Federal Register of Legislation - Australian Government

Primary content

CASA 39/22 Directions/Civil Aviation as made
This instrument limits the ability of persons who have had a flight crew licence varied, suspended, cancelled or refused on certain grounds from flying an aircraft as a member of a sport aviation organisation.
Administered by: Infrastructure, Transport, Regional Development, Communications and the Arts
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 12 Sep 2022
Tabling HistoryDate
Tabled HR23-Sep-2022
Tabled Senate26-Sep-2022
To be repealed 31 Mar 2024
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Safety Regulations 1998

CASA 39/22 — Pilot Certificates (Sport Aviation Bodies) Direction 2022

Purpose

Under CASA 39/22 — Pilot Certificates (Sport Aviation Bodies) Direction 2022 (the instrument), the Civil Aviation Safety Authority (CASA) issues directions, under subregulation 11.245 (1) of the Civil Aviation Safety Regulations 1998 (CASR), to the following persons:

(a)   a relevant sport aviation body (as that term is defined in section 4 of the instrument);

(b)   a person who holds a flight crew licence and a pilot certificate granted by a relevant sport aviation body;

(c)   a person who applies to a relevant sport aviation body for a pilot certificate.

 

The purpose of the instrument is:

(a)   to prevent a person mentioned in paragraph (b) above from exercising aircraft‑flying privileges, under the auspices of a relevant sport aviation body, if the person becomes the subject of regulatory action by CASA or the Court, under the Civil Aviation Act 1988 (the Act) or the Civil Aviation Regulations 1988 (CAR), in relation to the flight crew licence; and

(b)   to prevent a person mentioned in paragraph (c) above from exercising aircraft‑flying privileges, under the auspices of a relevant sport aviation body, if the person is, or has been, the subject of regulatory action by CASA or the Court, under the Act or CAR, in relation to a flight crew licence held by the person; and

(c)   to prevent a person mentioned in paragraph (c) above from exercising aircraft‑flying privileges, under the auspices of a relevant sport aviation body, if, before the date of the application for a pilot certificate:

             (i)  the person applied for a flight crew licence; and

            (ii)  CASA decided to refuse to grant the licence for reasons that include that the criterion mentioned in paragraph 11.055 (1A) (e) or (1B) (b) of CASR was not satisfied.

 

A direction issued, under the instrument, to a relevant sport aviation body does not apply if CASA has given an approval under the instrument to the body, which overrides the direction.

 

Legislation

Section 98 of 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 and CAR.

 

Under Part 1 of the CASR Dictionary:

ASAO (short for approved self-administering aviation organisation) means a person who holds an ASAO certificate that is in force.

ASAO certificate means a certificate issued by CASA under regulation 149.075.

flight crew licence:

(a)   means a flight crew licence within the meaning of Part 61; and

(b)   includes a certificate of validation of an overseas flight crew licence.

pilot certificate means a certificate (however described) that:

(a)   is granted by a recreational aviation administration organisation; and

(b)   authorises its holder to pilot an aircraft, other than a registered aircraft, in an aviation activity administered by the organisation.

 

Under regulation 61.010 of CASR, for Part 61 of CASR:

flight crew licence means:

(a)   a pilot licence; or

(b)   a flight engineer licence; or

(c)   a glider pilot licence.

 

Subpart 11.G of CASR enables CASA to issue directions in relation to matters affecting the safety of air navigation. Paragraph 11.245 (1) (a) of CASR empowers CASA, for subsection 98 (5A) of the Act, to issue a direction about any matter affecting the safe navigation and operation of aircraft.

 

Under subregulation 11.245 (2), CASA may issue such a direction:

(a)   only if CASA is satisfied it is necessary to do so in the interests of the safety of air navigation; and

(b)   only if the direction is not inconsistent with the Act; and

(c)   only for the purposes of CASA’s functions.

 

Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255 of CASR, it is an offence of strict liability if a person contravenes a direction under regulation 11.245.

 

Under subregulation 265 (1) of CAR, as far as is relevant, if CASA requires the holder of a flight crew licence to undergo an examination under regulation 299 of CAR, CASA may suspend the licence.

 

Under subregulation 269 (1) of CAR, as far as is relevant, CASA may vary, suspend, or cancel, a flight crew licence if CASA is satisfied that 1 or more of the grounds stated in the subregulation exists.

 

Under regulation 272A of CAR, as far as is relevant, if CASA suspends a flight crew licence, its holder is taken not to be the holder of the licence during the period of the suspension.

 

Under subregulation 11.067 (1) of CASR, as far as is relevant, after the grant of a flight crew licence, CASA may, in accordance with regulation 11.067, vary a condition of the licence.

 

Under paragraph 11.055 (1A) (e) of CASR, as far as is relevant, a criterion that must be met by an applicant for a flight crew licence is that the granting of the licence by CASA would not be likely to have an adverse effect on the safety of air navigation.

 

Under paragraph 11.055 (1B) (b), as far as is relevant, a criterion that must be met by an applicant for a flight crew licence is that the granting of the licence by CASA will preserve a level of aviation safety that is at least acceptable.

 

Subregulation 11.055 (4) states the matters CASA may take into account for paragraphs 11.055 (1A) (e) and (1B) (b). As far as is relevant, these matters relate to the fitness of an applicant for a flight crew licence to hold the licence.

 

Part 149 of CASR deals with ASAOs. Subpart 149.G of CASR deals with authorisations, including the grounds for refusal of applications of authorisations, disclosure of information in applications for authorisations and suspension, variation and cancellation of authorisations. Subpart 149.H deals with authorisations and enforcement.

 

Under regulation 200.025 of CASR, for paragraph 20AB (1) (a) of the Act, a person is taken to hold a civil aviation authorisation that is in force and authorises the person to perform a duty that is essential to the operation of an unregistered Australian aircraft during flight time if:

(a)   the person holds a pilot certificate granted by a sport aviation body that administers aviation activities in the aircraft; and

(b)   the person operates the aircraft in accordance with the sport aviation body’s operations manual.

 

Under regulation 200.030 of CASR, a person commits an offence if:

(a)   the person pilots an unregistered Australian aircraft; and

(b)   a sport aviation body administers aviation activities in the aircraft; and

(c)   the person does not:

             (i)  hold a pilot certificate granted by the sport aviation body; and

            (ii)  operate the aircraft in accordance with the sport aviation body’s operations manual.

 

Under section 30A of the Act, as far as is relevant, the Court may make an order excluding a person from a particular aviation activity, authorised under a flight crew licence, for a stated period (the exclusion period). Under subsection 30A (4), during the exclusion period, the licence is of no effect.

 

Background

CASA is aware of situations in which, after CASA has cancelled under regulation 269 of CAR a flight crew licence held by a person, the person applies to a sport aviation body for the grant of a pilot certificate, which would enable the person to continue to fly the same or similar aircraft the person was flying under the licence. If the person can continue to exercise flying privileges, albeit under the auspices of the sport aviation body, this would in effect circumvent the regulatory action taken by CASA against the person. While Part 149 of CASR includes provisions for ASAOs to address this situation, and other provisions relating to the refusal of authorisations in certain circumstances by ASAOs, there were no equivalent arrangements to address this for non-ASAO sport aviation bodies.

 

CASA previously issued instrument CASA 61/19 — Pilot Certificates (Sport Aviation Bodies) Direction 2019 (CASA 61/19) to address this anomaly and other analogous situations. CASA 61/19 repealed at the end of 31 August 2022. Since CASA 61/19 was made, Recreational Aviation Australia Limited (RAAus) has been issued an ASAO certificate by CASA. As at commencement of this instrument, RAAus still holds the ASAO certificate and is subject to, and regulated under, Part 149 of CASA.

 

Overview of instrument

The instrument is substantially the same as CASA 61/19 except in relation to its duration, and its exclusion of RAAus from being a relevant sport aviation body for the purposes of the instrument.

 

The proposed duration of the instrument is from the day after it is registered until its repeal at the end of 31 March 2024. CASA considers that the repeal date will provide sufficient time for CASA to approve any of the relevant sport aviation bodies (within the meaning of section 4 of the instrument) that intend to transition to become ASAOs by the end of 1 December 2023, as required under subregulation 202.861 (2) of CASR.

 

Content of instrument

Section 1 states the name of the instrument.

 

Section 2 states the instrument commences on the day after it is registered and is repealed at the end of 31 March 2024. Accordingly, the directions, issued under the instrument, cease to be in force at the end of 31 March 2024.

 

Sections 3 and 4 contain definitions of terms used in the instrument. In particular, the term relevant sport aviation body is defined in section 4 as follows:

 

4          Meaning of relevant sport aviation body

        (1)     A body is a relevant sport aviation body if it:

(a)   is a sport aviation body mentioned in subsection (2); and

(b)   does not hold an ASAO certificate.

        (2)     For paragraph (1) (a), the following are the sport aviation bodies:

(a)   Australian Ballooning Federation Incorporated, ARN 219881;

(b)   Australian Sport Rotorcraft Association Incorporated, ARN 223306;

(c)   The Gliding Federation of Australia Incorporated, ARN 217932;

(d)   Sports Aviation Federation of Australia Limited, ARN 217853.

 

Accordingly, if a sport aviation body mentioned in subsection 4 (2) holds an ASAO certificate, the directions, issued under the instrument, do not apply to the body, or other persons identified in the instrument by reference to the body. However, the body, or other person, is subject to the requirements stated in Subparts 149.G and 149.H of CASR in relation to authorisations to undertake activities administered by the body. Part 149 of CASR does not compel a sport aviation body to become an ASAO.

 

Sections 5 to 9 issue directions to stated persons in stated circumstances.

 

The direction issued to a relevant sport aviation body under subsection 5 (3), 6 (3), 8 (4) or 9 (3) does not apply if CASA has given an approval to the body under subsection 5 (4), 6 (4), 8 (5) or 9 (4), respectively, which overrides the direction. The approval may be given subject to conditions.

CASA is satisfied it is necessary to issue the directions in the interests of the safety of air navigation.

 

If, under subsection 5 (3) or 6 (3), a relevant sport aviation body suspends a pilot certificate held by a person, and the person pilots an aircraft despite the suspension, the person would not be operating the aircraft in accordance with the body’s operations manual. In these circumstances, the person commits an offence against regulation 200.030 of CASR.

 

If, under subsection 8 (4) or 9 (3), a relevant sport aviation body does not grant a pilot certificate to a person, and the person pilots an aircraft despite not holding a pilot certificate granted by the body, the person commits an offence against regulation 200.030.

 

Legislation Act 2003 (the LA)

Paragraph 98 (5A) (a) of the Act states that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Paragraph 98 (5AA) (a) states 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 the following classes of persons:

(a)   a relevant sport aviation body;

(b)   a person who holds a flight crew licence, and a pilot certificate granted by a relevant sport aviation body;

(c)   a person who applies to a relevant sport aviation body for a pilot certificate.

 

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.

 

As the instrument relates to aviation safety and is made under CASR, Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument (as per item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015). However, this instrument will be repealed at the end of 31 March 2024, which will occur before the sunsetting provisions would have repealed the instrument if they had applied. Any renewal of the instrument will be subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA. Therefore, the exemption from sunsetting does not affect parliamentary oversight of this instrument.

 

Consultation

In August 2022, CASA emailed the 5 sport aviation bodies mentioned in the definition of relevant sport aviation body in CASA 61/19, asking them if they supported the instrument being remade in its current form. All responded in the affirmative. RAAus is aware that it is regulated under the provisions in Part 149 of CASR in relation to ASAO authorisations.

 

CASA is satisfied no further consultation is appropriate or reasonably practicable for the instrument for section 17 of the LA.

 

Sector risk, economic and cost impact

Subsection 9A (1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A (3) of the Act states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9 (1) (c), CASA must:

(a)   consider the economic and cost impact on individuals, businesses and the community of the standards; and

(b)   take into account the differing risks associated with different industry sectors.

 

The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.

 

As the instrument replaces an expired instrument with substantially the same provisions and conditions, there will be no change of economic or cost impact on individuals, businesses or the community.

 

The requirements of the instrument apply to relevant sport aviation bodies in specified circumstances, and to persons who have applied to a relevant sport aviation body for a pilot licence and who hold or held a flight crew licence that was cancelled, suspended or varied by CASA, other than at the person’s request, or who have been excluded by a Court order from undertaking the activity authorised by such a licence for a stated period, or have had a flight crew licence application refused by CASA on certain grounds.

 

CASA has assessed that the economic and cost impact of the instrument is not significant. The Office of Best Practice Regulation (OBPR) has also made the assessment that the impact of the instrument is minor and that a Regulation Impact Statement (RIS) is not required. As there is no significant economic or cost impact on individuals or businesses, there will be no community impacts.

 

Impact on categories of operations

The instrument will have a beneficial effect on sports aviation operations because it will protect aviation safety by ensuring that persons who have effectively been found by CASA or a Court to be unsuitable to fly cannot then continue to fly an aircraft as a member of a relevant sport aviation organisation. This promotes the safety of members of these organisations as they will not be flying with persons who have been found not to meet the minimum aviation safety standards required to hold a flight crew licence.

 

Impact on regional and remote communities

The instrument will have a beneficial effect on regional and remote communities because it will protect aviation safety in those areas by ensuring that members of relevant sports aviation organisations operating in those communities who have effectively been found by CASA or a Court as unsuitable to fly cannot continue to fly an aircraft as a member of the sports aviation organisation. This will also protect persons who would otherwise share airspace with aircraft piloted by such persons, as well as persons on the ground.

 

Office of Best Practice Regulation

A RIS is not required as the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for directions issued by CASA (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.

 

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 the day after it is registered and is repealed at the end of 31 March 2024.

Attachment 1

Statement of Compatibility with Human Rights

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

 

CASA 39/22 — Pilot Certificates (Sport Aviation Bodies) Direction 2022

 

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.

 

Overview of the legislative instrument

Under the legislative instrument, the Civil Aviation Safety Authority (CASA) issues directions, under subregulation 11.245 (1) of the Civil Aviation Safety Regulations 1998 (CASR), to the following persons:

(a)   a relevant sport aviation body (as that term is defined in section 4 of the instrument);

(b)   a person who holds a flight crew licence, and a pilot certificate granted by a relevant sport aviation body;

(c)   a person who applies to a relevant sport aviation body for a pilot certificate.

 

The meaning of relevant sport aviation body in the instrument makes clear that such a body cannot be an approved self-administering aviation organisation.

 

The purpose of the instrument is:

(a)   to prevent a person mentioned in paragraph (b) above from exercising aircraft‑flying privileges, under the auspices of a relevant sport aviation body, if the person becomes the subject of regulatory action by CASA or the Court, under the Civil Aviation Act 1988 (the Act) or the Civil Aviation Regulations 1988 (CAR), in relation to the flight crew licence; and

(b)   to prevent a person mentioned in paragraph (c) above from exercising aircraft‑flying privileges, under the auspices of a relevant sport aviation body, if the person is, or has been, the subject of regulatory action by CASA or the Court, under the Act or CAR, in relation to a flight crew licence held by the person; and

(c)   to prevent a person mentioned in paragraph (c) above from exercising aircraft‑flying privileges, under the auspices of a relevant sport aviation body, if, before the date of the application for a pilot certificate:

             (i)  the person applied for a flight crew licence; and

            (ii)  CASA decided to refuse to grant the licence for reasons that include that the criterion mentioned in paragraph 11.055 (1A) (e) or (1B) (b) of CASR was not satisfied.

 

A direction issued, under the instrument, to a relevant sport aviation body does not apply if CASA has given an approval under the instrument to the body, which overrides the direction.

 

Human rights implications

To the extent the legislative instrument seeks to prevent a person from piloting aircraft, under the auspices of a relevant sport aviation body, for the purpose of conducting flying training for the grant of a pilot certificate to someone else, it might be said that the rights to work, equality and non-discrimination under the International Covenant on Civil and Political Rights (the ICCPR) and the International Covenant on Economic, Social and Cultural Rights are engaged. However, such differential treatment arises from the requirements of aviation safety relating to the piloting of aircraft by the person, and thereby promotes safe and healthy working conditions.

 

Also, the instrument promotes the right to life, under the ICCPR, of certain persons who pilot, or wish to pilot, aircraft under the auspices of a relevant sport aviation body, persons who share airspace with aircraft piloted by the first-mentioned persons and persons on the ground, by seeking to prevent the flights of aircraft piloted by the first-mentioned persons from happening.

 

Conclusion

The legislative instrument is compatible with human rights. To the extent it may also limit human rights, those limitations are reasonable and proportionate in the interests of aviation safety.

 

 

 

Civil Aviation Safety Authority