Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX01/22 – ATC Licence (RMON Endorsement) – Exemptions from Recency and Currency Requirements Instrument 2022
Purpose
The purpose of CASA EX01/22 – ATC Licence (RMON Endorsement) – Exemptions from Recency and Currency Requirements Instrument 2022 (the instrument) is to allow the holder of an air traffic controller licence (ATC licence) who holds a Restricted Monaro endorsement (RMON endorsement) to be able to satisfy recency and currency requirements of the Civil Aviation Safety Regulations 1998 (CASR) for the endorsement by performing air traffic control duties in a simulator instead of in the live operational environment. The instrument is required because low air traffic levels prevent opportunities for licence holders to satisfy these requirements in the live operational environment. This makes it difficult for licence holders to retain the RMON endorsement on their licence.
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.
Subsection 98 (5D) of the Act provides that a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) provides that, for subsection 98 (5A) of the Act, the Civil Aviation Safety Authority (CASA) may grant an exemption from compliance with a provision of the regulations.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons. Under subregulation 11.160 (3), an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant or reissue an exemption on its own initiative.
Regulation 11.225 of CASR requires an exemption to be published on the internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Subpart 11.G of CASR provides for CASA to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a), CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245 (2) provides that CASA may issue such a direction if satisfied that it is necessary in the interests of the safety of air navigation, if the direction is not inconsistent with the Act, and for the purposes of CASA’s functions. Regulation 11.255 makes it an offence of strict liability to contravene a direction.
Regulation 65.025 of CASR sets out how the holder of an ATC licence satisfies the recency requirement in relation to an endorsement. Subparagraph 65.025 (3) (a) (i) enables the holder of an ATC licence who does not satisfy the recency requirement at a particular time to be taken to satisfy it at a later time if they have carried out the relevant function at that aerodrome, or in relation to that airspace, under supervision for at least one normal working day for each month that has passed since they last performed the function at that aerodrome or in relation to that airspace.
Regulation 65.030 of CASR sets out how the holder of an ATC licence satisfies the currency requirement in relation to an endorsement. Paragraph 65.030 (1) (b) is the second of 2 limbs of the requirement for the holder of an ATC licence to satisfy the currency requirement at a particular time in relation to an endorsement. It requires the holder’s performance of the relevant function for the endorsement at the aerodrome or in relation to the airspace to have been assessed as satisfactory within the previous 6 months.
Subregulation 65.035 (1) of CASR provides that a person may carry out an air traffic control function in Australian territory if, amongst other things, at the time the person carries out the function, the person holds an ATC licence with a rating for the function and an endorsement for the place where, or the airspace in relation to which, it is carried out, the licence, rating and endorsement are in force and the person satisfies the recency and currency requirements for the endorsement.
It is an offence under subregulation 65.045 (1) of CASR for a person who is not authorised by subregulation 65.035 (1) or (2) to carry out an air traffic control function in Australian territory.
Background
The RMON endorsement was created to permit ATC licence holders holding an endorsement for the adjacent Alpine unit to manage airspace for the Monaro unit during night operations. This provides a more efficient use of the available controller resources at times when traffic numbers are very low. This was supported by the commonalities in airspace between the units. The airspace volumes of each unit contain the same airspace classifications and the Monaro sector volumes are immediately above and within the same lateral boundaries of the Alpine sectors. The core competencies of the Alpine endorsements are transferable to the RMON endorsement, however additional knowledge of Monaro sector traffic-specific procedures are required, precluding the RMON endorsement from being considered “like-type” with the Alpine endorsements.
CASA has interpreted the relevant provisions of CASR for the recency and currency requirements for ATC licence endorsements as requiring performance of the relevant endorsement functions in the live operational environment and not on a simulator. Airservices Australia (AA) has applied for the exemptions under the instrument to provide relief from the requirement for performance to be exclusively in the live operational environment.
The low levels of traffic are a barrier to ATC licence holders being able to comply with the requirements under CASR provisions for regaining recency and satisfying currency on the RMON endorsement in the live operational environment. In addition, the requirement for two air traffic controllers to be available for supervision in such an environment creates inefficiencies.
The simulator located in the Melbourne Air Traffic Services Centre, provides a high-fidelity simulated air traffic control environment and replicates the live operational environment. Simulator exercises enable traffic quantity and complexity to be varied depending on desired outcomes. Except for short periods during upgrades, the simulator uses the software version and data set that are the same as the live operational environment.
CASA has, through a series of instruments dating back to 2008 (the most recent being CASA EX06/21 – ATC Licence (PARM Endorsement) – Exemptions from Recency and Currency Requirements Instrument 2021) granted AA exemptions to allow the use of time spent on a simulator to count towards the recency and currency requirements of regulations 65.025 and 65.030 of CASR for an endorsement.
Overview of instrument
The instrument provides exemptions from CASR for holders of ATC licences who perform air traffic control duties under an RMON endorsement to enable them to regain recency and satisfy currency requirements under CASR by using a simulator instead of the live operational environment.
The instrument includes safeguards in the form of directions issued to AA, requiring it, amongst other things, to ensure the suitability of the simulator for its use under the instrument and that no change is made to the AA Licensing and Certificates Manual or the Alpine Local Instructions (AA documents referred to in the instrument) if the change affects the ambit of the exemptions under the instrument. AA is required to provide CASA with a report, no later than 3 months before the repeal of the instrument detailing how the directions have been complied with.
CASA has assessed the impact the instrument will have on aviation safety and is satisfied that the use of the simulator for regaining recency and satisfying currency on the RMON endorsement will have no impact on air safety and will lead to benefits and efficiencies that would otherwise not be available in the live operational environment.
Documents incorporated by reference
The instrument incorporates the ATS Licensing and Certificates Manual, prepared by AA, as existing from time to time (the manual). The manual underpins the instrument and AA is, under paragraph 6 (3) (g) of the instrument, prevented from making changes to the manual that affect the ambit of the exemptions without obtaining CASA’s prior written approval.
The instrument also incorporates the Alpine Local Instructions – Procedure, prepared by AA, as existing from time to time (the document). Reference to the document is made as follows:
- the OVN endorsement is defined in subsection 3 (1) of the instrument by reference to the document, namely, it means the endorsement referred to in the document as “RS SE AREA (P&R) SECTOR OVN”
- the RMON endorsement is defined in subsection 3 (1) of the instrument by reference to the document, namely, it means the endorsement referred to in the document as “RESTRICTED MONARO ENDORSEMENT”
- the SNOW endorsement is defined in subsection 3 (1) of the instrument by reference to the document, namely, it means the endorsement referred to in the document as “RS SE AREA (P&R) SECTOR SNOW”.
Subsection 98 (5D) of the Act authorises the incorporation of these documents, as existing from time to time. The documents are not freely available to the public, however, CASA will, by prior arrangement, make available for viewing at its offices at least those parts of the documents that are incorporated by reference in the instrument.
By way of a safeguard, AA is prevented, under paragraph 6 (3) (g) of the instrument, from making changes to these documents if they affect the ambit of the exemptions under the instrument (including changes to provisions of the manual relating to the recency or currency requirements or the scope, description or sectors of any of the endorsements in the instrument) without obtaining CASA’s prior written approval.
The instrument also incorporates competence requirements for workplace assessors under section 3.1.14 of the Manual of Standards (MOS) – Part 65 (the Part 65 MOS). The competence requirements under that section are referred to in subparagraph 6 (2) (a) (i) of the instrument as requirements that AA must ensure are demonstrated by an assessor. The Part 65 MOS is a disallowable legislative instrument for the purposes of paragraph 14 (1) (a) of the Legislation Act 2003 (the LA) and may, accordingly, be incorporated, as in force from time to time. The reference to the Part 65 MOS is, by virtue of section 10 of the Acts Interpretation Act 1901 and section 13 of the LA, a reference to the Part 65 MOS as originally made and as amended from time to time. The Part 65 MOS is freely available on the Federal Register of Legislation which is accessible via the internet. The current Part 65 MOS is on the following webpage: https://www.legislation.gov.au/Details/F2008C00072.
Content of instrument
Section 1 sets out the name of the instrument: CASA EX01/22 – ATC Licence (RMON Endorsement) – Exemptions from Recency and Currency Requirements Instrument 2022.
Section 2 provides that the instrument commences on the day after it is registered and is repealed at the end of 31 July 2023.
Section 3 sets out the definitions for the instrument. The simulator is called the ML simulator, defined as the Eurocat simulator that is operated by AA, located in the Melbourne Air Traffic Services Centre and designed to simulate a live operational environment for RMON endorsement functions. The term RMON endorsement is defined by reference to the Alpine Local Instructions.
Section 4 sets out the persons to whom the instrument applies, namely, ATC licence holders who perform air traffic control functions under an RMON endorsement and hold additional endorsements relating to the Alpine function.
Section 5 sets out the exemptions applying to ATC licence holders to whom the instrument applies. Under subsection 5 (1), such licence holders are exempt from the recency requirement for the RMON endorsement in the manner specified in that subsection (see subparagraph 65.025 (3) (a) (i) of CASR) if they have carried out the RMON endorsement functions under supervision on the ML simulator for at least 1 hour (or such longer time as may be required for the completion of at least 1 simulator exercise) for each month or part of a month that has passed since the licence holder last performed those functions. Under subsection 5 (2), such licence holders are exempt from the currency requirement for the RMON endorsement in the manner specified in that subsection (see paragraph 65.030 (1) (b) of CASR) if, within the previous 6 months, the licence holder’s performance of the RMON endorsement functions, as carried out on the ML simulator for at least 2 hours (or such longer time as may be required for the completion of at least 2 simulator exercises), has been assessed as satisfactory.
Section 6, consisting of directions issued to AA, comprises the safeguards in the instrument. Subsection 6 (1) directs AA to ensure that the person supervising the functions mentioned in subsection 5 (1) holds an RMON endorsement. Subsection 6 (2) directs AA to ensure that an assessment under subsection 5 (2) is carried out by a suitably qualified person as specified in that provision and specifies the order of assessment of the endorsements. Subsection 6 (3) directs AA to ensure that various measures are taken to ensure the suitability of the ML simulator for its use under the instrument and to ensure that no change is made to the AA Licensing and Certificates Manual or the Alpine Local Instructions if the change affects the ambit of the exemptions under the instrument. Subsection 6 (4) directs AA to provide CASA with a report, no later than 3 months before the repeal of the instrument, detailing how the requirements under subsection 6 (3) have been satisfied.
Legislation Act 2003
Paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument expressly applies in relation to ATC licence holders mentioned in section 4 of the instrument, that is, a class of persons. The instrument is, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
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 (item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015).
However, this instrument will be repealed at the end of 31 July 2023, which will occur before the sunsetting provisions would have repealed the instrument if they had applied. Any renewal of the instrument will be subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA. Therefore, the exemption from sunsetting does not affect parliamentary oversight of this instrument.
Consultation
The instrument ensures that ATC licence holders will be able to continue to perform their duties under the RMON endorsement. The instrument has been issued on application by AA, who will have the immediate benefit of the efficiencies created by this instrument in its capacity as the air traffic services provider at Melbourne Airport. CASA has consulted with Airservices Australia on the content of the instrument. A copy of a draft instrument was provided to, and agreed to by, Airservices Australia. In these 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 exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Sector risk, economic and cost impact
Subsection 9A (3) of the Act states that subject to regarding the safety of air navigation as the most important consideration, in developing and promulgating aviation safety standards under paragraph 9 (1) (c) of the Act, 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.
This instrument provides for exemptions from provisions of CASR in a way that will create efficiencies for ATC licence holders who wish to regain recency and satisfy currency on their RMON endorsement. There will be no economic or cost impact on individuals, businesses or the community as a result of this measure.
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 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 and is repealed at the end of 31 July 2023.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX01/22 – ATC Licence (RMON Endorsement) – Exemptions from Recency and Currency Requirements 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 instrument provides exemptions from the Civil Aviation Safety Regulations 1998 (CASR) for holders of air traffic controller licences who perform air traffic control duties under a Restricted Monaro endorsement (RMON Endorsement) to enable them to regain recency and satisfy currency requirements under CASR by using a simulator instead of the live operational environment.
Safeguards are provided for this measure in the form of directions issued to Airservices Australia (AA) in the interests of aviation safety. These directions include ensuring that supervisors and assessors will be suitably qualified, that various measures are taken to ensure the suitability of the simulator for its use under the instrument, that no changes that would affect the ambit of the instrument are made to AA’s documents without the prior written approval of the Civil Aviation Safety Authority (CASA) and that a written report is provided to CASA, no later than 3 months before the repeal of the instrument, detailing how the directions regarding the use of the simulator have been satisfied.
The use of the simulator for regaining recency and satisfying currency on the RMON endorsement will have no impact on air safety and will lead to benefits and efficiencies that would otherwise not be available in the live operational environment.
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