Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Helicopter aircrew member — authorisation, exemption and directions
Purpose
The purpose of this instrument is to provide regulatory authority for persons who are aircrew members to occupy the control seat of a helicopter in flight, and to perform specified duties in relation to the flight, for the purpose of subsection 20AB (1) of the Civil Aviation Act 1988 (the Act) and the regulations.
Legislation
Under subsection 9 (1) of the Act, CASA has the function of conducting the safety regulation of civil air operations.
Subsection 20AB (1) of the Act makes it an offence for any person to perform a duty that is essential to the operation of an Australian aircraft during flight time unless the person holds a civil aviation authorisation that authorises performance of that duty or the person is authorised by or under the regulations to perform that duty without a civil aviation authorisation.
Section 98 of the Act empowers the Governor-General to make regulations for the Act.
Subregulation 226 (1) of the Civil Aviation Regulation 1988 (CAR 1988) permits a person to occupy the control seat of an aircraft equipped with fully or partially functioning dual controls if the person is, among other things, authorised by CASA. Subregulation 226 (2) provides that an authorisation may be granted subject to conditions imposed in the interests of safety. Subregulation 226 (3) makes it an offence for a person to contravene a condition on an authorisation.
Subregulation 227 (2) of CAR 1988 operates to prohibit a person to occupy the pilot seat or other operating crew position of an aircraft unless the person is, among other things, a member of the operating crew assigned for duty in the aircraft and is licensed for the duties associated with the seat or position.
Under subregulation 11.160 (1) of the Civil Aviation Safety Regulation 1998 (CASR 1998), CASA may grant an exemption from compliance with a provision of CAR 1988 or CASR 1998. Under regulation 11.160, CASA may grant an exemption of its own initiative. Under subregulation 11.170 (3), in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety. Under subregulation 11.205 (1), CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.210, it is an offence to fail to comply with a condition of an exemption.
Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement) or, if no day is specified, 3 years after commencement.
Background
Aircrew members are persons not licensed to perform flight crew duties who perform operational functions during flight in operations such as helicopter search and rescue (SAR), emergency medical services, and law enforcement. Activities of aircrew members include operation of aircraft doors, winching operations, providing positioning information during hover operations, providing obstacle-related information in low hover operations, and providing search pattern information during SAR operations.
Elements of the aviation industry have identified further contributions that aircrew members can make to the safety of helicopter operations mentioned above. Further, CASA has endorsed a certificate IV training course provided by Government-approved training organisations. These factors have facilitated the development of a safety case for an aircrew member role in the cockpit that bears similarities with 2 pilot operations in a multi-crew co-operation type environment.
Accordingly, CASA has decided to issue an instrument that creates a regulatory path for aircrew members to perform a wider range of roles in control or pilot seats of helicopters that reflect the competencies of the certificate IV course, subject to limitations that ensure that the aircrew member role does not adversely affect safety.
The instrument
The instrument will apply to an aircrew member, as that term is defined in Civil Aviation Order 82.6 (Night vision imaging system — helicopters) 2007, who is assigned by the holder of an AOC (the operator) to occupy a control seat of a helicopter equipped with fully or partially functioning dual controls. The instrument will also apply to an operator of aircraft that assigns an aircrew member to occupy a control seat equipped with fully or partially functioning dual controls. A control seat of a helicopter is equipped with partially functioning dual controls by way of the instrumentation and other controls accessible from the control seat even if the cyclic and collective controls and pedals have been removed or deactivated.
For subregulation 226 (1) of CAR 1988, the aircrew member is authorised to occupy the control seat, and for subregulation 227 (2) the aircraft member is exempted from the requirement to be licensed for the aircrew member duties.
The authorisation and exemption are expressed to be subject to conditions specified in the instrument. The conditions:
(a) limit the duties that may be performed by the aircrew member while occupying the control seat, and prohibit the aircrew member from acting as pilot of the helicopter or transmitting on the radio except in accordance with regulation 83 of CAR 1988; and
(b) require the aircrew member to comply with the operator’s training requirements, including the requirements of any applicable training and checking organisation provided for regulation 217 of CAR 1988; and
(c) require, after a period 3 years from the date the instrument commences, the aircrew member to hold specified qualifications in relation to aircrew member competency.
CASA is satisfied that, in all the circumstances:
(a) in relation to the authorisation — the conditions are in the interests of the safety of air navigation for subregulation 11.056 (1) of CASR 1998; and
(b) in relation to the exemption — an acceptable level of safety will be preserved through imposition of the conditions mentioned in the instrument for subregulation 11.170 (3) of CASR 1998.
The instrument also directs the operator, for subregulation 215 (3) of CAR 1988, to make amendments to the operator’s operations manual to ensure that the operator’s personnel are aware of the requirements of the instrument and so that operations in which aircrew members perform the duties mentioned in the instrument can be conducted safely.
Legislation Act
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument for the purpose of the Legislation Act 2003 (the LA) if the instrument is expressed to apply to a class of persons.
The exemption in the instrument is granted for subsection 98 (5A) of the Act and applies to a class of person. The instrument is, therefore, a legislative instrument subject to tabling and disallowance in Parliament under sections 38 and 42 of the LA.
In addition, subsection 8 (4) of the LA provides that certain instruments that determine the law or alter the content of the law are legislative instruments. The instrument is also a legislative instrument because it alters circumstances where specified people can occupy a control seat fitted with fully or partially functioning dual controls.
Consultation
CASA has consulted with industry and helicopter manufacturers in relation to the mechanisms in the instrument. Consultation with operators includes an industry briefing in July 2016 and a letter to operators about the measures proposed in the instrument sent in early December 2016. From these consultations, CASA infers that there is operator support for the measures in the instrument.
Helicopter manufacturers identified an issue with the movement of aircrew members from the control seat to the helicopter cabin. These issues are still under consideration by relevant helicopter manufacturers. CASA has advised helicopter operators that they must:
(a) comply with helicopter flight manual requirements; or
(b) obtain a written “no technical objection” from either the helicopter manufacturer or, where applicable, the holder of a supplemental type certificate covering relevant modifications to the cockpit or cabin.
In these circumstances, and in the context of providing the safety benefit of permitting appropriately qualified aircrew members to perform the control seat duties mentioned in the instrument, CASA is of the view that further consultation in relation to the instrument is neither necessary nor appropriate.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
The exemption would benefit those who voluntarily wish to adopt it and comply with its conditions. OBPR does not require preparation of a Regulation Impact Statement in this case because a preliminary assessment of business compliance costs in the context of the nature of the instrument indicates that it will have only a nil to low negative impact on business.
Making and commencement
The exemption has been made by the Acting Director of Aviation Safety, on behalf of CASA.
The exemption commences on the day after registration on the Federal Register of Legislation and is repealed at the end of 30 November 2019.
[Instrument number CASA 132/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Helicopter aircrew member — authorisation, and exemption and directions
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 instrument is to provide regulatory authority for persons who are aircrew members to occupy the control seat of a helicopter in flight, and to perform specified duties in relation to the flight, for the purpose of subsection 20AB (1) of the Civil Aviation Act 1988 (the Act) and the regulations. The instrument will authorise an aircrew member to occupy the control seat of a helicopter that is fitted with fully or partially functioning dual controls to perform duties that assist the pilot to conduct the operation safely, and provide an exemption against a requirement that a person occupying such a seat be licensed.
The authorisation and exemption are subject to conditions specified in the instrument that mitigate risks associated with unlicensed persons occupying a control seat equipped with dual controls. Those conditions limit the duties that may be performed and prohibit an air crew member from acting as pilot. The conditions also require the aircrew member to meet training requirements.
The instrument also directs an operator who assigns an aircrew member to occupy a control seat equipped with dual controls to amend its operations manual, so that it provides appropriate information to the operator’s personnel for the aircrew member role to be performed safely.
Human rights implications
The legislative instrument potentially engages with the right to work insofar as a person is required to meet training requirements before acting as an aircrew member.
The instrument provides a permitted limitation on the right to work: ensuring that persons are competent to occupy a control seat fitted with dual controls and to perform the duties mentioned in the instrument during flight time is a reasonable, necessary and proportionate measure to promote the safety of aviation activities.
The limitation also promotes the right in work of other persons working on board a helicopter in which an aircrew member is performing duties. The limitation promotes a safe work environment that is not compromised by a person occupying a control seat who is not appropriately trained.
Conclusion
This legislative instrument is compatible with the listed human rights.
Civil Aviation Safety Authority