Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — of certain Cobham Aviation Services’ pilots from low-level rating requirement
Purpose
This instrument applies to the holder of a pilot licence (the holder) employed by Surveillance Australia Pty Ltd, trading as Cobham Aviation Services Australia – Special Mission (Cobham), who is authorised in writing by Cobham to conduct a low-level operation (a relevant low-level operation) in accordance with Cobham’s air operator’s certificate (AOC). The instrument exempts this class of pilots from the requirement in subregulation 61.375 (7) of the Civil Aviation Safety Regulations 1998 (CASR 1998) to hold a low-level rating in order to conduct particular low-level operations for Cobham. A number of safety conditions must be met.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Exemptions
Subpart 11.F of CASR 1998, as amended from 27 June 2011 by the Civil Aviation and Civil Aviation Safety Amendment Regulations 2011 (No. 2) deals with exemptions.
Under subregulation 11.160 (1) of CASR 1998, and for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of the Civil Aviation Regulations 1988 (CAR 1988), CASR 1998 or a Civil Aviation Order in relation to a matter mentioned in subsection 98 (5A).
Under subregulation 11.160 (2) of CASR 1998, an exemption may be granted to a person or a class of persons. Under subregulation 11.160 (3), CASA may grant an exemption on application, or on its own initiative. For an application for an exemption, CASA must regard as paramount the preservation of an acceptable level of safety.
For making a decision on its own initiative, CASA is guided by the requirement in subsection 9A (1) of the Act that, in exercising its powers and functions, CASA must regard the safety of air navigation as the most important consideration.
Under regulation 11.205 of CASR 1998, 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. Under regulation 11.225, CASA must, as soon as practicable, publish on the Internet details of all exemptions under Subpart 11.F.
Under subregulation 11.230 (1), an exemption (but not an exceptional circumstances exemption for regulation 11.185 about major emergencies) may remain in force for 3 years or for a shorter period specified in the instrument.
Under subregulation 11.230 (3), an exemption, in force in relation to a particular aircraft owned by a particular person, ceases to be in force when the aircraft ceases to be owned by that person. Under regulation 11.235, an exemption is not transferable (as between operators, aircraft etc.).
CAR 157
Under regulation 157 of CAR 1988, the pilot in command of an aircraft must not fly the aircraft over any city, town or populous area at a height lower than 1 000 feet; or over any other area at a height lower than 500 feet.
However, under paragraph 157 (4) (b) of CAR 1988, this rule does not apply if the aircraft is engaged in aerial work operations that require low flying, and the owner or operator of the aircraft has received a permit from CASA. Under paragraph 157 (4) (f) of CAR 1988, the rule does not apply if the pilot of the aircraft in a search and rescue operation is engaged in a search, a rescue, or in dropping supplies.
Cobham and CAR 157
Under its AOC, Cobham discharges its contractual obligations to the Commonwealth Government in certain flying operations which include coastal surveillance and search and rescue (SAR), including dropping SAR equipment or supplies. These operations involve relatively large aircraft, capable of flying relatively long distances, in operations that may involve low-level flying for aspects of the surveillance or for the dropping of SAR equipment.
For these operations, Cobham, as an operator, has had the benefit of a CASA low-flying permission under paragraph 157 (4) (b) of CAR 1988 (ADL/FO 226/95).
Low-level rating requirement
Under regulation 61.010 of CASR 1998, a low-level operation is defined as an operation below 500 feet above ground level other than climbing from take-off, descending to land or an aerial application operation.
Under subregulation 61.375 (7) of CASR 1998, the holder of a pilot licence is only authorised to conduct a low-level operation in exercising licence privileges if the holder also holds a low-level rating or an aerial application rating described in item 5 of Table 61.375. In this form, this is a new pilot requirement.
Cobham’s pilots
Cobham’s pilots have not previously been required to hold low-level authorisations as such, since they fall within the scope of either the Cobham permission mentioned above, or paragraph 157 (4) (f) of CAR 1988.
Cobham’s pilots are subject to rigorous training and checking requirements which are approved by CASA and form part of their operations manual. The training and checking system addresses the knowledge and skill competencies required to conduct the specialised low-level operations in which they are involved.
Exemption
Given the particular nature of the operations in which Cobham is engaged, the aircraft used, the training and checking system in place and the existing low-flying permit, CASA considers that the requirement for Cobham’s surveillance pilots to hold a low‑level rating is not essential for aviation safety.
The instrument, therefore, applies to the holder of a pilot licence who is employed by Cobham, and who is authorised in writing by Cobham, to conduct a low-level operation in accordance with Cobham’s AOC.
Under the instrument, the holder is exempt from the requirements of subregulation 61.375 (7) and item 5 of Table 61.375 in CASR 1998 to the extent that to conduct a relevant low-level operation in the exercise the privileges of the licence, the holder would otherwise be required to hold a low-level rating.
Under subregulation 61.065 (1) of CASR 1998, the holder of a flight crew licence commits an offence if he or she conducts an activity (like a low-level operation) and “the holder is not authorised under [Part 61] to conduct the activity”. Therefore, to avoid doubt, the holder is also exempt from the requirements of subregulation 61.065 (1), to the extent that it prohibits the holder from conducting a relevant low-level operation in the exercise of the privileges of the licence while not holding a low-level rating.
Conditions
Several safety conditions must be observed. The holder must be a participant in Cobham’s training and checking program and successfully complete all training and checking requirements of the program, including proficiency checks. At least once in the period commencing on 1 September 2014 and ending on 31 August 2015, under the program, the holder must successfully complete a specific proficiency check of low-level flying competency for relevant low-level operations.
In any relevant low-level operation in accordance with Cobham’s AOC, the holder must conduct the operation in accordance with Cobham’s operations manual.
The exemption ceases to apply to a holder immediately after he or she ceases to be employed by Cobham, or ceases to be authorised in writing by Cobham, for relevant low-level operations. For this purpose, employed means employed under a contract of service (the conventional idea of “employed”) or a contract for services (for example, where the person is working under a contract for a specific period of time). Further details of the exemption instrument are in Appendix 1.
Duration
Subject to its ceasing for any particular person, the exemption is expressed to operate for 1 year ending on 31 August 2015. It is expected that before the exemption expires, appropriate amendments will be made to CASR 1998 to make the exemption unnecessary.
Legislative Instruments Act 2003 (the LIA)
As noted above, exemptions under Subpart 11.F of CASR 1998 are “for subsection 98 (5A)” of the Act, that is, for regulations which empower the issue of certain instruments, like exemptions, in relation to “(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft”, and “(b) the airworthiness of, or design standards for, aircraft”.
The exemption is clearly one in relation to matters affecting the safe navigation and operation of aircraft. Under subsection 98 (5AA) of the Act, an exemption issued under paragraph 98 (5A) (a), for such matters, is a legislative instrument if expressed to apply in relation to a class of persons, a class of aircraft or a class of aeronautical products (as distinct from a particular person, aircraft or product).
The exemption applies to a class of persons (holders of pilot licences employed by Cobham) and is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under sections 24, and 38 and 42, of the LIA.
Consultation
For section 17 of the LIA, CASA considers that formal consultation is not necessary in this case. A similar exemption would be issued to any other operator in the same circumstances.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement is not required. The exemption is of beneficial effect for the class of pilots. A preliminary assessment of business compliance costs in the context of the nature of the instrument indicates that it will have a nil negative impact on business.
Statement of Compatibility with Human Rights
The Statement in Appendix 2 is 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.
Commencement and making
The exemption commences on 1 September 2014 and expires at the end of August 2015, as if it had been repealed by another instrument.
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 EX103/14]
Appendix 1
Details of exemption of certain Cobham Aviation Services’ pilots from low‑level rating requirement
1 Duration
Under this section, the exemption instrument commences on 1 September 2014, and expires at the end of August 2015, as if it had been repealed by another instrument.
2 Definitions
Under this section, in the instrument, unless the contrary intention appears, words and phrases have the same meaning as in CASR 1998.
3 Application
Under this section, the instrument applies to the holder of a pilot licence (the holder) employed by Surveillance Australia Pty Ltd, trading as Cobham Aviation Services Australia – Special Mission (Cobham), who is authorised in writing by Cobham to conduct a low-level operation (a relevant low-level operation) in accordance with Cobham’s air operator’s certificate (AOC).
4 Exemption
4.1Under this subsection, the holder is exempt from the requirements of subregulation 61.375 (7) and item 5 of Table 61.375 of CASR 1998, to the extent that to conduct a relevant low-level operation in the exercise of the privileges of the licence, the holder is required to hold a low-level rating.
4.2To avoid doubt, under this subsection, the holder is exempt from the requirements of subregulation 61.065 (1) of CASR 1998, to the extent that it prohibits the holder from conducting a relevant low-level operation in the exercise of the privileges of the licence while not holding a low-level rating.
5 Conditions
5.1Under this subsection, the holder must be a participant in the Cobham training and checking program established under regulation 217 of the Civil Aviation Regulations 1988. The holder must successfully complete all training and checking requirements of the program, including proficiency checks.
5.2Under this subsection, at least once in the period commencing on 1 September 2014 and ending on 31 August 2015, under the program, the holder must successfully complete a specific proficiency check of low-level flying competency for relevant low-level operations.
5.3Under this subsection, in any relevant low-level operation in accordance with Cobham’s AOC the holder must conduct the operation in accordance with each part of Cobham’s operations manual that deals with the operation or with an operation of that kind.
5.4Under this subsection, the exemption ceases to apply to a holder immediately after he or she ceases to be employed by Cobham, or ceases to be authorised in writing by Cobham, for relevant low-level operations.
5.5Under this subsection, employed means employed under a contract of service or a contract for services.
Appendix 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Civil Aviation Safety Regulations 1998
Exemption — of certain Cobham Aviation Services’ pilots from
low-level rating requirement
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 applies to the holder of a pilot licence employed by Surveillance Australia Pty Ltd, trading as Cobham Aviation Services Australia – Special Mission (Cobham), who is authorised in writing by Cobham to conduct a low-level operation in accordance with Cobham’s air operator’s certificate. The instrument exempts this class of pilots from the requirement in subregulation 61.375 (7) of the Civil Aviation Safety Regulations 1998 to hold a low-level rating in order to conduct particular low-level operations for Cobham. A number of safety conditions must be met.
For its specialist flying operations in surveillance, search and rescue, Cobham uses relatively large aircraft, capable of flying relatively long distances, and operates under a CASA permission for low-level operations. Given the particular nature of the operations in which Cobham is engaged, the aircraft used, the CASA permission, and Cobham’s training and checking system, CASA considers that the requirement for its surveillance pilots to hold a low-level rating is not essential for aviation safety and has issued an exemption to this class of pilots.
Human rights implications
The exemption in 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 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