Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from having a training and checking organisation
Legislation
Paragraph 98 (5A) (a) of the Civil Aviation Act 1988 (the Act) provides that the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of 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 these Regulations (including the Civil Aviation Regulations 1988 (CAR 1988)) or a provision of the Civil Aviation Orders 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 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1) of CASR 1998, the maximum duration of an exemption is 3 years.
Subregulation 217 (1) of CAR 1988 requires that the operator of a regular public transport service, the operator of any aircraft with a maximum take-off weight of more than 5 700 kg, or any operator that CASA specifies, must provide a training and checking organisation.
Background
A training and checking organisation is intended to ensure that operating crews employed by the operator maintain their competency. The training and checking organisation and the tests and checks for which it provides are, under subregulation 217 (3) of CAR 1988, subject to approval by CASA.
As a result of increases in the size of aerial work aircraft, operators using large aerial work aircraft with a maximum take-off weight that exceeds 5 700 kg are subject to subregulation 217 (1) and are required to have training and checking organisations. Aerial application operations are prescribed in Part 137 of CASR 1998 and include a flight that is carried out for the purpose of applying application material i.e. fertilisers, trace elements, seeds, baits, water, pesticides or other material. For operations of that kind, CASA considers that a formal training and checking organisation is not appropriate and imposes an unnecessary burden on the operators. Therefore, the exemption exempts aerial work operators from compliance with subregulation 217 (1) of CAR 1988.
The exemption is subject to various conditions. The aircraft must be used exclusively for aerial application operations and the operations must be conducted in accordance with the relevant operations manual.
Legislation Act 2003 (the LA)
Exemptions issued under regulation 11.160 of CASR 1998 are issued under subsection 98 (5A) of the Act. Subsection 98 (5AA) of the Act states that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if it applies to a class of persons. This exemption applies to a class of persons, being operators of aircraft with a maximum take-off weight that exceeds 5 700 kg employed in aerial application operations, and so is a legislative instrument.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Consultation under section 17 of the LA has not been undertaken in this case. The instrument renews a previous instrument, CASA EX81/13, which expires at the end of 31 July 2016. That exemption was granted to overcome an unintended consequence of size increases in aerial work aircraft. It had been the intention of CASA that Subpart 137.N of CASR 1998, which deals with pilot qualifications for carrying out aerial application operations and annual checks for those pilots would take the place of training and checking organisations. However, the increases in the size of aerial work aircraft used for aerial application operations has led to some of those aircraft exceeding the 5 700 kilograms maximum take-off weight that triggers the application of subregulation 217 (1) of CAR 1988. It was never CASA’s policy that aircraft operators engaged in aerial application operations should be required to have a formal training and checking organisation. Accordingly, the instrument is considered to be of a machinery nature to remove what CASA considers an unintended consequence of the scope of subregulation 217 (1). The exemption will have no effect on the manner in which the aerial work industry currently operates and will avoid unnecessary disruption and expense. In these circumstances, CASA believes that no consultation is necessary or appropriate.
Future need for the exemption
As part of CASA’s regulatory program, CASA is developing amendments to CAR 1988 and CASR 1998 that will address the unintended scope of subregulation 217 (1) of CAR 1988, and therefore eliminate the need for the repeated renewal of this exemption. Under, the current proposed regulatory program timeline, the amending regulations are to commence in 2018.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Regulation Impact Statement
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and the Office of Best Practice Regulation (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 under subregulation 11.260 (1) of CASR 1998.
The instrument commences on 1 August 2016 and is repealed at the end of 31 July 2019.
[Instrument number CASA EX115/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — from having a training and checking organisation
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 operators that use aircraft with a maximum take-off weight that exceeds 5 700 kg for aerial application operations from compliance with subregulation 217 (1) of the Civil Aviation Regulations 1988, which would otherwise require them to have a training and checking organisation.
The primary purpose of the legislative instrument is to continue to allow those aircraft operators to operate without the unnecessary burden of providing a training and checking organisation.
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