Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
CASA 67/20 — Relevant Flight Time Limitations for Helicopter Mustering Operations Direction 2020
Purpose
The main purpose of the instrument is to continue to provide uniform fatigue risk management rules for operators of helicopters engaged in mustering operations. Those rules apply as an alternative to the rules set out in Civil Aviation Order 48.1 Instrument 2013 until a transition date as defined in paragraph 5.1 of the Civil Aviation Order 48.1 Instrument 2019 (CAO 48.1 2019).
Apart from some minor drafting improvements and changes to reflect the repeal of the definitions of flight time and flight crew member that were located in subregulation 2 (1) of the Civil Aviation Regulations 1988 (CAR), the instrument has the effect of continuing, until a transition date mentioned in the preceding paragraph, the operation of the fatigue risk management rules for helicopter mustering pilots located in instrument CASA 28/18 – Flight Time Limitations for Helicopter Mustering Operations – Direction 2018 (CASA 28/18), which was repealed at the end of 30 November 2020.
The instrument would also repeal instrument CASA EX54/19 — Civil Aviation Order 48.1 Instrument 2013 (Aerial Application Operations in Aeroplanes) Exemption 2019 (CASA EX54/19). Instrument CASA EX54/19 is no longer required because the substance of that instrument was incorporated into section 11 of CAO 48.1 2019 when it commenced on 2 September 2019.
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 CAR and the Civil Aviation Safety Regulations 1998 (CASR).
CAR
Under subregulation 210A (1) of CAR, the Civil Aviation Safety Authority (CASA) may, in writing, give directions about any of several matters related to the regulation of flight time mentioned in subregulation 210A (1) to an aircraft operator or, relevantly, the holder of a flight crew licence, rating or endorsement (see paragraph (a) of the definition of licence holder in subregulation 210A (5) of CAR).
The matters mentioned in paragraphs 210A (1) (a) to (e) are the following:
(a) the number of hours that a licence holder may fly in any period as a member of the flight crew of an aircraft;
(b) the length of each tour of duty undertaken by a licence holder;
(c) the length of reserve time for a licence holder;
(d) the rest periods that must be taken by a licence holder;
(e) the circumstances in which a licence holder must not:
(i) fly as a member of the flight crew of an aircraft; or
(ii) perform any other duty associated with his or her employment.
The combined effect of subregulations 210A (3) and (4) of CAR is that a person commits an offence of strict liability if CASA gives the person a direction under, relevantly, subregulation 210A (1) and the person does not comply with the direction.
CASR and the Acts Interpretation Act 1901
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from compliance with a provision of a Civil Aviation Order.
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.
Background
The background information about previous instruments in the following paragraph is an updated version of information included in the Explanatory Statement for CASA 28/18.
CASA 28/18, in effect, replicated instrument CASA 40/17, Direction — flight time limitations for helicopter mustering operations (CASA 40/17). CASA 40/17 was itself a modified version of CASA 37/16 and CASA 98/14 (each of which has the same name as CASA 40/17). 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. Between that date and 2020, CASA developed and implemented its response to the review.
Overview of instrument
The instrument is intended to continue to provide alternative uniform fatigue risk management rules to the rules set out in CAO 48.1 for operators of helicopters engaged in mustering operations. The instrument is intended to continue to provide those alternative rules until operators of helicopters engaged in mustering operations are required to transition to CAO 48.1 2019 (on a transition date mentioned in the definition of that term in paragraph 5.1 of CAO 48.1 2019).
CASA has assessed the impact on aviation safety of continuing to provide the alternative uniform fatigue risk management rules mentioned in the preceding paragraph. Because the instrument would, in effect, extend the period of operation of alternative rules of that kind included in CASA 28/18, CASA is satisfied that the instrument has no negative impact on the safety of the helicopter mustering operations mentioned in the instrument.
In accordance with subsection 33 (3) of the Acts Interpretation Act 1901, the instrument repeals CASA EX54/19, which is no longer required with the commencement of CAO 48.1 2019 (for further details, see the last paragraph under the heading “Purpose”).
Documents incorporated by reference
The instrument incorporates by reference the meaning of fatigue risk management system given by the definition of that term in paragraph 6.1 of CAO 48.1 2019, as in force from time to time. CAO 48.1 2019 is freely available on the Federal Register of Legislation at https://www.legislation.gov.au/Details/F2020C00553/Download.
Content of instrument
Section 1 names the instrument.
Section 2 sets out when the instrument commences and will be repealed.
The note located immediately below section 2 is a combination of a signpost note and an explanatory note, intended to assist users of the instrument to understand, identify and locate the circumstances in which the instrument will continue to apply to an operator or a relevant flight crew member (or relevant FCM) employed by an operator until the end of the repeal date. By referring users of the instrument to paragraphs 5 (2) (a) and (b), the note also assists users of the instrument to identify and locate the circumstances in which the instrument will not apply to an operator or a relevant flight crew member (or relevant FCM) employed by an operator on or after 1 July 2021.
Section 3 repeals CASA EX54/19.
The note located immediately below section 3 is a signpost note, intended to assist users of the instrument (and users of CASA EX54/19 before its repeal) to locate the requirements and conditions related to an aerial application in an aeroplane in CAO 48.1 2019.
Section 4 contains definitions.
The note located immediately below the heading of section 4 is a signpost note, intended to assist users of the instrument to identify and locate definitions included in the Act, CAR and CASR.
The note located immediately below the definition of CAO 48.1 is a signpost note, intended to assist users of the instrument to locate the instrument mentioned in the definition on the FRL.
The note located immediately below the definition of duty-free day is a signpost note, intended to assist users of the instrument to locate (elsewhere in the instrument) a description of when a duty-free day, or a period composed of 2 or more duty-free days, is taken to begin and end.
The definitions of relevant flight crew member (or relevant FCM) and relevant flight time mirror the expression of the definitions of flight crew member and flight time that were located in subregulation 2 (1) of CAR immediately before they were repealed. The repealed versions of those definitions are also mentioned in the notes below the definitions of those terms in CAO 48.1.
The note located immediately below the definition of relevant flight time is a combination of a signpost note and an explanatory note, intended to assist users of the instrument to identify, and correctly apply, related content in clause 4 of Schedule 1.
Subsection 5 (1) sets out the classes of person to whom the instrument applies.
Subsection 5 (2) provides that, on or after 1 July 2021, the instrument does not apply to an operator or a relevant FCM employed by an operator unless the circumstances mentioned in paragraphs 5 (2) (a) and (b) exist for the operator.
Section 6 directs particular persons to follow the directions in Schedule 1 to the instrument.
Section 7 is a transitional provision that enables an operator of a kind mentioned in subsection 7 (1), who has already notified CASA under a preceding instrument of the same kind, to continue to conduct helicopter mustering operations in accordance with the directions in Schedule 1 to this instrument without being required to renotify CASA.
Schedule 1 to the instrument is composed of the directions mentioned in section 6, along with the following:
(a) a provision that sets out when an operator may continue to conduct helicopter mustering operations in accordance with the directions in Schedule 1 — see subclause 1 (1);
(b) a provision that sets out when the directions in Schedule 1 apply to an operator — see subclause 1 (2);
(c) a provision that requires an operator who no longer wishes to conduct helicopter mustering operations in accordance with the directions in Schedule 1 to give CASA written notice at least 7 days before the date the operator intends to take that action — see subclause 1 (3).
Clause 2 directs that helicopter mustering operations must be carried out under the visual flight rules (V.F.R.) by day (whether carried out by an entry-level pilot or an experienced pilot).
Clause 3 directs that, on any day that an entry-level pilot or an experienced pilot is rostered for piloting or other aviation-related duty by an operator engaged in helicopter mustering operations, the pilot must not be rostered for duty for longer than a maximum period described in that clause.
Subclause 4 (1) directs that an operator engaged in helicopter mustering operations must not knowingly roster a pilot to fly if the pilot’s total relevant flight time as a relevant FCM will, as a result, exceed a particular number of hours. The maximum number of hours varies depending upon whether the pilot is an experienced pilot or an entry-level pilot and whether particular circumstances exist — see paragraphs (a) and (b) of subclause 4 (1).
Subclause 4 (2) directs that a pilot carrying out helicopter mustering operations must notify the operator if the pilot’s total relevant flight time as a relevant FCM will exceed the applicable limit set out in paragraph 4 (1) (a) or (b).
Subclause 4 (3) directs that a pilot who is rostered to carry out a flight for the purpose of a helicopter mustering operation must not carry out the flight if, as a result, the pilot would exceed the applicable limit set out in paragraph 4 (1) (a) or (b).
The note below subclause 4 (3) is a signpost note, intended to assist operators and pilots engaged in operations to which the directions in Schedule 1 do not apply to identify the applicable limitations on flight time or duty time that they must comply with.
Subclause 5 (1) directs that a pilot must have at least 2 duty-free days (consecutive or non‑consecutive) in any 16 consecutive days.
Subclause 5 (2) sets out when a duty-free day is, or 2 or more consecutive duty-free days are, for the purposes of the directions in Schedule 1, taken to commence and end.
Subclause 5 (3) directs that an operator must not knowingly require a pilot to fly in a helicopter mustering operation if the pilot is unfit for duty because of fatigue, illness or injury, or for any other reason.
Subclause 5 (4) directs a pilot who is required to engage in a helicopter mustering operation and is unfit for duty because of fatigue, illness or injury, or for any other reason, to notify the operator and not to engage in the operation.
Clause 6 directs an operator engaged in helicopter mustering operations to keep records in a form that facilitates the ready determination of particular information.
Clause 7 directs an operator engaged in helicopter mustering operations to record daily flying time for a helicopter by using one of two methods described in paragraphs (a) and (b).
Legislation Act 2003 (the LA)
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 instrument repeals CASA EX54/19, no longer required with the commencement of CAO 48.1 2019.
The instrument is, therefore, a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Consultation under section 17 of the LA took place with helicopter mustering industry operators regarding the content of the original instrument CASA 98/14. The relevant flight time and duty limitations mentioned in the instrument will continue to be appropriate until a transition date (as defined in paragraph 5.1 of CAO 48.1 2019).
In those circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the instrument is covered by:
(a) a standing agreement between CASA and OBPR under which a RIS is not required for a Direction (OBPR id: 14507); and
(b) an agreement between CASA and OBPR under which a RIS is not required because the extension of the repeal date for CASA 28/18 and the repeal of CASA EX54/19 are both machinery in nature (OBPR id: 25114).
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 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 direction has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on 1 December 2020 and is repealed at the end of 30 September 2021.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA 67/20 — Relevant Flight Time Limitations for Helicopter Mustering Operations Direction 2020
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 main purpose of the instrument is to continue to provide uniform fatigue risk management rules for operators of helicopters engaged in mustering operations. Those rules apply as an alternative to the rules set out in Civil Aviation Order 48.1 Instrument 2013 (CAO 48.1) until a transition date as defined in paragraph 5.1 of the Civil Aviation Order 48.1 Instrument 2019 (CAO 48.1 2019).
Apart from some minor drafting improvements and changes to reflect the repeal of the definitions of flight time and flight crew member that were located in subregulation 2 (1) of the Civil Aviation Regulations 1988, the instrument has the effect of continuing, until a transition date mentioned in the preceding paragraph, the operation of the fatigue risk management rules for helicopter mustering pilots located in instrument CASA 28/18 – Flight Time Limitations for Helicopter Mustering Operations – Direction 2018, which was repealed at the end of 30 November 2020.
The instrument would also repeal instrument CASA EX54/19 — Civil Aviation Order 48.1 Instrument 2013 (Aerial Application Operations in Aeroplanes) Exemption 2019 (CASA EX54/19). Instrument CASA EX54/19 is no longer required because the substance of that instrument was incorporated into section 11 of CAO 48.1 2019 when it commenced on 2 September 2019.
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