Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX114/18 — Flight Instructors (Training in Principles and Methods of Instruction) Exemption 2018
Purpose
The purpose of this legislative instrument is to exempt certain holders of an instructor rating from requirements, under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR), to have completed a training course in principles and methods of instruction (PMI) in order to exercise the privileges of the rating. The instrument applies in relation to holders of a flight instructor rating or simulator instructor rating who transitioned to the current instructor rating scheme when Part 61 of CASR commenced on 1 September 2014 (a transitioned instructor).
The instrument also exempts Part 141 and 142 operators from requirements to ensure that its transitioned instructors are authorised under Part 61 of CASR to conduct relevant training, to the extent that such instructors have not completed PMI training.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made CASR and the Civil Aviation Regulations 1988 (CAR).
Regulation 61.065 of CASR makes it an offence for a person to conduct an activity mentioned in Part 61 of CASR unless the person is authorised under Part 61 to conduct the activity.
Regulation 61.1172 of CASR has effect to require certain holders of a flight instructor rating, in order to exercise the privileges of the rating for regulation 61.065, to have completed an approved course of training in PMI, or hold a Certificate IV in Training and Assessment, or to hold a tertiary qualification in teaching.
Regulation 61.1197 of CASR has effect to require the holder of a simulator instructor rating, in order to exercise the privileges of the rating for regulation 61.065, to have completed an approved course of training in PMI, or hold a Certificate IV in Training and Assessment, or to hold a tertiary qualification in teaching.
Both of regulations 61.1172 and 61.1197 apply only to an instructor whose rating was granted on the basis of regulation 202.272 or 202.274 of CASR. Regulations 202.272 and 202.274 provided for a person to be eligible for the grant of an instructor rating under Part 61 of CASR if, immediately before the commencement of Part 61, the person held or was entitled to be granted an instructor rating under Part 5 of CAR, as Part 5 was in force before the commencement of Part 61 of CASR.
Under regulation 141.175 of CASR, a Part 141 operator commits an offence if an instructor for the operator conducts authorised Part 141 flight training and the instructor is not authorised to conduct the training under Part 61 of CASR.
Under regulation 142.230 of CASR, and relevant for present purposes, a Part 142 operator commits an offence if an instructor for the operator conducts authorised Part 142 flight training and the instructor is not authorised to conduct the training under Part 61 of CASR.
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR relevantly provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant an exemption on its own initiative.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Background
Part 61 of CASR introduced new, standardised requirements for pilots conducting training. As noted above, in order to exercise the privileges of a flight instructor rating or simulator instructor rating, and among other things, a person must have completed an approved course of training in PMI, hold a Certificate IV in training and assessment or hold a tertiary qualification in teaching. The policy intent of this requirement was to ensure that all instructors have a foundation level knowledge of PMI.
Feedback from the aviation industry has identified several problems with the new requirement, including:
- some pilots do not have evidence of completing an approved course of training as records were not kept;
- while PMI has been a requirement for some instructor ratings, the PMI section has not always been formally approved as a component of the relevant training course;
- there is a level of uncertainty about the value of basic PMI training for very experienced instructors, such as those who transitioned to the Part 61 scheme in 2014;
- some pilots completed equivalent training in other countries or with the Australian Defence Force and obtained their Part 61 instructor rating through a conversion process prior to September 2014;
- in many cases, Part 141 and 142 operators find it difficult to be satisfied that their instructors meet the requirements in regulations 61.1172 and 61.1197 where pilots do not have access to evidence that the PMI training was approved.
In addition to the requirements in regulations 61.1172 and 61.1197, the competency of instructors conducting training is regulated in other ways including: the requirement to complete biennial instructor proficiency checks, ongoing supervision by their Part 141 or 142 operator, and the requirement to complete standardisation and proficiency checks. These activities should ensure that instructors conduct training effectively and in accordance with PMI.
CASA has received inquiries about the application of the PMI requirements; concerns have been raised about getting access to approved courses of training, and a small number of complaints have been received indicating the PMI requirement is not necessary or beneficial.
Consequently, CASA considers that there is now sufficient doubt over the appropriateness of the policy underpinning regulations 61.1172 and 61.1297 in relation to holders of instructor ratings who transitioned to the Part 61 scheme in 2014 to justify a change to the application of the PMI requirement.
Instrument
The instrument exempts transitioned instructors from the requirements under Part 61 of CASR to have completed PMI training in order to exercise the privileges of their instructor rating.
The instrument also exempts Part 141 and 142 operators from the requirements to ensure that their transitioned instructors are authorised under Part 61 of CASR to conduct authorised training, to the extent that such instructors have not completed PMI training.
Section 1 states the name of the instrument.
Section 2 states when the instrument commences and when it is repealed.
Section 3 provides definitions for the instrument. It defines a transitioned flight instructor to be a holder of a flight instructor rating granted on the basis of regulation 202.272 or 202.274 of CASR. Section 3 defines a transitioned simulator instructor to be a holder of a simulator instructor rating granted on the basis of regulation 202.272 or 202.274 of CASR.
A note to section 3 identifies certain terms defined in the regulations that have the same meaning in the instrument.
Section 4 provides exemptions from subregulation 61.065 (1) of CASR for transitioned instructors. The exemption for a transitioned flight instructor is to the extent that the instructor is required to comply with subregulation 61.1172 (2) of CASR to be authorised to exercise the privileges of the instructor’s flight instructor rating. The exemption for a transitioned simulator instructor is to the extent that the instructor is required to comply with subregulation 61.1197 (2) of CASR to be authorised to exercise the privileges of the instructor’s simulator instructor rating.
Section 5 provides exemptions for Part 141 and 142 operators. A Part 141 operator is exempted from subregulation 141.175 (1) of CASR while a Part 142 operator is exempted from subregulation 142.230 (1) of CASR. The exemptions are to the extent that the operator is required to ensure that a transitioned flight instructor complies with regulation 61.1172 and a transitioned simulator instructor complies with subregulation 61.1197, in order for the transitioned instructor to be authorised to exercise the privileges of the instructor’s instructor rating.
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 exempts classes of persons from complying with the specified provisions of CASR, namely transitioned instructors and Part 141 and 142 operators. 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
CASA has taken into account industry feedback on the issue and conducted limited consultation with industry stakeholders. There were no adverse comments on the proposal to make the exemption, in light of the difficulties with implementation of the existing regulatory requirements specified in the Background section above. CASA officers in standards development and regulatory services (industry-facing) roles also support the grant of the exemption to promote appropriate and consistent regulation of the relevant issue.
Although some industry participants will have achieved compliance with the regulations prior to the making of the exemption, overall the instrument is beneficial to industry.
In these circumstances CASA is satisfied that no further consultation is appropriate or necessary for this instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Making and commencement
The instrument 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 September 2018 and is repealed at the end of 31 August 2021.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX114/18 — Flight Instructors (Training in Principles and Methods of Instruction) 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 purpose of this legislative instrument is to exempt certain holders of an instructor rating from requirements, under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR), to have completed a training course in principles and methods of instruction (PMI) in order to exercise the privileges of the rating. The instrument applies in relation to holders of a flight instructor rating or simulator instructor rating who transitioned to the current instructor rating scheme when Part 61 of CASR commenced on 1 September 2014 (a transitioned instructor).
The instrument also exempts Part 141 and 142 operators from requirements to ensure that their transitioned instructors are authorised under Part 61 of CASR to conduct authorised training, to the extent that such instructors have not completed PMI training.
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