Explanatory Statement
Civil Aviation Regulations 1988
CASA 50/22 — CASA 41/01 Repeal Instrument 2022
Purpose
The purpose of CASA 50/22 — CASA 41/01 Repeal Instrument 2022 (the repeal instrument) is to repeal instrument number CASA 41/01 (the original instrument). The original instrument, made on 25 January 2001, authorised Ross Alexander Howard (the instrument holder) to fly additional hours to those permitted at the time under section 48.1 of the Civil Aviation Orders (the CAOs).
Legislation
Section 98 of the Civil Aviation Act 1988 (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 the Civil Aviation Regulations 1988 (CAR).
Legislation applying at the time the original instrument was made
Regulation 5.55 of CAR (repealed in 2014) enabled the Civil Aviation Safety Authority (CASA), amongst other things, to give directions to the holder of a flight crew licence about the number of hours that the holder may fly in any period as a member of the flight crew of an aircraft. With the transfer of most of Part 5 of CAR to Part 61 of the Civil Aviation Safety Regulations 1998 (CASR) in 2014, regulation 5.55 was repealed and its substance (in slightly modified form) moved to where it is now, at regulation 210A of CAR.
CAO 48.1 (made under regulation 5.55 of CAR) provided, amongst other things, in paragraphs 1.14, 1.15 and 1.16, that a pilot must not fly as a flight crew member more than 900 hours in 365 consecutive days, 100 hours in 30 consecutive days and 30 hours in 7 consecutive days. Under paragraph 1.3 of section 48.0 of the CAOs, any flight time clocked in the course of private operations was to be counted in computing the total number of hours flown by a pilot.
The original instrument (also made under regulation 5.55 of CAR) authorised the instrument holder to fly, in addition to the number of hours authorised under CAO 48.1, 50 hours in any period of 365 days, 5 hours in any period of 30 consecutive days and 3 hours in any period of 7 consecutive days, provided the flights were undertaken in an aircraft with a maximum take‑off weight of less than 5 700 kg and in private operations.
Regulation 5A of CAR (now repealed) provided, at the time, that if CASA issues directions by way of a CAO and later issues directions, not included in a CAO, that in any way affects the operation of the earlier directions, the latter document is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 (the AIA) (section 46A is also now repealed). The original instrument altered the effect of CAO 48.1 and was required to be a disallowable instrument. The disallowable instrument later became a legislative instrument under transitional legislation associated with the making of the Legislation Act 2003 (the LA).
Current legislation
When regulation 5.55 of CAR was repealed and redesignated (with minor amendments) as regulation 210A of CAR, regulation 335 of CAR was enacted to continue CAOs made under regulation 5.55 as if they were made under 210A of CAR, thereby expressly preserving the head of power for CAO 48.1. Similarly, the original instrument is continued as an instrument under paragraph 210A (1) (a) of CAR by virtue of the following provisions:
- paragraph 10 (c) of the AIA (which provides that references to a repealed provision of an Act extend to any corresponding re-enacted provision, whether or not the re‑enacted provision has the same number as the repealed provision)
- paragraph 13 (1) (a) of the LA (which applies the AIA to legislative instruments as if they were Acts and as if each provision of the instrument were a section of an Act).
Regulation 210A of CAR gives CASA the power to give directions to a licence holder or an aircraft operator about matters including, relevantly, at paragraph (1) (a), the number of hours that a licence holder may fly in any period as a member of the flight crew of an aircraft. It does not expressly provide for a power to repeal such directions, but it includes that power in accordance with subsection 33 (3) of the AIA.
Subsection 33 (3) of the AIA provides that where an instrument 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.
Paragraph 10 (1) (d) of the LA provides that an instrument will be a legislative instrument if it includes a provision that amends or repeals another legislative instrument. The repeal instrument repeals the original instrument which is a legislative instrument and is, therefore, also a legislative instrument. It is subject to registration on the Federal Register of Legislation (FRL) and tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Background
The original instrument was made on 25 January 2001 at a time when the licensing of pilots and their conditions of flying were governed by CAR and the CAOs — before the promulgation of Part 61 of CASR. The Legislation section above discusses the legislative landscape in which the original instrument was made.
The original instrument authorised the instrument holder to fly additional hours to those permitted under CAO 48.1. The instrument holder was a Qantas pilot and the instrument authorised him to fly the additional hours in private operations (including as a pilot member of the Historical Aircraft Restoration Society or when holidaying with his family), provided the hours were flown in an aircraft with a maximum take-off weight of less than 5 700 kg.
The original instrument did not provide for a repeal date and has, until now, remained on the FRL as “in force”. The instrument holder’s circumstances are such that the instrument is no longer needed.
Content of amending instrument
Section 1 sets out the name of the instrument: CASA 50/22 — CASA 41/01 Repeal Instrument 2022.
Section 2 provides that the instrument commences on the day after it is registered. A note at the foot of section 2 explains that the instrument itself will be automatically repealed in accordance with section 48A of the LA.
Section 3 provides that instrument number CASA 41/01 (assigned the FRL number F2005B00565) is repealed. A note at the foot of that section gives the background to the instrument being repealed.
Sunsetting
As the repeal instrument relates to aviation safety and is made under CAR, 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). In this case, the repeal instrument repeals the original instrument and is almost immediately spent. It is repealed in accordance with the automatic repeal provisions in section 48A of the LA. Therefore, the exemption from sunsetting does not affect parliamentary oversight of the repealing instrument.
Consultation
Consultation was undertaken with the instrument holder regarding the repeal of the instrument. The instrument holder has consented to the repeal. In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for the amending 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 repeal instrument has the effect of repealing an instrument that is no longer needed or being used there will be no change of economic or cost impact on individuals, businesses or the community.
Impact on categories of operations and on regional and remote communities
The effect of the repeal instrument is limited to a single individual and as such does not impact categories of operations or regional and remote communities.
Office of Best Practice Regulation (OBPR)
The repeal instrument repeals a direction to an individual and is minor or machinery in nature. Its issue is required in the course of the administration of the Act and regulations by CASA. Such instruments are excluded from the requirement for a Regulation Impact Statement under a standing agreement between CASA and OBPR (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. The repeal instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Making and commencement
The repeal instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The repeal instrument commences on the day after it is registered and is automatically repealed in accordance with section 48A of the LA.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA 50/22 — CASA 41/01 Repeal Instrument 2022
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 repeals instrument number CASA 41/01 (the original instrument). The original instrument was made on 25 January 2001 as a disallowable (later legislative) instrument (made under now-repealed paragraph 5.55 (1) (a) of the Civil Aviation Regulations 1988). It authorised the individual, Ross Alexander Howard (the instrument holder), to fly additional hours than otherwise permitted under Civil Aviation Order 48.1.
The instrument holder was a Qantas pilot and the instrument authorised him to fly the additional hours in private operations, provided the hours were flown in an aircraft with a maximum take-off weight of less than 5 700 kg.
The original instrument did not provide for a repeal date and has, until now, remained on the Federal Register of Legislation as “in force”. The instrument holder’s circumstances are such that the instrument is no longer needed and he has consented to its repeal.
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