Explanatory Statement
Civil Aviation Regulations 1988
CASA 28/18 – Flight Time Limitations for Helicopter Mustering Operations – Direction 2018
Purpose
The purpose of the instrument is to continue to provide uniform fatigue risk management rules for operators of helicopters engaged in mustering operations. These rules apply as an alternative to the rules set out in Civil Aviation Order 48.1 Instrument 2013 (CAO 48.1).
The instrument provides this alternative while CASA determines and implements its response to an independent review of the new fatigue management rules in CAO 48.1. The final report of the review was published on the CASA website on 21 March 2018 (Independent Review of Aviation Fatigue Rules for Operators and Pilots (Civil Aviation Order [CAO] 48.1 Instrument 2013, Final Report).
With minor drafting improvements, the instrument essentially has the effect of continuing the rules that were contained in instrument CASA 40/17, which expired at the end of 30 April 2018. The new direction is modified so that it will continue, until 30 November 2020, the fatigue risk management regime for helicopter mustering pilots as provided by the previous direction. It is expected that by 30 November 2020 the direction will become redundant because CASA will have implemented its response to the recommendations of the independent review. The independent review has recommended a staged implementation of its recommendations and it is likely that new rules for helicopter mustering would take effect in or around 2020.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations.
Regulation 210A of the Civil Aviation Regulations 1988 (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 in reserve that may be undertaken by a flight crew member, 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.
Instrument
This direction has been issued under regulation 210A of CAR. It provides a uniform set of rules applicable to operators engaged in helicopter mustering operations. It provides an alternative to the standard limitations and requirements in CAO 48.1 and will apply to any operator who notifies CASA, in writing, that he or she wishes to comply with it.
A transitional provision allows for the continuation of the interim rules in relation to relevant helicopter mustering operators who have already notified CASA under the predecessor instruments mentioned below.
The instrument deals with the maximum number of hours that a pilot may fly in any given period and the duty-free periods that a pilot is required to have. It also deals with the circumstances in which a pilot must not fly, or in which an operator must not require a pilot to fly. It also requires the accurate recording of flight time and duty time and of helicopter flying time.
The instrument sets out 2 sets of flight time limitations, depending on whether the pilot in question is an entry-level pilot or an experienced pilot. All pilots must hold an approval to engage in helicopter mustering operations or be undergoing training to obtain that approval. An experienced pilot is one who has a minimum of 500 flying hours in helicopter mustering operations as pilot in command or acting in command under supervision.
The instrument provides for a pilot to have a minimum number of duty-free days in each 16 day period, and not to exceed the maximum number of flight hours provided for any of the specified periods. In addition, a pilot must not fly, or be required to fly, in a mustering operation if unfit for duty because of fatigue, illness or injury, or for any other reason.
This instrument, in effect, replicates CASA 40/17 which was itself a modified version of CASA 37/16 and CASA 98/14. In the period between 2014 and 2017, CASA developed a comprehensive set of fatigue risk management rules. However, in 2017, it was considered appropriate that these rules be examined by an independent review panel. The review report was published on 21 March 2018 and between that date and 2020, CASA will develop, promulgate and implement, in stages, its response to the review. The transition timeline for those stages has yet to be determined with a view to making relevant legislative amendments to CAO 48.1. Given the likely staged approach to implementation, the mustering direction must remain in force until the new rules apply to helicopter mustering in or around 2020.
The instrument refers to Part 48.0 of the Civil Aviation Orders, the Civil Aviation Order 48.1 Amendment Instrument 2013 (No. 1), CAO 48.1 and Civil Aviation Order 29.10. By virtue of section 10 of the Acts Interpretation Act 1901 and section 13 of the Legislation Act 2003, these legislative instruments are referenced as in force from time to time. The instruments are all freely available on the Federal Register of Legislation.
Legislative instrument
Paragraph 98 (5A) (a) of the Act provides that the regulations may empower CASA to issue instruments in relation matters affecting the safe navigation and operation, or the maintenance, of aircraft. Subsection 98 (5AA) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if it applies to a class of persons, class of aircraft or class of aeronautical products. The instrument applies to a class of persons, that is, persons operating a helicopter for mustering operations and is, therefore, a legislative instrument.
Consultation
Consultation under section 17 of the Legislation Act 2003 (the LA) took place with helicopter mustering industry operators regarding the content of the original instrument CASA 98/14. The interim flight time and duty limitations continue to be appropriate pending CASA’s implementation of the recommendations of the review report. 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 on what is the effective reissue of the expired direction instrument.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for a Direction (OBPR id: 14507).
Making and commencement
The exemption has been made by a delegate of CASA appointed by the Director of Aviation under the power of delegation in subregulation 11.260 (1) of the Civil Aviation Safety Regulations 1998.
The instrument commences on 1 May 2018 and is repealed at the end of 30 November 2020.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA 28/18 – Flight Time Limitations for Helicopter Mustering Operations – Direction 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.
Purpose
The purpose of the instrument is to continue to provide uniform fatigue risk management rules for operators of helicopters engaged in mustering operations, as an alternative to the rules set out in Civil Aviation Order 48.1 Instrument 2013.
The instrument provides this alternative while CASA determines and implements its response to an independent review of the new fatigue management rules in Civil Aviation Order 48.1 Instrument 2013. The final report of the review was published on the CASA website on 21 March 2018 (Independent Review of Aviation Fatigue Rules for Operators and Pilots (Civil Aviation Order [CAO] 48.1 Instrument 2013, Final Report).
The instrument is, in effect, a reissue of instrument CASA 40/17, which expired at the end of 30 April 2018. The new direction is modified so that it will continue, until 30 November 2020, the fatigue risk management regime for mustering pilots as provided by the previous direction. It is expected that by 30 November 2020 the direction will become redundant because CASA will have implemented its response to the recommendations of the independent review. The independent review has recommended a staged implementation of the future new rules and it is likely that new rules for mustering will take effect in or around 2020.
Human rights implications
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. The instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority