Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption – aerial application proficiency check and operator proficiency check (head of flight operations) – aeroplanes
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. Subsection 98 (5A) of the Act provides that the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation of aircraft.
On 1 September 2014, new arrangements dealing with flight crew licensing commenced under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR 1998). These arrangements replaced the previous regulatory framework under Part 5 of the Civil Aviation Regulations 1988 (CAR 1988). Part 137 of CASR 1998, which deals with aeroplane aerial application operations (that is, the application of fertiliser, seeds, water, pesticides or other material), was also amended to align with the new Part 61 provisions. Transitional provisions were included in Part 202 of CASR 1998 which facilitated the transition of old authorisations in force immediately before 1 September 2014.
Subpart 137.N of CASR 1998 sets out the qualification and proficiency requirements for pilots conducting aeroplane aerial application operations. Regulation 137.235 of CASR 1998 provides that it is a strict liability offence, attracting 50 penalty units, for an operator to allow an aeroplane to be used for an application operation if the pilot in command is not authorised to do so. Under subregulation 137.240, the operator also commits an offence, attracting 50 penalty units, if the operator allows an aeroplane to be used for an application operation and the pilot in command does not hold a valid annual proficiency check (an operator proficiency check).
Under subregulation 137.240 (3) of CASR 1998, the operator proficiency check for a pilot, who is employed by the operator, must be conducted by either the operator’s head of flight operations, or a flight examiner or instructor who is authorised to conduct aerial application operations under Part 61. However, subregulation 137.240 (4) provides that the operator proficiency check for the operator’s head of flight operations must be conducted by a flight examiner or instructor.
This arrangement – where a pilot who is also the head of flight operations cannot undertake an operator proficiency check conducted by another head of flight operations – has raised concerns in the aerial application industry. Specifically, the Aerial Application Association of Australia (AAAA) has advised CASA that in rural and regional Australia access to flight examiners and instructors, who can conduct an operator proficiency check, can be difficult. AAAA has proposed, among other things, that CASA should issue an exemption that allows a head of flight operations to conduct an operator proficiency check for another head of flight operations.
Separately, regulation 61.1110 of CASR 1998 provides, among other things, that the holder of an aerial application rating is authorised to exercise the privileges of the rating only if the holder has a valid aerial application proficiency check. Paragraph 61.1110 (2) (c) provides that the holder is taken to have a valid aerial application proficiency check if the holder successfully completes an operator proficiency check that covers operations under the rating, and the operator proficiency check is conducted by a flight examiner who holds an aerial application rating flight test endorsement. The requirements of paragraph 61.1110 (2) (c) will be incongruous to AAAA’s proposal that an operator proficiency check should also be conducted by the head of flight operations.
Subregulation 11.160 (1) of CASR 1998 provides that, for subsection 98 (5A), CASA may grant an exemption from a provision of these Regulations, including a provision of the Civil Aviation Orders (the CAOs) in relation to a matter mentioned in that subsection.
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.
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.
Instrument
CASA has assessed industry’s proposal and, after undertaking further consultations, is issuing CASA EX162/14 to exempt an aeroplane aerial application operator and the head of flight operations from subregulation 137.240 (4) of CASR 1998, and the holder of an aerial application rating (aeroplane) from paragraph 61.1110 (2) (c) of CASR 1998. The exemption will allow the head of flight operations to conduct an operator proficiency check for another head of flight operations. An aeroplane pilot who holds an aerial application rating may also exercise the privileges of his or her rating if he or she successfully completes an operator proficiency check conducted by the head of flight operations.
The exemption is subject to 1 condition. The head of flight operations, who conducts an operator proficiency check for another head of flight operations, must notify CASA in writing.
This exemption will only be in force until the end of June 2016, to align with the transition date for approved testing officers to flight examiners. During the period of the exemption, CASA will continue to monitor the arrangement and assess how, over the longer term, the arrangement should be incorporated into the regulations or facilitated by the issue of a regulation 61.040 approval to a head of flight operations.
In this regard, with respect to helicopter aerial application operations, CASA will, in consultation with industry, consider implementing similar arrangements through regulation 61.040 of CASR 1998 to approve the heads of operations of helicopter operators to conduct aerial application proficiency checks under regulation 61.1110 for helicopter pilots who hold an aerial application rating (helicopter).
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. The exemption applies to 3 classes of persons, being: aeroplane operators who are authorised to conduct aerial application operations; heads of flight operations of aerial application operators; and aeroplane pilots who hold an aerial application rating. The exemption is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The exemption has been issued after consultation with AAAA. Given the instrument’s applicability to a limited number of operators and individuals within the wider aviation industry, 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 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 the Acting Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument commences on the day of registration and expires at the end of June 2016, as if it had been repealed by another instrument.
[Instrument number CASA EX162/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption – aerial application proficiency check and operator
proficiency check (head of flight operations) – aeroplanes
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 legislative instrument exempts aerial application operators and heads of flight operations of those operators from the requirement, in regulation 137.240 (4) of the Civil Aviation Safety Regulations 1998, that an operator proficiency check for the head of flight operations must be conducted by a flight examiner or an instructor. The exemption allows heads of flight operations to conduct operator proficiency checks for another head of flight operations, which is increasingly important in rural and regional Australia where access to flight examiners and instructors may be difficult.
The legislative instrument also provides, in effect, that the holder of an aerial application rating will be taken to have a valid aerial application rating if the holder successfully completes an operator proficiency check conducted by a head of flight operations.
The exemption is subject a condition imposed by CASA in the interests of air 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