Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX141/18 — Air Traffic Control Licence (Airservices Australia)
Exemption 2018
Purpose
CASA EX141/18 — Air Traffic Control Licence (Airservices Australia) Exemption 2018 (the instrument) remakes, in substantially the same terms, instrument CASA EX158/15 (the 2015 instrument). The instrument permits a specified air traffic controller employed by Airservices Australia (AA) to exercise the privileges of a new air traffic control (ATC) licence, or an additional ATC rating, during the period between the air traffic controller applying to the Civil Aviation Safety Authority (CASA) for the licence or rating and CASA determining the application, such period not being more than 21 days. The 2015 instrument expires at the end of September 2018.
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the
Governor-General may make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR).
The term air traffic control function is defined in Part 1 of the CASR Dictionary to mean a function described in a paragraph of subregulation 65.075 (2) of CASR.
Under subregulation 65.035 (1) of CASR, a person may carry out an ATC function in Australian territory if:
(a) the person holds an ATC licence with a rating for the function and an endorsement for the place where, or the airspace in relation to which, the person carries out the function; and
(b) the licence, rating and endorsement are in force; and
(c) the person satisfies the recency and currency requirements in relation to the endorsement and rating; and
(d) the person holds a Class 3 medical certificate.
Under subregulation 65.035 (2) of CASR, certain persons may carry out an ATC function under the supervision of a person who meets the requirements of subregulation 65.035 (1) of CASR.
Under subregulation 65.045 (1) of CASR, it is an offence for a person to carry out an ATC function in Australian territory if the person is not authorised to do so under subregulation 65.035 (1) or (2) of CASR.
Under subregulation 65.070 (1) of CASR, a person is eligible to be granted an ATC licence if the person:
(a) is at least 18 years of age; and
(b) holds a Class 3 medical certificate; and
(c) has successfully completed the training, specified in the Manual of Standards (MOS) – Part 65 (the MOS), for the licence, a rating and an endorsement; and
(d) speaks English clearly, and understands spoken English, to a standard that allows clear spoken two-way communication in the course of performing an ATC function.
Under subregulation 65.080 (1) of CASR, CASA may grant a rating to an applicant for the rating who is eligible to be granted an ATC licence and has successfully completed the training required by the MOS for the grant of the rating.
Under subregulation 65.085 (2) of CASR, CASA may grant an endorsement to an applicant for the endorsement who is eligible to be granted an ATC licence with a rating and has successfully completed the training required by the MOS for the grant of the endorsement.
Regulation 65.015 of CASR defines the term successful completion of training.
Regulation 65.025 of CASR states how to satisfy the recency requirement in relation to an endorsement. Regulation 65.030 of CASR states how to satisfy the currency requirement in relation to an endorsement or rating.
Division 11.F.1 of CASR provides for the granting of exemptions from particular provisions of CASR. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from compliance with a provision of CASR in relation to a matter mentioned in that subsection.
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 regulation 11.175 of CASR, CASA may renew an exemption. Under subregulation 11.175 (4) of CASR, in deciding whether to renew an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
Regulation 11.205 of CASR provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210 of CASR, it is a strict liability offence 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) of CASR, the maximum duration of an exemption is 3 years.
Instrument
Section 1 gives the instrument its name.
Section 2 states that the instrument commences on 1 October 2018 and is repealed at the end of 31 December 2018.
Section 3 contains various definitions of terms used in the instrument.
Section 4 states that Part 2 of the instrument applies to a person (the exempt controller) in relation to whom the requirements mentioned in the section are met. In particular, the person must:
(a) be employed by AA to carry out an ATC function in Australian territory on behalf of AA; and
(b) have concurrently applied to CASA, in the approved form, for the initial grant of the following:
(i) an ATC licence;
(ii) an ATC rating, on the licence, for the ATC function;
(iii) an endorsement, on the licence, for a particular aerodrome or airspace.
Section 5 states the exempt controller is exempt from compliance with subregulation 65.045 (1) of CASR to the extent the subregulation prohibits the exempt controller from carrying out an ATC function in Australian territory without holding an ATC licence with the rating and endorsement applied for. Also, it states the exemption has effect for a maximum period of 21 days after the day the exempt controller makes the application for the licence, rating and endorsement. Also, it states the circumstances in which the exemption stops having effect during the 21-day period. Also, it states the exemption is subject to the conditions mentioned in section 6.
The exemption enables the exempt controller to carry out an ATC function in Australian territory on behalf of AA while waiting for CASA to determine the application for the licence, rating and endorsement. This is conducive to the productivity of the exempt controller as an AA employee, and beneficial to AA’s rostering of persons to carry out ATC functions in Australian territory.
Section 6 states the conditions to which the exemption is subject. The conditions are that:
(a) the exempt controller must not supervise a person mentioned in subregulation 65.035 (3) of CASR in relation to the person carrying out an ATC function in Australian territory; and
(b) the exempt controller must not carry out an ATC function in Australian territory if:
(i) the exemption stops having effect under subsection 5 (3); or
(ii) CASA gives notice to the exempt controller, requiring the exempt controller to stop carrying out an ATC function in Australian territory.
Section 7 states that Part 3 of the instrument applies to a person (also the exempt controller) in relation to whom the requirements mentioned in the section are met. In particular, the person must:
(a) be employed by AA to carry out an ATC function in Australian territory on behalf of AA; and
(b) hold an ATC licence, which is not suspended; and
(c) have applied to CASA, in the approved form, for the grant of an ATC rating on the licence.
Section 8 states the exempt controller is exempt from compliance with subregulation 65.045 (1) of CASR to the extent the subregulation prohibits the exempt controller from carrying out an ATC function in Australian territory in relation to the rating applied for. Also, it states the exemption has effect for a maximum period of 21 days after the day the exempt controller makes the application for the rating. Also, it states the circumstances in which the exemption stops having effect during the 21-day period. Also, it states the exemption is subject to the conditions mentioned in section 9.
The exemption enables the exempt controller to carry out an ATC function in Australian territory on behalf of AA in relation to the rating while waiting for CASA to determine the application for the rating. This is conducive to the productivity of the exempt controller as an employee of AA, and beneficial to AA’s rostering of persons to carry out ATC functions in Australian territory.
Section 9 states the conditions to which the exemption is subject. The conditions are that:
(a) the exempt controller must not supervise a person mentioned in subregulation 65.035 (3) of CASR, so far as the supervision relates to the person carrying out an ATC function in Australian territory in relation to the rating applied for; and
(b) the exempt controller must not carry out an ATC function in Australian territory in relation to the rating if:
(i) the exemption stops having effect under subsection 8 (3); or
(ii) CASA gives notice to the exempt controller, requiring the exempt controller to stop carrying out an ATC function in Australian territory in relation to the rating.
Legislation Act 2003 (the LA)
Subsection 98 (5A) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation of aircraft. Under paragraph 98 (5AA) (a) of the Act, such an instrument is a legislative instrument for the LA if it is expressed to apply in relation to a class of persons. The instrument is a legislative instrument as it applies to a class of persons, being a particular class of AA employees.
Therefore, the instrument is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
AA first raised concerns about the constraints of ATC resourcing in 2009, whereupon CASA issued an instrument for a particular class of AA employees to be exempt from the requirements of subregulation 65.035 (1) of CASR for a maximum period of 21 days (instrument CASA EX78/10). Subsequent instruments were issued by CASA that renewed the exemption on the same conditions (instruments CASA EX108/11 and CASA EX108/13, and the 2015 instrument).
AA has requested the renewal of the exemption stated in the 2015 instrument, which expires at the end of September 2018.
CASA consulted with AA in relation to the instrument, and received advice from AA that it supports the instrument.
In these circumstances, CASA considers that no further consultation is necessary or appropriate for section 17 of the LA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1. It has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the exemptions are 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 instrument has been made by a delegate of CASA, relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on 1 October 2018 and is repealed at the end of 31 December 2018.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX141/18 — Air Traffic Control Licence (Airservices Australia) Exemption 2018
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 legislative instrument exempts a newly-qualified Airservices Australia (AA) air traffic controller, for a maximum period of 21 days, from the requirement to hold an air traffic control (ATC) licence, rating and endorsement before carrying out an ATC function in Australian territory.
Also, the legislative instrument exempts an AA air traffic controller, who is an ATC licence holder and is eligible to be granted a new rating, from the requirement to hold the rating, for a maximum period of 21 days, before carrying out an ATC function in Australian territory in relation to the rating.
The exemptions are subject to conditions imposed by the Civil Aviation Safety Authority (CASA) in the interests of the safety of air navigation.
The purpose of the legislative instrument is to remake, in substantially the same terms, instrument CASA EX158/15, which expires at the end of September 2018.
Human rights implications
Right to work
The right to work, stated 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 the legislative instrument as it enables an air traffic controller to be gainfully employed by AA pending the determination by CASA of the air traffic controller’s application for an ATC licence or new rating, as applicable.
Other rights
The legislative instrument does not engage any of the other applicable rights or freedoms.
Conclusion
The legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority