Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption – foreign cadet pilots taking flight test for a commercial pilot licence – class 1 medical certificate
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.
Before 1 September 2014, it was an offence under regulation 5.07 of the Civil Aviation Regulations 1988 (CAR 1988) for a person who did not hold a flight crew licence to attempt a flight test for a flight crew licence if the person did not have a class 1 or class 2 medical certificate. On 1 September 2014, regulation 5.07 was amended so that it now only applies to flight tests for commercial pilot (balloon) licences.
Part 61 of the Civil Aviation Safety Regulations 1998 (CASR 1998) commenced on 1 September 2014 and deals with flight crew licencing requirements for aeroplanes, helicopters, powered-lift aircraft, gyroplanes and airships.
Under paragraph 61.580 (2) (c) of CASR 1998, an applicant for a commercial pilot licence (CPL) must have passed the flight test mentioned in the Part 61 Manual of Standards for the CPL and the associated category rating. Under subregulation 61.580 (3), the flight test for the CPL must be conducted in an aircraft. Under regulation 61.240, an applicant for a flight crew licence is taken not to have passed the flight test if, when the applicant took the flight test, the applicant was not eligible under regulation 61.235 to take the flight test.
Under paragraph 61.235 (2) (c) of CASR 1998, an applicant is eligible to take a flight test for a CPL only if the applicant holds a current medical certificate of the class required for the exercise of the privileges of the licence, or a medical exemption for the exercise of the privileges of the licence. Under regulation 61.415 of CASR 1998, the holder of a CPL is authorised to exercise the privileges of the licence only if the holder also holds a current class 1 medical certificate, or a medical exemption for the exercise of the privileges of the licence. Therefore, under paragraph 61.235 (2) (c), an applicant is eligible to take a flight test for a CPL only if the applicant holds a current class 1 medical certificate, or a medical exemption for the exercise of the privileges of the licence.
Under subregulation 61.415 (2) of CASR 1998, the holder of a CPL is authorised to exercise the privileges of the licence in an activity that would be authorised by a private pilot licence if the holder also holds a current class 2 medical certificate.
Subpart 67.C of CASR 1998 sets out the medical standard that must be met by a person to obtain a class 1, 2 or 3 medical certificate. The standard in relation to respiratory function, diabetes mellitus, hearing and distant visual acuity is higher for a class 1 medical certificate than for a class 2 medical certificate.
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. 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 11.160 (3), in making its decision whether to grant an exemption, CASA must regard as paramount the preservation of a level of aviation safety that is at least acceptable.
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
This exemption provides some applicants for a CPL with a transitional period of approximately 12 months during which they may take a flight test for a CPL without holding a class 1 medical certificate.
The exemption only applies to foreign cadet pilots. A foreign cadet pilot is a person who is not a citizen or permanent resident of Australia, and is undertaking training for a CPL, under sponsorship of a foreign aircraft operator, as a student of an operator that conducts flight training in accordance with Part 141 or 142 of CASR 1998.
The instrument is subject to a range of conditions set out in Schedule 1. They include a condition that foreign cadet pilots must hold a class 2 medical certificate and have met the class 1 medical standard in the pilot’s own country. The requirement to hold a class 2 medical certificate continues the requirement previously in regulation 5.07 of CAR 1988. It is expected that, prior to receiving sponsorship from an airline, the cadet pilot will have completed medical checks to meet medical standard 1 in their home country.
It is also a condition of the exemption that the flight test must be organised by the training provider as part of the pilot’s registration with the training provider.
The condition in clause 3 of Schedule 1 confirms that, following successful completion of the flight test for a CPL, the foreign cadet pilot must hold all relevant permissions, approvals, ratings, endorsements and medical certificates in accordance with Part 61 of CASR 1998 before the pilot flies an Australian aircraft in any operation. Under regulation 61.415, if the pilot holds a current class 2 medical certificate, but not a class 1 medical certificate, the pilot may only conduct an activity that would be authorised by a private pilot licence.
The purpose of the exemption is to allow foreign cadet pilots, who have a class 2 medical certificate, to take a flight test for a CPL without having to obtain a class 1 medical certificate in Australia. This recognises that many foreign cadet pilots will have obtained, and hold, a class 2 medical certificate and will not seek to exercise the privileges of a CPL in Australia.
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. 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 foreign cadet pilots, as defined in section 2 of the instrument. 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
A flight training operator requested this instrument. CASA consulted other flight training operators that conduct similar cadet pilot training and are likely to be in the same position as the operator who requested the exemption. One of these other operators stated that it would welcome the exemption. The instrument is of beneficial effect to industry. Therefore, 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 the Acting Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
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 EX117/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption – foreign cadet pilots taking flight test for a commercial pilot licence – class 1 medical certificate
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
This legislative instrument provides foreign cadet pilots with a transitional period of approximately 12 months during which they may take a flight test for a commercial pilot licence (CPL) without holding a class 1 medical certificate.
The exemption in the instrument is subject to conditions, including a condition that the pilot must hold a class 2 medical certificate and have met the class 1 medical standard in the pilot’s own country.
The medical standard for a class 1 medical certificate is higher than for a class 2 medical certificate.
The purpose of the legislative instrument is to allow foreign cadet pilots who have a class 2 medical certificate to take a flight test for a CPL without having to obtain a class 1 medical certificate in Australia. This recognises that many foreign cadet pilots will have obtained a class 2 medical certificate, as required by the regulations in place before 1 September 2014, and will not seek to exercise the privileges of a CPL in Australia.
Human rights implications
The Regulation engages the following rights:
- The right to work (Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)); and
- The rights to equality and non-discrimination (Article 26 of International Covenant on Civil and Political Rights (ICCPR)).
Right to work
The right to work in Article 6 (1) of ICESR includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept. The right to work is engaged by the exemption from the requirement for an Australian class 1 medical certificate before a foreign cadet pilot can take a flight test for a CPL. It increases the opportunity for these foreign cadet pilots to obtain an Australian CPL, which is used to obtain a CPL in the foreign cadet pilot’s home country where he or she has the potential to work as a pilot. The exemption, therefore, promotes the right to work of the affected pilots.
Rights to equality and non-discrimination
The rights to equality and non-discrimination in Article 26 of ICCPR provide that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, laws should not discriminate on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
The rights to equality and non-discrimination are engaged by this instrument as the benefit that it provides does not apply to people who are citizens or permanent residents of Australia. While foreign cadet pilots will be able to take a flight test for a CPL while holding a class 2 medical certificate, citizens and permanent residents of Australia will require a class 1 medical certificate.
Under Annex 1, Personnel Licensing, to the Convention of International Civil Aviation (the Chicago Convention), medical standard 1 applies to the holder of, or an applicant for, a CPL for an aeroplane or a helicopter. Consequently, by limiting the application of the exemption to foreign cadet pilots for a limited period, the legislative instrument supports Australia’s compliance with its obligations under the Chicago Convention by requiring citizens and permanent residents of Australia to hold a class 1 medical certificate before taking a flight test for a CPL.
The CPL is indirectly linked to the entitlement to work as a pilot. Pilots holding permanent residence or citizenship are entitled to work, so retaining the requirement for class 1 medical certificate for a CPL flight test reduces the risk to pilots of granting them a CPL when they might not ever hold a class 1 medical certificate.
The exception for cadet pilots who are not citizens or permanent residents of Australia is reasonable. It continues the medical certificate requirements that were in place under the regulations before 1 September 2014 until the end of August 2015. Foreign cadet pilots may have obtained a class 2 medical certificate, rather than a class 1 medical certificate, at the time that they commenced their training. Unlike holders of a CPL who are citizens and permanent residents of Australia, the foreign cadet pilots will not be exercising the privileges of the CPL in Australia. In order to exercise the privileges of the CPL in Australia, the foreign cadet pilot, like other pilots, will require a class 1 medical certificate. Therefore, the exemption does not discriminate between the foreign cadet pilots and Australian pilots in relation to work in Australia.
Conclusion
The legislative instrument is compatible with human rights and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate to comply with international obligations.
Civil Aviation Safety Authority