Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — instrument rating flight tests in a synthetic flight training device
Legislation
Subsection 98 (1) 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.
Paragraph 98 (5A) (a) of 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), 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 (CAOs) in relation to a matter mentioned in that subsection.
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 11.205 (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.
Regulation 5.14 of CAR 1988 permits CASA to give directions in CAOs for the issue of a flight crew rating, or a grade of flight crew rating, to a person.
Subregulation 5.14 (2) states that CASA must issue a flight crew rating to a person only if, among other things, the person has passed the necessary flight tests as required under paragraph (2) (a). Subregulation 5.14 (3) states that CASA must not issue a flight crew rating, or a grade of flight crew rating, to a person if, as stated in paragraph (3) (b), the person does not satisfy the requirements of subregulation 5.14 (2).
Regulation 5.19 permits CASA to issue CAOs that describe the flight tests for the issue of a flight crew rating, or a grade of flight crew rating, to a person.
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.
CAO 40.2.1 sets out, in Appendix I, requirements for flight tests for instrument ratings. Sections 2 and 4 of Appendix I of CAO 40.2.1 set out limitations on the use of a synthetic flight training device (SFTD) to demonstrate manoeuvres and state that an initial issue instrument rating flight test must be conducted wholly in an aircraft with the exception of a DME or GPS arrival.
It was considered that these requirements should be relaxed in 3 instances:
(a) when the holder of a commercial pilot licence or an air transport pilot licence wishes to convert an overseas instrument rating to an Australian qualification; and
(b) when the holder of an Australian Defence Force rating wishes to convert to an Australian civil qualification; and
(c) when the holder of an instrument rating has let his or her rating lapse for more than 12 months, but not more than 24 months, in which case CAO 40.2.1 requires a flight test for renewal to be conducted as if it were for initial issue.
The upper limit of 24 months may be extended in circumstances where a person has let a grade of rating lapse for more than 24 months but, during part of that time, has held an equivalent rating mentioned in the exemption, allowing him or her to carry out operations of a sort to which the lapsed grade of rating would have applied.
The exemption was granted for the following reasons. Frequently pilots who operate air transport category aeroplanes have to take the test in a light twin engine aeroplane due to questions of cost and availability. This does not necessarily enhance safety, and those pilots may not have flown this type of light aircraft for a while, thereby possibly increasing the risk.
Appendix II to CAO 40.2.1 sets out the purposes for which synthetic flight trainers may be used. This Appendix casts doubt on whether an SFTD may be used for the issue or renewal of an instrument rating in any of the 3 instances mentioned above. Therefore, the exemption is stated, in Schedule 1, to exclude the requirements of Appendix I, sections 2 and 4, and Appendix II. In these circumstances, it was considered desirable to allow the use of SFTD. The exemption allows the use of an SFTD only if it belongs to one of the 2 specified categories.
The instrument revokes and replaces the exemption in instrument number CASA EX116/13, which would have expired at the end of 3 December 2013.
The instrument expires at the end of 31 August 2014, to coincide with the commencement of Part 61 of CASR 1998, when the requirement for the exemption will cease as Part 61 allows for the use of synthetic flight trainers for the flight test for the initial issue of an instrument rating.
Legislative Instruments 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 and is accordingly a legislative instrument. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
A previous similar exemption (CASA EX68/11) was issued at the request of simulator operators and other individuals who sought the exemption to facilitate the issue of instrument ratings in the limited circumstances in which the exemption applied. A simulator operator requested the renewal of the exemption, and CASA did so in CASA EX116/13. This instrument renews the exemption to take into account the postponement of the commencement date of the Civil Aviation Legislation Amendment Regulation 2013 (No. 1) (the Amendment Regulation), which inserts Part 61 into CASR 1998, by the Civil Aviation Legislation Amendment (Flight Crew Licensing Suite) Regulation 2013.
The instrument is consistent with the policy reflected in the Amendment Regulation. Consultations with industry and the public on the proposals for licensing and training in the Amendment Regulation took place over an extended period of time and are detailed in the explanatory statement for the Amendment Regulation.
In these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA in relation to this instrument.
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 exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (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 the day of registration and expires at the end of 31 August 2014, as if it had been repealed by another instrument.
[Instrument number CASA EX127/13]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — instrument rating flight tests in a synthetic flight training device
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 some pilot licence holders from having to comply with the requirement in Civil Aviation Order 40.2.1 to conduct a flight test for an instrument rating in an aeroplane.
The primary purpose of the legislative instrument is to improve the level of safety by allowing the conduct of the flight test in an approved synthetic flight training device.
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