CASA EX106/16 - Exemption — flight examiner rating for holders of CAO 82.0 check pilot approvals

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Legislation au F2016L01114 Not in force Legislative Instrument

Legislation content

Explanatory Statement

Civil Aviation Safety Regulations 1998

Exemption — flight examiner rating for holders of CAO 82.0 check pilot approvals

 

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.

 

On 1 September 2014, new arrangements dealing with flight crew licensing commenced under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR 1998). These arrangements replaced the previous regulatory framework under Part 5 of the Civil Aviation Regulations 1988 (CAR 1988). Transitional provisions were included in Part 202 of CASR 1998 to accommodate industry feedback on facilitating the changes in requirements.

 

Among other things, subregulation 202.263 (1) of CASR 1998 provides that an old authorisation that was in force immediately before 1 September 2014 is continued in force on and after 1 September 2014 according to its terms. Subregulation 202.263 (2) provides that Part 61 applies to the continued authorisation as if it were the equivalent new authorisation. An “old authorisation” is defined in regulation 202.261 as meaning a civil aviation authorisation to carry out an activity essential to, or associated with, the operation of an aircraft in flight issued under Part 5 of CAR 1988 or a relevant Civil Aviation Order (CAO). A “relevant CAO” is set out in a list under the definition of old authorisation, and includes a CAO made under Part 5 of CAR 1988, as well as CAO 26.6, CAO 29.10, CAO 29.11 and CAO 82.6.

 

CAO 82.0 prescribes application and general requirements for Air Operators’ Certificates. Paragraph 2.1 of CAO 82.0 defines “check pilot” as meaning a person approved by CASA to conduct flight training and proficiency checks. By virtue of this provision, a person may be approved as a CAO 82.0 check pilot. CAO 82.0 is not included in the list of relevant CAOs for the purposes of transitioning an old authorisation under regulation 202.263 of CASR 1998.

 

Subregulation 61.375 (7) states that the holder of a pilot licence is authorised to conduct an activity mentioned in Table 61.375, only if the pilot licence holder also holds the requisite rating. For the conduct of an activity mentioned in regulation 61.1255 of CASR 1988, Table 61.375 requires the pilot licence holder to hold a flight examiner rating. Subparagraph 61.1255 (c) (v) of CASR 1998 provides that a flight examiner is authorised to conduct operator proficiency checks.

 

The effect of subregulation 61.375 (7) and regulation 61.1255 of CASR 1998 is that each operator proficiency check referred to in Part 61 is required to be conducted by a Part 61 flight examiner. This precludes the checks being conducted by a CAO 82.0 check pilot. Since authorisations under CAO 82.0 are not transitioned under the Part 61 framework, holders of a CAO 82.0 check pilot approval do not hold a flight examiner rating for the purposes of subregulation 61.375 (7) of CASR 1998. An exemption is, therefore, required to allow a holder of a CAO 82.0 check pilot approval to continue performing check pilot duties under Part 61.

 

Subregulation 11.160 (1) of CASR 1998 provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of these Regulations, including a provision of the CAOs, in relation to a matter mentioned in that subsection.

 

Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.

 

Instrument

The instrument exempts a holder of a CAO 82.0 check pilot approval from holding a Part 61 flight examiner rating for subregulation 61.375 (7) of CASR 1998, but only for the purpose of conducting an operator proficiency check within the scope of his or her approval. The scope of the exemption is also limited to the conduct of an operator proficiency check, other than an operator proficiency check for the purposes of regulation 61.650 (multi-crew pilot licence instrument proficiency check), regulation 61.695 (air transport pilot licence instrument proficiency check) or regulation 61.880 (instrument rating proficiency check). The instrument ensures that, despite there being no applicable regulatory transitional provision in Part 202 of CASR 1998, the intention that old authorisations continue to have effect for a period of time after introduction of Part 61 is preserved.

 

The exemption is subject to 3 conditions. The operator proficiency check must be conducted: while the holder of the CAO 82.0 check pilot approval is working for the operator; in accordance with the operator’s approved training and checking system; and in accordance with the conditions specified in the check pilot’s CAO 82.0 check pilot approval.

 

This instrument renews the exemption in instrument CASA EX140/14, which expires at the end of June 2016.

 

Legislative Instruments Act

For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the Regulations or the CAOs. 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 exemption applies to a class of persons, being the holders of a CAO 82.0 check pilot approval. The exemption is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislation Act 2003 (the LA).

 

Consultation

Before making CASA EX140/14, CASA, in consultation with industry, reviewed the arrangements applying to CAO 82.0 check pilot approval holders and decided to issue an exemption to ensure industry benefits from a transitional period that would have otherwise been applied for old authorisations in force before 1 September 2014. This instrument continues the arrangement under CASA EX140/14. 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 (OBPR id: 14507).

 

Making and commencement

The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.

 

The instrument commences on 1 July 2016 and is repealed at the end of 31 August 2018.

 

[Instrument number CASA EX106/16]

Attachment 1

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011

 

Exemption — flight examiner rating for holders of CAO 82.0 check pilot approvals

 

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 holders of an approval under Civil Aviation Order (CAO) 82.0 to conduct an operator proficiency check from the requirement to hold a flight examiner rating under Part 61 of the Civil Aviation Safety Regulations 1998. In effect, this grants each holder of a CAO 82.0 check pilot approval a transitional period to adjust to the new Part 61 requirements.

 

The exemption is subject to conditions imposed by CASA in the interest of air safety, including that the operator proficiency checks must be in accordance with the conditions specified in the CAO 82.0 check pilot approval.

 

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

Overview

The Civil Aviation Safety Regulations 1998, as amended by F2016L01114, address a specific issue arising from the transition of flight crew licensing arrangements under Part 61 of the Civil Aviation Safety Regulations 1998, which commenced on 1 September 2014. This transition replaced the previous regulatory framework under Part 5 of the Civil Aviation Regulations 1988. The problem identified was that holders of CAO 82.0 check pilot approvals were not covered by the transitional provisions in Part 202 of CASR 1998, which meant they did not hold a flight examiner rating required for conducting operator proficiency checks under Part 61. This oversight necessitated an exemption to allow these individuals to continue their duties during a transitional period. The instrument was enacted by the Civil Aviation Safety Authority (CASA) under the authority granted by the Civil Aviation Act 1988, specifically subsection 98(5A), which allows CASA to issue instruments for matters affecting the safe navigation and operation of aircraft. The policy objective of this exemption is to ensure that the transition to the new regulatory framework does not disrupt the continuity of essential aviation activities, thereby maintaining the safety of air navigation. The exemption is subject to specific conditions to safeguard air safety and is renewable every three years.

Scope and Application

The Civil Aviation Safety Regulations 1998, pursuant to the Civil Aviation Act 1988, provide the framework for ensuring the safety of air navigation and the operation of aircraft within Australia. These regulations apply to a broad range of entities and individuals, including aircraft operators, pilots, and aviation professionals, ensuring that all conduct and activities adhere to safety standards. Specifically, the exemption discussed in the explanatory statement applies to holders of a CAO 82.0 check pilot approval, allowing them to continue conducting operator proficiency checks without holding a Part 61 flight examiner rating, provided certain conditions are met. This exemption is geographically applicable across Australia, as it pertains to the national regulatory regime overseen by the Civil Aviation Safety Authority (CASA). The exemption is subject to conditions, including that the checks must be conducted while the individual is working for the operator, in accordance with the operator’s approved training and checking system, and within the conditions specified in their CAO 82.0 check pilot approval. The exemption is renewable and was set to last until the end of August 2018. The exemption does not extend to operator proficiency checks for multi-crew pilot licence, air transport pilot licence, or instrument rating proficiency checks. This exemption ensures a smooth transition for CAO 82.0 check pilot approval holders to adapt to the new regulatory requirements under Part 61 of the Civil Aviation Safety Regulations 1998.

Key Provisions

The Civil Aviation Safety Regulations 1998 (CASR 1998) include provisions that establish the framework for aviation safety in Australia. In particular, subregulation 61.375(7) of CASR 1998 states that a person is authorised to conduct certain activities only if they hold the requisite rating, such as a flight examiner rating for operator proficiency checks (subparagraph 61.1255(c)(v)). However, holders of a CAO 82.0 check pilot approval, which allows them to conduct flight training and proficiency checks, do not hold a Part 61 flight examiner rating under the new regulatory framework introduced in 2014. This discrepancy necessitates an exemption to allow these individuals to continue their duties under the old regulatory system. The obligations imposed by this Act on the parties it governs include ensuring that the operator proficiency checks are conducted by the CAO 82.0 check pilot approval holders while they are working for the operator, in accordance with the operator’s approved training and checking system, and in line with the conditions specified in their CAO 82.0 check pilot approval. This ensures that safety standards are upheld while providing a transitional period for those affected by the regulatory changes. The Act also delineates consequences for non-compliance with these provisions. Although specific penalties are not mentioned in the text, any breach of aviation safety regulations can lead to enforcement actions, which may include fines, suspension or revocation of licenses, and other administrative or legal penalties. Such actions are typically enforced by the Civil Aviation Safety Authority (CASA) to maintain the highest standards of safety in air navigation. In summary, this legislation provides a transitional exemption for holders of a CAO 82.0 check pilot approval, allowing them to continue conducting operator proficiency checks without holding a Part 61 flight examiner rating. This exemption is conditional and subject to strict adherence to safety protocols, with potential enforcement actions for any non-compliance.

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Area of Law
Administrative Law
Civil Aviation Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Transitional Provisions
Compliance Obligations
Enforcement Powers
Consultation Requirements

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.