Federal Register of Legislation - Australian Government

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CASA EX54/19 Exemptions as made
This instrument exempts Air Operator Certificate holders and their flight crew members, who are involved in aeroplane aerial application operations, from the requirements of Civil Aviation Order 48.1 Instrument 2013 and subsections 2 and 3 of Civil Aviation Order 48.1 as contained in Civil Aviation Amendment Order (No. R48) 2004. This will remove any doubt that all flight time limitations and fatigue management requirements for aeroplane aerial application operations will continue to be those imposed under Subpart 137.Q of the Civil Aviation Safety Regulations 1998 which, for the time being, are specifically designed for such operations.
Administered by: Infrastructure, Transport, Regional Development and Communications
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 31 May 2019
Tabling HistoryDate
Tabled HR02-Jul-2019
Tabled Senate02-Jul-2019
To be repealed 31 May 2022
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Safety Regulations 1998

CASA EX54/19 – Civil Aviation Order 48.1 Instrument 2013 – Aerial Application Operations in Aeroplanes Exemption 2019

 

Purpose

Civil Aviation Order 48.1 Instrument 2013 (the new CAO 48.1) commenced on 30 April 2013 to prescribe flight time limitation and fatigue management requirements for Air Operator Certificate (AOC) holders and their flight crew members (FCMs).

 

Persons who became AOC holders for the first time after 30 April 2013 were and are subject to the requirements of the new CAO 48.1. Unless they have earlier opted in to coverage by the new CAO 48.1, these requirements do not apply to “transitional” AOC holders (that is, those who held an AOC before 30 April 2013) until 30 September 2019 for regular public transport operations in high capacity aircraft, and until 26 March 2020 for other AOC holders.

 

Subpart 137.Q of the Civil Aviation Safety Regulations 1998 (CASR) prescribes flight time limitations and fatigue management requirements specifically for aeroplane aerial application operations by AOC holders.

 

Some uncertainty had arisen as to whether AOC holders and their FCMs engaged in aeroplane aerial application operations were subject to the new CAO 48.1, Civil Aviation Order 48.1 as contained in Civil Aviation Amendment Order (No. R48) 2004 (the old CAO 48.1) or Subpart 137.Q of CASR. To address this, in June 2016, CASA issued CASA EX92/16 which was an exemption instrument intended to exempt all AOC holders and their FCMs engaged in aeroplane aerial application operations from the requirements of the new CAO 48.1 and the old CAO 48.1, insofar as they applied.

 

CASA EX92/16 expired on 31 May 2019 and CASA EX54/19 – Civil Aviation Order 48.1 Instrument 2013 – Aerial Application Operations in Aeroplanes Exemption 2019 (the exemption) was issued to renew the previous exemption until the end of 31 May 2022.

 

The renewal is in a somewhat different form to its predecessor. It is intended to make it clear that the flight time limitation and fatigue management requirements for aeroplane aerial application operations, as prescribed in Subpart 137.Q of CASR 1998, apply to AOC holders and their FCMs engaged in aeroplane aerial application operations, and that the new CAO 48.1 and the old CAO 48.1 do not apply to them.

 

Legislation — Subpart 137.Q of CASR

Subpart 137.Q of CASR sets out requirements for the duty and rest times of pilots who conduct aerial application operations in aeroplanes. This Subpart prescribes certain maximum flying hours, minimum off-duty periods and maximum durations of tours of duty for these pilots. Regulation 137.300 also requires pilots to be fit for duty in order to commence an aerial application operation, and prevents operators from allowing a pilot to commence an operation if the operator has reason to believe that the pilot is not fit for duty. Regulation 137.020 of CASR further provides that if a provision “in these Regulations” (that is CASR, and the Civil Aviation Regulations 1988 (CAR)) is inconsistent with a provision in Part 137 of CASR, the provision in Part 137 will prevail to the extent of the inconsistency.

 

Regulation 210A of CAR provides that CASA may give directions to the holder of a flight crew licence or to an aircraft operator about matters relating to the regulation of flight time. These matters include the number of hours that a person may fly in any period, the length of a tour of duty, the length of time an FCM is required to be available for a tour of duty, the rest periods that must be taken and the circumstances in which a person must not fly or undertake other duties associated with his or her employment.

 

Under subsections 98 (5A) and (5AA) of the Act, the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation of aircraft, which, if applicable to a class of persons, would be legislative instruments. Under subregulation 5 (1A) of CAR, wherever CASA is empowered or required under the regulations to issue any direction, instruction or notification, CASA may, unless the contrary intention appears, issue the direction, instruction or notification in a Civil Aviation Order (CAO).

 

Part 48 of the CAOs was made under the predecessor to regulation 210A of CAR and is continued in force by regulation 335 of CAR. The Part relevantly contains the old CAO 48.1. It contains flight and duty time limitations and related rules for various members of an aircraft’s flight crew.

 

In particular, subsection 2 of the old CAO prescribes these limitations where the flight crew includes not more than 2 pilots in any aircraft engaged in aerial application operations, while subsection 3 prescribes these limitations for any flights where the flight crew includes 3 or more pilots (which could include aerial application operations). For the purposes of CAO 48.1, aerial application operations are defined by reference to regulation 61.010 of CASR.

 

The new CAO 48.1 commenced on 30 April 2013. It created for AOC holders and FCMs a comprehensive regulatory framework for the effective management of fatigue risk in aviation operations. Subject to transitional arrangements, from 30 April 2013 (for new aerial work AOC holders and their FCMs), and from 26 March 2020 (for non‑opted in existing aerial work AOC holders and their FCMs), the new framework under the new CAO 48.1 replaces the previous rules for flight and duty time limitations contained in Part 48 of the CAOs.

 

Old CAO 48.1 will not be repealed by the new CAO 48.1 until 26 March 2020 because it continues to apply to transitional AOC holders who have not earlier opted in to coverage by the new CAO 48.1.

 

Legislation — exemptions

Subpart 11.F of CASR 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 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.).

 

The issue

As described above, for transitional AOC holders who have not opted in (among whom are aeroplane aerial application operators), subsections 2 and 3 of the old CAO still exist with their express and implied application to all aerial application operations (not merely in aeroplanes).

 

Helicopter aerial application operators are not within the scope of the previous exemption, CASA EX92/16, because it defined aerial application operation as having, in effect, the same meaning as in Part 137 of CASR. Thus, the exemption only applied to aeroplane aerial application operators. Pre-April 2013, helicopter aerial application operators were covered by the old CAO 48.1 (unless they had opted in to the new CAO 48.1). Post-April 2013 helicopter aerial application operators were and are covered by the new CAO 48.1.

 

The previous exemption only applied to aeroplane aerial application operators and, as such, it exempted these operators from subsection 2 and subsection 3 of the old CAO. This had the effect of exempting not opted in, transitional, AOC holders from the flight and duty time requirements of those subsections. Subpart 137.Q of CASR would, by default at the very least, and more likely, automatically, apply to aeroplanes but because of the overlapping provisions the matter was not clear-cut for operators.

 

There is little doubt that, as a matter of law, the requirements under Subpart 137.Q of CASR apply, in priority to the old CAO, in relation to aeroplane aerial application operations (the particular CAO is subordinate to the regulations in the legislative hierarchy and regulation 137.020 of CASR although not directly applicable to a conflict with a CAO, indicates the same intention).

 

However, there is considerably more doubt as to whether the requirements under Subpart 137.Q of CASR apply, in priority to the new CAO 48.1, in relation to aeroplane aerial application operations. The new CAO 48.1 operates as a set of AOC conditions, and as such is a CAO expressly empowered by paragraph 28BA (1) (b) of the Act itself and, coming later in time, might conceivably take priority over the earlier Subpart 137.Q. This left some operators uncertain whether the new CAO 48.1 had replaced Subpart 137.Q of CASR. The exemption makes it clear that, as a practical and legal matter, aeroplane aerial application operators are exempt from any possible application of the new CAO 48.1 or the old CAO 48.1.

 

In doing so, the exemption also makes it clear that for the post-2013 aeroplane aerial application operators, before their FCMs conduct an operation, the operator must be satisfied that the FCM has received awareness material, or training, in managing the fatigue-related risks relevant to his or her duties as an FCM. The operator and the FCMs must, of course, comply with the requirements of Subpart 137.Q of CASR to the extent that those requirements apply to the person.

 

For transitional aeroplane aerial application operators who have not opted in to the new CAO 48.1, the status quo ante is preserved and the only requirement is that they comply with the requirements of Subpart 137.Q of CASR to the extent that those requirements apply to the person.

 

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 a class of persons (aeroplane aerial application operators and their FCMs) 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, 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.

 

CASA has been consulting with members of the aeroplane aerial application industry about the continued development of flight time limitation and fatigue management standards for aeroplane aerial application operations. As a part of this consultation process, CASA proposed the original exemption and the industry members supported the exemption to make it clear that the existing duty and rest times for pilots prescribed under Subpart 137.Q of CASR will continue to apply to aeroplane aerial application operations. Further, an independent review of CASA’s fatigue rules recommended, in March 2018, that the requirements of Subpart 137.Q of CASR should continue to apply to aeroplane aerial application operations rather than any new CAO 48.1 rule set. Having regard to 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.

 

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 1 is 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 to protect the safety of a potentially dangerous aviation activity in the form of aeroplane aerial application operations.

 

Commencement and making

The exemption commences on 1 June 2019 and is repealed at the end of 31 May 2022. The exemption would cease to apply before that date if any of the CAOs on which the exemption operates were repealed by a later instrument. CASA plans to repeal those CAOs some time before the expiry of the 3 years.

 

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

Attachment 1

Statement of Compatibility with Human Rights

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

CASA EX54/19 – Civil Aviation Order 48.1 Instrument 2013 – Aerial Application Operations in Aeroplanes Exemption 2019

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 Air Operator Certificate (AOC) holders and their flight crew members (FCMs), who are involved in aeroplane aerial application operations, from the requirements of Civil Aviation Order 48.1 Instrument 2013 (the new CAO 48.1) and subsections 2 and 3 of Civil Aviation Order 48.1 as contained in Civil Aviation Amendment Order (No. R48) 2004 (the old CAO 48.1).

 

This will remove any doubt that all flight time limitations and fatigue management requirements for aeroplane aerial application operations will continue to be those imposed under Subpart 137.Q of the Civil Aviation Safety Regulations 1998 (CASR), which, for the time being, are specifically designed for such operations.

 

Human rights implications

There is some confusion about the applicability to aeroplane aerial application operations of some pre-existing legislation, namely, Subpart 137.Q of CASR, the new CAO 48.1 and the old CAO 48.1. It has always been CASA’s intention that Subpart 137.Q of CASR should govern these operations unless and until it is expressly repealed and replaced. There are, however, various legal arguments, none absolutely beyond doubt, in favour of the alternative application of the new CAO 48.1 (for post‑2013 new operators) and the old CAO 48.1 (for pre-2103 operators who have not voluntarily opted in for coverage by the new CAO 48.1). The exemption is designed to place beyond doubt that if the new CAO 48.1 or the old CAO 48.1 has any legal application to these operators, they are exempted from it.

 

The legislative instrument may indirectly engage the right to work under the International Covenant on Economic, Social and Cultural Rights. Subpart 137.Q of CASR, the new CAO 48.1 and the old CAO 48.1 create restrictions on when, and for how long, pilots may work in aeroplane aerial application operations. The exemption makes it clear that Subpart 137.Q of CASR contains the relevant operative rules and it effectively removes any potential application of any other rules.

 

A suitable flight and duty time regime is essential to guard against pilot fatigue and is, therefore, essential for aviation safety. Subpart 137.Q of CASR is a long-standing piece of legislation which, currently, is the more appropriate set of standards to preserve aviation safety in these operations. Thus, insofar as protection of the right to work under the Convention is indirectly engaged by the exemption instrument, it is engaged in a way that is balanced by the objectives of providing pilots with safe working conditions and achieving and improving aviation safety.

 

The instrument is otherwise compatible with the human rights and freedoms recognised or declared by the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not otherwise engage any of the applicable rights or freedoms.

 

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 to protect the safety of aviation.

Civil Aviation Safety Authority