.0 check pilot approval.

 

This instrument renews the exemption in instrument CASA EX140/14, which expires at the end of June 2016.

 

Legislative Instruments Act

For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the Regulations or the CAOs. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The exemption applies to a class of persons, being the holders of a CAO 82.0 check pilot approval. The exemption is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislation Act 2003 (the LA).

 

Consultation

Before making CASA EX140/14, CASA, in consultation with industry, reviewed the arrangements applying to CAO 82.0 check pilot approval holders and decided to issue an exemption to ensure industry benefits from a transitional period that would have otherwise been applied for old authorisations in force before 1 September 2014. This instrument continues the arrangement under CASA EX140/14. It is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LA.

 

Statement of Compatibility with Human Rights

A Statement of Compatibility with Human Rights is at Attachment 1.

 

Office of Best Practice Regulation (OBPR)

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

 

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 instrument commences on 1 July 2016 and is repealed at the end of 31 August 2018.

 

[Instrument number CASA EX106/16]

Attachment 1

Statement of Compatibility with Human Rights

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

 

Exemption — flight examiner rating for holders of CAO 82.0 check pilot approvals

 

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 exempts holders of an approval under Civil Aviation Order (CAO) 82.0 to conduct an operator proficiency check from the requirement to hold a flight examiner rating under Part 61 of the Civil Aviation Safety Regulations 1998. In effect, this grants each holder of a CAO 82.0 check pilot approval a transitional period to adjust to the new Part 61 requirements.

 

The exemption is subject to conditions imposed by CASA in the interest of air safety, including that the operator proficiency checks must be in accordance with the conditions specified in the CAO 82.0 check pilot approval.

 

Human rights implications

This legislative 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