Explanatory Statement
Civil Aviation Regulations 1988
Exemption — recency requirements for night flying (Alliance Airlines Pty Limited)
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations.
Subregulation 5.109 (1) of Civil Aviation Regulations 1988 (CAR 1988) provides that a commercial (aeroplane) pilot (the holder of a commercial aeroplane pilot licence) must not fly an aeroplane carrying another person unless the pilot satisfies the requirements set out in the subregulation. Subregulation 5.170 (1) provides that an air transport (aeroplane) pilot (the holder of an air transport aeroplane pilot licence) must not fly an aeroplane carrying another person unless the pilot satisfies the requirements set out in the subregulation.
Paragraphs 5.109 (1) (b) and 5.170 (1) (b) of CAR 1988 both mention certain requirements (recency requirements) that the pilot must have satisfied in the immediately preceding period of 90 days, being requirements relating to take-offs and landings at night. These requirements are that the pilot has, within the period, carried out at least 3 take-offs and 3 landings at night, while flying the aeroplane as pilot in command, or as pilot acting in command under supervision or in dual flying; alternatively, in that period the pilot must have satisfactorily completed an aeroplane proficiency check that was completed at night or passed a flight test that was conducted at night for the issue, or renewal, of an aeroplane pilot rating or (for 5.109 (1) (b) only) for the issue of an aeroplane pilot licence.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including CAR 1988, or a provision of the Civil Aviation Orders (the CAOs), in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement) or, if no day is specified, 3 years after commencement.
The exemption allows Alliance Airlines Pty Ltd (the operator) to use an approved flight simulator to satisfy recency requirements instead of relying on flights in an aeroplane. It differs from paragraphs 5.109 (1) (b) and 5.170 (1) (b) of CAR 1988 in that it allows the recency requirement to be satisfied by 1 take-off and 1 landing at night in the immediately preceding 90 days that has been carried out in an approved flight simulator or an aircraft of the same type. In addition, it requires the pilot to have carried out at least 3 take-offs and 3 landings at night in the immediately preceding 180 days in an approved flight simulator or an aircraft of the same type. Further, in that period the pilot must have satisfactorily completed a proficiency check, related to carrying out night operations, in an approved flight simulator or an aircraft of the same type.
If the flight to which the exemption applies includes a circling approach, then the pilot must have, within the immediately preceding 90 days, carried out at least 1 circling approach at night in an approved flight simulator or an aircraft of the same type.
If the flight to which the exemption applies includes an approach without a serviceable electronic or visual slope guidance system, then the pilot must have, within the immediately preceding 180 days, carried out at least 1 approach at night without a serviceable electronic or visual slope guidance system in an approved flight simulator or an aircraft of the same type.
Any flight to which the exemption applies may be conducted only to an aerodrome that is a Certified Aerodrome and that has an authorised instrument approach procedure for night operations.
The operator must have a current CASA approved training and checking organisation and a current CASA approval as the user of a flight simulator representative of the aircraft type.
The exemption would allow the operator to rely on flight simulators to meet the recency requirements and would also allow the operator to rely on normal line flying and on its training and checking organisation, instead of requiring the pilot to undergo special flight tests as may be required by CASA. The tests and procedures in the training and checking organisation require approval by CASA.
Legislative Instruments Act
Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. The instrument is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Consultation within the aviation industry as a whole has not taken place. Any operator whose procedures and training and checking organisation is considered by CASA to make satisfactory provision for testing and training pilots for night flying operations would be granted an equivalent exemption.
The exemption commences on 1 February 2013 and stops having effect at the end of 31 January 2016.
The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
[Instrument number CASA EX01/13]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Exemption under regulation 11.160 –from recency requirements for night flying
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 permits the use of alternative means of satisfying recency requirements for night flying. The exemption is subject to conditions directed by CASA in the interest of safety.
The primary purpose of the legislative instrument is to allow pilots in command flying for the named operator to update their night recency requirements by using flight simulators. It allows the operator to rely on normal line flying and its training and checking organisation for that purpose, instead of requiring the pilot to undergo special flight tests as would otherwise be required under the Regulations.
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