Explanatory Statement
Civil Aviation Regulations 1988
Exemption — recency requirements for night flying (Network Aviation Pty Ltd)
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations.
Subregulation 308 (1) of the Civil Aviation Regulations 1988 (CAR 1988) provides that CASA may, in relation to a particular aircraft or specified type or category of aircraft, exempt that aircraft, type or category from compliance with the regulations. Subregulation 308 (3) provides that the exemption is subject to the aircraft complying with any conditions specified by CASA as being necessary in the interests of safety. Under subregulation 308 (4), the exemption is a disallowable instrument for section 46A of the Acts Interpretation Act 1901.
Subregulation 5.109 (1) of 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.
The exemption allows Network Aviation Pty Ltd, trading as Network Aviation Australia (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 3 night take-offs and 3 night landings in the immediately preceding 90 days that have been carried out in an approved flight simulator or an aircraft of the same type. Alternatively, if that requirement is not satisfied, it requires the pilot to have completed, in the immediately preceding 180 days, a proficiency check in an approved flight simulator.
The operator must have a current CASA approved training and checking organisation.
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.
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 the day after it is registered and stops having effect at the end of 31 January 2013.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX03/11]
Overview
The Civil Aviation Regulations 1988 were amended in 2011 to introduce an exemption for Network Aviation Pty Ltd, trading as Network Aviation Australia, regarding the recency requirements for night flying. This exemption was enacted to address the gap in allowing commercial aeroplane pilots to satisfy their night flying recency requirements through approved flight simulators rather than requiring actual flights in an aeroplane. The exemption was authorised under section 98 of the Civil Aviation Act 1988, which empowers the Governor-General to make regulations concerning civil aviation. The objective of the exemption is to enhance safety by allowing the operator to use their approved flight simulator and training and checking organisation to meet the recency requirements, thus reducing the reliance on special flight tests mandated by the Civil Aviation Safety Authority (CASA). The exemption, declared as a disallowable instrument under the Acts Interpretation Act 1901, is subject to tabling and disallowance in the Parliament as per the Legislative Instruments Act 2003.
Scope and Application
The Civil Aviation Regulations 1988 (CAR 1988) provide the regulatory framework for civil aviation in Australia, including specific requirements for pilots operating commercial aeroplanes. Under section 98 of the Civil Aviation Act 1988, the Governor-General has the authority to make regulations, including exemptions from compliance with certain regulations to ensure safety. Specifically, subregulation 308(1) of CAR 1988 allows the Civil Aviation Safety Authority (CASA) to exempt particular aircraft, types, or categories of aircraft from compliance with the regulations, subject to any specified conditions necessary for safety. This regulatory provision enables tailored safety measures that can accommodate specific operational needs while maintaining safety standards. The exemption in question applies to Network Aviation Pty Ltd, trading as Network Aviation Australia, allowing the operator to use an approved flight simulator to satisfy recency requirements for night flying instead of relying on actual flights in an aeroplane. This exemption allows pilots to meet the recency requirements by conducting three night take-offs and three night landings in an approved flight simulator within the preceding 90 days, or completing a proficiency check in an approved flight simulator within the preceding 180 days. This regulatory exemption is a legislative instrument under the Legislative Instruments Act 2003 and is subject to tabling and disallowance in Parliament. The exemption is effective from the day after its registration and will cease on 31 January 2013, providing a temporary measure for the operator to meet night flying recency requirements through alternative means.
Key Provisions
The Civil Aviation Regulations 1988 (CAR 1988) have been amended to provide an exemption for Network Aviation Pty Ltd, trading as Network Aviation Australia, from certain recency requirements for night flying. Section 98 of the Civil Aviation Act 1988 allows the Governor-General to make regulations, and subregulation 308(1) of CAR 1988 permits the Civil Aviation Safety Authority (CASA) to exempt specific aircraft from compliance with certain regulations. This exemption is subject to conditions specified by CASA to ensure safety, as outlined in subregulation 308(3), and it is a disallowable instrument under section 46A of the Acts Interpretation Act 1901 as per subregulation 308(4).
Under the new exemption, Network Aviation Pty Ltd can satisfy recency requirements for night flying using an approved flight simulator instead of actual night flights. Specifically, subregulation 5.109(1) and 5.170(1) of CAR 1988 require commercial and air transport aeroplane pilots to have completed certain night take-offs and landings within the preceding 90 days or passed specific night-related proficiency checks or flight tests. The exemption allows these requirements to be met through three night take-offs and landings in a flight simulator or an aircraft of the same type within the preceding 90 days, or a proficiency check in an approved flight simulator within the preceding 180 days.
The obligations imposed by this exemption require Network Aviation Pty Ltd to have a current CASA-approved training and checking organisation. This means that the operator must ensure its training and checking organisation meets CASA's standards and is capable of providing adequate training and proficiency checks for its pilots. Furthermore, the operator must rely on its approved flight simulators and normal line flying operations, rather than requiring pilots to undergo special flight tests as may be mandated by CASA.
Breach of the conditions set out in the exemption or failure to meet the stipulated requirements could lead to various consequences. While the specific penalties are not detailed in the explanatory statement, breaches of aviation regulations generally could result in enforcement actions by CASA, which may include fines, suspension or revocation of licences, or other administrative penalties. Additionally, serious breaches could potentially lead to criminal charges, particularly if they result in safety incidents or compromise air safety. The exemption is subject to disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003, highlighting the legislative oversight involved in such regulatory measures.