Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — recent experience requirements for night V.F.R. agricultural ratings
Purpose
The purpose of the exemption is to exempt holders of night V.F.R. agricultural ratings from existing recency requirements for conducting spraying operations on condition that they comply with obligations in the exemption that broadly anticipate new requirements due to be implemented in relevant regulations on 1 September 2014.
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.
Under subregulation 5.14 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may give directions in Civil Aviation Orders (the CAOs) setting out the requirements for the issue of a flight crew rating, or a grade of flight crew rating, to a person. Under subregulation 5.14 (1A) of CAR 1988, the CAOs may include any requirements and conditions to be satisfied by the person.
CASA has issued relevant directions in Civil Aviation Order 40.2.2 (CAO 40.2.2). Under paragraph 9.2 of CAO 40.2.2, the holder of a night V.F.R. (visual flight rules) agricultural rating must not exercise the authority given by the rating unless he or she satisfies the requirements set out in subsection 5 of Appendix II of CAO 40.2.2.
Under subparagraph 5 (1) (a) of Appendix II, for paragraph 9.2, the holder of a night V.F.R. agricultural rating must not exercise the authority given by the rating unless he or she has obtained a minimum of 20 hours’ flying experience at night in agricultural operations in the 12 months preceding the flight.
Under subparagraph 5 (1) (b), where continuity of night spraying is broken by more than 35 days, the holder must have practised the necessary manoeuvres by night in an unladen agricultural aircraft before resuming night spraying operations.
Under paragraph 5.2 of Appendix II, for pilots who fail to meet the requirements of subparagraph 5.1 (a), CASA may nominate alternative recency requirements and require demonstration flights.
Legislation — exemptions
Subpart 11.F of the Civil Aviation Safety Regulations 1998 (CASR 1998), as amended from 27 June 2011 by the Civil Aviation and Civil Aviation Safety Amendment Regulations 2011 (No. 2), deals with exemptions.
Under subregulation 11.160 (1) of CASR 1998, and for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of CAR 1988, CASR 1998 or a CAO in relation to a matter mentioned in subsection 98 (5A) (safe operations, maintenance, airworthiness etc.).
Under subregulation 11.160 (2) of CASR 1998, an exemption may be granted to a person or a class of persons. Under subregulation 11.160 (3), CASA may grant an exemption on application, or on its own initiative. For an application for an exemption, CASA must regard as paramount the preservation of an acceptable level of safety.
For making a decision on its own initiative, CASA is guided by the requirement in subsection 9A (1) of the Act that in exercising its powers and functions CASA must regard the safety of air navigation as the most important consideration.
Under regulation 11.205 of CASR 1998, CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition. Under regulation 11.225, CASA must, as soon as practicable, publish on the Internet details of all exemptions under Subpart 11.F.
Under subregulation 11.230 (1), an exemption (but not an exceptional circumstances exemption for regulation 11.185 about major emergencies) may remain in force for 3 years or for a shorter period specified in the instrument.
Under subregulation 11.230 (3), an exemption in force in relation to a particular aircraft owned by a particular person ceases to be in force when the aircraft ceases to be owned by that person. Under regulation 11.235, an exemption is not transferable (as between operators, aircraft etc.).
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Background
Because of the seasonal and fluctuating nature of many of their operations, and because of prevailing drought conditions in parts of regional Australia, agricultural pilots have increasingly been unable to achieve the frequency of operations required to meet their relevant CAO 40.2.2 recency obligations. As a result, in the past, CASA has issued relevant exemptions (see, for example, CASA EX18/13) providing an alternative means of achieving recency consistent with the requirements of aviation safety.
Following consultations with the relevant industry representative body, the Aerial Agricultural Association of Australia (AAAA), in February 2013 CASA made new Part 61 of CASR 1998 concerning flight crew licensing (in Civil Aviation Legislation Amendment Regulation 2013 (No. 1)).
Part 61 of CASR 1998 includes (among others) regulation 61.1135 to modify the recency requirements for holders of night V.F.R. agricultural ratings. Proposed regulation 61.1135 was subsequently modified by the Civil Aviation Legislation Amendment (Flight Crew Licensing and Other Matters) Regulation 2013.
Originally scheduled to commence on 4 December 2013, the commencement date for the Part 61 changes (including regulation 61.1135 as amended) was deferred to 1 September 2014 to allow for further consultation and refinement of various matters unrelated to the proposed new recency requirements for night V.F.R. agricultural ratings.
With this in mind, CASA decided to accelerate implementation of the new regulation 61.1135 by issuing a new exemption, broadly based on the requirements of regulation 61.1135 though, of course, addressed to the legislative requirements still in place until 1 September 2014 (namely, the relevant provisions of CAR 1988 and CAO 40.2.2).
The exemption
The exemption, which commences on the day after registration and expires at the end of 31 August 2014, applies to each holder of a grade of night V.F.R. agricultural rating. It first repeals the existing exemption, CASA EX18/13, and then exempts from compliance with paragraph 9.2 of CAO 40.2.2 to the extent of the requirements in subsection 5 in Appendix II of the CAO.
Using a set of conditions, the exemption, in effect, imposes the new recency requirements broadly based on 2 alternatives that will, in due course, be provided for under regulation 61.1135. Thus, the holder must not conduct a night V.F.R. agricultural operation in a category of aircraft unless, within the 45 days preceding the operation, in an aircraft of the same category, for which the holder holds a grade of rating, the holder has conducted a night V.F.R. agricultural operation below 500 feet AGL that included both a take-off and a landing at night.
Alternatively, within the 45 days preceding the operation, the holder must, in an unladen aircraft of the same type as will be used in the operation, complete a flight, that:
- commenced not later than 20 minutes before night; and
- involved at least 1 hour of flight time; and
- included manoeuvres at night below 500 feet above ground level (AGL) simulating those of a night V.F.R. agricultural operation below 500 feet AGL; and
- included at least 3 take-offs and 3 landings at night.
To remove any doubt, a Note explains that these listed requirements must all be met in a single flight of at least 1 hour’s duration.
Legislative Instruments Act 2003 (the LIA)
As noted above, exemptions under Subpart 11.F of CASR 1998 are “for subsection 98 (5A)” of the Act, that is, for regulations which empower the issue of certain instruments, like exemptions, in relation to “(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft”, and “(b) the airworthiness of, or design standards for, aircraft”.
The exemption is clearly one in relation to matters affecting the safe navigation and operation of aircraft. Under subsection 98 (5AA) of the Act, an exemption issued under paragraph 98 (5A) (a), for such matters, is a legislative instrument if expressed to apply in relation to a class of persons, a class of aircraft or a class of aeronautical products (as distinct from a particular person, aircraft or product).
The instrument applies to a class of persons, namely holders of night V.F.R. agricultural ratings. Thus, the exemption is a legislative instrument, and is subject to registration, and tabling and disallowance in the Parliament, under sections 24, and 38 and 42, of the LIA.
Consultation
Consultation under section 16 of the Act and section 17 of the LIA has been undertaken in the form of discussions with the relevant industry representative body, the AAAA, which supports an exemption to accelerate implementation of regulation 61.1135 of CASR 1998.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required for OBPR in this case because the exemption is of beneficial effect to those who fall within its scope and comply with its conditions. The proposal 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 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. A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
This exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The exemption commences on the day after registration and expires on at the end of 31 August 2014, as if it had been repealed by another instrument. Regulation 61.1135 of CASR 1998, which the exemption anticipates, commences on 1 September 2014.
[Instrument number CASA EX12/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Civil Aviation Safety Regulations 1998
Exemption — recent experience requirements for night V.F.R. agricultural ratings
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
Because of the seasonal and fluctuating nature of many of their operations, and because of prevailing drought conditions in parts of regional Australia, agricultural pilots have increasingly been unable to achieve the frequency of operations required to meet their relevant recency obligations.
In February 2013, CASA made new Part 61 of the Civil Aviation Safety Regulations 1998 which includes (among others) regulation 61.1135 to modify the recency requirements for holders of night V.F.R. agricultural ratings. Originally scheduled to commence on 4 December 2013, the commencement date for the Part 61 changes (including regulation 61.1135) was deferred to 1 September 2014 to allow for further consultation and refinement of various matters unrelated to the proposed new recency requirements for night V.F.R. agricultural ratings.
With this in mind, CASA decided to accelerate implementation of the new regulation 61.1135 by issuing a new exemption, broadly based on the requirements of regulation 61.1135.
Thus, the holder must not conduct a night V.F.R. agricultural operation in a category of aircraft unless, within the 45 days preceding the operation, in an aircraft of the same category, for which the holder holds a grade of rating, the holder has conducted a night V.F.R. agricultural operation below 500 feet AGL that included both a take-off and a landing at night.
Alternatively, within the 45 days preceding the operation, the holder must, in an unladen aircraft of the same type as will be used in the operation, complete a flight, that:
- commenced not later than 20 minutes before night; and
- involved at least 1 hour of flight time; and
- included manoeuvres at night below 500 feet AGL simulating those of a night V.F.R. agricultural operation below 500 feet AGL; and
- included at least 3 take-offs and 3 landings at night.
Without jeopardising aviation safety, the exemption is beneficial in effect by relieving holders of the existing recency requirements which are more onerous to comply with because of seasonal and environmental factors.
Human rights implications
The exemption 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. The 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