Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX105/18 — Aeronautical Experience for NVIS Rating or Endorsement Exemption 2018
Purpose
The central purpose of this instrument is to exempt applicants for a night vision imaging system (NVIS) rating or endorsement from the requirement under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR) to have at least 20 hours of flight time at night as pilot in command (PIC) of a helicopter. To achieve the central purpose, there are additional consequential exemptions.
Part 61 replaced the aspects of Civil Aviation Order (CAO) 82.6 dealing with authorisation to use night vision goggles (NVG). Before Part 61 commenced on 1 September 2014, the specific requirement for use of NVG under CAO 82.6 was for 20 hours of unaided flight time at night as a helicopter pilot, of which 10 were to be as PIC or co-pilot in a helicopter. (Unaided means without the use of NVG or an NVIS.)
In the light of experience, and feedback from the aviation industry, CASA now considers that the additional PIC requirement is erroneous and unnecessary, provided an applicant has at least 20 hours of unaided aeronautical experience at night as pilot of a helicopter.
Legislation — Part 61 of CASR
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and for the safety of air navigation.
Part 61 of CASR sets out flight crew licensing requirements. (References below to provisions that commence with the numerals “61” are to provisions of Part 61 of CASR.)
Under paragraph 61.165 (c), CASA, an examiner or a CASA approval holder, must grant a flight crew rating to an applicant if, among other things, the applicant meets the requirements mentioned in Part 61 for the grant of the rating.
Under paragraph 61.170 (c), CASA, an examiner or a CASA approval holder, must grant a flight crew endorsement to an applicant if, among other things, the applicant meets the requirements mentioned in Part 61 for the grant of the endorsement.
Under subparagraph 61.235 (4) (a) (iii), an applicant for a flight crew rating is eligible to take a flight test for the rating only if a person mentioned in subregulation 61.235 (5), (6) or (7) has certified in writing that the applicant has, among other things, met the aeronautical experience requirements for the rating. These persons are an approval holder, or the head of operations (HOO) or another responsible flight trainer named by a Part 141 or Part 142 operator (these are flight training organisations).
Under regulation 61.240, an applicant for a flight crew rating is taken not to have passed a flight test if, when the applicant took the flight test, he or she was not eligible under regulation 61.235 to take the flight test.
Under paragraph 61.1020 (b), an applicant for an NVIS rating must, among other things, meet the requirements for the grant of at least 1 NVIS endorsement.
Regulation 61.1025 sets out the requirements for holding a Grade 1 or a Grade 2 NVIS endorsement, including, among other things, the requirement to have at least 20 hours of (unaided) flight at night as PIC of a helicopter. This requirement is referred to in the instrument as the 20 night hours PIC requirement.
Under paragraph 61.1035 (2) (b), an applicant for an NVIS endorsement must, among other things, meet the aeronautical experience requirements mentioned in regulation 61.1025, including the requirement to have at least 20 hours of (unaided) flight at night as PIC of a helicopter.
Under paragraph 61.1035 (2) (d), an applicant for an NVIS endorsement must have complied with the requirements in subregulation 61.1035 (4) before starting the 5 hours of dual flight using NVG that is required for the endorsement. One of those requirements, in subparagraph 61.1035 (4) (b) (ii), is that the applicant must have completed at least 10 hours of (unaided) flight at night as PIC of a helicopter.
Under subparagraph 61.1300 (4) (b) (iii), a flight examiner commits an offence if the examiner conducts a flight test for a rating or endorsement on a pilot licence and when the test begins, the examiner is not satisfied that the applicant has met the aeronautical experience requirements for the rating or endorsement.
Under paragraph 141.210 (1) (b), a Part 141 operator and the operator’s HOO each commit an offence if a person is recommended for a flight test by the HOO or a person named in the operator’s operations manual as responsible for the authorised Part 141 flight training to which the flight test relates, and the person is not eligible under regulation 61.235 to undertake the test.
Under paragraph 142.245 (1) (b), a Part 142 operator and the operator’s HOO each commit an offence if a person is recommended for a flight test by the HOO or a person named in the operator’s exposition as responsible for the Part 142 activity to which the flight test relates, and the person is not eligible under regulation 61.235 to undertake the test.
Legislation — exemptions
Subpart 11.F of CASR deals with exemptions. Under subregulation 11.160 (1), and for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of CASR in relation to a matter mentioned in subsection 98 (5A). Subsection 98 (5A) matters are, in effect, those affecting the safety, airworthiness or design of aircraft.
Under subregulation 11.160 (2), 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 at least an acceptable level of safety. When making a decision on its own initiative, CASA is guided by the same test.
Under regulation 11.205, 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 regulation 11.230, the maximum duration of an exemption is 3 years.
Background
As mentioned above, before Part 61 commenced on 1 September 2014, 10 hours of flight time at night in a helicopter as PIC or co-pilot, as the case may be, was part of the aeronautical experience requirement for use of NVG under CAO 82.6. In transitioning to Part 61, it had not been intended that the flight time at night, and specifically as PIC, should be increased.
CASA has re-examined the requirement for PIC experience at night, as against experience regardless of pilot role, to determine whether the former might in fact add significantly to aviation safety in the use of NVIS. CASA has concluded that it does not add significantly to aviation safety. The previous requirement for at least 20 hours of flight time at night, with at least 10 hours as PIC is not regarded as a significant safety enhancement as against 20 hours pilot, that is non-role specific, experience.
This opinion has been arrived at after considering feedback from industry as well as the overall Grade 1 and Grade 2 NVIS rating and endorsement aeronautical experience requirements as set out in regulation 61.1025. For both the Grade 1 and Grade 2 NVIS endorsements, in addition to a quantum of unaided flight time at night in a helicopter, the following are required:
- at least 250 hours of flight time in a helicopter
- at least 5 hours of dual flight using NVG in a helicopter
- at least 20 hours of instrument time, including 5 hours of dual instrument flight time in a helicopter
- holding of a helicopter night VFR endorsement.
For the higher level Grade 1 NVIS endorsement, an instrument rating is also required (but not for the Grade 2 NVIS endorsement).
CASA is satisfied that an exemption from the current Part 61 requirement for 20 hours of flight time at night as PIC of a helicopter, subject to the condition of having 20 hours of aeronautical experience at night as pilot of a helicopter, would preserve an acceptable level of aviation safety. Consideration has also been given to permitting full-flight simulators to be used to acquire unaided night flying experience. CASA is satisfied that simulator experience can be used as long as a pilot has at least 9 hours of flight time at night in helicopters. Safety in such a matter is the most important consideration.
The exemption
To achieve this outcome, the exemption is necessarily somewhat technical in identifying relevant provisions of Part 61 and formulating exemptions from them to the extent necessary. Consequently, the details of the provisions of the exemption are set out in Attachment 1. The 9 individual exemptions in section 5 of the instrument have a note to explain, in simplified form, the effect of each provision from which a relevant person is exempted.
As noted above, under paragraphs 61.165 (c) and 61.170 (c), CASA, an examiner or an approval holder (as the case requires), must grant a (NVIS) flight crew rating or endorsement to an applicant who meets, among other things, the requirements mentioned in Part 61 for the grant of the (NVIS) rating or endorsement. The exemptions in subsections 5 (1) and 5 (2) of the instrument are not expressed to apply to CASA as such, because it is expected that examiners or approval holders (as the case requires), rather than CASA, will be involved in granting these ratings or endorsements. It is possible that, in urgent circumstances, a CASA employee, who is an examiner or approval holder (as the case requires), would act under the exemption if necessary.
Although paragraph 61.170 (c) also refers to “instructors” granting endorsements, this class is not relevant for the exemption instrument because the effect of paragraph 61.150 (3) (c) is that instructors may only grant design feature and flight activity endorsements, not NVIS endorsements.
Renewal of CASA EX77/16 and expected amendments to CASR
The exemption is expressed to commence on 1 September 2018, which is immediately after the repeal of the previous exemption on this topic, CASA EX77/16.
The exemption is expressed to operate until it is repealed at the end of 31 August 2021. However, the exemption is an interim measure, pending substantive amendments to Part 61 of CASR which will remove the need for the exemption. These amendments will be part of a larger set of amendments to Part 61 of CASR 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)
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, for paragraph 98 (5A) (a), exempts classes of persons, including applicants, examiners and approval holders, from complying with the provisions in Parts 61, 141 and 142 of CASR. 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
In April and May 2016, CASA consulted with the Australian Helicopter Industry Association and helicopter operators involved in NVG operations. Separate online forum discussions were conducted with the Industry Advisory Panel and the Standards Consultative Committee’s Flight Crew Licensing Subcommittee, which are consultation forums on regulatory and standards matters with members that include officers of CASA and representatives of the aviation community. Support was given to the proposal which was reflected in CASA EX77/16.
This instrument continues the arrangement under CASA EX77/16. CASA has not received any feedback from industry that the exemptions and the conditions on the exemptions 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.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the exemption instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for an exemption (OBPR id: 14507).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 2.
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
CASA EX105/18 — Aeronautical Experience for NVIS Rating or Endorsement Exemption 2018
1 Name
This section provides that the title of the instrument is CASA EX105/18 — Aeronautical Experience for NVIS Rating or Endorsement Exemption 2018.
2 Duration
Under this section, the instrument commences on 1 September 2018, and is repealed at the end of 31 August 2021.
3 Definitions
This section provides essential definitions. In particular, 20 night hours PIC requirement means the requirement in paragraph 61.1035 (2) (b) of CASR that an applicant for an NVIS endorsement must have at least 20 hours of flight time at night as pilot in command of a helicopter.
Also, this section provides that a reference to a provision that includes the numerals “61” is a reference to the provision in Part 61 of CASR.
4 Application
Under this section, the instrument is expressed to apply, according to its terms, to the persons or organisations listed who are the recipients of the benefit of the exemption, namely, applicants for NVIS ratings or endorsements, relevant examiners and approval holders, relevant Part 141 and Part 142 operators, relevant heads of operations and responsible flight trainers.
5 Exemptions
Subsections 5 (1) to (9) list the 9 individual exemptions that make up the instrument in order to achieve its purpose, as follows.
(1)Under this subsection, an NVIS examiner and an NVIS approval holder are each exempt from the requirement in paragraph 61.165 (c) that, to grant an NVIS rating to an applicant, the applicant must meet the requirements of Part 61 for the rating. The exemption applies only to the extent that the applicant does not meet the 20 night hours PIC requirement that would otherwise arise under paragraph 61.1020 (b) for the grant of an NVIS rating to the applicant. Paragraph 61.1020 (b) requires that an applicant for an NVIS rating must, among other things, meet the requirements for the grant of at least 1 NVIS endorsement.
(2)Under this subsection, an NVIS examiner and an NVIS approval holder are each exempt from the requirement in paragraph 61.170 (c) that, to grant an NVIS endorsement to an applicant, the applicant must meet the requirements of Part 61 for the endorsement. The exemption applies only to the extent that the applicant does not meet the 20 night hours PIC requirement that would otherwise arise under paragraph 61.1035 (2) (b) for the grant of an NVIS endorsement to the applicant. Paragraph 61.1035 (2) (b) requires that an applicant for an NVIS endorsement must meet the aeronautical experience requirements for an NVIS endorsement mentioned in column 3 of table 61.1025, which includes the 20 night hours PIC requirement.
(3)Under this subsection, an applicant for an NVIS rating with an NVIS endorsement is exempt from subparagraph 61.235 (4) (a) (iii). The exemption applies only to the extent that the applicant would have to comply with the 20 night hours PIC requirement that would otherwise arise under paragraph 61.1020 (b) for the grant of an NVIS rating to the applicant. Without this exemption the applicant would not be eligible to take a flight test for the rating, because a relevant person would not be able to certify that the applicant met the aeronautical experience requirements for the rating.
(4)Under this subsection, an applicant for an NVIS rating or endorsement is exempt from regulation 61.240, which otherwise deems an applicant not to have passed a flight test if the applicant was not eligible, under regulation 61.235, to take it at that time. The exemption applies only to the extent of the 20 night hours PIC requirement that would otherwise arise under paragraph 61.1020 (b) or 61.1035 (2) (b) for the applicant’s eligibility for a flight test for the rating or endorsement.
(5)Under this subsection, an applicant for an NVIS rating is exempt from paragraph 61.1020 (b), which requires an applicant for an NVIS rating to meet the requirements for an NVIS endorsement. The exemption applies only to the extent of the 20 night hours PIC requirement that would otherwise arise under paragraph 61.1020 (b) for the grant of the rating to the applicant.
(6)Under this subsection, an applicant for an NVIS endorsement is exempt from paragraph 61.1035 (2) (b), which requires an applicant for an NVIS endorsement to meet the aeronautical experience requirements for the endorsement mentioned in column 3 of table 61.1025. The exemption applies only to the extent of the 20 night hours PIC requirement that would otherwise arise under paragraph 61.1035 (2) (b) for the grant of the endorsement to the applicant.
(7)Under this subsection, an applicant for an NVIS endorsement is exempt from subparagraph 61.1035 (4) (b) (ii), which requires the applicant to have completed at least 10 hours of the 20 night hours PIC requirement before starting the 5 hours dual flight using NVG under paragraph 61.1035 (2) (d).
(8) Under this subsection, an NVIS examiner is exempt from subparagraph 61.1300 (4) (b) (iii), which provides that a flight examiner would commit an offence if the examiner conducts a flight test for a rating or endorsement without being satisfied, when the test begins, that the applicant has met the aeronautical experience requirements for the rating or endorsement. The exemption applies only to the extent that the absence of satisfaction exclusively concerns the 20 night hours PIC requirement that arises under paragraph 61.1020 (b) or 61.1035 (2) (b) for an applicant for an NVIS rating or endorsement.
(9)Under this subsection, a Part 141 operator and a Part 142 operator, and their respective HOO, are each exempt from paragraphs 141.210 (1) (b) and 142.245 (1) (b), as applicable. Under those provisions it is an offence for the relevant operator and its HOO if a person is recommended for a flight test and the person is not eligible under regulation 61.235 to take the test. The exemption applies only to the extent that a recommended person’s (the applicant’s) lack of eligibility to undertake a flight test is caused exclusively by the absence of the 20 night hours PIC requirement that arises under subparagraph 61.235 (4) (a) (iii) and paragraphs 61.1020 (b) and 61.1035 (2) (b) for an applicant for an NVIS rating or endorsement.
(10) Under this section, the 9 exemptions mentioned above are subject to the safety conditions specified in section 6.
6 Conditions
(1) Under this subsection, it is a condition of each exemption that the person to whom the exemption applies (for subsections 5 (3) to (7), that person is the applicant) must ensure that the applicant has completed at least 20 hours of unaided aeronautical experience at night as pilot of a helicopter, and not necessarily as pilot in command. The person must also ensure that at least 9 hours of the 20 hours required were completed in an actual helicopter. This means that not more than 11 hours of the 20 hours may be completed in an approved flight simulator. This provides an appropriate alternative to the 20 night hours PIC requirement.
(2) Under this subsection, for the exemptions in subsections 5 (3) and (4), a relevant Part 141 or 142 HOO, or Part 141 or 142 flight trainer, or Part 141 or 142 approval holder, must have certified in writing that the applicant has completed at least 20 hours of unaided flight time at night as pilot of a helicopter, of which at least 9 hours was completed in a helicopter. That is, a relevant person must have certified that the applicant has met the requirements in subsection 6 (1). This condition replaces the requirement in subparagraph 61.235 (4) (a) (iii) for a person mentioned in subregulation 61.235 (5), (6) or (7) to certify in writing that the applicant has met the aeronautical experience requirements for the rating. The obligation to ensure compliance with this condition is imposed on the applicant.
Attachment 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX105/18 — Aeronautical Experience for NVIS Rating or Endorsement Exemption 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 central purpose of this legislative instrument is to exempt applicants for a night vision imaging system rating or endorsement from the requirement under Part 61 of the Civil Aviation Safety Regulations 1998 to have at least 20 hours of flight time at night as pilot in command of a helicopter, provided the applicant has at least 20 hours of unaided aeronautical experience at night as pilot of a helicopter. (Unaided means without the use of night vision goggles or a night vision imaging system.) The additional pilot in command role requirement is not considered necessary to aviation safety. To achieve the central purpose, there are additional consequential exemptions.
Human rights implications
Right to work
The right to work, contained in Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights, 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 promoted by this instrument as it provides greater flexibility for pilots to obtain the civil aviation authorisations that are necessary to perform particular duties.
Other rights
This legislative instrument does not engage any of the other applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not adversely impact any human rights.
Civil Aviation Safety Authority