Federal Register of Legislation - Australian Government

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CASA EX134/16 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, and approved testing officer delegation holders who have the privilege of conducting flight tests and proficiency checks, must complete a biennial professional development program or an approved course of professional development.
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Repealed by Self Repealing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 — professional development program and approved course of professional development for flight examiners

 

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, and approved testing officer (ATO) delegation holders (collectively referred to as relevant holders) who have the privilege of conducting flight tests and proficiency checks, must complete a biennial professional development program (PDP) or an approved course of professional development (ACPD).

 

The relevant holders are those persons who, whether before or after the commencement of the exemption:

·         are FER holders who were ATO delegation holders and have been granted an FER under subregulation 202.272 (2) of CASR 1998; or

·         are ATO delegation holders awaiting the grant of an FER under subregulation 202.272 (2), which is expected to occur not later than 1 July 2017; or

·         are FER holders in their own right without recourse to subregulation 202.272 (2).

 

Subregulation 202.272 (2) 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. However, the content of the proposed PDP and ACPD, parts of which are to be completed on-line, is not yet finalised. This has given rise to the need for an exemption, coupled with conditions to ensure that all FER holders and ATO delegation holders (relevant holders) complete the finalised program or course in an orderly and timely way.

 

The exemption applies to all persons who become the holders of FERs and all current ATO delegation holders. It will be in force until 30 June 2019. Because an FER holder’s privileges may only be exercised if he or she has completed a PDP or an ACPD within the 24 months before so exercising the privileges, the exemption and its conditions will put in place a self-sustaining regime for biennial completion of the program or course.

 

The exemption instrument does not apply to a relevant holder if, on or after 1 September 2014, the holder completed a PDP or an ACPD to comply with the requirements of regulation 61.1270 or subparagraph 61.1290 (2) (a) (i).

 

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 61.1270, Limitations on exercise of privileges of flight examiner ratings—professional development, an FER holder is authorised to exercise the privileges of his or her flight examiner rating only if the examiner has, during the previous 24 months, successfully completed (a) a PDP conducted by CASA, or (b) an ACPD conducted by the holder of an approval under regulation 61.040 to conduct the course.

 

Under subparagraph 61.1290 (2) (a) (i), an applicant for an FER must, among other things, have completed a course of training for the rating that is conducted by CASA or the holder of an approval under regulation 61.040 to conduct the course.

 

Under subregulation 202.263 (2) of CASR 1998, Part 61 (including regulation 61.1270) applies to an ATO delegation holder as if the delegation were an FER.

 

Background

Prior to the commencement of Part 61 on 1 September 2014, ATO delegation holders, being persons with flight testing and proficiency checking privileges essentially equivalent to those which FER holders enjoy under Part 61, were CASA delegates who were required to complete professional development training every 2 years. The last such training offered was in 2013/14 before commencement of Part 61.

 

When Part 61 commenced on 1 September 2014, it was thought that these ATO delegation holders, as such, and as FER holders, would have 2 years to complete the PDP or the ACPD under Part 61. However, this was not the case because there were no special transitional provisions for the PDP or the ACPD and, consequently, the obligation to complete the program or course arose on commencement of Part 61.

 

Because the 2-year currency of the previously completed program is only now expiring, or recently expired, no issue of aviation safety arises from this discrepancy. However, the content of the proposed PDP and ACPD under Part 61, elements of which are to be completed on-line, is not yet finalised.

 

It is necessary, therefore, to exempt ATO delegation holders, and all FER holders, including FER holders who formerly were ATOs, from any immediate requirement to complete a PDP or ACPD, but subject to the condition that each relevant person completes the PDP or ACPD in accordance with a CASA timetable.

 

The CASA timetable is required in order to ensure, first, that there is sufficient time for PDP and ACPD training content and on-line delivery to be finalised and, secondly, that there is an appropriate mechanism in place to spread or stagger the demand for the PDP or the ACPD to avoid the overloading of available training resources.

 

The exemption also applies to new FER holders, that is, those new to the examining profession who were not previously ATO delegation holders. The obligation to comply with regulation 61.1270 is immediate for these holders also unless, in meeting the training requirements for the grant of their FER under subparagraph 61.1290 (2) (a) (i), they have already completed a PDP or ACPD. Completion of such a program or course prior to actual grant of the FER is, progressively, being imposed on FER applicants. However, there are some FER holders for whom this entry control requirement was not in place. The exemption, and its conditional timetable, will apply to them.

 

Spread or stagger mechanism for ATO delegation holders

The spread or stagger mechanism 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. The same timing mechanism applies to ATO delegation holders.

 

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 a relevant holder whose birthday occurs during a month mentioned in a row of column 1 of the Table, the holder must complete the PDP or ACPD 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 the PDP or ACPD by not later than 31 March 2018.

 

For a birthday that occurs in the month of:

a PDP or an ACPD 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 (relevant 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 EX134/16]

Appendix 1

Exemption — professional development program and approved course of professional development for flight examiners

1          Duration

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

2          Definitions

        (1)     Under this subsection various words, phrases and abbreviations used in the instrument are defined. For example:

ACPD, or approved course of professional development, means the approved course of professional development for flight examiners, conducted by an approval holder under paragraph 61.1270 (b).

approval holder mean the holder of an approval under regulation 61.040 to conduct an ACPD.

ATO delegation holder means a person who, immediately before the commencement of this instrument, was an approved testing officer under a CASA instrument of delegation on the basis of which an FER may be granted to the person after the commencement of this exemption instrument.

FER means a flight examiner rating granted by CASA, including a flight examiner rating granted, pursuant to subregulation 202.272 (2) of CASR 1998, to a former ATO delegation holder.

FER holder means a person who holds an FER.

PDP, or professional development program, means the professional development program for flight examiners, conducted by CASA under paragraph 61.1270 (a).

relevant holder means an FER holder or an ATO delegation holder.

        (2)     Under this subsection, subject to subsection (1), words and phrases have the same meaning as in Part 61 of CASR 1998, unless the contrary intention appears.

        (3)     Under this subsection, in this instrument, a numerical reference to a provision that includes the number 61 is a reference to the provision as contained in Part 61 of CASR 1998.

3          Application

        (1)     Under this subsection, subject to subsection (2), the instrument applies to each relevant holder.

        (2)     Under this subsection, the instrument does not apply to a relevant holder if, on or after 1 September 2014, the holder completed a PDP or an ACPD to comply with the requirements of regulation 61.1270 or subparagraph 61.1290 (2) (a) (i).

4          Exemptions

                 Under this section, each relevant holder is exempted from regulation 61.1270.

5          Condition on exemptions

                 Under this section, each exemption of a relevant holder mentioned in section 4 is subject to the condition that the holder must complete a PDP or an ACPD in accordance with Schedule 1.

                 A Note explains that the date by which a deferred PDP or an ACPD must be completed by a relevant holder is the same as the date by which certain FER holders must complete an examiner proficiency check under CASA EX133/16.

 

Schedule 1        Timetable for completion of a PDP or an ACPD

                 Schedule 1 provides the CASA timetable for completion of the PDO or ACPD.

          1     Under this clause, subject to clause 2, for a relevant holder whose birthday occurs during a month mentioned in a row of column 1 of the Table, the holder must complete a PDP or an ACPD 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 a relevant holder whose date of birth occurred on 29 February in a leap year, the holder must complete a PDP or an ACPD by not later than 31 March 2018.

 

Table

For a birthday that occurs in the month of:

a PDP or an ACPD 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 — professional development program and approved course of professional development for flight examiners

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 instrument is to use 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, and approved testing officer delegation holders who have the privilege of conducting flight tests and proficiency checks, must complete a biennial professional development program or an approved course of professional development.

 

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