Explanatory Statement
Civil Aviation Safety Regulations 1998
Repeal of exemptions — eligibility for certification as unmanned aerial vehicle controller
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation.
Paragraph 98 (5A) (a) of the Act provides that the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft.
Under subregulation 101.290 (1A) of the Civil Aviation Safety Regulations 1998 (CASR 1998), an individual may apply to CASA for certification as an unmanned aerial vehicle (UAV) controller.
Under subregulation 101.295 (2) of CASR 1998, subject to regulation 11.055, CASA must certify an applicant as a UAV controller if he or she:
(a) qualifies for the issue of an aeronautical radio operator certificate; and
(b) has been awarded a pass in an aviation licence theory examination (other than a flight radio operator’s examination); and
(c) has been awarded a pass in an instrument rating theory examination; and
(d) has completed a training course in the operation of the type of UAV that he or she proposes to operate, conducted by the UAV’s manufacturer; and
(e) has at least 5 hours experience in operating UAVs outside controlled airspace.
Under subregulation 11.160 (1) of CASR 1998, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of CASR 1998 in relation to a matter mentioned in that subsection. 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 subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
CASA EX128/15
Instrument CASA EX128/15 exempts an applicant for certification as a UAV controller from the requirement to have completed training conducted by the UAV’s manufacturer (paragraph 101.295 (2) (d) of CASR 1998).
Instead, the applicant is required to have completed a training course conducted by an approved agent of the manufacturer, a type training provider recognised by CASA for that type of UAV, or a UAV operator certificate (UOC) holder who operates that type of UAV in accordance with the UOC holder’s operations manual. Alternatively, for an applicant who purchases a small UAV that is ready to fly, the applicant may complete a flight test conducted by a CASA inspector.
CASA EX24/16
Instrument CASA EX24/16 applies to an applicant for certification as a UAV controller where the proposed certification is to be subject to certain conditions limiting the operations to be conducted under the certificate. Specifically, the instrument only applies where the operations will be in visual line of sight and clear of cloud and the applicant has completed an appropriate training course for the type of UAV.
CASA EX24/16 exempts such an applicant from the requirement to obtain a pass in an instrument rating theory examination (paragraph 101.295 (2) (c) of CASR 1998).
Amendment Regulation
The Civil Aviation Legislation Amendment (Part 101) Regulation 2016 (the Amendment Regulation) commences on 29 September 2016. The Amendment Regulation will make several amendments to Part 101 of CASR 1998, including changing the terminology so that UAVs will be referred to as remotely piloted aircraft (RPA). Following the commencement of the Amendment Regulation, applicants will apply for a remote pilot licence (RePL) instead of certification as a UAV controller.
Paragraphs 101.295 (2) (a) to (e) of CASR 1998 will be replaced (item 55 of Schedule 1 of the Amendment Regulation). Revised subregulation 101.295 (2) will require that the applicant for a RePL:
(a) has passed:
(i) an aeronautical knowledge examination (within the meaning of Part 61 [of CASR 1998]) for a flight crew licence under Part 61; or
(ii) an aviation licence theory examination before 1 September 2014 that is taken to be an equivalent requirement for the grant of a flight crew licence under regulation 202.274 [of CASR 1998]; or
(iii) the theory component of a RePL training course; or
(iv) the theory component of a course conducted in a foreign country which CASA is satisfied is equivalent to the theory component of a RePL training course; and
(b) has completed:
(i) a RePL training course in the manual or automated operation of a category of RPA that he or she proposes to operate; or
(ii) before 1 June 2017, a training course in the operation of a category of RPA that he or she proposes to operate, conducted by the RPA’s manufacturer or an agent of the manufacturer; or
(iii) a flight test conducted by CASA for the purposes of this subparagraph [101.295 (2) (b) (iii)]; and
(c) has at least 5 hours experience in operating an RPA under standard RPA operating conditions.
Instrument
This instrument repeals instruments CASA EX128/15 and CASA EX24/16 with effect from 29 September 2016, to coincide with the commencement of the Amendment Regulation.
From that date, CASA EX128/15 will no longer be required because the revised subregulation 101.295 (2) will provide appropriate options for completion of training or testing to qualify for a remote pilot licence.
Similarly, CASA EX24/16 will no longer be required because the revised subregulation 101.295 (2) will not require the applicant to have passed an instrument rating theory examination.
Legislation Act 2003 (the LA)
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations. 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 EX128/15 and CASA EX24/16 apply to a class of persons, namely, applicants for UAV controller certification.
Further, under subsection 8 (3) of the LA, an instrument is a legislative instrument if it was made under a power delegated by the Parliament and is registered as a legislative instrument. CASA EX128/15 and CASA EX24/16 are registered as legislative instruments and are, therefore, legislative instruments.
Under paragraph 10 (1) (d) of the LA, an instrument is a legislative instrument if it includes a provision that amends or repeals another legislative instrument. This instrument includes a provision that repeals 2 legislative instruments and, therefore, is a legislative instrument.
As a legislative instrument, this instrument is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
CASA consulted on the proposed changes in the Amendment Regulation via a Notice of Proposed Rule Making (NPRM 1309OS – Remotely Piloted Aircraft Systems – Amendments to Part 101 of CASR), available to industry and the public between 14 May 2014 and 16 June 2014. In response to the feedback received to the NPRM, CASA prepared a new draft of the proposed Amendment Regulation, which was refined in consultation with the Unmanned Aircraft Systems Standards Sub-committee, which includes representatives of RPA operators and CASA.
This instrument repeals exemptions that are no longer required as a consequence of amendments to Part 101 of CASR 1998 arising from this consultation.
In these circumstances, it is CASA’s view that it is not appropriate or reasonably practicable to undertake any further consultation under section 17 of the LA in relation to this instrument.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for subordinate instruments of this kind (OBPR id: 14507).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
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 instrument commences on 29 September 2016. It is repealed on the day after it commences by operation of section 48A of the LA.
[Instrument number CASA EX148/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Repeal of exemption — eligibility for certification as unmanned aerial vehicle controller
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 will repeal instruments CASA EX128/15 and CASA EX24/16, which provide general exemptions for applicants for certification as an unmanned aerial vehicle (UAV) controller.
Following commencement of the Civil Aviation Legislation Amendment (Part 101) Regulation 2016, the requirements for applicants will be amended so that the exemptions in CASA EX128/15 and CASA EX24/16 will no longer be required.
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