Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX100/20 — Particular Significant Changes Approval Requirements (Part 141 Operators and Relevant Part 42 Operators) Exemption 2020
Purpose
The instrument would exempt each of the following kinds of persons from the requirement to obtain CASA’s approval when adding aircraft to their fleet of training aircraft that are the same kind, or similar in kind, as aircraft they are already using to conduct training:
(a) a Part 141 operator — the holder of Part 141 certificate (a certificate issued under regulation 141.060 of the Civil Aviation Safety Regulations 1998 (CASR));
(b) a relevant Part 142 operator — the holder of an Air Operator’s Certificate (AOC) that authorises a particular activity (a Part 142 activity) to be conducted in an aircraft.
Legislation — exemptions
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.
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, 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, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.175 (4) of CASR, in deciding whether to renew an exemption on application by a person, 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 renew 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.
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.
Legislation — CASR Part 141
Regulation 141.005 of CASR mentions that Part 141:
(a) deals with the conduct of recreational, private and commercial pilot flight training, other than certain integrated training courses; and
(b) makes provision for applicants for, and holders of, Part 141 certificates.
Subregulation 141.010 (1) of CASR sets out the aircraft and flight simulation devices to which Part 141 applies, specifically, the following:
(a) an aeroplane, rotorcraft or airship that is permitted by its flight manual to be flown by one pilot;
(b) an aeroplane, rotorcraft or airship covered by a type rating mentioned in a legislative instrument under regulation 142.045;
(c) a flight simulation training device for an aircraft mentioned in paragraph (a) or (b).
Subregulation 141.001 (2) of CASR provides that a reference in Part 141 to an aircraft is a reference to an aeroplane, rotorcraft or airship mentioned in paragraph (1) (a) or (b).
The current version of the legislative instrument mentioned in paragraph 141.010 (1) (b) of CASR is the Prescription of Type Ratings Excluded from CASR Part 142 Flight Training (Edition 6) Instrument 2018, freely available on the Federal Register of Legislation (FRL) at https://www.legislation.gov.au/Details/F2018L00715.
Subregulation 141.015 (3) of CASR defines a Part 141 operator as the holder of a Part 141 certificate (see also the paragraph above, under the heading “Purpose”).
Subregulation 141.015 (1) of CASR defines Part 141 flight training as any of several kinds of training, listed in paragraphs 141.015 (1) (a) to (g), that is conducted in an aircraft or a flight simulation training device.
Subregulation 141.015 (2) of CASR provides that Authorised Part 141 flight training, for a Part 141 operator, is Part 141 flight training mentioned in the operator’s Part 141 certificate.
Regulation 141.025 of CASR provides that significant change, for a Part 141 operator, means a change in relation to any of several kinds of information, processes and training including, relevantly in subparagraph (a) (ix), “if the operator conducts the training in aircraft—the kinds of aircraft used to conduct the training”.
Part 1 of the CASR Dictionary provides that kind, of an aircraft, means:
(a) for an aircraft that is covered by an aircraft type rating—the aircraft type rating; and
(b) for an aircraft that is not covered by an aircraft type rating—the type of aircraft.
Regulation 141.070 of CASR sets out a range of conditions of a Part 141 certificate including, relevantly in subparagraph 141.070 (a) (i), a condition that a Part 141 operator must comply with each provision of Part 141 that applies to the operator.
Under subregulation 141.085 (1) of CASR, a Part 141 operator commits an offence if:
(a) the operator makes a significant change other than a significant change mentioned in subregulation (2) or (3); and
(b) CASA has not approved the significant change.
Subregulations 141.085 (2) and (3) of CASR set out offences for conduct by a Part 141 operator that are not relevant to the instrument.
Subregulation 141.085 (5) of CASR provides that an offence against regulation 141.085 is an offence of strict liability.
Under subregulation 141.095 (1) of CASR, a Part 141 operator commits an offence if:
(a) the operator makes a change; and
(b) the change is not made in accordance with the process described in the operator’s operations manual for making changes.
Subregulation 141.095 (2) of CASR provides that an offence against regulation 141.095 is an offence of strict liability.
Under subregulation 141.265 (1) of CASR, a Part 141 operator commits an offence if the operator contravenes a provision of its operations manual. Subregulation 141.265 (2) provides that an offence against regulation 141.265 is an offence of strict liability.
Legislation — CASR Part 142
Regulation 142.005 of CASR mentions that Part 142:
(a) deals with the conduct of integrated and multi-crew pilot flight training, contracted recurrent training and contracted checking; and
(b) makes provision for applicants for, and holders of, Part 142 authorisations (which are AOCs or other certificates that deal with the training and checking mentioned in paragraph (a)).
Subregulation 142.010 (1) of CASR provides that Part 142 applies only to:
(a) an aeroplane, rotorcraft or airship; or
(b) a flight simulation training device for an aircraft mentioned in paragraph (a).
Subregulation 142.010 (2) of CASR provides that, accordingly, a reference in Part 142 to an aircraft is a reference to an aeroplane, rotorcraft or airship.
Subregulation 142.015 (4) of CASR defines a Part 142 operator as the holder of a Part 142 authorisation. The definition of Part 142 authorisation in subregulation 142.015 (5) includes, relevantly in paragraph (a), an AOC that authorises the conduct of a Part 142 activity in an aircraft.
Subregulation 142.015 (1) of CASR defines a Part 142 activity as any of the following conducted in an aircraft or a flight simulation training device:
(a) Part 142 flight training;
(b) contracted recurrent training;
(c) contracted checking.
Regulation 142.030 of CASR provides that significant change, for a Part 142 operator, means a change in relation to any of several kinds of information, processes, training and activities including, relevantly in subparagraph (a) (xi), ‘if the operator conducts the activities in aircraft—the kinds of aircraft used to conduct the activities’.
Subsection 28BA (1) of the Act provides that an AOC has effect subject to particular conditions including, relevantly at paragraph (b), any conditions specified in the regulations. Subregulation 142.100 (1) of CASR sets out a range of conditions of an AOC issued to an operator that authorises the conduct of Part 142 activities including, relevantly in paragraph 142.100 (1) (a), a condition that a Part 142 operator must comply with each direction given to the operator, or obligation imposed on the operator, by CASA under a provision of these regulations.
Under subregulation 142.140 (1) of CASR, a Part 142 operator commits an offence if:
(a) the operator makes a significant change other than a significant change mentioned in subregulation (2) or (3); and
(b) CASA has not approved the significant change.
Subregulations 142.140 (2) and (3) of CASR set out offences for conduct by a Part 142 operator that are not relevant to the instrument.
Subregulation 142.140 (5) of CASR provides that an offence against regulation 142.140 is an offence of strict liability.
Under subregulation 142.150 (1) of CASR, a Part 142 operator commits an offence if:
(a) the operator makes a change; and
(b) the change is not made in accordance with the process described in the operator’s exposition for making changes.
Subregulation 142.150 (2) of CASR provides that an offence against regulation 142.150 is an offence of strict liability.
Regulation 142.035 of CASR provides that exposition, for a Part 142 operator, means:
(a) the set of documents approved by CASA under regulation 142.095 or 142.115 in relation to the operator; and
(b) if the set of documents is changed under regulation 142.135, 142.145 or 142.155, or the process mentioned in regulation 142.150 — the set of documents as changed.
Under subregulation 142.345 (1) of CASR, a Part 141 operator commits an offence if the operator contravenes a provision of its exposition. Subregulation 142.345 (2) of CASR provides that an offence against regulation 142.345 is an offence of strict liability.
Background
There is an unintended consequence of the combined operation of the definition of kind, of an aircraft, in the CASR Dictionary and each of the following definitions:
(a) the definition of significant change, for a Part 141 operator, in regulation 141.025 of CASR;
(b) the definition of significant change, for a Part 142 operator, in regulation 142.030 of CASR.
The unintended consequence requires Part 141 operators and Part 142 operators to have or obtain CASA’s approval of a particular kind of significant change: adding other or additional aircraft to their training fleets, even if the other or additional aircraft are the same “kind”, or a similar kind, as aircraft that the operator is already using in its training operations.
In some situations, that requirement for formal CASA approval imposes administrative and cost obligations on an operator, without any off-setting justification in terms of enhancing aviation safety.
CASA has previously made the following 2 exemptions of the same kind to address this unintended consequence:
(a) CASA EX126/15, Exemption – Parts 141 and 142 – CASA approval of kinds of aircraft, which commenced on 21 July 2015 and was repealed at the end of 30 June 2017;
(b) CASA EX77/17, Exemption – Parts 141 and 142 – CASA approval of kinds of aircraft, which commenced on 6 July 2017 and will be repealed at the end of 30 June 2020.
CASA is preparing an amendment to CASR that will mean the exemption is not required and has provided related drafting instructions to the Office of Parliamentary Counsel. However, due to competing regulatory priorities, the related amendments of Parts 141 and 142 of CASR are yet to be made. CASA anticipates that the amendments will commence later in 2020. To allow for additional competing regulatory priorities that may arise during the drafting process, the instrument is expressed to be repealed at the end of 31 August 2022.
Overview of instrument
The instrument exempts Part 141 and relevant Part 142 operators from complying with particular provisions of, respectively, Parts 141 and 142 of CASR, to the extent that each provision requires the Part 141 or relevant Part 142 operator to obtain CASA’s approval of a significant change of the relevant kind. However, to ensure continuing aviation safety, the instrument does not apply, and CASA approvals continue to be required, in relation to the following kinds of aircraft:
(a) multi-crew aircraft with the type ratings that may be granted for multi-crew operation prescribed, for paragraph 61.055 (1) (a) of CASR, in a legislative instrument made by CASA;
(b) a variant model of an aircraft of the kind mentioned in paragraph (a) that requires differences training;
(c) a type of aircraft that is certificated for single-pilot operation and for which single-pilot type ratings are required, with the type ratings that may be granted for single-pilot operation prescribed, for subparagraph 61.060 (1) (b) (i) of CASR, in a legislative instrument made by CASA;
(d) a variant model of an aircraft of the type mentioned in paragraph (c) that requires differences training;
(e) an aircraft covered by a class rating, being the first aircraft of that class to be used by the operator in authorised Part 141 flight training or a Part 142 activity;
(f) a type of aircraft prescribed in an instrument made by CASA under regulation 61.062 of CASR;
(g) a pressurised aircraft, being the first pressurised aircraft to be used by the operator in authorised Part 141 flight training or a Part 142 activity;
(h) a turbine-engined aircraft, being the first turbine-engined aircraft to be used by the operator in authorised Part 141 flight training or a Part 142 activity.
CASA has assessed that renewing the exemption does not increase aviation safety risks because the renewal would continue the arrangements that have been in place since CASA EX126/15 commenced in July 2015.
Documents incorporated by reference
The exclusion provision in section 5 of the instrument refers to particular content of an instrument, or a legislative instrument, made by CASA — see paragraphs 5 (a), (c) and (f). The content mentioned in each of those paragraphs is located in a legislative instrument titled Prescription of Aircraft and Ratings — CASR Part 61 (Edition 6) Instrument 2019, as in force from time to time, that is freely available on the FRL at https://www.legislation.gov.au/Details/F2019L01133.
Content of instrument
Section 1 names the instrument.
Section 2 sets out when the instrument will commence and be repealed.
Section 3 contains definitions of terms used in the instrument.
The note below the heading of section 3 is a signpost note, intended to assist users of the instrument to identify some relevant definitions in the Act and the regulations.
Section 4 identifies the kind of operators that the instrument applies to.
Section 5 expressly excludes the instrument from applying to a significant change in relation to particular aircraft operated by an operator of a kind mentioned in paragraph 4 (a) or (b).
Notes 1, 2 and 3 below section 5 are signpost notes, intended to assist users of the instrument to identify and locate content of the legislative instrument mentioned in, or related to, paragraphs 5 (a), (b), (c) and (f).
Section 6 exempts a Part 141 operator from compliance with particular provisions of CASR, to the extent that each provision requires the Part 141 operator to have or obtain CASA’s approval of a significant change mentioned in subparagraph (a) (ix) of the definition of significant change in regulation 141.025 of CASR.
Notes 1 and 2 below section 6 are signpost notes, intended to assist users of the instrument to identify some relevant provisions of CASR, and the relationships between those provisions.
Section 7 exempts a relevant Part 142 operator from compliance with particular provisions of CASR, to the extent that each provision requires the relevant Part 142 operator to have or obtain CASA’s approval of a significant change mentioned in subparagraph (a) (xi) of the definition of significant change in regulation 142.030 of CASR.
Notes 1 and 2 below section 7 are signpost notes, intended to assist users of the instrument to identify some relevant provisions of CASR, and the relationships between those provisions.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. 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 is expressed to apply to 2 classes of person: Part 141 operators and relevant Part 142 operators. Therefore, the instrument is a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
For section 17 of the LA, in May 2015, CASA consulted the Flight Crew Licensing Subcommittee of the Standards Consultative Committee (a long-standing CASA/industry consultation forum). The Subcommittee generally supported the proposal for an exemption from relevant significant change approval requirements. Following the meeting, and taking into account the representations made, CASA decided to formulate the proposals now embodied in the exemption.
The new exemption continues the arrangement that followed the consultation mentioned above. Renewing the instrument would benefit the classes of operators to which the instrument applies by continuing to relieve them of an administrative and cost burden – seeking CASA’s approval and the related application fees – resulting from the unintended consequence that the instrument is intended to address. 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 exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR 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. 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 1 July 2020 and is repealed at the end of 31 August 2022.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX100/20 — Particular Significant Changes Approval Requirements (Part 141 Operators and Relevant Part 142 Operators) Exemption 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 instrument would exempt each of the following kinds of persons from the requirement to obtain CASA’s approval when adding aircraft to their fleet of training aircraft that are the same kind, or similar in kind, as aircraft they are already using to conduct training:
(a) a Part 141 operator — the holder of a certificate issued under regulation 141.060 of the Civil Aviation Safety Regulations 1998 (CASR);
(b) a relevant Part 142 operator — the holder of an Air Operator’s Certificate that authorises a particular activity (a Part 142 activity) to be conducted in an aircraft.
Subregulation 142.015 (1) of CASR defines a Part 142 activity as any of the following conducted in an aircraft or a flight simulation training device:
(a) Part 142 flight training;
(b) contracted recurrent training;
(c) contracted checking.
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