Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — aerial application rating and firefighting endorsement
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.
Regulation 61.375 of CASR 1998 sets out limitations on the exercise of pilot licence privileges and requires a holder of a pilot licence to have an appropriate aircraft class rating in order to perform the corresponding activity for that rating, as prescribed in Table 61.375. Item 6 of Table 61.375 requires the holder of a pilot licence to have an aerial application rating to be eligible to perform an aerial application operation (which includes firefighting operations) below 500 feet above ground level (AGL).
Regulation 61.1100 of CASR 1998 states that the holder of an aerial application rating is authorised to conduct an activity mentioned in Table 61.1120, but only if the holder also holds the corresponding endorsement mentioned in that table. Item 4 of Table 61.1120 relates to an aeroplane firefighting endorsement and sets out the activities authorised by that endorsement, including conducting a firefighting operation below 500 feet AGL, subject to requirements on minimum flight time and category rating. Item 5 of Table 61.1120 relates to a helicopter firefighting endorsement and sets out the authorised activities, including conducting a firefighting operation below 500 feet AGL, subject to requirements on minimum flight time and category rating.
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
Under the current legislative framework, firefighting operations are regulated under various provisions in the Civil Aviation Regulations 1988, Part 137 of CASR 1998, and Civil Aviation Order 29.6. From 1 September 2014, flight crew licensing will be contained in Part 61 of CASR 1998. This includes the ratings, endorsements and training required for conducting firefighting operations.
This exemption offers aeroplane and helicopter firefighting pilots, who are preparing for the 2014-15 firefighting season, a 12 month transitional period where their eligibility to conduct firefighting operations under the current regulatory framework will continue from 1 September 2014, notwithstanding that firefighting requirements under Part 61 of CASR 1998 have not been met. This instrument allows firefighting pilots and operators to focus on bushfire response and operational matters, while gradually transitioning to the Part 61 regulatory framework.
The instrument is subject to a range of conditions, including that pilots may only conduct firefighting operations under an air operator’s certificate that authorises firefighting operations, and requires pilots to have been assessed as competent to conduct those operations within the previous 6 months. Pilots of helicopter firefighting operations that involve a sling operation must be authorised to do so under Part 61 of CASR 1998.
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 commercial or air transport aeroplane and helicopter pilots who are conducting firefighting operations from 1 September 2014. The instrument is, therefore, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
CASA has consulted the aviation industry, including the National Aerial Firefighting Centre, on the issue of this exemption. The instrument is of beneficial effect to industry and is in the public interest, allowing firefighting operations to be conducted throughout the 2014-15 firefighting season. 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 August 2015, as if it had been repealed by another instrument.
[Instrument number CASA EX114/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — aerial application rating and firefighting endorsement
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 aeroplane and helicopter pilots who will be conducting firefighting operations from 1 September 2014. The exemption allows these pilots to continue operating under the new flight crew licensing framework contained in Part 61 of the Civil Aviation Safety Regulations 1998, notwithstanding that the pilots may not be rated or endorsed under the new framework. The instrument allows pilots and operators to prepare and respond to the 2014-15 firefighting season while offering a 12 month transitional period for pilots to meet Part 61 requirements.
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