Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — Flight examiners if authorised by CASA
Purpose
The purpose of this instrument is to exempt flight examiners from the prohibition in subregulation 61.1295 (2) of the Civil Aviation Safety Regulations 1998 (CASR 1998) against a flight examiner conducting flight tests for an applicant for a commercial pilot licence if the examiner is also the person who issued the applicant with certification under regulation 61.235 of CASR 1998.
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.
Part 61 of CASR 1998 sets out the licensing scheme for pilots and flight engineers of registered aircraft, see regulation 61.005 of CASR. Part 61 applies to aeroplanes, helicopters, powered-lift aircraft, gyroplanes and airships.
Regulation 61.235 sets out the pre-requisites for flight tests for flight crew licences.
- Flight test, for a flight crew licence, rating or endorsement means a test conducted under regulation 61.245 for the licence, rating or endorsement.
- Flight crew licence is defined in regulation 61.010 to mean a pilot licence, flight engineer licence or glider pilot licence.
Paragraph 61.235 (2) (a) sets out criteria for an applicant’s eligibility to take a flight test for a flight crew licence. Paragraph 61.235 (2) (aa) provides that an applicant is eligible to take a flight test for a licence only if a person mentioned in subregulation 61.235 (5), (6) or (7) has certified in writing that the applicant has met the requirements mentioned in paragraph 61.235 (2) (a).
Regulation 61.1295 sets out the obligations of flight examiners relating to flight tests. Relevantly, it provides that a flight examiner commits an offence if the examiner conducts a flight test for a commercial pilot licence and is the person who provided certification under paragraph 61.235 (2) (a) of CASR, see subregulation 61.1295 (2).
Exemptions
Under subregulation 11.160 (1) of CASR 1998, CASA may grant an exemption from a provision of CASR 1998 in relation to a matter mentioned in subsection 98 (5A) of the Act. Subsection 98 (5A) matters are, in effect, those affecting the safety, airworthiness or design of aircraft.
Under subregulation 11.160 (3), CASA may grant an exemption on application, or on its own initiative. This instrument would be granted on CASA’s initiative. 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. Subregulation 11.210 (1) provides that if a condition of an exemption imposes an obligation on a person, the person must comply with the obligation. Failure to comply with the obligation is an offence of strict liability with a maximum penalty of 50 penalty units.
The maximum duration of an exemption is 3 years, see subregulation 11.230 (1). Under regulation 11.225, CASA must, as soon as practicable, publish on the Internet details of an exemption.
Description of the instrument
The instrument would apply to a flight examiner who conducts flight testing of an applicant for a commercial pilot licence and who provided to the applicant the certification mentioned in paragraph 61.235 (2) (aa) in relation to the matters mentioned in paragraph 61.235 (2) (a) of CASR 1998.
Section 3 of the instrument would exempt the flight examiner from subregulation 61.1295 (2) of CASR 1998, if the examiner is flight testing an applicant for a commercial pilot licence
and CASA is satisfied that another person is not reasonably available to conduct the flight testing and it is not contrary to the interests of the safety of air navigation for the flight examiner to conduct the flight testing.
The exemption in section 3 is subject to the condition in section 4 that the flight examiner has written authorisation from CASA to conduct the flight testing of the applicant for the licence.
The size of the organisation that undertakes the flight testing for the licence will be a key factor in CASA being satisfied about whether another person is reasonably available to conduct the flight testing.
Legislative instrument
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the Regulations or 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, class of aircraft or class of aeronautical product. The exemption would apply to a class of persons, that is, flight examiners for applicants for a commercial pilot licence. The exemption is, therefore, a legislative instrument.
Consultation
The concerns about the implementation of Part 61 of CASR 1998 that would be addressed by this exemption were raised by the aviation community through various channels including direct communications, the CASA industry forum on the implementation of the flight crew licensing suite of regulations, which was held in Canberra on 17 December 2014, and at the Part 61 Solutions Taskforce Industry Advisory Panel (IAP) meeting held in Canberra on 16 December 2015.
The Flight Crew Licensing subcommittee of the Standards Consultative Committee also discussed the issue and supported the matter being addressed through the post implementation review of Part 61 of CASR 1998. The IAP supported the proposal as it is reflected in the exemption.
Due to the relatively minor nature of the exemption, further consultation has not been considered necessary as the exemption would provide relief to a relatively small number of operators who have genuine difficulties meeting the policy intention of the regulations to have independent certification of candidates for the commercial pilot licence flight test.
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 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.
Making and commencement
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The exemption commences on the day after registration and is repealed at the end of 31 August 2018.
[Instrument number CASA EX146/16]
Appendix 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 — Flight examiners if authorised by CASA
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 purpose of this instrument is to exempt flight examiners from the prohibition in paragraph 61.1295 (2) (b) of the Civil Aviation Safety Regulations 1998 (CASR 1998) against a flight examiner conducting flight tests for an applicant for a commercial pilot licence if the examiner is also the person who issued the applicant with certification under regulation 61.235 of CASR 1998.
Human rights implications
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. 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