Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX12/26 — Amendment of CASA EX32/24 (Exemption from Requirement for Class 1 Medical Certificate for Certain Flights) Instrument 2026
Purpose
The purpose of CASA EX12/26 — Amendment of CASA EX32/24 (Exemption from Requirement for Class 1 Medical Certificate for Certain Flights) Instrument 2026 (the amending instrument) is to renew an exemption that currently allows the holder of a commercial pilot licence or an air transport pilot licence who holds a current class 2 medical certificate to conduct certain non-passenger-carrying operations in smaller aircraft despite not holding a class 1 medical certificate, which they would otherwise be required to hold to be authorised to conduct the operations.
The Civil Aviation Safety Authority (CASA) has previously granted exemptions in similar terms, most recently in an instrument that is due to expire on 28 February 2026. This instrument transfers the current exemption to an omnibus instrument that contains general exemptions from requirement relating to flight crew licensing imposed by Part 61 of the Civil Aviation Safety Regulations 1998 (CASR). CASA intends to amend Part 61 of CASR to incorporate the policy underlying the exemption into CASR, but the exemption is being continued in the meantime, to ensure that experienced licence holders who currently rely on the exemption because they no longer meet the class 1 medical certificate standard – either by circumstance or choice – can continue to engage in the relevant non-passenger-carrying operations.
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.
Exemptions
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160(1) of CASR 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 11.175(4) of CASR, in deciding whether to reissue 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 11.205 provides that 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 (with a maximum penalty of 50 penalty units) not to comply with the obligations imposed by a condition.
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.
Part 61 of CASR
Part 61 of CASR establishes a scheme for the granting, and exercising of the privileges, of licences to act as the pilot of an aircraft. Kinds of pilot licences relevantly include the commercial pilot licence (Subpart 61.I) and the more advanced air transport pilot licence (Subpart 61.K).
Subregulation 61.065(1) of CASR relevantly prohibits a person from conducting activities mentioned in Part 61 of CASR as the pilot of a registered aircraft, or as an instructor or examiner, if the person is not authorised under Part 61 to conduct the activity. Breach of the subregulation is an offence of strict liability with a maximum penalty of 50 penalty units.
Subregulation 61.415(1) of CASR provides that a person is not authorised to exercise the privileges of a commercial pilot licence or air transport pilot licence unless the person holds a current class 1 medical certificate or has a medical exemption.
The requirements for a class 1 medical certificate are prescribed in Part 67 of CASR, together with the requirements for other classes of medical certificate, including the class 2 medical certificate. Medical exemption is defined in regulation 61.010 of CASR and contemplates an administrative process based on an application by a person for the exemption.
Power to amend, modify or repeal another instrument
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. Under subsection 13(1) of the Legislation Act 2003 (the LA), subsection 33(3) applies to legislative instruments as if each provision of the amending instrument were a section of an Act.
Background
Australia’s medical certification framework is part of a suite of controls against the risk that a pilot might become incapacitated during flight. The multi-tier framework is predicated on the principle that medical incapacitation events have increasingly more grave consequences as the operating environment becomes more complex in terms of systems, aircraft size and passenger load.
Having regard to the likelihood and consequence of pilot incapacitation risk, its likelihood is largely controlled by the class of medical certificate held by the pilot; a class 1 certificate equates to a lower likelihood than a class 2 certificate.
Similarly, and again having regard to the likelihood and consequence of pilot incapacitation risk, the consequences are mitigated by the type of licence privileges that are able to be exercised. Specifically, the full suite of pilot privileges that may be exhibited by air transport pilot licence holders and commercial pilot licence holders include the operation of very large and complex aircraft in challenging environments, and carrying large numbers of passengers. In contrast, operations conducted by holders of the private pilot licence – the kind that require a class 2 medical certificate – involve moderately-sized aircraft carrying fewer (non-paying) passengers. However, the environments can be equally as challenging, and the aircraft can be very complex.
Therefore, just as class 1 and class 2 medical certificates modify the likelihood of the risk of incapacitation of a pilot, the type of privileges that may be exercised (due to the type of licence held) modifies the consequences of risk for each.
In order to balance the theoretically higher likelihood of pilot incapacitation for a pilot with a class 2 medical certificate, the type of privilege that the amending instrument proposes to cover is limited in terms of aircraft size and passengers. By taking this approach, the incapacitation risk for non-passenger-carrying operations in smaller aircraft conducted by a pilot with a class 2 medical certificate is not more than that which applies to a large aircraft, passenger-carrying operation conducted by a pilot with a class 1 medical certificate.
In light of these considerations, CASA introduced an exemption to allow the holder of a commercial pilot licence or an air transport pilot licence to exercise the privileges of the licence to conduct certain flights while holding a class 2 medical certificate instead of a class 1 medical certificate: see CASA EX25/18 — Class 1 Medical Certificate (Exercise of the Privileges of Certain Flights by Holders of a Commercial Pilot Licence or Air Transport Pilot Licence) Exemption 2018 (the initial exemption instrument).
That exemption was renewed by the making of:
(a) CASA EX46/20 — Class 1 Medical Certificate (Certain Flights by Holders of a Commercial Pilot Licence or Air Transport Pilot Licence) Exemption 2020, which expired on 28 February 2023; and
(b) CASA EX28/23 — Class 1 Medical Certificate (Certain Flights by Holders of a Commercial Pilot Licence or Air Transport Pilot Licence) Exemption 2023 (the repealed exemption instrument), which is due to expire on 28 February 2026.
Since the making of the initial exemption instrument, the level of pilot experience available for lower consequence operations has increased, without an overall level of risk higher than that arising from the holder of a class 1 medical certificate conducting operations in a large aircraft passenger-carrying operation.
Content of instrument
Section 1 of the amending instrument names the instrument.
Section 2 states that the amending instrument commences on 1 March 2026.
Section 3 states that Schedule 1 amends CASA EX32/24 — Flight Crew Licensing and Other Matters (Miscellaneous Exemptions) Instrument 2024 (the principal instrument).
Schedule 1 — Amendment
Item [1] After Part 19
Item [1] amends the principal instrument by inserting a new Part 20 in the principal instrument which contains section 81.
Subsection 81(1) provides that the section applies to a flight that is not conducted, wholly or in part, in a foreign country, is in an aircraft with a maximum take-off weight less than 8 618 kg and that does not carry a passenger. Maximum take-off weight and passenger are defined in the CASR Dictionary.
The limitation on the maximum take-off weight of the aircraft reflects the risk consequence control discussed above.
Similarly, the prohibition on the carriage of passengers reflects the risk consequence control discussed above.
Subsection 81(2) grants an exemption to a person who holds a commercial pilot licence or air transport pilot licence from compliance with subregulation 61.065(1) of CASR. The exemption has effect to the extent that subregulation 61.065(1), read with subregulation 61.415(1), requires the person to hold a class 1 medical certificate in order to exercise the privileges of the person’s licence to conduct a flight to which section 81 applies.
A note after subsection 81(2) explains the relationship between the operation of the amending instrument in relation to the flights the subject of the exemption and the application of subregulation 61.415(1) to the exercise of the privileges of commercial pilot licences and air transport pilot licences.
Subsection 81(3) states that the exemption in subsection (2) is subject to the condition that the person must hold a current class 2 medical certificate. Current, for a medical certificate, is defined in regulation 61.010 of CASR.
By way of example, if the holder of a commercial pilot licence or air transport pilot licence also held a low-level rating (see Subpart 61.Q of CASR), aerial application rating (Subpart 61.R of CASR), flight instructor rating (Division 61.T.1 of CASR) or flight examiner rating (Subpart 61.U of CASR), the exemption would permit the licence holder to exercise the privileges of the rating to conduct an activity the subject of the exemption when holding a class 2 medical certificate instead of a class 1 medical certificate.
Similarly, the exemption would permit the holder of a commercial pilot licence or air transport pilot licence to conduct aerial photography and aerial survey operations while holding a class 2 medical certificate if the operation is one to which section 81 applies. Such a pilot could also conduct a flight to which section 81 applies for the carriage of freight holding a class 2 medical certificate.
The exemption operates so that a pilot must hold a class 1 medical certificate for a flight if any part of an operation is not one to which section 81 applies. For example, while a search operation may be one to which section 81 applies if it does not carry a passenger, a rescue operation would not be subject to the exemption because the rescued person would be a passenger. Similarly, an air ambulance flight to collect a patient and medical team may be one to which section 81 applies if it does not carry a passenger, but the return flight with the patient and medical team would not be one to which section 81 applies because the patient and medical team would be passengers. Accordingly, in both cases, the pilot conducting the flight cannot rely on the exemption and will require a class 1 medical certificate.
Legislation Act 2003
Paragraph 10(1)(d) of the LA provides that an instrument will be a legislative instrument if it includes a provision that amends or repeals another legislative instrument. The amending instrument amends the principal instrument, which is a legislative instrument. The amending instrument is, therefore, also a legislative instrument.
In addition, 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. Also, paragraph 98(5AA)(a) 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 amending instrument is made for the purpose of paragraph 98(5A)(a) and exempts a class of persons from complying with specified provisions of CASR, namely, the holders of commercial pilot licences and air transport pilot licence holders.
The amending instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Sunsetting
As the amending instrument relates to aviation safety and is made under CASR, Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the amending instrument (in accordance with item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015).
The amending instrument amends the principal instrument and will be repealed automatically in accordance with the automatic repeal provisions in section 48A of the LA.
The principal instrument is repealed at the end of 31 May 2027, as stated in paragraph 2(b) of the principal instrument. This will happen before the sunsetting provisions would have repealed the amending instrument and the principal instrument, if they had applied. Any renewal of, or further amendment to, the principal instrument will be subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Therefore, the exemption from sunsetting does not affect parliamentary oversight of the amending instrument or principal instrument.
Consultation
Under section 17 of the LA, before a legislative instrument is made, CASA must be satisfied that it has undertaken any consultation it considers appropriate and practicable in order to draw on relevant expertise and involve persons likely to be affected by the proposals.
CASA has established the Aviation Safety Advisory Panel (the ASAP) to provide high-level advice to CASA’s Director of Aviation Safety (the Director) about current, emerging and potential issues that have, or may have, significant implications for aviation safety and the way CASA performs its functions. The majority of the ASAP’s members are drawn from the aviation community. The ASAP is the primary advisory body through which CASA directs its engagement with industry and seeks input on current, and future, regulatory and associated policy approaches.
Before making the initial exemption instrument in 2018, CASA issued a discussion paper seeking industry and community views on the medical certification regime as a whole. Around 160 submissions were received, many of which expressed a strong desire to change a system seen as overly complex and burdensome for lower consequence operations, trust in the judgment of medical professionals and support for consideration of successful overseas reforms, which include American and United Kingdom self-certification medical processes for pilots engaged in lower consequence operations. CASA developed the policy underpinning the initial exemption instrument having regard to themes arising from the discussion paper process and consulted on that policy.
The amending instrument is in substantially the same terms as the initial exemption instrument and subsequent instruments, including the repealed exemption instrument, and continues the positive benefits for pilots and the aviation industry that those instruments provided. In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Office of Impact Analysis (the OIA)
An Impact Analysis (IA) is not required in this case, as the exemption is covered by a standing agreement between CASA and OIA under which an IA is not required for exemptions (OIA reference number: OIA23-06252).
Sector risk, economic and cost impact
Subsection 9A(1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A(3) states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9(1)(c) of the Act, CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.
The economic and cost impact of the exemptions has been determined by:
(a) the identification of individuals and the businesses affected by the exemptions; and
(b) consideration of how the requirements to be imposed on individuals and businesses under the amending instrument will be different compared to existing requirements.
CASA has assessed that the economic or cost impact of the amending instrument is minimal. As the amending instrument transfers an existing exemption that has been in force since 2018 from the repealed exemption instrument into an ongoing instrument, with the same provisions and conditions, there will be no change of economic or cost impact on individuals, businesses or the community.
Impact on categories of operations
The amending instrument is likely to continue to have a beneficial effect on commercial aviation and air transport activities as it will continue to permit the holder of a commercial pilot licence or an air transport pilot licence to exercise the privileges of the licence to conduct certain flights while holding a class 2 medical certificate instead of a class 1 medical certificate. This has provided a broader pool of pilots to conduct these activities.
Impact on regional and remote communities
Regional and remote communities will continue to benefit from having access to more pilots who hold a commercial pilot licence or an air transport pilot licence. These pilots will be available to pilot aircraft for commercial operations, including piloting aircraft operated for non-passenger air transport operations.
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 amending instrument is compatible with human rights.
Making and commencement
The amending instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260(1) of CASR.
The amending instrument commences on 1 March 2026 and will be automatically repealed in accordance with section 48A of the LA.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX12/26 — Amendment of CASA EX32/24 (Exemption from Requirement for Class 1 Medical Certificate for Certain Flights) Instrument 2026
The 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 the instrument is to renew an exemption that currently allows the holder of a commercial pilot licence or an air transport pilot licence who holds a current class 2 medical certificate to conduct certain non-passenger-carrying operations in smaller aircraft despite not holding a class 1 medical certificate, which they would otherwise be required to hold to be authorised to conduct the operations.
The Civil Aviation Safety Authority (CASA) has previously granted exemptions in similar terms, most recently in an instrument that is due to expire on 28 February 2026. This instrument transfers the current exemption to an omnibus instrument that contains general exemptions from requirement relating to flight crew licensing imposed by Part 61 of the Civil Aviation Safety Regulations 1998 (CASR). CASA intends to amend Part 61 of CASR to incorporate the policy underlying the exemption into CASR, but the exemption is being continued in the meantime to ensure that experienced licence holders who currently rely on the exemption because they no longer meet the class 1 medical certificate standard – either by circumstance or choice – can continue to engage in the relevant non-passenger-carrying operations.
Human rights implications
The instrument engages with the right to work in Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and rights in work in Article 7 of the ICESCR. It engages with those rights by reducing the medical certification standard required for holders of commercial pilot licences and air transport pilot licences to conduct the covered aviation operations.
The instrument engages positively with the right to work by enabling pilots of aircraft to be employed for the covered operations, where they are commercial in nature, if they meet the lower class 2 medical certification standard instead of the higher class 1 medical certification standard required by CASR.
The instrument also arguably engages negatively with rights in work by potentially exposing other workers on the aircraft to risk if a pilot who meets the lower class 2 medical certification standard suffers incapacitation during a commercial operation. This risk only arises in relation to an incapacitation event that would not have occurred if the pilot met the higher class 1 medical standard.
The engagement of the instrument with the right to work and rights in work promotes the general welfare of Australian society by increasing the number of commercial pilots available to conduct the covered operations where they are commercial in nature, including experienced pilots who no longer meet the higher class 1 medical certification standard. The arrangements in the instrument do not give rise to a level of risk that is higher overall than risks associated with the holder of a class 1 medical certificate conducting a passenger‑carrying operation in a large aircraft. The arrangements in the instrument are a reasonable regulatory response to the current levels of risk for the affected aviation operations and are proportional to the benefit.
Conclusion
The instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
Civil Aviation Safety Authority