Federal Register of Legislation - Australian Government

Primary content

CASA EX160/18 Exemptions as made
This instrument exempts certain applicants for an air transport pilot licence with an aeroplane category rating from the requirement, under Part 61 of the Civil Aviation Safety Regulations 1998, to have completed the instrument rating examination identified in the Part 61 Manual of Standards as “IREX”. The instrument applies to applicants who hold a commercial pilot licence in the aeroplane category, with an instrument rating, in accordance with the terms of the Trans-Tasman Mutual Recognition Act 1997.
Administered by: Infrastructure, Transport, Regional Development and Communications
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 03 Dec 2018
Tabling HistoryDate
Tabled HR04-Dec-2018
Tabled Senate05-Dec-2018
To be repealed 31 Oct 2021
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Safety Regulations 1998

CASA EX160/18 — Instrument Rating Aeronautical Knowledge Examination (IREX) (Certain Applicants for an Air Transport Pilot Licence) Exemption 2018

Purpose

The purpose of this legislative instrument is to exempt certain applicants for an air transport pilot licence with the aeroplane category rating (ATPL(A)) from the requirement, under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR), to have completed the instrument rating examination identified in the Part 61 Manual of Standards (Part 61 MOS) as “IREX”. The instrument applies to applicants who were granted a commercial pilot licence, with an aeroplane category rating and an instrument rating, in accordance with the terms of the Trans-Tasman Mutual Recognition Act 1997 (TTMRA).

Legislation

Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made CASR. Part 61 of CASR deals with the licensing of aircraft flight crew.

 

Regulation 61.160 of CASR prescribes the criteria for the grant of a flight crew licence. In relation to an ATPL(A), an applicant must meet the requirements mentioned in Part 61 for the grant of the licence.

 

Regulation 61.235 of CASR prescribes requirements for when an applicant for a flight crew licence is eligible to take the flight test for the licence. Relevantly for present purposes, subparagraph 61.235 (2) (a) (ii) requires the applicant to have passed the aeronautical knowledge examination for the licence.

 

Regulation 61.240 of CASR deems a person to have failed a flight test if the person was not eligible to take the flight test under regulation 61.235.

 

Regulation 61.700 of CASR prescribes the general requirements to be satisfied by an applicant for an air transport pilot licence (ATPL). Relevantly for present purposes, paragraph 61.700 (3) (a) requires the applicant to have passed the aeronautical knowledge examination for the ATPL(A). Also, paragraph 61.700 (3) (c) requires the applicant to have passed the flight test mentioned in the Part 61 MOS aeronautical knowledge examination for the ATPL(A).

 

Regulation 61.1300 of CASR prescribes offences in relation to the conduct of flights by, among other persons, the holder of a flight examiner rating granted under Part 61. Relevantly for present purposes, an examiner commits an offence in relation to a flight test for the ATPL(A) if the examiner is not satisfied when the flight test begins that the applicant has passed the aeronautical knowledge examination for the licence, including the IREX.

 

Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR relevantly provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations.

 

Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.

 

Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.

 

Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant an exemption on its own initiative.

 

Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.

 

The TTMRA provides a scheme by which a person who is registered to carry on an “occupation” in New Zealand can be certified to carry on the occupation in Australia, and vice versa.

 

Background

Part 61 of CASR operates so that an applicant for an ATPL(A) must have passed the IREX in order to be eligible to take the flight test for the licence and to be granted the licence. In addition, Part 61 prohibits a flight examiner from conducting a flight test for an applicant for an ATPL(A) unless the flight examiner is satisfied that the applicant has passed the IREX.

 

The occupation of a commercial pilot is one that falls within the scope of the TTMRA scheme.

 

Pilots holding an Australian commercial pilot licence with an instrument rating, granted in accordance with the TTMRA, may apply for an ATPL(A) in accordance with the requirements of Part 61 (in the instrument referred to as exempted applicants). Applicants for the ATPL(A) would normally have passed the IREX for the grant of an instrument rating. However, exempted applicants will not have passed the IREX, because their instrument rating training was conducted in New Zealand in connection with their New Zealand flight crew licence and instrument rating.

 

In addition, a small number of exempted applicants have already completed the ATPL(A) flight test. Such applicants will not be eligible to be granted the ATPL(A) because, in addition to not having passed the IREX, they were ineligible to take the flight test by operation of regulations 61.235 and 61.240.

 

CASA considers that the IREX requirement is unnecessary for exempted applicants, on the basis of their New Zealand training, including exempted applicants who have taken the ATPL(A) flight test. CASA has determined to exempt such applicants from the relevant requirements pertaining to passing the IREX.

 

Instrument

The instrument provides exemptions to exempt applicants, and flight examiners conducting the ATPL(A) flight test for exempt applicants, from the requirements of Part 61 that require a person to have passed the IREX.

 

Section 1 states the name of the instrument.

 

Section 2 states when the instrument commences and when it is repealed.

 

Section 3 provides definitions for the instrument. It defines an exempted applicant to be a person who has applied for an ATPL(A) and who has been granted a commercial pilot licence with an instrument rating in accordance with the TTMRA. IREX is defined by reference to the examination described in the relevant Unit and Section of Appendix 2 to the Part 61 MOS.

 

The definition of IREX incorporates the Part 61 MOS by reference. The Part 61 MOS is a legislative instrument that prescribes standards for the purpose of the Part 61 scheme. It is freely available on the Federal Register of Legislation. The term Part 61 Manual of Standards has the meaning given in the CASR Dictionary and has effect as amended from time to time in accordance with paragraphs 10A (a) of the Acts Interpretation Act 1901 and 13 (1) (a) of the Legislation Act 2003 (the LA).

 

Section 4 provides exemptions to exempted applicants.

 

Subsection 4 (1) exempts an exempted applicant who is taking the ATPL(A) flight test from subparagraph 61.235(2) (a) (ii) of CASR. The exemption is granted only to the extent that the subparagraph requires the applicant to have passed the IREX in order to be eligible to take the flight test. The effect of the exemption is intended to ensure that an exempted applicant is not deemed not to have passed the flight test by operation of regulation 61.240 of CASR, because the applicant has not passed the IREX.

 

Subsection 4 (2) exempts an exempted applicant from subparagraph 61.160 (b) (i), and paragraphs 61.700 (3) (a) and (c), of CASR. The exemption is granted only to the extent that the provisions require the applicant to have passed the IREX in order to be eligible to be granted the ATPL(A). The effect of the exemption is intended to ensure that an exempted applicant is eligible to be granted the ATPL(A) despite not having passed the IREX.

 

Notably, the exemption in subsection 4 (2) is intended to ensure that an exempted applicant meets the requirement to have passed the flight test even if the person would otherwise have been deemed not to have passed the flight test by operation of regulation 61.240 of CASR because the applicant has not passed the IREX. Further, the exemption will operate in relation to an exempted applicant whose application is being assessed by CASA after the commencement of this instrument even if the flight test was conducted before that commencement.

 

The exemptions are not intended to affect any other requirements for the eligibility to take the ATPL(A) flight, or eligibility criteria for the grant of the ATPL(A).

 

Section 5 provides an exemption to flight examiners who conduct flight tests for exempted applicants so that the examiner does not commit the offence in subregulation 61.1300 (1) of CASR in respect of an exempted applicant who has not passed the IREX. The exemption does not apply in relation to flight tests conducted before the commencement of the instrument.

 

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 is made for the purpose of paragraph 98 (5A) (a) of the Act and exempts classes of persons from complying with the specified provisions of CASR, namely, exempted applicants and flight examiners conducting flight tests for exempted applicants. 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

CASA has not undertaken consultation with external stakeholders on the instrument. The issue has arisen from an oversight in the making of Schedule 4 of the Part 61 MOS and the instrument is beneficial to affected industry participants. The matter is proposed to be addressed through amendments to Schedule 4 of the Part 61 MOS during 2019. In these circumstances, CASA is satisfied that no consultation is appropriate or necessary for this instrument for section 17 of the LA.

 

Office of Best Practice Regulation (OBPR)

A Regulation Impact Statement (RIS) is not required in this case, as the exemption 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 instrument is compatible with listed human rights.

 

Making and commencement

The instrument 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 the day after it is registered and is repealed at the end of 31 October 2021.

Attachment 1

Statement of Compatibility with Human Rights

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

 

CASA EX160/18 — Instrument Rating Aeronautical Knowledge Examination (IREX) (Certain Applicants for an Air Transport Pilot Licence) 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 purpose of this legislative instrument is to exempt certain applicants for an air transport pilot licence with an aeroplane category rating (ATPL(A)) from the requirement, under Part 61 of the Civil Aviation Safety Regulations 1998, to have completed the instrument rating examination identified in the Part 61 Manual of Standards as “IREX”. The instrument applies to applicants who hold a commercial pilot licence in the aeroplane category, with an instrument rating, in accordance with the terms of the Trans-Tasman Mutual Recognition Act 1997 (exempted applicants).

 

Human rights implications

The legislative instrument engages the right to work in Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights.

 

The right to work 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 exempted applicants to pass the IREX in order to be eligible to take the flight test for the ATPL(A) or to be eligible to be granted an ATPL(A). The exemption reduces the costs for such applicants to upgrade their qualifications to the ATPL(A) and, therefore, to choose to perform work using that qualification. The exemption, therefore, promotes the right to work of exempted applicants.

 

Conclusion

This legislative instrument is compatible with human rights.

Civil Aviation Safety Authority