Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — instrument proficiency check – Virgin Australia
Legislation
Section 98 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.
Part 61 of the Civil Aviation Safety Regulations 1998 (CASR 1998) commences on 1 September 2014 and deals with flight crew licencing requirements. Subregulation 61.065 (1) of CASR 1998 states, among other things, that the holder of a flight crew licence commits an offence if the holder pilots a registered aircraft and the holder is not authorised under Part 61 to conduct the activity.
Separately, subregulation 61.695 (1) provides that the holder of an air transport pilot licence is authorised to exercise the privileges of the licence under the instrument flight rules in an aircraft of a particular category only if the holder has a valid instrument proficiency check for the aircraft category. An instrument proficiency check is conducted by an operator’s training and checking organisation under regulation 217 of the Civil Aviation Regulations 1988 (CAR 217 organisation).
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 the regulations or the Civil Aviation Orders. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
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), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement) or, if no day is specified, 3 years after commencement.
Instrument
A large number of B737 pilots operating for Virgin Australian Airlines Pty Ltd (VAA) will commence operations for Virgin Australia International Airlines Pty Ltd (the operator) from 1 September 2014. However, those pilots will not be entitled to conduct operations until such time that those pilots have satisfied the requirements of subregulation 61.695 (1) of CASR 1998, meaning that the pilots are required to have a valid instrument proficiency check with the operator’s CAR 217 organisation. This instrument proficiency check is separate to that conducted by the VAA’s CAR 217 organisation. Given the number of pilots involved with the transfer and limited training resources, it will not be possible to have all B737 pilots complete the instrument proficiency check on 1 September 2014. Consequently, these pilots will also contravene subregulation 61.065 (1) of CASR 1998.
The exemption therefore applies to the operator’s B737 pilots seeking to conduct operations from 1 September 2014 and who have not completed an instrument proficiency check with the operator’s CAR 217 organisation. The instrument exempts these pilots from subregulations 61.065 (1) and 61.695 (1) of CASR 1998.
The instrument is subject to a range of conditions, including that the operator’s B737 pilots must be participating in the cyclic training and proficiency program (CTPP) administered by VAA until such time as each pilot transitions to, and is inducted into, the operator’s CTPP. Additionally, at the point in time when each pilot transitions to the operator’s CTPP, the pilot must undertake that component of the operator’s CTPP that is equivalent to the component of VAA’s CTPP as if the pilot had continued his or her CTPP with VAA. This ensures that the transition between CTPPs is smooth and the pilot’s training cycle is not disrupted. Once a pilot has transitioned to the operator’s CTPP, that pilot will not be eligible to conduct operations for VAA, unless the pilot is transferred and fully inducted back into VAA’s CTPP. The pilot may therefore only conduct operations for VAA or the operator, but not both.
The transition period is expected to take no longer than 5 months, after which this instrument will expire.
Legislative Instruments Act
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 the regulations or Civil Aviation Orders. An instrument issued under paragraph 98 (5A) (a) 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 operator’s B737 pilots. The instrument is, therefore, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The exemption has been issued at the request of the operator and only affects the operator’s B737 pilots. It is of beneficial effect to the operator’s business. 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 LIA.
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 a delegate of CASA relying on the power of delegation in subregulation 11.260 (1) of CASR 1998.
The exemption commences on the day of registration and expires at the end of January 2015, as if it had been repealed by another instrument.
[Instrument number CASA EX110/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — instrument proficiency check – Virgin Australia
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 instrument applies to Virgin Australia International Airlines’ (the operator) B737 pilots seeking to conduct operations from 1 September 2014 under the new Civil Aviation Safety Regulations 1998 Part 61 flight crew licensing requirements and who have not completed an instrument proficiency check with the operator’s training and checking organisation. The instrument exempts these pilots from the requirement to have completed an instrument proficiency check with the operator’s training and checking organisation and a related offence provision, therefore allowing the pilots to conduct operations for the operator until transition arrangements have been finalised.
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