Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from certain flight examiner course requirements for FER and FEE applicants participating in a TCO
Purpose
The instrument is an exemption from certain provisions of Part 61 of the Civil Aviation Safety Regulations 1998 (CASR). Its purpose is to exempt a particular class of applicants for a flight examiner rating (an FER) or a flight examiner endorsement (an FEE) from the requirement to complete a prescribed flight examiner course of training conducted by CASA if the applicant completes an alternative course of training established by a training and checking organisation (a TCO), and approved by CASA. The course must be one that was already established and approved for approved testing officers (ATOs) of the TCO before the commencement of the instrument.
Legislation — CASR Part 61
Section 98 of the Act empowers the Governor-General to make regulations for the Act and the safety of air navigation.
The regulations in Part 61, which commenced on 1 September 2014, set out flight crew licensing requirements. (References below to provisions that commence with the number “61” are to Part 61 of CASR.)
Regulation 61.1290 deals with the Requirements for grant of flight examiner ratings. Under subregulation 61.1290 (1), an applicant for an FER must (a) hold a commercial pilot licence or an air transport pilot licence and (b) must meet the requirements for the grant of at least 1 FEE. Under subregulation 61.1290 (2), the applicant must also have (a) completed a particular course of training for the rating conducted by CASA or the holder of an approval under regulation 61.040, (b) passed the relevant flight test for the flight examiner rating and (c) successfully completed an interview conducted by CASA.
Regulation 61.1320 deals with the Requirements for grant of flight examiner endorsements. Under subregulation 61.1320 (1), an applicant for a particular FEE must (a) hold an FER and (b) hold the licences and endorsements mentioned in Table 61.1310 required for the particular FEE. Under subregulation 61.1320 (2), the applicant must also have (a) completed a particular course of training for the rating conducted by CASA or the holder of an approval under regulation 61.040 and (b) passed the relevant flight test for the FEE.
Regulation 61.1310 sets out in Table 61.1310 the kinds of FEE that are available and the licences and other endorsements that must be held to qualify for a particular FEE.
The FERC
In practice, the particular course of training referred to above is the Flight Examiner Rating Course (the FERC). The FERC consists of phases of training conducted by CASA, namely, eLearning modules (1 to 6), the classroom workshop and industry mentoring. The CASA interview and the CASA flight test would follow successful completion of the course.
Legislation — exemptions
Details of legislation relating to exemptions are set out in Appendix 1. Briefly, under subregulation 11.160 (3), CASA may grant an exemption on application, or on its own initiative. For making a decision on its own initiative, CASA is guided by the requirement in subsection 9A (1) of the Civil Aviation Act 1988 (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, CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation.
Background
The exemption instrument is designed to recognise the training and mentoring conducted within an operator’s TCO for those pilots who, before the introduction of Part 61 of CASR in September 2014, wished to exercise privileges now equivalent to those of an FER and FEE holder. These pilots were candidates to be ATOs, that is holders of a delegation from CASA to exercise examining and proficiency checking privileges, and the course qualified them with eligibility for such a delegation.
The implementation transition period for Part 61 of CASR ends on 31 August 2018, but until then CASA intends to recognise these TCO courses as meeting many of the requirements of the FERC. As noted above, successful completion of the FERC is one of the requirements under regulations 61.1290 and 61.1320 for an applicant to obtain an FER and FEE.
The instrument defines the ATO course as a course for a pilot that is based on a syllabus of theoretical and practical training and assessment approved by CASA before the commencement of this instrument, though it may be varied with modifications approved by CASA after the date of this instrument. Such modifications may enable the scope of a course to be expanded.
The course must be conducted by a qualified person of an operator’s TCO. When successfully completed, the course is one which gives the applicant the flight testing and proficiency checking competencies for the relevant FEE that are equivalent to those that an FEE holder would have under the FERC for conducting the same tests or checks.
A qualified person means a person who, at the time of delivering an ATO course to an applicant, was employed by the applicant’s TCO and was authorised in writing by the TCO to deliver the ATO course. He or she must hold either a CASA delegation as an ATO, or an FER and FEE, for the relevant tests and checks and have been such a holder for not less than 24 months. A final requirement is that the person must be a check pilot for the TCO in accordance with the requirements of Appendix 1 in Civil Aviation Order 82.0.
Under the instrument, FER and FEE applicants, who are working for an operator with a TCO, who participate in such a TCO training course as established and approved by CASA for ATOs before September 2014, and who confine the exercise of their eventual examiner and checking privileges to the operator’s employees only, need not complete the FERC.
Successful completion of the TCO ATO course will suffice instead, provided 3 particular aspects of the FERC are also covered. These are eLearning modules 1 to 3 which focus on the following aspects of the testing and checking role: legal and administration, understanding assessment, and assessing human factors and non‑technical skills.
Applicants must still complete the CASA interview and flight test. These essential requirements provide a further high level of assurance that the applicants are competent to be granted the FER and FEE.
The instrument and conditions
The instrument exempts applicants from the FERC but subject to important safety conditions. In addition to completing the ATO course with the 3 required FERC eLearning modules, the applicant must be an employee of the operator, and he or she may only test or check other employees.
Before the applicant attempts the interview and flight test, the head of training and checking of the operator’s TCO must supply CASA with certification that: the named applicant is an employee of the named operator; that the TCO’s training and checking manual describes the ATO course; that the applicant has successfully completed the ATO course and that it was delivered by a qualified person. Copies of the TCO records confirming these matters must be supplied.
When, in reliance on the instrument, an applicant successfully applies for an FER and FEE, the resultant testing and checking privileges may only be exercised in respect of the operator’s pilots. A Note explains that to reinforce this limitation, a condition to this effect under regulation 11.056 of CASR will be imposed on the FER and FEE when it is granted.
Full details of the various elements of the exemption instrument, including the conditions, are set out in Appendix 2.
Legislation Act 2003 (the LA)
As noted above, exemptions under Subpart 11.F of CASR 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 exemption applies to a class of persons (relevant applicants) and is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under sections 15G, and 38 and 42, of the LA.
Consultation
Under section 17 of the LA, CASA is to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument. The Explanatory Statement is required to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (see paragraphs 15J (2) (d) and (e)).
Although the relevant sectors of the aviation industry know informally that the exemption is proposed and what it will achieve, there has been no direct consultation in this case because of the urgency of the requirement to have the exemption in place.
The urgency arises from the fact that the end of the transition period, 31 August 2018, is less than 12 months away and CASA considers that it is necessary to act now to recognise the relevant ATO courses and facilitate use of this avenue of qualification for FERs and FEEs by TCO employees. Relatively small numbers of people are involved but they need time to complete all of the necessary qualifying requirements to take advantage of the exemption.
The absence of any broad consultation is, to some degree at least, mitigated by the fact that exemptions from regulatory requirements are beneficial for those to whom they apply, who voluntarily elect to take advantage of them, and who comply with their conditions. It is, therefore, rarely necessary to engage in extensive public consultation on a proposed exemption although, in compliance with section 17 above, it is CASA’s policy to consult in an appropriate way with those parts of the aviation industry most likely to avail themselves of, or be affected by, an exemption so that they may have the opportunity to comment on the possible or likely terms of the exemption. This has not been appropriate or practicable in this particular case because of the urgency of the matter.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the exemption instrument 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
The Statement in Appendix 3 is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Commencement, duration and making
The exemption commences on the day of registration and is repealed at the end of 31 August 2018.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX141/17]
Appendix 1
Legislation — exemptions
Subpart 11.F of CASR deals with exemptions. Under subregulation 11.160 (1), and for subsection 98 (5A) of the Act, 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 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, 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 not more than 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.).
Appendix 2
Exemption – from certain flight examiner course requirements for FER and FEE applicants participating in a TCO – summary only
1 Duration
Under this section, the instrument commences on the day of registration and is repealed at the end of 31 August 2018, being the end of the transition period for Part 61 of CASR.
2 Purpose
This section expresses the purpose of the exemption as being to exempt particular applicants for an FER or an FEE from the requirement to complete a prescribed flight examiner course of training if the applicant completes an alternative course of training that was established by a TCO and approved by CASA before the commencement of this instrument.
3 Definitions
Under this section, key words and phrases are defined. For example:
ATO means approved testing officer.
ATO course means a course for a pilot that:
(a) is based on a syllabus of theoretical and practical training and assessment:
(i) approved by CASA before the commencement of this instrument; and
(ii) with modifications (if any) approved by CASA after the date of this instrument; and
Note Modifications may enable the scope of a course to be expanded.
(b) is conducted by a qualified person of an operator’s TCO; and
(c) when successfully completed — gives the applicant the flight testing and proficiency checking competencies for the relevant FEE that are equivalent to those that an FEE holder would have for conducting the same tests or checks.
CAR 217 organisation means a training and checking organisation mentioned in subregulation 217 (1) of the Civil Aviation Regulation 1988 (CAR).
eLearning modules phase is one of the 6 phases of the FERC.
FERC is the Flight Examiner Rating Course developed by CASA, as in existence from time to time.
operator means the operator by whom an applicant is employed.
qualified person means a person who, at the time of delivering an ATO course to an applicant:
(a) was employed by the applicant’s TCO; and
(b) was authorised in writing by the TCO to deliver the ATO course; and
(c) holds a CASA delegation as an ATO, or holds the FER and FEE, for the flight tests and proficiency checks in respect of which he or she delivers the course, and has been such a holder for not less than 24 months; and
(d) is a check pilot for the TCO in accordance with the requirements of Appendix 1 in Civil Aviation Order 82.0.
TCO means an operator’s training and checking organisation that, before the commencement of this instrument, was approved by CASA under subregulation 217 (3) of CAR to conduct an ATO course for the operator.
4 Application
Under this section, the instrument applies to a person (an applicant) who applies for an FER and an FEE, or an FEE only.
5 Exemptions
(1)Under this subsection, an applicant for an FER and an FEE is exempted from paragraphs 61.1290 (2) (a) and 61.1320 (2) (a) of CASR.
(2)Under this subsection, an applicant for an FEE only is exempted from paragraph 61.1320 (2) (a).
6 Conditions
Under this section, the exemptions in section 5 are subject to the conditions mentioned in Schedule 1.
Schedule 1 — Conditions
Applicant must be participating in a TCO
1Under this clause, the applicant must be employed by an operator to whom subregulation 217 (1) of CAR applies and who, therefore, has a TCO.
A Note explains that these operators are regular public transport (RPT) operators, operators of aircraft with maximum take-off weight exceeding 5 700 kg, or operators specified by CASA. Subregulation 217 (1) requires these operators to have a TCO.
Application must be certified
2Under this clause, before the applicant attempts the interview and flight test for a relevant FER and FEE mentioned in paragraphs 61.1290 (2) (b) and (c), and 61.1320 (2) (b), the identifying information must be made available to CASA in writing and certified correct by the head of training and checking of the operator’s TCO, for example:
(a) the applicant’s name and the names of the operator and the TCO’s head of training and checking; and
(b) that the applicant is employed by the operator; and
(c) that the TCO’s training and checking manual describes the ATO course for the relevant FER and FEE; and
(d) that the applicant has successfully completed the ATO course as delivered by a qualified person; and
(e) copies of the TCO records confirming the information under paragraph (d).
Completion of certain eLearning phase modules
3Under this clause, the applicant must have successfully completed the learning and assessment for Modules 1, 2 and 3 of the eLearning phase of the FERC.
Examining privileges to extend only in respect of the operator’s pilots
4Under this clause, when, in reliance on the exemption, an applicant successfully applies for an FER and FEE, the resultant testing and checking privileges may only be exercised in respect of the operator’s pilots.
A Note explains that a condition to this effect under regulation 11.056 of CASR would be imposed on the FER and FEE.
FEE prerequisite licences and endorsements
5Under this clause, to avoid doubt, an applicant who, in reliance on the exemption, applies for an FEE mentioned in column 1 of Table 61.1310 of CASR must hold the licences and endorsements mentioned in column 3 of the Table for the FEE.
A Note makes it clear that this is an existing requirement of subregulation 61.1320 (1) of CASR and it is not the subject of an exemption.
Appendix 3
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 — from certain flight examiner course requirements for
FER and FEE applicants participating in a TCO
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 instrument is an exemption from certain provisions of Part 61 of the Civil Aviation Safety Regulations 1998. Its purpose is to exempt a particular class of applicants for a flight examiner rating (an FER) or a flight examiner endorsement (an FEE) from the requirement to complete a prescribed flight examiner course of training conducted by CASA if the applicant completes an alternative course of training established by a training and checking organisation (a TCO), and approved by CASA.
The course must be one that was already established and approved for approved testing officers of the TCO before the commencement of the instrument. The applicants must be employees of the TCO’s operator. When eventually granted the FER and FEE in reliance on the exemption, the applicants may only exercise the relevant flight testing and proficiency checking privileges in respect of other employees of the same operator.
Human rights implications
The exemption in the legislative instrument is beneficial in purpose and content and 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