Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption – from appointment of full-time check pilot – JetGo Australia Holdings Pty Ltd
Legislation
Under paragraph 28BA (1) (b) of the Civil Aviation Act 1988 (the Act), an Air Operators’ Certificate (AOC) has effect subject to, amongst other things, any condition specified in the regulations or Civil Aviation Orders (CAO).
Subsection 98 (1) of the Act provides that the Governor-General may make regulations for the Act and the safety of air navigation.
Under subsection 98 (4A) of the Act, CASA may issue CAOs, not inconsistent with the Act or the regulations, and not prescribing any pecuniary penalty, with respect to any matter in relation to which regulations may be made for the purposes of section 28BA.
Regulation 217 of the Civil Aviation Regulations 1988 (CAR 1988) provides that an operator of a regular public transport (RPT) service must provide a training and checking organisation to ensure that its operating crews maintain their competency.
CAO 82.5 was made under paragraph 28BA (1) (b) and subsection 98 (4A) of the Act and specifies conditions on AOCs that authorise RPT operations in high capacity aircraft.
Under paragraph 2.2 of CAO 82.5, each operator must employ such numbers of qualified personnel as CASA considers necessary to operate the services proposed by the operator and such personnel must be employed on a full-time basis in appropriate areas.
Under paragraph 3.2 of CAO 82.5, where relevant, a training and checking organisation must be in accordance with Appendix 2. Paragraph 2.4 of Appendix 2 to CAO 82.5 states that all persons appointed to a position with the training and checking organisation must be in the full-time employment of the operator.
Paragraphs 2.2 and 3.2, and paragraph 2.4 of Appendix 2, of CAO 82.5 apply to JetGo Australia Holdings Pty Ltd (the operator) as the holder of an AOC that authorises RPT operations in high capacity aircraft.
Subsection 98 (5A) of the Act provides that the regulations may empower CASA to issue instruments in relation to the following:
(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft; or
(b) the airworthiness of, or design standards for, aircraft.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of CASR 1998, CAR 1988 or the CAOs in relation to a matter mentioned in that subsection.
Under subregulation 11.160 (2) of CASR 1998, 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 11.210 of CASR 1998, it is an offence not to comply with a condition of an exemption.
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.
Exemption
For reasons of operational efficiency, the operator wishes to employ or engage Captain Chad Ryan Tracy on a part-time basis. Mr Tracy was formerly Head of Training and Checking of the operator. He resides in the United States of America (USA), where the flight simulation training device (FSTD) used by the operator for training and checking of its pilots in Embraer 135/145 aircraft is located.
This instrument exempts the operator from compliance with paragraphs 2.2 and 3.2, and paragraph 2.4 of Appendix 2, of CAO 82.5 in relation to the employment or engagement of Mr Tracy. The exemption applies to a limited extent and subject to conditions.
The exemption from paragraph 2.2 is limited to any requirement for Mr Tracy to be employed on a full-time basis. The exemption from paragraph 3.2, and paragraph 2.4 of Appendix 2, of CAO 82.5 is limited to any requirement for Mr Tracy to be in the full-time employment of the operator.
The conditions of the exemption include that the operator must ensure that Mr Tracy holds an air transport pilot licence and a class 1 medical certificate issued by CASA or the Federal Aviation Administration of the United States of America, and that he conducts training only in an approved FSTD for Embraer 135/145 aircraft. The operator must ensure that Mr Tracy is familiar with all relevant sections of the operator’s operations manual. Mr Tracy may only conduct training and checking activities for other pilots if he has successfully completed those activities himself in an approved FSTD for Embraer 135/145 aircraft.
Legislative Instruments Act 2003 (the LIA)
Under section 5 of the LIA, subject to sections 6, 7 and 9 of the LIA, a legislative instrument is an instrument in writing that is of a legislative character, and that is or was made in the exercise of a power delegated by the Parliament.
Under subparagraph 6 (d) (i) of the LIA, an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. Under regulation 5A of CAR 1988, if CASA has issued a CAO, and CASA later issues a direction that affects the operation of the CAO, the later document is declared to be a disallowable instrument. The instrument affects the operation of paragraphs 2.2 and 3.2, and paragraph 2.4 of Appendix 2, of CAO 82.5.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The operator has requested this instrument to assist it in achieving its obligations relating to training and checking of flight crew. It is expected that the instrument will not have a negative impact on aviation safety. 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 for exemptions (OBPR id: 14507).
Making and commencement
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, under subsection 73 (2) of the Act.
The exemption commences on the day of registration and expires at the end of May 2018, as if it had been repealed by another instrument.
[Instrument number CASA EX112/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption – from appointment of full-time check pilot – JetGo Australia Holdings Pty Ltd
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 JetGo Australia Holdings Pty Ltd (the operator) from the requirement to employ a specified individual in its training and checking organisation on a full-time basis.
The purpose of the exemption is to allow the operator to employ or engage a specified qualified and experienced individual to work for the operator on a part-time basis. It is expected that the exemption will not have a negative impact on aviation safety.
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