Explanatory Statement
Civil Aviation Safety Regulations 1998
Conditions on authorisations — flight crew licences and aircraft endorsements (Edition 2)
Legislation
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. Under subsection 98 (5A) of the Act, the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft.
Regulation 11.068 of the Civil Aviation Safety Regulations 1998 (CASR) allows CASA, for subsection 98 (5A) of the Act, to issue a legislative instrument that imposes a condition relating to a matter mentioned in that subsection on a specified class of authorisations. Authorisations include flight crew licences, ratings and endorsements.
Flight crew licences
Part 61, including regulation 61.415, of CASR commenced on 1 September 2014. It sets out the licensing scheme for pilots of registered aircraft, including requirements for the grant of flight crew licences, ratings and endorsements.
Limited category aircraft are aircraft mentioned in regulation 21.189 of CASR and include aircraft such as ex-armed forces aircraft, replica aircraft and historic aircraft.
Subparagraph 262AM (7) (a) (i) of the Civil Aviation Regulations 1988 (CAR) allowed a person to carry passengers in a limited category aircraft in circumstances where payment was made for carriage (other than a cost sharing flight) only if the pilot in command held a commercial pilot licence (CPL) or air transport pilot licence (ATPL), with appropriate flight crew ratings and endorsements for a flight of that kind.
Medical certificates
Before the commencement of Part 61 of CASR, regulation 5.04 of CAR required that, without the permission of CASA, the holder of a CPL or an ATPL must not perform a duty authorised by the licence if the person did not hold a current class 1 medical certificate.
Under subregulation 61.415 (1) of CASR, the holder of a CPL or an ATPL is authorised to exercise the privileges of the licence only if the holder also holds a current class 1 medical certificate or an exemption. However, under subregulation 61.415 (2) of CASR, the holder of a CPL or an ATPL is also authorised to exercise the privileges of the licence in an activity that would be authorised by a private pilot licence if the holder also holds a current class 2 medical certificate.
The Civil Aviation Legislation Amendment (Part 132) Regulation 2016 (the Amendment Regulation) commenced on 28 January 2017. Amongst other things, the Amendment Regulation repealed regulation 262AM of CAR and inserted a new Part 132 of CASR relating to limited category aircraft. Part 132 includes requirements relating to adventure flights, which are flights of a limited category aircraft on which a passenger is carried, and that is conducted for hire or reward, or publicly available.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Instrument
Conditions on authorisations — flight crew licences and aircraft endorsements (Edition 1) [F2015L00014] (Edition 1), is a legislative instrument that imposes conditions on various flight crew licences and ratings.
The requirement previously in subparagraph 262AM (7) (a) (i) of CAR is not currently reflected in Part 61 of CASR or the new Part 132 of CASR. However, it remains CASA policy that the pilot in command of an adventure flight must hold a CPL or an ATPL, with appropriate flight crew ratings and endorsements for a flight of that kind. The pilot should also hold a current class 1 medical certificate, which is required for the exercise of the privileges of those licences.
CASA 07/17 – Conditions on authorisations – flight crew licences and aircraft endorsements (Edition 2) (the instrument) repeals and replaces Edition 1, with the addition of section 9 of the instrument applicable to holders of a pilot licence who conduct adventure flights. Section 9 of the instrument will provide that it is a condition on a pilot licence that the holder of the pilot licence must not conduct an adventure flight of a limited category aircraft as pilot in command unless the holder holds a CPL or an ATPL, with appropriate flight crew ratings and endorsements for a flight of that kind, and a current class 1 medical certificate.
As adventure flights are private operations, in the absence of the conditions in section 9 of this instrument, it may be possible for a pilot with only a private pilot licence or only a class 2 medical certificate to conduct an adventure flight as pilot in command. This would be contrary to current practice and the interests of the safety of air navigation.
Other provisions in the instrument are substantially the same as in Edition 1. Further explanation of those other provisions can be found in the explanatory statement for Edition 1, which is available at: https://www.legislation.gov.au/Details/F2015L00014/Explanatory%20Statement/Text
Legislation Act 2003 (the LA)
Under subsection 8 (2) of the LA, if a primary law (such as a regulation made under an Act) gives power to do something by legislative instrument, then, if the thing is done, it must be done by instrument and that instrument is a legislative instrument. This instrument is made under regulation 11.068 of CASR, which provides that CASA may issue a legislative instrument that imposes a condition relating to a matter mentioned in subsection 98 (5A) of the Act on a specified class of authorisations.
Also, under subsection 98 (5AA) of the Act, an instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if it is expressed to apply to a class of persons or aircraft. The instrument applies to classes of persons, being the holders of various flight crew licences, ratings and endorsements.
The instrument is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
In accordance with section 17 of the LA, CASA developed the Amendment Regulation in consultation with operators of limited category aircraft. The main methods of consultation during the regulatory development phase were via email communication with individuals and the executive of the Australian Warbirds Association Ltd (AWAL), which is the key industry stakeholder for matters relating to the operation of limited category aircraft.
CASA representatives also attended general meetings of AWAL for updates and discussions with the membership and the board of management.
Additionally, CASA published a draft Part 132 for public consultation in February 2015 allowing 8 weeks for public comment. All matters raised during this consultation period were addressed in the final Regulation and further consultation with AWAL confirmed that the matters had been satisfactorily resolved.
CASA also consulted AWAL about this instrument. AWAL supports the continuation of the requirements contained in new section 9 of the instrument. Those requirements have been in force for a considerable period of time and are accepted as necessary by the aviation industry. In addition, section 9 simply retains the previous requirement under subregulation 262AM of CAR.
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 (the OBPR)
The OBPR assessed that the Amendment Regulation will have minor impacts and that no further analysis in the form of a Regulation Impact Statement was required (OBPR reference 18640). The instrument repeals Edition 1 and remakes the same substantive provisions, with a new condition in section 9 that maintains a regulatory requirement and is consequential to the making of the Amendment Regulation. The OBPR assessment of the Amendment Regulation was made on the basis that there would be no change to the pilot licensing requirements for adventure flights. Therefore, this instrument is within the scope of the OBPR assessment that was conducted for the Amendment Regulation.
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation under regulation 11.260 of CASR.
The instrument commences on the day of registration.
[Instrument number CASA 07/17]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Conditions on authorisations — flight crew licences and aircraft endorsements (Edition 2)
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
This legislative instrument replaces Conditions on authorisations — flight crew licences and aircraft endorsements (Edition 1) [F2015L00014] (Edition 1), which imposes conditions on various flight crew licences and ratings granted under the Civil Aviation Safety Regulations 1998 (CASR).
An adventure flight of a limited category aircraft is a flight on which a passenger is carried, and that is conducted for hire or reward, or publicly available. Limited category aircraft are aircraft mentioned in regulation 21.189 of CASR and include aircraft such as ex-armed forces, replica and historic aircraft.
This legislative instrument includes a condition on pilot licences that the holder of the licence must not conduct an adventure flight of a limited category aircraft as pilot in command unless the holder holds a commercial pilot licence (CPL) or an air transport pilot licence (ATPL), with appropriate flight crew ratings and endorsements for a flight of that kind, and a current class 1 medical certificate.
On 28 January 2017, the Civil Aviation Legislation Amendment (Part 132) Regulation 2016 (the Amendment Regulation) repealed regulation 262AM of the Civil Aviation Regulations 1988 (CAR) and inserted a new Part 132 of CASR. Part 132 relates to limited category aircraft and includes requirements relating to adventure flights.
New section 9 of this legislative instrument saves the requirement that the pilot in command of an adventure flight of a limited category aircraft must hold a CPL or an ATPL. This requirement was previously in subparagraph 262AM (7) (a) (i) of CAR, which was repealed by the Amendment Regulation.
As adventure flights are private operations, in the absence of the conditions in section 9 of this instrument, it may be possible for a pilot with only a private pilot licence or only a class 2 medical certificate to conduct an adventure flight of a limited category aircraft as pilot in command. This would be contrary to current practice and the interests of safety of air navigation.
Other sections in the legislative instrument are substantially the same as in Edition 1.
Human rights implications
This legislative instrument engages the right to work and rights of work under Articles 6(1) and 7 of the International Covenant on Economic, Social and Cultural Rights, which includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept.
These rights are engaged by section 9 of the legislative instrument, which requires a pilot in command of a limited category aircraft conducting an adventure flight to hold a CPL or an ATPL with appropriate flight crew ratings and endorsements for a flight of that kind, and a current class 1 medical certificate.
These requirements are necessary in order to ensure that a person who pays for a flight in a limited category aircraft is being flown by a pilot with suitable qualifications and experience. They also promote a safe working environment for crew on the aircraft.
Accordingly, any potential limitations on the right to work are necessary, reasonable and proportionate in achieving the aim of improving aviation safety.
This legislative instrument does not otherwise engage any of the applicable rights or freedoms.
Conclusion
The legislative instrument is compatible with human rights and to the extent that it may also limit human rights, those limitations are reasonable and proportionate in order to ensure the safety of aviation operations.
Civil Aviation Safety Authority