Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX101/19 — Helicopter Aerial Application Endorsements Exemption 2019
Purpose
One of the requirements for a person applying for a helicopter aerial application rating or endorsement is to have at least 15 hours of dual flight in a helicopter while receiving training in aerial application operations. A person is only authorised to exercise the privileges of the endorsement if, amongst other things, they have conducted, within the first 110 hours of aerial application operation, at least 10 hours of operation under direct supervision. These requirements have been reviewed and it has been concluded that it would be more effective if the person has 10 hours of dual flight in a helicopter while receiving training but, within the first 110 hours of aerial application operations, has 20 hours of operations under direct supervision (the alternative requirements). This instrument exempts a person from the current requirements but only if they meet the alternative requirements.
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 the Civil Aviation Safety Regulations 1998 (CASR) and Civil Aviation Regulations 1988.
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 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 reissue 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 an exemption on its own initiative.
Regulation 11.205 provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition.
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.
Regulation 61.1115 of CASR sets out the requirements for the grant of aerial application ratings, including that the applicant must meet the requirements for the grant of at least 1 endorsement mentioned in Part 1 or 2 of table 61.1120 in CASR. A helicopter aerial application endorsement is item 2 of Part 1 of that table and the requirements prescribed for that endorsement are set out in column 3 of the item. One of the requirements is at least 15 hours of dual flight in a helicopter while receiving training in aerial application operations.
Regulation 61.1140 of CASR sets out the requirements for the grant of aerial application endorsements. An applicant for a helicopter aerial application endorsement must hold an aerial application rating and meet other prescribed requirements. As mentioned above, those requirements include having at least 15 hours of dual flight in a helicopter while receiving training in aerial application operations.
Regulation 61.1130 of CASR imposes limitations on the exercise of privileges of aerial application endorsements. A person may only exercise the privileges of an aerial application endorsement if, amongst other things, they have met the supervision requirements set out in paragraph 61.1130 (1) (b). One of those requirements is to conduct 110 hours of aerial application operations under supervision. Under subregulation 61.1130 (2), the first 10 hours of operation must be under direct supervision and the next 100 hours must be either under direct or indirect supervision. Direct and indirect supervision are defined in subregulation 61.1130 (3).
Background
The instrument is a remake of the previous exemption instrument CASA EX120/17, which was in substantially the same terms.
Content of instrument
Section 4 applies to:
(a) a person who applies for an aerial application rating, based on meeting the requirements for a helicopter aerial application endorsement; and
(b) a person who applies for the grant of a helicopter aerial application endorsement.
Subsections 4 (2) and (3) operate to the effect that a person referred to in paragraph (a) or (b) above is exempt from the requirement to have at least 15 hours of dual flight in a helicopter while receiving training in aerial application operations, provided that the person has at least 10 hours of dual flight in a helicopter while receiving training in aerial application operations.
Section 5 sets out a condition on the exemption: that a person granted a rating or endorsement on the basis of the exemption, and who relies on the supervision mentioned in paragraph 61.1130 (1) (b) of CASR for authority to conduct operations, must include at least 10 hours of direct supervision in the 100 hours of supervision required by paragraph 61.1130 (2) (b).
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. Additionally, 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 exempts a class of persons from complying with the provisions in regulations 61.1115 and 61.1140 of CASR, being applicants for an aerial application rating based on holding a helicopter aerial application endorsement, and applicants for a helicopter aerial application endorsement. 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.
Consultation
Formal consultation under section 17 of the LA was not undertaken before the instrument was made. However, the precursor instrument, CASA EX120/17, was made in response to feedback from industry indicating that the current standards for granting a helicopter aerial application endorsement are not the most effective. The exemption and conditions reflect proposals put forward by the Australian Helicopter Industry Association which consulted the Australian Aerial Application Association in developing the proposals. In these circumstances, CASA is satisfied that the proposal reflects the views of the majority of those affected by it and no further consultation is appropriate or reasonably necessary 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 is compatible with human rights. To the extent that it raises human rights issues, it is proportionate in the interests of achieving and improving aviation safety.
Making and commencement
The instrument has been made by the Acting Executive Manager, National Operations and Standards, CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on 1 September 2019 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 EX101/19 — Helicopter Aerial Application Endorsements Exemption 2019
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
This instrument exempts an applicant for a helicopter aerial application rating or endorsement from having 15 hours of dual flight in a helicopter while receiving training in aerial application operations. Instead applicants must have 10 hours of such training. Further, the holder of an endorsement must have an additional 10 hours of direct supervision when exercising the privileges of an endorsement in an operation.
Human rights implications
The 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.
The legislative instrument may indirectly engage the right to work under article 6 of the International Covenant on Economic, Social and Cultural Rights by changing the conditions for helicopter pilots to undertake certain aerial application operations. The instrument reduces the number of dual flying hours required but increases the direct supervision requirements.
The changes to the restriction on the right to work are proportionate as they are balanced by the objectives of achieving and improving aviation safety in the workplace. The requirements also promote the right of other persons in a workplace to not be affected by unsafe aviation activities.
Conclusion
This legislative instrument is compatible with the listed human rights.
Civil Aviation Safety Authority