Federal Register of Legislation - Australian Government

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CASA EX113/2018 Exemptions as made
This instrument exempts a class of applicants for a flight examiner rating or endorsement from requirements to complete a prescribed flight examiner course conducted by CASA, if the applicant completes an alternative course established by a training and checking organisation (a TCO) approved by CASA. The course must already be established and approved for approved testing officers of the TCO before 1 September 2014. The applicants must be employees of the TCO’s operator.
Administered by: Infrastructure, Regional Development and Cities
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
Date of repeal 31 Mar 2019
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Safety Regulations 1998

CASA EX113/18 — Flight Examiner Course Requirements (Training and Checking Organisation) Exemption 2018

 

Purpose

The instrument is an exemption from certain provisions of Part 61 of the Civil Aviation Safety Regulations 1998 (CASR). Its purpose is to exempt a particular class of applicants for a flight examiner rating (an FER) or a flight examiner endorsement (an FEE) from the requirement to complete a prescribed flight examiner course of training conducted by CASA if the applicant completes an alternative course of training established by a training and checking organisation (a TCO), and approved by CASA. The course must be one that was already established and approved for approved testing officers (ATOs) of the TCO before 1 September 2014.

 

Legislation —Part 61 of CASR

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. 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.

 

The regulations in Part 61 of CASR, which commenced on 1 September 2014, set out flight crew licensing requirements. (References below to provisions that commence with the number “61” are to provisions in Part 61 of CASR.)

 

Regulation 61.1290 deals with the requirements for the grant of flight examiner ratings. Under subregulation 61.1290 (1), an applicant for an FER must: hold a commercial pilot licence or an air transport pilot licence; and must meet the requirements for the grant of at least 1 FEE. Under subregulation 61.1290 (2), the applicant must also have: (a) completed a particular course of training for the rating conducted by CASA or the holder of an approval under regulation 61.040; (b) passed the relevant flight test for the FER; and (c) successfully completed an interview conducted by CASA.

 

Regulation 61.1320 deals with the requirements for the grant of flight examiner endorsements. Under subregulation 61.1320 (1), an applicant for a particular FEE must hold an FER and the licences and endorsements mentioned in Table 61.1310 required for the particular FEE. Under subregulation 61.1320 (2), the applicant must also have: (a) completed a particular course of training for the FEE conducted by CASA or the holder of an approval under regulation 61.040; and (b) passed the relevant flight test for the FEE.

 

Regulation 61.1310 sets out in Table 61.1310 the kinds of FEE that are available and the licences and other endorsements that must be held to qualify for a particular FEE.

 

The Flight Examiner Rating Course

In practice, the particular course of training referred to above is the Flight Examiner Rating Course (the FERC). The FERC consists of phases of training conducted by CASA, namely, eLearning modules (1 to 6), the classroom workshop and industry mentoring. The CASA interview and the CASA flight test would follow successful completion of the course.

Legislation — training and checking requirements

Subregulation 217 (1) of the Civil Aviation Regulations 1988 requires certain aircraft operators to have a training and checking organisation. Those operators are regular public transport operators, operators of aircraft with maximum take-off weight exceeding 5 700 kg, and other operators specified by CASA. The training and checking organisation is to ensure that members of the operator’s operating crews maintain their competency. Under subregulation 217 (3), the training and checking organisation, and the tests and checks that it provides for, are subject to approval by CASA.

 

Under clause 3 of Appendix 1 of Civil Aviation Order 82.0 (CAO 82.0), the Chief Pilot of an aircraft operator may delegate duties to other members of the operator’s staff, but may not delegate training and checking duties without the written approval of CASA. The term check pilot is defined in paragraph 2.1 of CAO 82.0 to mean a person approved by CASA to conduct flight training and proficiency checks.

 

Legislation — exemptions

Subpart 11.F of CASR 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 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 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 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), the maximum duration of an exemption is 3 years.

 

Legislation — conditions on authorisations

Subpart 11.BA of CASR deals with granting authorisations. Under regulation 11.056, CASA may grant an authorisation, such as an FER or FEE, subject to any condition that CASA is satisfied is necessary in the interests of the safety of air navigation.

 

Background

CASA wishes to recognise the training and mentoring conducted within an operator’s TCO for those pilots who, before the introduction of Part 61 of CASR in September 2014, wished to exercise privileges now equivalent to those of an FER and FEE holder. These pilots were candidates to be ATOs, that is holders of a delegation from CASA to exercise examining and proficiency checking privileges, and the course qualified them with eligibility for such a delegation.

 

As noted above, successful completion of the FERC is one of the requirements under regulations 61.1290 and 61.1320 for an applicant to obtain an FER and FEE. Therefore, CASA recognised these TCO courses as meeting many of the requirements of the FERC by granting the exemptions in CASA EX141/17, which expires at the end of 31 August 2018.

 

By this instrument, CASA continues the exemption in CASA EX141/17 and therefore continues to recognise these TCO courses as meeting many of the requirements of the FERC.

 

The instrument and conditions

The instrument defines an ATO course as a course for a pilot that is based on a syllabus of theoretical and practical training and assessment approved by CASA before 1 September 2014, though the course may be varied with modifications approved by CASA after that date. Such modifications may enable the scope of a course to be expanded.

 

The course must be conducted by a qualified person of an operator’s TCO. When successfully completed, the course is one which gives the applicant the flight testing and proficiency checking competencies for the relevant FEE that are equivalent to those that an FEE holder would have under the FERC for conducting the same tests or checks.

 

A qualified person means a person who, at the time of delivering an ATO course to an applicant, was employed by the applicant’s TCO and was authorised in writing by the TCO to deliver the ATO course. The person must have held either a CASA delegation as an ATO, or an FER and FEE, for the relevant tests and checks for a total of at least 24 months. A final requirement is that the person must be a check pilot for the TCO, that is, a person approved by CASA under CAO 82.0 to conduct flight training and proficiency checks.

 

Under the instrument, FER and FEE applicants who are working for an operator with a TCO and who participate in such an ATO course, as approved by CASA for ATOs before 1 September 2014, need not complete the FERC.

 

Successful completion of the ATO course will suffice instead, provided 3 particular aspects of the FERC are also covered. These are eLearning modules 1 to 3, which focus on the following aspects of the testing and checking role: legal and administration, understanding assessment, and assessing human factors and non‑technical skills.

 

The instrument exempts applicants from the FERC, but subject to important safety conditions. In addition to completing the ATO course with the 3 required FERC eLearning modules, the applicant must be an employee of the operator.

 

Before the applicant attempts the interview and flight test, the head of training and checking of the operator’s TCO must supply CASA with certification that: the named applicant is employed by the named operator; the TCO’s training and checking manual describes the ATO course; the applicant has successfully completed the ATO course; and it was delivered by a qualified person. Copies of the TCO records confirming these matters must be supplied to CASA.

 

A Note explains that when, in reliance on the instrument, an applicant successfully applies for an FER and FEE, CASA may impose a condition under regulation 11.056 of CASR on the FER and FEE that limits the resultant testing and checking privileges so that they may only be exercised in respect of the operator’s pilots.

 

A second Note explains that the instrument does not affect the requirement in subregulation 61.1320 (1) that an applicant for an FEE must hold the licences and endorsements mentioned in Table 61.1310 for the FEE.

 

Similarly, applicants must still complete the CASA interview and flight test mentioned in subregulation 61.1290 (2) and 61.1320 (2), respectively. These essential requirements provide a further high level of assurance that the applicants are competent to be granted the FER and FEE.

 

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, Modules 1, 2 and 3 of the eLearning modules phase of the FERC, as it exists from time to time, are incorporated by reference.

 

The FERC consists of 5 phases of training conducted by CASA. The first phase of the FERC, the eLearning modules phase, is a modular course delivered by CASA as a self-study online course of training and assessment. It contains 6 learning modules, numbered 1 to 6. For this instrument, only Modules 1, 2 and 3 are relevant. Details of the FERC are freely available on CASA’s website at: https://www.casa.gov.au/standard-page/flight-examiner-rating-course.

 

Renewal of CASA EX141/17 and expected need for further exemption

The exemption is expressed to commence on 1 September 2018, which is immediately after the repeal of the previous exemption on this topic, CASA EX141/17. The exemption is expressed to operate until it is repealed at the end of 31 March 2019. However, the exemption is an interim measure, pending the approval under regulation 61.040 of operators to conduct appropriate courses of training for paragraphs 61.1290 (2) (a) and 61.1320 (2) (a).

 

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. Additionally, 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, for paragraph 98 (5A) (a), exempts a class of persons, being applicants for an FER or FEE, from complying with the specified provisions in Part 61 of CASR. 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

Although the relevant sectors of the aviation industry knew informally that the exemption in CASA EX141/17 was proposed and what it would achieve, there was no direct consultation before that instrument was made because of the urgency of the requirement to have the exemption in place. The urgency arose from the fact that CASA considered that it was necessary to act then to recognise the relevant ATO courses and facilitate use of this avenue of qualification for FERs and FEEs by TCO employees. Relatively small numbers of people are involved, but they needed time to complete all of the necessary qualifying requirements to take advantage of the exemption before the end of the transition period relating to Part 61 of CASR, which concludes at the end of 31 August 2018.

 

The absence of any broad consultation was, to some degree at least, mitigated by the fact 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. It is, therefore, rarely necessary to engage in extensive public consultation on a proposed exemption although, in compliance with section 17 of the LA, 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 of the exemption. This was not appropriate or practicable in that particular case because of the urgency of the matter.

 

CASA EX113/18 continues the exemption in CASA EX141/17. CASA has not received any adverse feedback from industry that the exemption and the conditions on the exemption are not appropriate. CASA understands that the exemption remains appropriate for the aviation industry. In these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any consultation under section 17 of the LA.

 

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 exemptions (OBPR id: 14507).

 

Statement of Compatibility with Human Rights

The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The legislative instrument is compatible with human rights. To the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate in order to ensure the safety of aviation operations and to promote the integrity of the aviation safety system.

 

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 March 2019.


 

Attachment 1

Statement of Compatibility with Human Rights

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

CASA EX113/18 — Flight Examiner Course Requirements (Training and Checking Organisation) 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 instrument is an exemption from certain provisions of Part 61 of the Civil Aviation Safety Regulations 1998, which relates to flight crew licensing. Its purpose is to exempt a particular class of applicants for a flight examiner rating (an FER) or a flight examiner endorsement (an FEE) from the requirement to complete a prescribed flight examiner course of training conducted by CASA if the applicant completes an alternative course of training established by a training and checking organisation (a TCO), and approved by CASA.

 

The course must be one that was already established and approved for approved testing officers of the TCO before 1 September 2014. The applicants must be employees of the TCO’s operator.

 

Human rights implications

The legislative instrument engages the following rights:

·         The right to work (Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)); and

·         The right to protection against arbitrary and unlawful interferences with privacy (Article 17 of the International Covenant on Civil and Political Rights (ICCPR)).

 

Right to work

The right to work in Article 6 (1) of ICESR includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept. The right to work is engaged by the exemption from the requirement for completion of the prescribed flight examiner course of training conducted by CASA before a pilot can apply for an FEE or FER. It increases the opportunity for these pilots to obtain an FEE or FER, and therefore perform work as flight examiners. The exemption, therefore, promotes the right to work of the affected pilots.

 

Right to privacy

The right to protection against arbitrary and unlawful interference with privacy, contained in Article 17 of the ICCPR, provides that no one shall be subjected to arbitrary or unlawful interference with his privacy.

 

The right to privacy is engaged by subsection 6 (1), which requires the head of training and checking of an operator’s TCO to provide personal and other information to CASA. It is necessary for CASA to receive this information to ensure that only appropriately qualified individuals are granted an FER or FEE and are therefore allowed to undertake particular activities that have inherent safety risks.

 

The protections provided by the Privacy Act 1988 continue to apply to personal information collected.

 

The requirements of the legislative instrument are necessary in order to ensure proper administration and enforcement of Australia’s aviation safety system. Any potential limitation on the right to privacy is necessary, reasonable and proportionate in promoting the objective of improving aviation safety.

 

Apart from the impact on the right to privacy, the exemption in the legislative instrument is beneficial in purpose and content and does not adversely affect the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Conclusion

The legislative instrument is compatible with human rights. To the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate in order to ensure the safety of aviation operations and to promote the integrity of the aviation safety system.

Civil Aviation Safety Authority