Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from demonstrating competence using GLS approach in B737NG aircraft (Virgin Australia)
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the safety of air navigation.
Subpart 61.M of the Civil Aviation Safety Regulations 1998 (CASR 1998) sets out the privileges and requirements for the grant of instrument ratings. Regulation 61.855 provides, among other things, that subject to regulation 61.860, the holder of an instrument rating is authorised to pilot an aircraft under the IFR or at night under the VFR.
Regulation 61.860 of CASR 1998 sets out the limitations on the exercise of the privileges of an instrument rating. Subregulation 61.860 (5) states that the holder of an instrument rating is authorised to conduct an instrument approach operation in an aircraft using a procedure of a particular kind only if the holder has: (a) completed training in the conduct of instrument approach operations using the procedure; and (b) demonstrated, to a person mentioned in subregulation 61.860 (6), his or her competence in the conduct of instrument approach operations using the procedure. Subregulation 61.860 (6) states that, for paragraph 61.860 (5) (b), the persons are CASA, an examiner who is authorised to conduct an instrument approach operation using the same procedure, or a person who holds an approach under regulation 61.040 to assess the holder’s competence.
Subregulation 11.160 (1) of CASR 1998 provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the Civil Aviation Orders (the CAOs). 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.
Background
Virgin Australia Airlines Pty Ltd (the operator) has been conducting Global Navigation Satellite System landing system (GLS) approaches using B737NG aircraft since September 2014, when CASA issued an approval for the operator to do so under visual meteorological conditions. As part of the assessment for the approval, CASA reviewed the operator’s B737NG GLS training syllabus and course.
There are various kinds of 3D instrument approach procedures specified in Schedule 2 of the Part 61 Manual of Standards (the MOS), including ILS, MLS, GLS, RNP‑LNAV/VNAV (Baro) and RNP‑LPV. Some instrument approach procedures and their set up are identical (such as the conduct of GLS and ILS approaches in suitably equipped B737NG aircraft), but there is ambiguity on whether, for the purposes of subregulation 61.860 of CASR 1998, the abovementioned 3D instrument approach procedures are treated as different kinds of procedures or as different kinds of groups of procedures given their operational similarity and the manner in which they have been grouped in the MOS.
To avoid doubt, CASA has decided, in consultation with the operator, to issue an exemption from the requirements of paragraph 61.860 (5) (b) of CASR 1998. CASA has observed the operator’s GLS approach procedures during operational surveillance and is satisfied that the operator’s training syllabus and programs for B737NG pilots are adequate. The conduct of GLS approaches are deemed to be of the same kind of approach as ILS approaches, for which the operator’s B737NG pilots have already demonstrated competence to a person mentioned in subregulation 61.860 (6) of CASR 1998.
Instrument
CASA EX142/15 exempts a pilot of an operator’s B737NG aircraft from the requirement to demonstrate his or her competence in the conduct of instrument approach operations using a particular kind of procedure, in this case, using the GLS approach procedure.
A pilot may only take advantage of the exemption if the pilot has successfully completed the GLS course conducted by the operator and has successfully conducted a GLS approach in visual meteorological conditions. It is also a condition that the operator include a copy of the instrument in the operator’s operations manual.
Legislative Instruments Act 2003 (the LIA)
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations or the CAOs. 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. CASA EX142/15 applies to a class of persons, being pilots of B737NG aircraft operated by the operator. The exemption is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
This instrument has been made following internal CASA deliberations and consultation with the operator. The operator has demonstrated safe ILS approach procedures and practices, which for operational purposes in B737NG aircraft, are identical to GLS approach procedures. There is no adverse safety consequence with the exemption being granted and it is beneficial to the operator in that the operator’s B737NG pilots are not required to demonstrate competence using near identical approach procedures. It is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
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 instrument, which is minor or machinery in nature, is covered by a standing agreement between CASA and OBPR under which a RIS is not required (OBPR id: 14507).
Making and commencement
The exemption has been issued by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The exemption commences on the day of registration and expires at the end of July 2018, as if it had been repealed by another instrument.
[Instrument number CASA EX142/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — from demonstrating competence using GLS approach in B737NG aircraft (Virgin Australia)
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
This legislative instrument exempts a pilot of a B737NG aircraft operated by Virgin Australia Airlines Pty Ltd from the limitation that, as the holder of an instrument rating, the pilot may only conduct an instrument approach operation if the pilot has successfully demonstrated his or her competence in the conduct of the instrument approach operation using the particular kind of procedure — in this case, the GLS approach procedure.
The instrument is subject to conditions that CASA considers necessary in the interests of aviation 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