Replacement Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX159/18 — Authorised Flight Examiners Exemption 2018
Purpose
Instrument CASA EX146/16, Exemption — Flight examiners if authorised by CASA (the repealed instrument) exempted a flight examiner who conducts a flight test for a commercial pilot licence from complying with subregulation 61.1295 (2) of the Civil Aviation Safety Regulations 1998 (CASR) in stated circumstances. The repealed instrument was repealed at the end of 31 August 2018. The purpose of CASA EX159/18 — Authorised Flight Examiners Exemption 2018 (the instrument) is to reissue the exemption. The instrument also includes an exemption from compliance with the similar obligation stated in paragraph 61.245 (3) (b) of CASR in the same circumstances.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made CASR.
Part 61 of CASR sets out the licensing scheme for pilots and flight engineers of registered aircraft. Under subregulation 61.007 (1) of CASR, Part 61 applies to flight in a registered aircraft of any of the categories: aeroplane, helicopter, powered-lift aircraft, gyroplane and airship.
The following are relevant definitions in regulation 61.010 of CASR:
- The term examiner is defined to include a flight examiner.
- The term flight examiner is defined to mean the holder of a flight examiner rating.
- The term flight test, for a flight crew licence, rating or endorsement, is defined to mean a test conducted under regulation 61.245 for the licence, rating or endorsement.
- The term flight crew licence is defined to include a pilot licence.
- The term pilot licence is defined to include a commercial pilot licence.
An applicant for a flight crew licence is eligible to take a flight test for the licence only if the applicant meets the requirements stated in subregulation 61.235 (2) of CASR.
Under paragraph 61.235 (2) (aa), one of the requirements is that 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).
As far as is relevant, under subregulation 61.245 (3) of CASR, a flight test for a commercial pilot licence must be conducted by an examiner who:
(a) is nominated by the training provider for the applicant for the licence; and
(b) is not the person who provided the certification under paragraph 61.235 (2) (aa) of CASR for the applicant.
As far as is relevant, under subregulation 61.1295 (2) of CASR, a flight examiner commits an offence if the examiner:
(a) conducts a flight test for a commercial pilot licence; and
(b) is the person who provided the certification under paragraph 61.235 (2) (aa) of CASR for the person taking the flight test.
Under subregulation 61.1295 (6), an offence against the regulation is an offence of strict liability.
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the Civil Aviation Regulations 1988, CASR or the Civil Aviation Orders. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, the Civil Aviation Safety Authority (CASA) may grant an exemption from a provision of CASR in relation to a matter mentioned in that subsection.
Under subregulation 11.160 (2), 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 subregulation 11.160 (3), an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption for which an application has been made, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant an exemption on its own initiative.
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.
Background
When the repealed instrument was made, CASA had intended that the exemption granted under that instrument be eventually incorporated as part of amendments of Part 61 of CASR. However, this did not happen during the currency of the repealed instrument because of other CASA legislative priorities. There is an ongoing need for the exemption, which is why CASA is reissuing the exemption in the instrument.
Content of instrument
Section 1 gives the instrument its name.
Section 2 states the instrument commences on the day after it is registered, and is repealed at the end of 31 October 2020.
Section 3 states the instrument applies to a flight examiner (the relevant examiner) who:
(a) conducts a flight test (the test) for a commercial pilot licence; and
(b) provided the certification under paragraph 61.235 (2) (aa) of CASR for the person taking the test; and
(c) before conducting the test, held CASA’s authorisation under section 5 to conduct the test.
Section 4 states the relevant examiner is exempt from compliance with paragraph 61.245 (3) (b) of CASR in relation to the test. Also, it states the relevant examiner is exempt from compliance with subregulation 61.1295 (2) of CASR in relation to the test.
Section 5 details the process to be followed for an authorisation to conduct the test to be granted by CASA to the relevant examiner. Also, it states CASA may grant the authorisation only if it is satisfied another flight examiner is not reasonably available to conduct the test.
Relevant factors that CASA considers in deciding whether or not to grant an authorisation under section 5 are:
(a) the size of the training provider for the person taking the test; and
(b) the location of the training provider’s business.
The approval mechanism has been included because it is not practicable to express a general rule as to when another flight examiner is, and is not, reasonably available to conduct a flight test. CASA intends that the approval mechanism be used to support the beneficial nature of the instrument, to provide relief against the restrictive operation of the relevant CASR provisions in appropriate circumstances.
A decision of CASA under section 5 to refuse to grant an authorisation is subject to merits review by the Administrative Appeals Tribunal.
Section 6 states that, to remove doubt, the fact that the relevant examiner provided the certification under paragraph 61.235 (2) (aa) of CASR for the person taking the test does not affect the eligibility, under subregulation 61.235 (2), of the person to take the test.
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 applies to a flight examiner who conducts a flight test for a commercial pilot licence. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
CASA has not undertaken any consultation in relation to the instrument as the basis for the making of the repealed instrument remains the same for the instrument. Consultation under section 17 of the LA in relation to the repealed instrument occurred, as detailed in the Explanatory Statement for the repealed instrument.
CASA intends that the exemption granted under the instrument be incorporated as part of amendments of Part 61 of CASR in 2019, at which time the instrument will be repealed.
In these circumstances, CASA is satisfied that no consultation is appropriate, or reasonably practicable, for the instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the exemptions stated in the instrument are 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
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.
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 the day after it is registered, and is repealed at the end of 31 October 2020.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX159/18 — Authorised Flight Examiners 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
Instrument CASA EX146/16, Exemption — Flight examiners if authorised by CASA (the repealed instrument) exempted a flight examiner who conducts a flight test for a commercial pilot licence from complying with subregulation 61.1295 (2) of the Civil Aviation Safety Regulations 1998 (CASR) in stated circumstances. The repealed instrument was repealed at the end of 31 August 2018. The purpose of the legislative instrument is to reissue the exemption. The legislative instrument also includes an exemption from compliance with the similar obligation stated in paragraph 61.245 (3) (b) of CASR in the same circumstances.
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 facilitates the application process for an applicant for
a commercial pilot licence under Subpart 61.B of CASR.
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