Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption – recency requirements for night flying – Regional Express Pty Ltd
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Subregulation 5.109 (1) of the Civil Aviation Regulations 1988 (CAR 1988) provides that a commercial (aeroplane) pilot (the holder of a commercial aeroplane pilot licence) must not fly an aeroplane carrying another person unless the pilot satisfies requirements set out in the subregulation.
Subregulation 5.170 (1) of CAR 1988 provides that an air transport (aeroplane) pilot (the holder of an air transport aeroplane pilot licence) must not fly an aeroplane carrying another person unless the pilot satisfies requirements set out in the subregulation.
Paragraphs 5.109 (1) (b) and 5.170 (1) (b) of CAR 1988 both prescribe certain requirements (recency requirements) that the pilot must have satisfied in the immediately preceding period of 90 days, being requirements relating to take-offs and landings at night. These requirements are that the pilot has, within the period, carried out at least 3 take-offs and 3 landings at night, while flying the aeroplane as pilot in command, or as pilot acting in command under supervision or in dual flying; alternatively, in that period, the pilot must have satisfactorily completed an aeroplane proficiency check that was completed at night or passed a flight test that was conducted at night for the issue, or renewal, of an aeroplane pilot rating or (for paragraph 5.109 (1) (b) only) the issue of an aeroplane pilot licence.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including CAR 1988. 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.
The exemption allows Regional Express Pty Ltd (the operator) to use an approved type simulator to satisfy recency requirements instead of relying on flights in an aeroplane. The recency requirements applicable to the operator’s pilots is at least 3 night take-offs and 3 night landings within the last 90 days, or a satisfactory proficiency check for conduct of night operations within the last 180 days.
The exemption is subject to the conditions that the operator must have a currently approved training and checking organisation under regulation 217 of CAR 1988 and an approved training and checking manual incorporating the conditions of the exemption.
Legislative Instruments Act
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the Regulations. An instrument issued under paragraph 98 (5A) (a) of the Act 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. The exemption is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003.
Consultation
Due to the scheduling of regular public transport (RPT) operations during daylight saving hours, it may be practically difficult or unfeasible for the operator’s pilots to comply with CAR 1988 night recency requirements. The operator has, therefore, applied for the exemption to seek flexibility in night flying recency requirements for its RPT pilots. Taking into account the operator’s operational record, CASA has issued the instrument and considers that no further consultation is appropriate or necessary as the instrument applies only to this aircraft operator.
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. It expires at the end of 31 August 2014, as if it had been repealed by another instrument.
[Instrument number CASA EX129/13]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption – recency requirements for night flying – Regional Express Pty Ltd
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 pilots in command operating Regional Express Pty Ltd (the operator) aircraft from night flying recency requirements prescribed by paragraphs 5.109 (1) (b) and 5.170 (1) (b) of the Civil Aviation Regulations 1988.
Given the nature of scheduling regular public transport operations and daylight saving changes, the primary purpose of the exemption is to allow the operator to use approved type simulators to satisfy its pilot’s recency requirements and also provides a longer period in which recency is deemed to be current after a satisfactory proficiency check. The exemption is subject to conditions imposed by CASA in the interest of air safety.
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