Explanatory Statement
Civil Aviation Safety Regulations 1998
Approval — to conduct flight tests for, and to grant, sling operation endorsements and winch and rappelling operation endorsements
Purpose
This instrument allows persons who were, before 1 September 2014, approved to certify pilots for sling load endorsements (helicopter) under Civil Aviation Order 29.6 (CAO 29.6), or to certify pilots for winching and rappelling endorsements (helicopter) under Civil Aviation Order 29.11 (CAO 29.11), to continue exercising their privileges as approved persons under regulation 61.040 of the Civil Aviation Safety Regulations 1998 (CASR 1998) to conduct flight tests for, and to grant, equivalent endorsements under Part 61 of CASR 1998.
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation. Subsection 98 (5A) of the Act provides that the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation of aircraft.
Civil Aviation Order 29.6
CAO 29.6, before being amended by Schedule 7 of the Civil Aviation Order (Flight Crew Licensing) Repeal and Amendment Instrument 2014 (No. 1) (the Amendment Instrument), dealt with the conduct of helicopter external sling load operations.
Paragraph 3.1 of CAO 29.6 provided that a pilot shall not engage in sling load operations unless he or she has carried out a course of training, has been certified by an approved person, and has his or her licence endorsed accordingly.
Paragraph 3.2 of CAO 29.6 described 4 kinds of approved persons, being:
- for a company which has an approved check and training organisation — a company check and training pilot who has demonstrated his or her proficiency to CASA to impart sling load operation training
- for a company which does not have a check and training organisation — the chief pilot or another pilot who has demonstrated his or her proficiency to CASA to impart sling load operation training
- the holder of a helicopter flight instructor rating who also has a sling load endorsement
- an officer approved in writing for the purposes of paragraph 3.2.
Paragraph 3.3 of CAO 29.6 provided that, where a pilot has “satisfactorily demonstrated his or her ability to conduct sling load operations to an approved person”, the approved person shall certify accordingly in the form specified at Appendix I (Certificate of Competency). Paragraph 3.4 of CAO 29.6 provided that the issue of a certificate will allow the certificate holder to engage in sling load operations.
Civil Aviation Order 29.11
CAO 29.11, before being amended by Schedule 9 of the Amendment Instrument, dealt with the conduct of helicopter winching and rappelling operations.
Paragraph 9.1 of CAO 29.11 provided that a pilot may not act as part of the flight crew of a helicopter engaged in winching and/or rappelling operations unless he or she has satisfactorily completed a course of training for the winching or rappelling operations, and holds a certificate issued by an approved person.
Paragraph 9.2 of CAO 29.11 described 4 kinds of approved persons, being:
- for a company which has an approved check and training organisation — a company check and training pilot who has demonstrated to CASA his or her proficiency to impart appropriate winching and/or rappelling operational training
- for a company which does not have a check and training organisation — the chief pilot or another pilot who has demonstrated to CASA his or her proficiency to impart the appropriate winching and/or rappelling operational training
- the holder of a helicopter flight instructor rating who has the appropriate winching and/or rappelling endorsement
- an officer approved for the purposes of paragraph 9.2.
Paragraph 9.3 of CAO 29.11 provided that where a pilot has “satisfactorily demonstrated his/her ability to conduct winching operations to an approved person”, the person shall certify that a pilot has demonstrated his or her ability to conduct winching operations in accordance with Appendix I. Paragraph 9.4 of CAO 29.11 similarly provided that where a pilot has “satisfactorily demonstrated his/her ability to conduct rappelling operations to an approved person”, the person shall certify that a pilot has demonstrated his or her ability to conduct rappelling operations in accordance with the format specified at Appendix II.
Part 61
On 1 September 2014, the Civil Aviation Legislation Amendment (Flight Crew Licensing) Regulation 2014 inserted Part 61 into CASR 1998. Part 61 of CASR 1998 establishes the licensing scheme for pilots and flight engineers of registered aircraft, including flight testing. Immediately before the introduction of Part 61, the Amendment Instrument made changes to affected CAOs, including CAO 29.6 and CAO 29.11.
Regulation 61.245 of CASR 1998 provides, among other things, that a flight test for a flight crew licence, rating or endorsement must be conducted by an examiner or the holder of an approval under regulation 61.040 of CASR 1998 to conduct the flight test.
After the commencement of Part 61, a person who previously held an “old authorisation” within the meaning of regulation 202.261 of CASR 1998 was transitioned to hold an equivalent authorisation under Part 61, according to the terms and expiry date of the old authorisation. For example, persons who were transitioned included approved persons under section 10 of Civil Aviation Order 40.6 (CAO 40.6), who could, on and after 1 September 2014, continue conducting flight tests for applicants for aerial application (helicopter) ratings and to grant those ratings (formerly agricultural pilot (helicopter) ratings) until the natural expiry of their approval under CAO 40.6.
While the transitional arrangements apply to functions, ratings and endorsements that have comparable equivalents in Part 61, there are ambiguities around whether some functions previously conferred on approved persons would continue to be conferred under Part 61 provisions. Under paragraph 3.3 of CAO 29.6 and paragraphs 9.3 and 9.4 of CAO 29.11, an approved person has the function of assessing the “satisfactory demonstration” of a pilot’s ability to conduct sling load operations or winching or rappelling operations before certifying the pilot accordingly. It is unclear whether “satisfactory demonstration” has the same meaning as a “flight test”, and therefore it is unclear whether persons approved under CAO 29.6 and CAO 29.11 can take advantage of the transitional arrangements. After receiving feedback from industry, to avoid doubt CASA considers that it is appropriate, with adequate safeguards, to issue an approval under regulation 61.040 to allow approved persons under CAO 29.6 and CAO 29.11 to continue functions equivalent to those performed under CAO 29.6 and CAO 29.11 before the enactment of the Amendment Instrument.
Subregulation 61.040 (1) of CASR 1998 provides that if a provision in Part 61 refers to a person or organisation holding an approval, the person or organisation may apply to CASA for the approval. Subregulation 61.040 (2) provides that, among other things, CASA must grant the approval if the applicant meets the requirements (if any) for the approval mentioned in the Part 61 provision.
Subregulation 61.150 (7) of CASR 1998 empowers the holder of an approval under regulation 61.040 to issue a flight crew rating or a flight crew endorsement. Table 61.1075 sets out the kinds of low-level endorsements for licences and aircraft ratings that may be tested and issued by the holder of a regulation 61.040 approval. A sling operations endorsement and a winch and rappelling operations endorsement are mentioned in Table 61.1075.
Instrument
CASA 47/15 is an instrument of approval under regulation 61.040 that gives the holders of approvals under CAO 29.6 or CAO 29.11 6 the right to conduct flight tests for endorsements under Part 61 of CASR 1998, and to issue endorsements under Part 61 of CASR 1998, that are equivalent to the holders’ previous approvals under paragraph 3.2 of CAO 29.6 or subsection 9 of CAO 29.11.
For paragraph 3.2 of CAO 29.6, the equivalent endorsement is a sling operations endorsement mentioned at Item 8 of Table 61.1075. For subsection 9 of CAO 29.11, the equivalent endorsement is a winch and rappelling operations endorsement mentioned at Item 9 of Table 61.1075.
The approval is subject to conditions under regulation 11.056 of CASR 1998. Among these conditions, an approved helicopter training pilot must register with the CASA Flight Test Notification System, and comply with the obligations applicable to the holder of a flight examiner rating under Division 61.U.2 of CASR 1998 as if he or she were a flight examiner. An approved helicopter training pilot must also successfully complete a course of training as described, no later than 18 months after the date of commencement of this instrument.
The instrument enables the holder of an approval under CAO 29.6 or CAO 29.11 to continue to exercise his or her equivalent Part 61 powers, subject to successful completion of an instructor rating proficiency check in accordance with regulation 61.1180 of CASR 1998.
Legislative Instruments Act 2003 (the LIA)
Subsection 5 (1) of the LIA defines a legislative instrument as an instrument in writing that is of a legislative character and that is or was made in exercise of a power delegated by the Parliament. Subsection 5 (2) states, without limiting the generality of subsection 5 (1), that an instrument is taken to be of a legislative character if it: determines the law or alters the content of the law rather than applying the law in a particular case; and it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right or varying or removing an obligation or right.
There are competing views as to whether CASA 47/15 is of a legislative character, since the law – that is, the power for CASA to issue an approval under regulation 61.040 of CASR 1998 – has not been altered. On the other hand, the instrument is creating a right for a class of persons who no longer hold the privilege, under CAOs which are now amended, to continue conducting flight tests for, and to grant, ratings and endorsements under Part 61 of CASR 1998.
Subsection 5 (3) of the LIA states that an instrument that is registered is taken, by virtue of that registration and despite anything else in the LIA, to be a legislative instrument. To avoid doubt, CASA has decided to register this instrument so that, by virtue of its registration, it is a legislative instrument. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
CASA has received feedback from industry on the operation of the new Part 61 provisions. CASA considers that it is appropriate, in this case, to issue CASA 47/15 under regulation 61.040 of CASR 1998 so that approved helicopter training pilots may continue to perform functions equivalent to those they performed under CAO 29.6 or CAO 29.11. It is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument commences on the day of registration and expires at the end of August 2017, as if it had been repealed by another instrument.
[Instrument number CASA 47/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Approval — to conduct flight tests for, and to grant, sling operation endorsements and winch and rappelling operation endorsements
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 legislative instrument approves holders of approvals under Civil Aviation Order (CAO) 29.6 or CAO 29.11, as in force immediately before 1 September 2014, to conduct equivalent flight testing, and to grant equivalent authorisations, for sling operations endorsements (helicopter) and winch and rappelling operations endorsements (helicopter), mentioned in Part 61 of the Civil Aviation Safety Regulations 1998.
The approval is subject to conditions imposed by CASA in the interest of aviation safety.
Human rights implications
This legislative 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