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CASA EX133/16 Exemptions as made
This instrument uses an exemption from certain provisions of Part 61 of the Civil Aviation Safety Regulations 1998 to extend the time within which certain flight examiner rating holders, who have the privilege of conducting flight tests and proficiency checks, must themselves complete an examiner proficiency check.
Administered by: Infrastructure, Transport, Cities and Regional Development
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 30 Aug 2016
Tabling HistoryDate
Tabled HR31-Aug-2016
Tabled Senate01-Sep-2016
Date of repeal 30 Jun 2019
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Safety Regulations 1998

Exemption — from examiner proficiency check for flight examiner rating holders

 

Purpose

The purpose of this instrument is to use an exemption from certain provisions of Part 61 of the Civil Aviation Safety Regulations 1998 (CASR 1998) to extend the time within which certain flight examiner rating (FER) holders, who have the privilege of conducting flight tests and proficiency checks, must themselves complete an examiner proficiency check (EPC).

 

The holders are those persons who, whether before or after the commencement of the exemption, were approved testing officer (ATO) delegation holders granted an FER under subregulation 202.272 (2) of CASR 1998. This is a transitional provision to enable the conversion of old authorisations into new authorisations under Part 61 of CASR 1998.

 

There is a relatively large number of such actual, and potential, holders. With only limited numbers of persons properly qualified to conduct EPCs, it is necessary to exempt each relevant holder from his or her current obligation to complete an EPC, and, using exemption conditions, to create a mechanism to spread or stagger the due-dates for completion of all of the relevant EPCs.

 

The exemption does not apply to persons who become the holders of FERs otherwise than under the transitional provisions for Part 61 of CASR 1998; nor does it apply to persons who have already completed an EPC under Part 61.

 

Legislation — exemptions

Subpart 11.F of CASR 1998 deals with exemptions. Under subregulation 11.160 (1), and for subsection 98 (5A) of the Civil Aviation Act 1988 (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.).

 

Legislation — CASR Part 61

Section 98 of the Act empowers the Governor-General to make regulations for the Act and the safety of air navigation.

 

The regulations in Part 61, which commenced on 1 September 2014, set out flight crew licensing requirements. (References below to provisions that commence with the numerals “61” are to Part 61.) Prior to 1 September 2014, flight tests and rating renewals for the various flight crew licences and ratings were conducted by CASA delegates known as ATOs.

 

Under regulation 202.261 of CASR 1998, a delegation, issued to a person before 1 September 2014, to give a permission to conduct a flight activity such as flight testing, was described as an old authorisation, for example, an ATO delegation.

 

Under regulation 202.261 of CASR 1998, a new authorisation means a flight crew licence, rating or endorsement granted under Part 61.

 

Under subregulation 202.263 (1) of CASR 1998, 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. It is known as a continued authorisation.

 

Under subregulation 202.263 (2) of CASR 1998, Part 61 applies to a continued authorisation “as if it were the equivalent new authorisation”. The Part 61 equivalent to an ATO delegation is an FER.

 

CASA has already granted FERs to numerous ATO delegation holders, and it is expected that all relevant ATO delegation holders will have been transitioned to be FER holders by the end of 30 June 2017. The exemption instrument applies only to FER holders to whom the transition provisions for Part 61 of CASR apply.

 

By virtue of its terms, the exemption applies on commencement for existing FER holders. For the yet-to-be-transitioned ATO delegation holders, the exemption will automatically apply from the date of their transition to be FER holders, expected to be on and from 1 July 2017.

 

Examiner proficiency checks

Under subregulation 61.1285 (1), the holder of an FER is authorised to exercise the privileges of the rating (or delegation) only if the holder has a valid EPC.

 

Under subregulation 61.1285 (2), the holder is taken to have a valid EPC during the following periods:

(a)   the period from when the holder passes the flight test for the rating to the end of the 24th month after the month in which the holder passes the flight test;

(b)   if:

             (i)  the holder passes the flight test for a flight examiner endorsement; and

            (ii)  the flight test is conducted more than 6 months after the holder passes the flight test for the rating;

        the period from when the holder passes the flight test for the endorsement to the end of the 24th month after the month in which the holder passes the flight test for the endorsement;

(c)   if the holder successfully completes an examiner proficiency check — the period from when the holder successfully completes the check to the end of the 24th month after the month in which the holder successfully completes the check;

(d)   if:

             (i)  the holder is taken to have a valid examiner proficiency check under any of paragraphs (a) to (c) (the existing check); and

            (ii)  within 3 months before the validity of the existing check expires, the holder successfully completes an examiner proficiency check;

        the period from when the validity of the existing check expires to the end of the 24th month after the validity of the existing check expires.

 

Under subregulation 61.1285 (4), for paragraphs (2) (c) and (d), the holder successfully completes an examiner proficiency check if:

(a)   the examiner proficiency check is conducted in an aircraft or an approved flight simulation training device for the proficiency check; and

(b)   a person mentioned in subregulation (5) assesses the holder’s competency to conduct flight testing as meeting the standards mentioned in the Part 61 Manual of Standards for a flight examiner rating; and

(c)   the person endorses the holder’s licence document to the effect that the holder has completed the examiner proficiency check on the date stated.

 

Under subregulation 61.1285 (5), for paragraph (4) (b), the persons are:

(a)   CASA; and

(b)   the holder of an approval under regulation 61.040 to conduct the proficiency check.

 

Transitional arrangements for ATO delegation holders

For the purposes of Part 61 of CASR 1998, an ATO delegation is treated as if it were its equivalent authorisation under Part 61, that is, as if it were an FER. However, for ATO delegations, the requirements just set out for an FER holder to have a specified EPC before he or she may conduct a flight test, are transitionally modified.

 

Thus, under subregulation 202.267 (5) of CASR 1998, subregulation (6) applies at a particular time if:

(a)   an old authorisation that is continued in force was, before the commencement of the amendments creating Part 61, a time-limited authorisation; and

(b)   the old authorisation would have remained in force at that time if the amendments had not been made.

 

Under subregulation 202.267 (6) of CASR 1998, despite Part 61, the holder of the old authorisation (an ATO delegation) is taken to meet the proficiency check requirements (the EPC) for the equivalent new authorisation (the FER) at that particular time.

 

CASA 55/16 extensions of ATO delegations

Under instrument CASA 55/16, dated 17 June 2016 and amended by CASA 73/16 and CASA 74/16, relevant ATO delegations were extended from 30 June 2016, to expire instead at the end of 30 June 2017.

 

Thus, until 1 July 2017, there is no immediate imperative for ATO delegation holders to complete an EPC because, being covered by CASA 55/16, they are taken to meet the proficiency check requirements until CASA 55/16 expires (on 30 June 2017). It is expected that, from 1 July 2017, all ATO delegation holders will have been transitioned to be FER holders.

 

The terms of the exemption instrument will apply, on and from that date, to exempt them (as FER holders) from the EPC requirement, subject to the condition that the EPC must be completed in accordance with the extended time frame provided for by the exemption instrument (see below).

 

CASA 55/16 extensions did not apply to existing FER holders

However, under section 5 of CASA 55/16, the extension did not apply to an ATO delegation (an old authorisation that became a continued authorisation) whose holder had been granted an FER (a new authorisation) as the equivalent of the ATO delegation.

 

Under subregulation 202.263 (3) of CASR 1998, a continued authorisation ceases to be in force at its cessation time, and under regulation 202.261 cessation time relevantly means the earliest of either when the old authorisation expires; or when CASA grants a new authorisation to the holder of an old authorisation as a replacement for the old authorisation.

 

Thus, FER holders have an immediate imperative to complete an EPC. However, there are insufficient numbers of the highly skilled checkers required for the conduct of the relevant checks to proceed with such immediacy. Therefore, from its commencement, the terms of the exemption instrument apply to exempt the FER holders from the EPC requirement, subject to the condition that the EPC must be completed in accordance with the extended time frame provided for by the exemption instrument.

 

Spread or stagger mechanism for ATO delegation holders

The spread or stagger mechanism, provided for as a condition of eligibility for the benefit of the exemption, is based on matching an FER holder’s birthday month in an odd or even year with a designated date between 1 July 2017 and 30 June 2019, as the last date by which he or she must complete the EPC.

 

In deciding on an exemption for relevant current and future FER holders, and in determining a spread or stagger mechanism, aviation safety is, of course, the most important consideration. CASA is satisfied that the proposal preserves a level of aviation safety that is acceptable.

 

Schedule 1 of the exemption instrument contains the mechanism and the relevant table. Thus, for an FER holder whose birthday occurs during a month mentioned in a row of column 1 of the Table, the holder must complete an EPC by not later than the corresponding date depending on whether the holder’s year of birth was an odd or even number. For a holder whose date of birth occurred on 29 February, the holder must complete an EPC by not later than 31 March 2018.

 

For a birthday that occurs in the month of:

an EPC must be completed by not later than:

for a year of birth that is an uneven number (for example 1969, 1971):

for a year of birth that is an even number (for example 1970, 1972):

January

31 January 2019

31 January 2018

February

28 February 2019

28 February 2018

March

31 March 2019

31 March 2018

April

30 April 2019

30 April 2018

May

31 May 2019

31 May 2018

June

30 June 2019

30 June 2018

July

31 July 2017

31 July 2018

August

31 August 2017

31 August 2018

September

30 September 2017

30 September 2018

October

31 October 2017

31 October 2018

November

30 November 2017

30 November 2018

December

31 December 2017

31 December 2018

 

Duration

The exemption commences on the day of registration. It is expressed to operate until it is repealed at the end of 30 June 2019, thus allowing for a 24 month spread or stagger period.

 

Under regulation 202.273 of CASR 1998, 31 August 2018 is the expiry date for relevant transitional arrangements for Part 61. However, this will not affect the operation of the exemption instrument because by the end of 30 June 2017, all relevant ATO delegation holders will have become FER holders and their continuing status will no longer be dependent on the transitional provisions in Part 61 of CASR 1998.

 

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 classes of persons (FER holders) 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

Exemptions from regulatory requirements are considered to be beneficial for those to whom they apply, who voluntarily elect to take advantage of them, and who comply with their conditions. It is, therefore, 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 avail themselves of, or be affected by, an exemption so that they may have the opportunity to comment on the possible or likely terms, scope and appropriateness of the exemption.

 

Consultation has been undertaken through the Industry Advisory Panel (the IAP) forum and the Standards Consultative Committee’s Flight Crew Licensing Subcommittee forum. Two responses were posted to the IAP forum and both supported the proposal to make the exemption. The proposal was also presented to the Flight Training Panel, which is a CASA-industry forum on flight training and flight testing matters. The panel supported the proposal.

 

The period of consultation has been shorter than usual because of the urgency of the need to create an effective spread or stagger mechanism for the timely completion of EPC, some of which are due. CASA is satisfied that it is not appropriate to consult further on the exemption as this would delay its effect and implementation.

 

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 2 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.

 

Commencement and making

The exemption commences on the day of registration and is repealed at the end of 30 June 2019.

 

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

 

[Instrument number CASA EX133/16]

Appendix 1

Exemption — from examiner proficiency check for flight examiner rating holders

1          Duration

                 Under this section, the instrument commences on the day of registration, and is repealed at the end of 30 June 2019.

2          Definitions

                 This section provides definitions for terms and abbreviations used in the instrument.

3          Application

                 Under this section, the instrument applies to each FER holder (being a former ATO delegation holder), but not to an FER holder who on or after 1 September 2014 completed a valid EPC to comply with the requirements of regulation 61.1285.

4          Exemptions

                 Under this section, each FER holder is exempted from subregulation 61.1285 (2), but only to the extent that a valid EPC is one the holder has to have during the period referred to in:

(a)   paragraph 61.1285 (2) (a); or

(b)   paragraph 61.1285 (2) (b); or

(c)   paragraph 61.1285 (2) (c); or

(d)   paragraph 61.1285 (2) (d).

5          Condition on exemptions

                 Under this section, each exemption of an FER holder is subject to the condition that the holder must complete an EPC in accordance with Schedule 1.

Schedule 1          Timetable for completion of EPC

          1     Under this clause, and subject to clause 2, for an FER holder whose birthday occurs during a month mentioned in a row of column 1 of the Table, the holder must complete an EPC by:

(a)   if the holder’s year of birth is an uneven number — not later than the date mentioned in the same row in column 2 of the Table; or

(b)   if the holder’s year of birth is an even number — not later than the date mentioned in the same row in column 3 of the Table.

          2     Under this clause, for an FER holder whose date of birth occurred on 29 February in a leap year, the holder must complete an EPC by not later than 31 March 2018.

Table

For a birthday that occurs in the month of:

an EPC must be completed by not later than:

for a year of birth that is an uneven number (for example 1969, 1971):

for a year of birth that is an even number (for example 1970, 1972):

January

31 January 2019

31 January 2018

February

28 February 2019

28 February 2018

March

31 March 2019

31 March 2018

April

30 April 2019

30 April 2018

May

31 May 2019

31 May 2018

June

30 June 2019

30 June 2018

July

31 July 2017

31 July 2018

August

31 August 2017

31 August 2018

September

30 September 2017

30 September 2018

October

31 October 2017

31 October 2018

November

30 November 2017

30 November 2018

December

31 December 2017

31 December 2018

Appendix 2

Statement of Compatibility with Human Rights

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

Civil Aviation Safety Regulations 1998

Exemption — from examiner proficiency check for
flight examiner rating holders

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 purpose of this legislative instrument is to use an exemption from certain provisions of Part 61 of the Civil Aviation Safety Regulations 1998 (CASR 1998), to extend the time within which certain flight examiner rating (FER) holders, who have the privilege of conducting flight tests and proficiency checks, must themselves complete an examiner proficiency check (EPC).

 

The holders are those persons who, whether before or after the commencement of the exemption, were approved testing officer delegation holders granted an FER under subregulation 202.272 (2) of CASR 1998. This is a transitional provision to enable the conversion of old authorisations into new authorisations under Part 61 of CASR 1998.

 

There is a relatively large number of such actual, and potential, FER holders. With only limited numbers of persons properly qualified to conduct EPCs, it is necessary to exempt each relevant holder from his or her current obligation to complete an EPC, and, using exemption conditions, to create a mechanism to spread or stagger the due-dates for completion of all of the relevant EPCs.

 

The exemption does not apply to persons who become the holders of FERs otherwise than under the transitional provisions for Part 61 of CASR 1998; nor does it apply to persons who have already completed an EPC under Part 61.

 

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