Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA 68/22 — Amendment of CASA 69/20 (Prescription and Approval of Certain Recognised Foreign States) Instrument 2022
Purpose
The purpose of CASA 68/22 — Amendment of CASA 69/20 (Prescription and Approval of Certain Recognised Foreign States) Instrument 2022 (the instrument) is to amend CASA 69/20 — Prescription and Approval of United Kingdom and Japan as Recognised Foreign States Instrument 2020 (CASA 69/20) to prescribe and approve a number of foreign States, which are members of the European Union Aviation Safety Agency (EASA), for the purposes of the Civil Aviation Safety Regulations 1998 (CASR) and section 12.13 of the Part 133 (Australian Air Transport Operations—Rotorcraft) Manual of Standards 2020 (the Part 133 Manual of Standards). This will enable Australian pilots to use flight simulation training devices approved by those EASA member States to complete flight training and flight tests for pilot type ratings.
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 CASR.
CASR — Part 61
Each provision mentioned in this section is a provision of CASR.
Subregulation 61.005 (1) provides that Part 61 sets out the licensing scheme for pilots and flight engineers of registered aircraft. Subregulation 61.005 (2) provides that Subpart 61.A sets out:
(a) preliminary matters; and
(b) when a flight crew licence, rating or endorsement is not required.
Within Subpart 61.A:
(a) regulation 61.010 is composed of the definitions for Part 61 including, relevantly, the definition of recognised foreign State; and
(b) recognised foreign State means any of the countries mentioned in paragraphs (a) to (e) and, relevantly in paragraph (f), any other foreign country prescribed by a legislative instrument under regulation 61.047; and
(c) regulation 61.047 provides that for paragraph 98 (5A) (a) of the Act, the Civil Aviation Safety Authority (CASA) may, by legislative instrument, prescribe foreign countries as recognised foreign States.
CASR — Part 133
Each provision mentioned in this section is, unless otherwise stated, a provision of CASR.
Regulation 133.005 provides that Part 133 applies in relation to the operation of a rotorcraft for an Australian air transport operation.
Part 1 of the Dictionary defines rotorcraft, Australian air transport operation and Part 133 Manual of Standards as follows:
rotorcraft means:
(a) a helicopter; or
(b) a gyroplane; or
(c) a powered-lift aircraft.
Australian air transport operation has the meaning given by regulation 119.010.
Part 133 Manual of Standards means the Manual of Standards issued by CASA under regulation 133.020.
Subregulation 119.010 (1) provides that an operation is an Australian air transport operation if the operation is any of the kinds of operation mentioned in paragraphs (a) to (e). Each of those kinds of operations include particular kinds of operation using, relevantly, a rotorcraft. Subregulation 119.010 (2) provides that each kind of operation mentioned in paragraphs (a) to (c) is not an Australian air transport operation. The kind of operation mentioned in paragraph 119.020 (2) (a) refers to an operation of, relevantly, a rotorcraft under a permission under one of two provisions of the Act.
Under regulation 133.020, for the purposes of subsection 98 (5A) of the Act, CASA may issue a Manual of Standards for Part 133 prescribing matters:
(a) required or permitted by the Regulations to be prescribed by the Part 133 Manual of Standards; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to Part 133.
Repeal of subsection 7 of Civil Aviation Order 82.0 and related legislative history
CASA 69/20 approved Japan and the United Kingdom as recognised foreign States under subsection 7 of Civil Aviation Order (CAO) 82.0.
Subsection 7 of CAO 82.0 was repealed when the Civil Aviation Order (Flight Operations) Repeal and Amendment Instrument 2021 (No. 1) commenced on 2 December 2021.
Part 133 Manual of Standards
Each provision mentioned in this section is, unless otherwise stated, a provision of the Part 133 Manual of Standards.
The Part 133 Manual of Standards sets out the standards related to Australian air transport operations using rotorcraft.
Section 1.04 is composed of abbreviations and definitions. Those definitions include, relevantly, the definition of recognised foreign State, which means any of the foreign States mentioned in paragraphs (a) to (f) or – as the opening words mention – another foreign State approved for this instrument.
Section 12.13 relates to the use of an available approved flight simulator for training or checking. Subsection 12.13 (1) provides that section 12.13 applies to a flight crew member for a flight of a rotorcraft of a type mentioned in the table in that subsection. Subsections 12.13 (2) to (5) require the use of an available approved flight simulator, rather than a rotorcraft, for training and checking in specified circumstances. Subsection 12.13 (6) defines available, in relation to an approved flight simulator, to mean the flight simulator:
(a) exists in Australia or a recognised foreign State; and
(b) is offered for use on a commercial basis; and
(c) is serviceable; and
(d) is available to the operator to reserve and use.
The Acts Interpretation Act 1901 (the AIA) and the Legislation Act 2003 (the LA)
Under subsection 33 (3) of the AIA, 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. Under subsection 13 (1) of the LA, if enabling legislation confers on a person the power to make, relevantly, a legislative instrument then, unless the contrary intention appears, subsection 33 (3) applies to any legislative instrument as if each provision of the instrument were a section of an Act.
Paragraph 10 (1) (d) of the LA provides that an instrument is a legislative instrument if it includes a provision that amends or repeals another legislative instrument. Because the instrument amends a legislative instrument, the instrument is also a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Section 48C of the LA automatically repeals a provision of, relevantly, a legislative instrument if, as subparagraph 48C (1) (b) (i) and (ii) mention, the only legal effect of the provision (alone or in conjunction with other provisions of the instrument) is to (i) amend or repeal one or more other legislative instruments, or to (ii) amend the instrument containing the provision.
Section 48D of the LA automatically repeals a commencement provision of, relevantly, a legislative instrument if, as paragraph 48D (1) (a) mentions, the commencement provision provides solely for the commencement of the instrument.
Background
Recently, several Australian pilots completed flight training and flight tests for pilot type ratings in EASA member States with the intention of obtaining Australian type ratings in accordance with well-established protocols.
The provisions that prescribe and approve the United Kingdom as a recognised foreign State in CASA 69/20 are intended to have enduring operation and, therefore, do not have a repeal date.
By contrast, the provisions that prescribe and approve Japan as a recognised foreign State in CASA 69/20 were repealed at the end of 30 June 2021. However, those provisions – along with the automatically repealed commencement and repeal provisions in subsections 2 (1) and 2 (2) – will still appear in CASA 69/20 until the next compilation is prepared. Since those provisions were repealed, CASA has temporarily prescribed and approved Japan as a recognised foreign State until the end of 31 January 2024 in CASA 14/22 — Prescription and Approval of Japan as a Recognised Foreign State Instrument 2022.
Of the 31 EASA member States, only 14 are listed in:
(a) paragraph (e) of the definition of recognised foreign State in regulation 61.010 of CASR; and
(b) paragraph (f) of the definition of recognised foreign State in section 1.04 of the Part 133 Manual of Standards.
However, the licensing standards used by all EASA member States are uniform and mutually recognisable.
CASA has assessed that prescribing and approving the remaining EASA member States does not diminish aviation safety and is supported by the requirement for the pilots to complete additional conversion training, in accordance with the operator’s training and checking system as approved by CASA.
Overview of instrument
In accordance with subsection 33 (3) of the AIA, the instrument amends CASA 69/20 in the following ways:
(a) with enduring operation, prescribing and approving the remaining EASA member States;
(b) with enduring operation, continuing to prescribe and approve the United Kingdom as a recognised foreign State, while indicating that the United Kingdom is no longer an EASA member State;
(c) making related consequential amendments.
Content of instrument
Section 1 names the instrument.
Section 2 mentions when the instrument commences.
Section 3 mentions that Schedule 1 amends CASA 69/20.
Schedule 1 — Amendments
Item [1] substitutes a new name for CASA 69/20, which is CASA 69/20 — Prescription and Approval of Recognised Foreign States Instrument 2020.
Item [2] substitutes section 1 of CASA 69/20 (including the heading) so that section 1 and the heading refer to the new name of CASA 69/20. The new name of CASA 69/20 reflects CASA’s intention that it will:
(a) prescribe all recognised foreign States that CASA intends to permanently prescribe under regulation 61.047 of CASR; and
(b) approve all recognised foreign States that CASA intends to permanently approve for the purposes of section 12.13 of the Part 133 Manual of Standards.
Item [3] substitutes section 3 of CASA 69/20 (including the heading) so that, for regulation 61.047 of CASR, section 3 prescribes each country mentioned in Schedule 1 to CASA 69/20.
Item [4] substitutes section 4 of CASA 69/20 (including the heading) so that, for section 12.13 of the Part 133 Manual of Standards, section 4 approves each State mentioned in Schedule 2 to CASA 69/20.
Item [5] inserts Schedule 1 and Schedule 2 after section 4 of CASA 69/20.
Schedule 1 mentions each country prescribed as a recognised foreign State for regulation 61.047 of CASR. The subheadings in Schedule 1 distinguish between countries that are EASA member States and other countries (currently the United Kingdom only).
The note below Schedule 1 is composed of signpost and clarifying information, intended to assist users of the instrument (and CASA 69/20 as amended) to:
(a) locate other recognised foreign States included in the definition of that term in regulation 61.010 of CASR; and
(b) identify that, although listed as an EASA member State in paragraph (xv) of the definition of recognised foreign State in regulation 61.010 of CASR, the United Kingdom ceased to be an EASA member State on 31 December 2020.
Schedule 2 mentions each State approved as a recognised foreign State for the purposes of section 12.13 of the Part 133 Manual of Standards. The subheading in Schedule 2 identifies that the States mentioned in Schedule 2 are EASA member States.
The note below Schedule 2 is a signpost note, intended to assist users of the instrument (and CASA 69/20 as amended) to locate other recognised foreign States included in the definition of that term in section 1.04 of the Part 133 Manual of Standards.
As the instrument relates to aviation safety and is made under CASR, 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 instrument amends CASA 69/20 and is almost immediately spent and repealed in accordance with the automatic repeal provisions in section 48A of the LA. However, CASA 69/20, as amended by the instrument, is intended to have enduring operation and it would not be appropriate for it to be subject to sunsetting. The exemption from the sunsetting provisions affects parliamentary oversight by not requiring CASA 69/20 to be remade and subject to further tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Formal consultation under section 17 of the LA has not been undertaken in this case. The instrument is of general benefit to Australian pilots, and has been requested by industry. It removes an unnecessary burden on Australian pilots to use flight simulation training devices approved by some EASA member states, but not others, despite all EASA member states having uniform and mutually recognisable standards for such devices. In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for this 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.
The instrument makes changes to existing arrangements by formally recognising EASA member states, that have identical licensing standards used by currently recognised EASA member States. Since the standards are uniform and mutually recognisable, there will be no significant change to the economic or cost impact on individuals, businesses or the community.
Impact on categories of operations
The instrument is likely to have a beneficial effect on Australian aircraft operators and pilots by enabling them to use flight simulation training devices approved by a larger number of EASA member states to continue training in circumstances where other devices are not available.
Impact on regional and remote communities
The instrument is likely to have a beneficial effect on regional and remote communities inasmuch as the flight simulation training devices that are made available under the instrument include devices for aircraft that are used by Australian operators to service regional and remote communities. Such services include, but are not limited to, charter flights for fly-in fly-out operations and use as air tankers during bushfire season.
Office of Impact Analysis (OIA)
A Regulation Impact Statement (RIS) is not required in this case, as the instrument is covered by a standing agreement between CASA and OIA under which a RIS is not required for approvals (OIA 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.
Making and commencement
The instrument 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 the day after it is registered.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA 68/22 — Amendment of CASA 69/20 (Prescription and Approval of Certain Recognised Foreign States) 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
The purpose of CASA 68/22 — Amendment of CASA 69/20 (Prescription and Approval of Certain Recognised Foreign States) Instrument 2022 (the instrument) is to amend CASA 69/20 — Prescription and Approval of United Kingdom and Japan as Recognised Foreign States Instrument 2020 (CASA 69/20) to prescribe and approve a number of foreign States, which are members of the European Union Aviation Safety Agency (EASA), for the purposes of the Civil Aviation Safety Regulations 1998 (CASR) and the Part 133 (Australian Air Transport Operations—Rotorcraft) Manual of Standards 2020 (the Part 133 Manual of Standards). This will enable Australian pilots to use flight simulation training devices approved by those EASA member States to complete flight training and flight tests for pilot type ratings.
Of the 31 EASA member States, only 14 are listed in:
(a) paragraph (e) of the definition of recognised foreign State in regulation 61.010 of CASR; and
(b) paragraph (f) of the definition of recognised foreign State in section 1.04 of the Part 133 Manual of Standards.
However, the licensing standards used by all EASA member States are uniform and mutually recognisable.
The instrument amends CASA 69/20 in the following ways:
(a) with enduring operation, prescribing and approving the remaining 17 EASA member States;
(b) with enduring operation, continuing to prescribe and approve the United Kingdom as a recognised foreign State, while indicating that the United Kingdom is no longer an EASA member State;
(c) making related consequential amendments.
CASA has assessed that prescribing and approving the remaining EASA member States does not diminish aviation safety and is supported by the requirement for the pilots to complete additional conversion training, in accordance with the operator’s training and checking system as approved by CASA.
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