Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX104/18 — Aerial Application Proficiency Check Instrument 2018
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor‑General may make regulations for the Act and the safety of air navigation. Subsection 98 (5A) of the Act provides that the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation of aircraft.
Under section 3 of the Act, the term AOC is defined to mean an Air Operator’s Certificate issued under Division 2 of Part III of the Act.
On 1 September 2014, new arrangements dealing with flight crew licensing commenced under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR). These arrangements replaced the previous regulatory framework under Part 5 of the Civil Aviation Regulations 1988. Part 137 of CASR, which deals with aeroplane aerial application operations (that is, the application of fertiliser, seeds, water, pesticides or other material), was also amended to align with the new Part 61 provisions.
Subpart 137.N of CASR sets out the qualification and proficiency requirements for pilots conducting aeroplane aerial application operations. Regulation 137.235 of CASR provides that it is a strict liability offence, attracting 50 penalty units, for an operator to allow an aeroplane to be used for an application operation if the pilot in command is not authorised under Part 61 to do so. Under subregulation 137.240, the operator also commits an offence, attracting 50 penalty units, if the operator allows an aeroplane to be used for an application operation and the pilot in command does not hold a valid operator proficiency check (an operator proficiency check).
Under subregulation 137.240 (3) of CASR, the operator proficiency check for a pilot, who is employed by the operator, must be conducted by the operator’s head of flight operations, or by a flight examiner or instructor who is authorised to conduct aerial application operations under Part 61. However, subregulation 137.240 (4) provides that the operator proficiency check for the operator’s head of flight operations must be conducted by a flight examiner or instructor who is authorised to conduct aerial application operations under Part 61.
This arrangement – where a pilot who is also the head of flight operations cannot undertake an operator proficiency check conducted by another head of flight operations – raised concerns in the aerial application industry. Specifically, the Aerial Application Association of Australia (AAAA) advised CASA that access to flight examiners and instructors who can conduct an operator proficiency check in rural and regional Australia can be difficult. AAAA proposed, among other things, that CASA should issue an exemption that allows a head of flight operations to conduct an operator proficiency check for another head of flight operations.
Separately, regulation 61.1110 of CASR provides, among other things, that the holder of an aerial application rating is authorised to exercise the privileges of the rating only if the holder has a valid aerial application proficiency check. Paragraph 61.1110 (2) (c) provides that the holder is taken to have a valid aerial application proficiency check if the holder successfully completes an operator proficiency check that covers operations under the rating, and the operator proficiency check is conducted by a flight examiner who holds an aerial application rating flight test endorsement. The requirements of paragraph 61.1110 (2) (c) are incongruous with AAAA’s proposal that a head of flight operations could conduct an operator proficiency check.
Exemptions and directions
Subpart 11.F of CASR provides for the granting of exemptions from provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of CASR.
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.
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) of CASR, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245 (2) of CASR provides that CASA may issue such a direction if CASA is satisfied that it is necessary to do so 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.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255 it is an offence of strict liability to contravene a direction under regulation 11.245.
Instrument
CASA assessed industry’s proposal and, after undertaking further consultations, issued CASA EX162/14 to exempt an aeroplane aerial application operator and the head of flight operations from subregulation 137.240 (4) of CASR, and the holder of an aerial application rating (aeroplane) from paragraph 61.1110 (2) (c) of CASR. The exemption in CASA EX162/14 expired at the end of June 2016 and was renewed by CASA EX105/16.
This instrument renews the exemption in CASA EX105/16 from 1 September 2018. The exemption will allow the head of flight operations to continue to conduct an operator proficiency check for another head of flight operations.
In addition, a pilot, who holds an aerial application rating and also holds either an aeroplane aerial application endorsement or aeroplane firefighting endorsement, may exercise the privileges of the aerial application rating if the pilot successfully completes an operator proficiency check conducted by the head of flight operations in an aeroplane, instead of a check conducted by a relevant flight examiner.
The direction in section 6 of the instrument requires a head of flight operations, who conducts an operator proficiency check for another head of flight operations, to notify CASA in writing about the check. It is expected that the head of flight operations conducting the check will provide information to CASA that includes the names of the relevant pilots and operators and the date of the check.
Renewal of CASA EX105/16 and expected amendments to CASR
The instrument is expressed to commence on 1 September 2018, which is immediately after the repeal of the previous instrument on this topic, CASA EX105/16.
The instrument is expressed to operate until it is repealed at the end of 31 August 2021. However, the instrument is an interim measure, pending substantive amendments to Parts 61 and 137 of CASR which will remove the need for the instrument. These amendments will be part of a larger set of amendments to Part 61 for which CASA has provided drafting instructions to the Office of Parliamentary Counsel (OPC). It is expected that, subject to the capacity of OPC to produce them in the context of competing priorities arising from government drafting demands, the amendments will be made and in force within the next 12 months to 2 years.
Legislation Act 2003 (the LA)
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of CASR and issue a direction. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The instrument applies to 3 classes of persons, being: aeroplane operators who are authorised to conduct aerial application operations; heads of flight operations of aerial application operators; and aeroplane pilots who hold an aerial application rating. The instrument is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
CASA EX162/14 was issued after consultation with AAAA. CASA EX105/16 renewed the exemption in CASA EX162/14. This instrument continues the arrangement under CASA EX105/16.
The instrument applies to a limited number of operators and individuals within the wider aviation industry. CASA has not received any adverse feedback from industry that the exemption or the requirement in the direction are not appropriate. In these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions and directions (OBPR id: 14507).
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 September 2018 and ceases when it is repealed at the end of 31 August 2021.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX104/18 — Aerial Application Proficiency Check Instrument 2018
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 legislative instrument exempts aerial application operators and heads of flight operations of those operators from the requirement, in subregulations 137.240 (3) and (4) of the Civil Aviation Safety Regulations 1998, that an operator proficiency check for the head of flight operations must be conducted by a flight examiner or an instructor. The exemption allows a head of flight operations to conduct operator proficiency checks for other heads of flight operations, which is important in rural and regional Australia where access to flight examiners and instructors may be difficult.
The legislative instrument also provides, in effect, that the holder of an aerial application rating will be taken to have a valid aerial application proficiency check (which is required to exercise the privileges of the rating) if the holder successfully completes an operator proficiency check conducted by a head of flight operations.
The instrument also contains a related direction imposed by CASA in the interests of air safety.
Human rights implications
The legislative instrument engages the following rights:
- The right to work (Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)); and
- The right to protection against arbitrary and unlawful interferences with privacy (Article 17 of the International Covenant on Civil and Political Rights (ICCPR)).
Right to work
The right to work in Article 6 (1) of ICESR includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept. The right to work is engaged by the exemption which allows the conduct of an operator proficiency check by a head of flight operations, instead of only by a flight examiner or an instructor. It increases the opportunity for affected pilots to conduct the operator proficiency check that is required to perform work in aerial application operations. The exemption, therefore, promotes the right to work of the affected pilots.
Right to privacy
The right to protection against arbitrary and unlawful interference with privacy, contained in Article 17 of the ICCPR, provides that no one shall be subjected to arbitrary or unlawful interference with his privacy.
The right to privacy is engaged by the direction in section 6 of the instrument, which requires the head of flight operations to provide personal and other information to CASA. It is necessary for CASA to receive this information to ensure that CASA can monitor the safe implementation of the instrument, which allows pilots to undertake activities that have inherent safety risks.
The protections provided by the Privacy Act 1988 continue to apply to personal information collected.
The requirements of the instrument are necessary to ensure proper administration and enforcement of Australia’s aviation safety system. Any potential limitation on the right to privacy is necessary, reasonable and proportionate in promoting the objective of improving aviation safety.
Apart from the impact on the right to privacy, the exemption in the legislative instrument is beneficial in purpose and content and does not adversely affect the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Conclusion
The legislative instrument is compatible with human rights. To the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate to ensure the safety of aviation operations and to promote the integrity of the aviation safety system.
Civil Aviation Safety Authority