Federal Register of Legislation - Australian Government

Primary content

CASA EX100/18 Exemptions as made
This instrument grants an exemption to check pilots, who are approved under Civil Aviation Order 82.0, to conduct flight training and proficiency checks. The exemption provides the check pilots with a further transitional period to adjust to the new requirements under Part 61 of the Civil Aviation Safety Regulations 1998.
Administered by: Infrastructure, Transport, Regional Development and Communications
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 30 Aug 2018
Tabling HistoryDate
Tabled HR10-Sep-2018
Tabled Senate10-Sep-2018
To be repealed 31 Aug 2021
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Safety Regulations 1998

CASA EX100/18 — Flight Examiner Rating for CAO 82.0 Check Pilots Exemption 2018

 

Purpose

The purpose of this legislative instrument is to exempt holders of a check pilot approval under Civil Aviation Order (CAO) 82.0 from the requirement to hold a flight examiner rating under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR) when conducting certain operator proficiency checks, subject to conditions imposed by CASA in the interest of air safety.

 

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. Subsection 98 (5D) of the Act provides that a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.

 

CAO 82.0 prescribes the application and general requirements for Air Operators’ Certificates. Paragraph 2.1 of CAO 82.0 defines a “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.

 

Part 61 of CASR (Part 61)

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

 

Subregulation 61.375 (7) of CASR states that the holder of a pilot licence is authorised to conduct an activity mentioned in Table 61.375 only if the pilot also holds the requisite rating. For the conduct of an activity mentioned in regulation 61.1255 of CASR, item 9 of Table 61.375 requires the pilot to hold a flight examiner rating. Subparagraph 61.1255 (c) (v) of CASR 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 is that each operator proficiency check referred to in Part 61 is required to be conducted by a person who holds a flight examiner rating. This precludes the checks being conducted by a CAO 82.0 check pilot who does not also hold a flight examiner rating. 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, consistent with CASA’s policy for the introduction of the Part 61 scheme.

 

Exemptions

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

 

Under subregulation 11.160 (3), CASA may grant an exemption on application, or on its own initiative. For the grant or renewal of an exemption, on application by a person, CASA must regard as paramount the preservation of at least an acceptable level of safety. For making a decision on its own initiative, CASA is guided by the same test.

 

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

 

Instrument

The instrument exempts a holder of a CAO 82.0 check pilot approval from having to hold a Part 61 flight examiner rating for subregulation 61.375 (7) of CASR, but only for the purpose of conducting an operator proficiency check within the scope of the pilot’s approval. The scope of the exemption is also limited by excluding the conduct of 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 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 employed or contracted by the relevant 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 EX106/16, which expires at the end of 31 August 2018. CASA EX106/16 renewed the exemption in instrument CASA EX140/14.

 

Renewal of CASA EX106/16 and expected amendments to CASR

The exemption is expressed to commence on 1 September 2018, which is immediately after the repeal of the previous exemption on this topic, CASA EX106/16.

 

The exemption is expressed to operate until it is repealed at the end of 31 August 2021. However, 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 CASA has provided drafting instructions to the Office of Parliamentary Counsel (OPC). 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 12 months to 2 years.

 

Incorporation by reference

Paragraph 15J (2) (c) of the Legislation Act 2003 (the LA) requires an explanatory statement for a legislative instrument to contain a description of the documents incorporated into the instrument by reference and how they may be obtained. In accordance with subsection 98 (5D) of the Act, the operator’s approved training and checking system is incorporated by reference as it exists from time to time.

Each affected aircraft operator will have an approved training and checking system that was prepared by the operator and approved by CASA. It is available to the operator and its pilots who are affected by the instrument, but is subject to copyright and may not otherwise be publicly available. CASA has incorporated the operator’s approved training and checking system in the instrument because aviation safety requires compliance with the system by aircraft operators and pilots and because there are no freely available documents serving the relevant purpose.

 

Usually, where practicable, by prior arrangement with CASA, copies of the documents can be made available for viewing free of charge at any office of CASA. However, given the large number and variety of approved training and checking systems, it is not practicable for these documents to be made available by CASA. CASA considers it extremely unlikely that the owners of the documents would sell CASA the copyright, so that CASA could make the document freely available, at a price that would be an effective and efficient use of CASA funds.

 

Legislation Act 2003

Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument applies to a class of persons, being holders of a check pilot approval under CAO 82.0. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of 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. CASA decided to issue an exemption to ensure industry benefited from a transitional period that applied for other authorisations in force before 1 September 2014 under Part 5 of CAR and CAOs 29.6, 29.10, 29.11 and 82.6. This instrument continues the arrangement under CASA EX106/16, which continued the arrangement under CASA EX140/14.

 

CASA has not received any feedback from industry that the exemption and the conditions on the exemption are not appropriate. CASA understands that the exemptions remain appropriate for the aviation industry. In these circumstances, 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 for exemptions (OBPR id: 14507).

 

Making and commencement

The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.

 

The instrument commences on 1 September 2018 and ceases when it is repealed at the end of 31 August 2021.

Attachment 1

Statement of Compatibility with Human Rights

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

 

CASA EX100/18 — Flight Examiner Rating for CAO 82.0 Check Pilots Exemption 2018

 

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

 

The exemption is subject to conditions imposed by CASA in the interests 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 and with the approved training and checking system of the operator that the check pilot is working for.

 

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