Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX121/20 — Commercial Pilot Licence (Helicopter) Flight Training Requirements (COVID-19) Exemption 2020
Purpose
The purpose of this instrument is to exempt a group of applicants for the commercial pilot licence with the helicopter category rating (CPL(H)) from a flight training requirement under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR). This is due to disruptions to training caused by the COVID-19 pandemic.
The exemption is from the requirement to undergo the last 30 hours of flight training within the 3 months immediately before the flight test for the licence.
To achieve this purpose, there are additional consequential exemptions included for persons other than the applicants.
Legislation — Part 61 of CASR
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and for the safety of air navigation.
Part 61 of CASR sets out flight crew licensing requirements. References in this statement to provisions that commence with the numerals “61” are to provisions of Part 61 of CASR.
Subregulation 61.615 (1B) sets out the aeronautical experience and flight training requirements for a CPL(H) that an applicant must satisfy in order to establish eligibility to undergo the flight test for the licence if the applicant does not meet the requirements in subregulation 61.615 (1A). The requirements include the requirement, in paragraph 61.615 (1B) (b), that the applicant has competed training in accordance with the requirements specified in the Part 61 Manual of Standards (Part 61 MOS) for the purposes of that paragraph.
Schedule 9 of the Part 61 MOS (Schedule 9) specifies the requirements for the purposes of paragraph 61.615 (1B) (b). It includes, in subparagraph 1 (b) (v), a requirement that the final 30 hours of flight training actually undertaken must be completed within the 3 months immediately before the flight test.
Additional provisions relating to flying training
Under subparagraphs 61.235 (2) (a) (iii) and (iv), an applicant for a CPL(H) is not eligible to take a flight test for the licence unless the applicant has met the flight training and aeronautical experience requirements for the grant of the licence. Subparagraph 1 (b) (v) of Schedule 9 sets out one of those requirements for an applicant for a CPL(H) under subregulation 61.615 (1B).
Under regulation 61.240, an applicant for a flight crew licence is taken not to have passed a flight test if, when the applicant took the flight test, the applicant was not eligible under regulation 61.235 to take the test. The exemption applies only to the extent of the requirement to have completed the final 30 hours of training within the immediately preceding 3 months.
Under subparagraphs 61.1300 (1) (b) (iii) and (iv), a flight examiner would commit an offence if the examiner conducts a flight test for a pilot licence without being satisfied, when the test begins, that the applicant has met the flight training and aeronautical experience requirements for the pilot licence.
Under regulation 141.210, it is an offence by a Part 141 operator and its head of operations if an applicant is recommended for a flight test by a person in their organisation specified in paragraph 141.210 (1) (a), and the applicant is not eligible under regulation 61.235 to take the test.
Under regulation 142.245, it is an offence by a Part 142 operator and its head of operations if an applicant is recommended for a flight test by a person in their organisation specified in paragraph 142.245 (1) (a), and the applicant is not eligible under regulation 61.235 to take the test.
Subpart 11.F — exemptions
Subpart 11.F of CASR deals with exemptions. Under subregulation 11.160 (1), and for subsection 98 (5A) of the Act, the Civil Aviation Safety Authority (CASA) may, by instrument, grant an exemption from a provision of CASR in relation to a matter mentioned in subsection 98 (5A). Subsection 98 (5A) matters are, in effect, those affecting the safety, airworthiness or design of aircraft.
Under subregulation 11.160 (2), 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 at least an acceptable level of aviation safety. When making a decision on its own initiative, CASA is guided by the same test.
Under regulation 11.205, 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 regulation 11.230, the maximum duration of an exemption is 3 years.
Background
COVID-19 has presented significant challenges to the aviation industry, in particular coping with social distancing and travel constraints. CASA has issued several exemptions to provide alleviation measures.
This instrument issues an exemption that will be used by a small number of applicants for the CPL(H) against the requirement to complete 30 hours of the required flight training within the 3 months preceding the necessary flight test.
Failure to comply with that requirement means that the applicant has to fly additional hours of training to meet the requirement, involving additional expense and difficulties in finding the necessary time.
CASA considers that to issue the exemption, subject to the applicant meeting the specified requirements for the application of the exemption, preserves at least an acceptable level of safety.
The additional exemptions
Apart from the applicant, the exemptions also refer to additional provisions that apply to persons responsible for flight testing the applicant or recommending the applicant for the flight test.
Although the applicant has been exempted from complying with that single requirement in subparagraph 1 (b) (v) of Schedule 9 and has to meet the requirements for the application of the exemption, the additional exemptions have been issued to ensure that the relevant persons are protected from the possibility of being found to commit an offence because of testing the applicant or recommending the applicant for the flight test. This is considered advisable although the applicant is in fact exempted from that particular requirement in order to enable the applicant to undergo the flight test.
Details of the instrument
The details of the instrument are set out in Annex 1 to this statement.
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, for paragraph 98 (5A) (a), exempts classes of persons, including applicants, examiners and training organisations, from complying with the provisions in Parts 61, 141 and 142 of CASR. 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
The proposal for the exemption was raised by a helicopter flight training operator and is supported by the Australian Helicopter Industry Association. In further discussions, feedback from the aviation industry has been supportive.
The exemption only applies to a small number of pilots disadvantaged by the sudden onset of the pandemic and will only be in place for a limited period.
The instrument commences on the day after it is registered and is repealed at the end of 31 October 2020 or at the time that it is repealed by CASA, whichever is the earlier.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for an exemption (OBPR id: 14507).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Annex 2.
Making and commencement
The instrument has been made by the Director of Aviation Safety, on behalf of CASA, under subsection 73 (2) of the Act.
Annex 1
CASA EX121/20 Instrument details
1 Name
This section provides that the title of the instrument is CASA EX121/20 — Commercial Pilot Licence (Helicopter) Flight Training Requirement (COVID-19) Exemption 2020.
2 Duration
Under this section, the instrument commences on the day after it is registered and is repealed at the end of 31 October 2020, unless it is repealed before that time.
3 Definitions
This section provides essential definitions. In particular, it defines an applicant for a CPL(H) to whom the exemption will apply (an exempt CPL(H) applicant). The applicant must, immediately before 20 March 2020, have been undergoing flight training in accordance with Schedule 9 of the Part 61 MOS and have completed at least 80 hours of the aeronautical experience requirement of 105 hours mentioned in paragraph 61.615 (1B) (a). The applicant must also have completed at least 5 hours of dual training following recommencement of their training course on or after 20 March 2020.
The applicant will only be an exempt CPL(H) applicant if the completion of the final 30 hours of training within the period of 3 months, mentioned in subparagraph 1 (b) (v) of Schedule 9, was reasonably and demonstrably impracticable, or would have involved unlawful behaviour, because of circumstances or laws resulting from the COVID-19 pandemic. This limitation on the definition of exempt CPL(H) applicant is intended to ensure that the exemptions in the instrument only apply to situations in which the applicant is genuinely unable to comply with the otherwise applicable requirements because compliance is either not possible or not reasonably practicable on account of circumstances resulting from the COVID-19 pandemic.
The section provides abbreviated versions of expressions used in the instrument.
It also provides that a reference to a provision that includes the numerals “61” is a reference to the provision in Part 61 of CASR.
4 Application
Under this section, the instrument is expressed to apply, according to its terms, to the persons or organisations listed who are subject to the exemptions, namely, applicants for a CPL(H), relevant flight examiners, relevant Part 141 and Part 142 operators, and relevant heads of operations.
5 Exemptions
Subsections 5 (1) to (5) list the 5 separate exemptions that make up the instrument in order to achieve its purpose, as follows:
(1)An exempt CPL(H) applicant is exempt from compliance with subparagraph 61.235 (2) (a) (iii) and (iv) to the extent that the subparagraphs would require the applicant to satisfy the requirement set out in subparagraph 1 (b) (v) of Schedule 9, to complete the final 30 hours of their flight training in the 3 months immediately before the flight test.
(2)An exempt CPL(H) applicant is exempt from compliance with regulation 61.240, to the extent that the regulation requires the applicant to satisfy the requirement mentioned in subparagraph 1 (b) (v) of Schedule 9.
(3)A flight examiner is exempt from compliance with subparagraphs 61.1300 (1) (b) (iii) and (iv) to the extent that an exempt CPL(H) applicant is required to comply with subparagraph 1 (b) (v) of Schedule 9 in order to meet the flight training and aeronautical experience requirements for the grant of the CPL(H).
(4)A Part 141 operator and a Part 141 head of operations (HOO) are each exempt from compliance with regulation 141.210 of CASR, in relation to recommending an exempt CPL(H) applicant who does not meet the requirements in subparagraphs 61.235 (2) (a) (iii) and (iv) in relation to the requirement mentioned in subparagraph 1 (b) (v) of Schedule 9, to take the flight test for a CPL(H).
(5)A Part 142 operator and a Part 142 HOO are each exempt from compliance with regulation 142.245 of CASR, in relation to recommending an exempt CPL(H) applicant who does not meet the requirements in subparagraphs 61.235 (2) (a) (iii) and (iv) in relation to the requirement mentioned in subparagraph 1 (b) (v) of Schedule 9, to take the flight test for a CPL(H).
Annex 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX121/20 — Commercial Pilot Licence (Helicopter) Flight Training Requirements (COVID-19) Exemption 2020
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 a group of applicants for the commercial pilot licence with the helicopter category rating (CPL(H)) from the requirement under Part 61 of the Civil Aviation Safety Regulations 1998 to undergo the last 30 hours of their required flight training within the period of 3 months immediately before the flight test for the licence.
To achieve the purpose, there are additional consequential exemptions for persons involved in the process of training and examining the applicants.
The exemption is required due to disruptions of normal training schedules caused by the COVID-19 pandemic.
Human rights implications
Right to work
The right to work, contained in Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights, 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 promoted by this instrument as it provides greater flexibility for pilots to obtain the CPL(H).
Other rights
This legislative instrument does not engage any of the other applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not adversely impact any human rights.
Civil Aviation Safety Authority