Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from requirement to hold a low-level rating (Cobham Aviation Services)
Purpose
This instrument applies to the holder of a pilot licence (the holder) employed by Surveillance Australia Pty Ltd, trading as Cobham Aviation Services Australia – Special Mission (Cobham), who is authorised in writing by Cobham to conduct a low-level operation (a relevant low-level operation) in accordance with Cobham’s air operator’s certificate (AOC). The instrument exempts this class of pilots from the requirement in subregulation 61.375 (7) of the Civil Aviation Safety Regulations 1998 (CASR 1998) to hold a low-level rating in order to conduct particular low-level operations for Cobham. A number of safety conditions must be met.
Legislation — exemption
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.
Under subregulation 11.160 (1) of CASR 1998, and for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of the Civil Aviation Regulations 1988 (CAR 1988), CASR 1998 or a Civil Aviation Order in relation to a matter mentioned in subsection 98 (5A).
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 regulations or a Civil Aviation Order. 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.
Legislation — low-flying permission
Under regulation 157 of CAR 1988, the pilot in command of an aircraft must not fly the aircraft over any city, town or populous area at a height lower than 1 000 feet; or over any other area at a height lower than 500 feet.
However, under paragraph 157 (4) (b) of CAR 1988, this rule does not apply if the aircraft is engaged in aerial work operations that require low flying, and the owner or operator of the aircraft has received a permit from CASA. Under paragraph 157 (4) (f) of CAR 1988, the rule does not apply if the pilot of the aircraft in a search and rescue operation is engaged in a search, a rescue, or in dropping supplies.
Under its AOC, Cobham discharges its contractual obligations to the Commonwealth Government in certain flying operations which include coastal surveillance and search and rescue (SAR), including dropping SAR equipment or supplies. These operations involve relatively large aircraft, capable of flying relatively long distances, in operations that may involve low-level flying for aspects of the surveillance or for the dropping of SAR equipment.
For these operations, Cobham, as an operator, has the benefit of a CASA low-flying permission under paragraph 157 (4) (b) of CAR 1988 (CRA 15207 refers, expiring at the end of May 2016).
Legislation — low-level rating requirement
Under regulation 61.010 of CASR 1998, a low-level operation is defined as an operation below 500 feet above ground level other than climbing from take-off, descending to land or an aerial application operation.
Under subregulation 61.375 (7) of CASR 1998, the holder of a pilot licence is only authorised to conduct a low-level operation in exercising licence privileges if the holder also holds a low-level rating or an aerial application rating described in item 5 of Table 61.375. In this form, this is a pilot requirement complementary to regulation 157 of CAR 1988.
Background
Cobham’s pilots have not previously been required to hold low-level authorisations as such, since they fall within the scope of either the Cobham permission mentioned above, or paragraph 157 (4) (f) of CAR 1988.
Cobham’s pilots are subject to rigorous training and checking requirements which are approved by CASA and form part of their operations manual. The training and checking system addresses the knowledge and skill competencies required to conduct the specialised low-level operations in which they are involved.
Given the particular nature of the operations in which Cobham is engaged, the aircraft used, the training and checking system in place and the existing low-flying permission, CASA considers that the requirement for Cobham’s surveillance pilots to hold a low‑level rating is, in these circumstances, not essential for aviation safety and creates an unnecessary regulatory burden.
CASA issued Cobham with an exemption instrument that exempts Cobham’s pilots from the requirement to hold a low-level rating, subject to appropriate conditions (CASA EX103/14 refers, expiring at the end of August 2015). Cobham has requested that the exemption be renewed.
Instrument
CASA EX144/15 is an instrument of exemption that replaces CASA EX103/14. CASA EX144/15 applies to the holder of a pilot licence who is employed by Cobham, and who is authorised in writing by Cobham, to conduct a low-level operation in accordance with Cobham’s AOC.
CASA EX144/15 has substantially the same content and operative effect as CASA EX103/14, with the following changes:
- section 3 of the instrument (Application) has been broadened from holders of pilot licences employed by Cobham, to holders of pilot licences who conduct operations for Cobham — this clarifies the status of pilots who may be engaged by Cobham to conduct operations but who may not otherwise be employed by Cobham;
- the conditions have been refined after further consultation with Cobham, including the removal of references to pilot employment and the removal of a condition for pilots to complete a specific proficiency check.
Under the instrument, the holder is exempt from the requirements of subregulation 61.375 (7) and item 5 of Table 61.375 in CASR 1998 to the extent that to conduct a relevant low-level operation in the exercise of the privileges of the licence, the holder would otherwise be required to hold a low-level rating.
Under subregulation 61.065 (1) of CASR 1998, the holder of a flight crew licence commits an offence if he or she conducts an activity (like a low-level operation) and “the holder is not authorised under [Part 61] to conduct the activity”. Therefore, to avoid doubt, the holder is also exempt from the requirements of subregulation 61.065 (1), to the extent that it prohibits the holder from conducting a relevant low-level operation in the exercise of the privileges of the licence while not holding a low-level rating.
It is a condition that the holder must be a participant in Cobham’s training and checking program and successfully complete all training and checking requirements of the program, including proficiency checks. In any relevant low-level operation in accordance with Cobham’s AOC, the holder must conduct the operation in accordance with Cobham’s operations manual. The exemption ceases to apply to a holder immediately after he or she ceases to be authorised in writing by Cobham, for relevant low-level operations.
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 Civil Aviation Orders. 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 EX144/15 applies to a class of persons, being holders of a pilot licence who are conducting operations for Cobham and who are authorised in writing to do so.
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
The exemption has been made at the request of Cobham. CASA has assessed Cobham’s safety case and considers that aviation safety will not be adversely affected. For section 17 of the LIA, CASA considers that further consultation is not necessary or appropriate in this case. A similar exemption would be issued to any other operator in similar circumstances.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement is not required. The exemption is of beneficial effect for the class of pilots. A preliminary assessment of business compliance costs in the context of the nature of the instrument indicates that it will have a nil negative impact on business.
Statement of Compatibility with Human Rights
The Statement in Attachment 1 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 and making
The exemption commences on 1 September 2015 and expires at the end of August 2017, as if it had been repealed by another instrument.
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 EX144/15]
Attachment 1
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 requirement to hold a low-level rating (Cobham Aviation Services)
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 instrument applies to the holder of a pilot licence who: is conducting operations for Surveillance Australia Pty Ltd, trading as Cobham Aviation Services Australia – Special Mission (Cobham); and who is authorised in writing by Cobham to conduct a low-level operation in accordance with Cobham’s air operator’s certificate. The instrument exempts this class of pilots from the requirement in subregulation 61.375 (7) of the Civil Aviation Safety Regulations 1998 to hold a low-level rating in order to conduct particular low-level operations for Cobham. A number of safety conditions must be met.
For its specialist flying operations in surveillance, search and rescue, Cobham uses relatively large aircraft, capable of flying relatively long distances, and operates under a CASA permission for low-level operations. Given the particular nature of the operations in which Cobham is engaged, the aircraft used, the CASA permission, and Cobham’s training and checking system, CASA considers that the requirement for its surveillance pilots to hold a low-level rating is not essential for aviation safety and has issued an exemption to this class of pilots.
Human rights implications
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