Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption from certain prerequisites for an ATPL flight test
Purpose
This instrument continues to exempt applicants for an air transport pilot licence (ATPL) with less than a 100% pass in the aeronautical knowledge examination from certain eligibility requirements for the ATPL flight test.
This instrument also continues to exempt overseas applicants who hold an overseas equivalent to an ATPL from meeting a particular certification of competence requirement before they may attempt the ATPL flight test. That requirement is not imposed on Australian commercial pilots seeking to upgrade their Australian commercial pilot licence to an ATPL.
Because the instrument that initially granted those exemptions (CASA EX222/15) will be repealed on 30 November 2017, this instrument continues to grant those exemptions from 1 December 2017. This instrument will be repealed at the end of 30 November 2018.
Legislation — exemptions
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 the Civil Aviation Safety Regulations 1998 (CASR) and Civil Aviation Regulations 1988 (CAR).
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations.
Under subregulation 11.160 (2) of CASR, 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 11.175 (4) of CASR, in deciding whether to renew an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Legislation – flight crew licensing requirements – CASR Part 61
Part 61 of CASR sets out flight crew licensing requirements.
Applicants for an ATPL
Paragraph (a) of the definition of flight crew licence and paragraph (a) of the definition of pilot licence, both in regulation 61.010 of CASR, have the combined effect of including an ATPL within the definition of flight crew licence.
Regulation 61.235 of CASR sets out the prerequisites for flight tests for, relevantly, flight crew licences (including ATPLs). Under subparagraph 61.235 (2) (a) (ii) of CASR, an applicant for a flight crew licence (including an ATPL) is eligible to take the flight test for the licence only if the applicant has passed the aeronautical knowledge examination for the licence.
Under subparagraph 61.235 (2) (b) (i) of CASR, if an applicant for a flight crew licence (including an ATPL) passed the aeronautical knowledge examination for the licence with a score of less than 100%, the applicant’s training provider must give a copy of the applicant’s knowledge deficiency report to the flight examiner who is to conduct the flight test.
Under subparagraph 61.235 (2) (b) (ii), if an applicant for a flight crew licence (including an ATPL) passed the aeronautical knowledge examination for the licence with a score of less than 100%, the applicant must satisfy the examiner that he or she has sufficient knowledge in any competency standard mentioned in the knowledge deficiency report to safely exercise the privileges of the licence.
Under regulation 61.240 of CASR, an applicant for a flight crew licence (including an ATPL) is taken not to have passed a flight test if the applicant, when taking the flight test, was not eligible to do so under regulation 61.235 of CASR.
Overseas ATPL applicants
Under subparagraph 61.275 (1) (e) (i) of CASR, the holder of an overseas flight crew licence who applies for an ATPL with an aircraft category rating is taken to meet the requirements under Part 61 of CASR if a person specified in subregulation 61.275 (5) certifies in writing that the applicant is competent in each unit of competency mentioned, for the ATPL, in the Part 61 Manual of Standards.
Under subregulation 61.275 (5) of CASR, one of the persons who may certify the applicant’s competence is the head of operations of a Part 141 or 142 operator that is authorised to conduct flight training for the Australian licence. The other persons are a person named in the Part 141 operator’s operations manual, or the Part 142 operator’s exposition, as responsible for flight training for the ATPL.
Regulation 61.235 states the criteria for an applicant for a flight crew licence, other than an applicant under regulation 61.275, to be eligible to take a flight test. Under the criterion in paragraph 61.235 (2) (aa) of CASR, an applicant for a flight crew licence, other than an ATPL, is eligible to take the flight test for the ATPL only if a particular person certifies in writing that, relevantly, the applicant has met the aeronautical knowledge examination requirements. The expression “other than an ATPL” means that the criterion does not apply to an applicant seeking to upgrade an Australian commercial pilot licence to an ATPL.
Background
On 24 December 2015, CASA made instrument CASA EX222/15, granting initial exemptions to relevant applicants for an ATPL from the knowledge deficiency report requirements in paragraph 61.235 (2) (b) and regulation 61.240 of CASR, and from the competency certification requirement in subparagraph 61.275 (1) (e) (i) of CASR. CASA EX222/15 was registered on the Federal Register of Legislation on 5 January 2016 (F2016L00015 refers), commenced on the same date, and will be repealed at the end of 30 November 2017.
As the Explanatory Statement for CASA EX222/15 mentions, CASA EX 222/15 addressed CASA’s assessment that the requirement in paragraph 61.235 (2) (b) of CASR was impractical. The Explanatory Statement mentions that, ideally, the knowledge deficiencies identified in a knowledge deficiency report should be addressed shortly after the applicant completes an aeronautical knowledge examination. However, CASA EX222/15 was made because that approach was not suitable under arrangements that were current at the time: it was normal for Australian pilots to complete the aeronautical knowledge examination for an ATPL long before they attempted the flight test. Some applicants for an ATPL completed the aeronautical knowledge examination some years before attempting the flight test. The approach mentioned in the Explanatory Statement for CASA EX222/15 continues to be unsuitable for the same reasons.
The Explanatory Statement for CASA EX222/15 also mentions that, because of the circumstances mentioned in the preceding paragraph, the knowledge deficiencies identified in a knowledge deficiency report progressively lose their significance as a pilot acquires other flying experience. In addition, the Explanatory Statement mentions that, at the time CASA EX222/15 was made, CASA considered that the normal pre‑flight knowledge examination that took place before a flight test was sufficient for the purposes of the flight test. CASA continues to consider that examination to be sufficient.
In relation to overseas ATPL applicants, the Explanatory Statement for CASA EX222/15 mentions that, at the time CASA EX222/15 was made, CASA considered that the competence certification requirement under subparagraph 61.275 (1) (e) (i) of CASR was difficult, costly, and in some respects impractical. CASA continues to consider the competence certification requirement in that subparagraph of CASR in the same way.
Instrument
Under section 1, the instrument commences on 1 December 2017 and is repealed at the end of 30 November 2018.
Section 2 contains definitions, along with a note that lists certain terms and expressions in the instrument that have the same meaning as they have in the Civil Aviation Act 1988 and the regulations.
Section 3 exempts an applicant for an ATPL who has passed the aeronautical knowledge examination with a score of less than 100% from the requirements of paragraph 61.235 (2) (b) of CASR. Section 3 also exempts an applicant for an ATPL from regulation 61.240 of CASR, to the extent that the applicant does not meet the eligibility requirement in paragraph 61.235 (2) (b).
The note under section 3 acts as a reminder that the provisions mentioned in paragraph 3 (a) and (b) of the instrument mention knowledge deficiency reports.
Section 4 exempts an applicant for an ATPL who is the holder of an overseas flight crew licence that is equivalent to an ATPL from subparagraph 61.275 (e) (i) of CASR.
The note under section 4 acts as a reminder of the subject matter of subparagraph 61.275 (1) (e) (i) of CASR.
The exemptions are not subject to any conditions. Making the exemptions subject to conditions would be inconsistent with CASA’s policy to introduce regulatory amendments to replace the need for the exemptions.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation or the maintenance of aircraft. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument exempts classes of persons from complying with the requirements in paragraph 61.235 (b), regulation 61.240 and subparagraph 61.275 (1) (e) (i) of CASR. 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
This instrument replaces a previous instrument which expires at the end of November 2017 (CASA EX222/15) and is made in substantially similar terms. The exemptions are beneficial to industry and maintain the current status quo until regulatory amendments are introduced to replace the need for the exemptions. In these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Making and commencement
The direction 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 1 December 2017 and is repealed at the end of 30 November 2018.
[Instrument number CASA EX168/17]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — from certain prerequisites for an ATPL flight test
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 continues to exempt applicants for an air transport pilot licence (ATPL) with less than a 100% pass in the aeronautical knowledge examination from certain eligibility requirements for the ATPL flight test.
This instrument also continues to exempt overseas applicants who hold an overseas equivalent to an ATPL from meeting a particular certification of competence requirement before they may attempt the ATPL flight test. That requirement is not imposed on Australian commercial pilots seeking to upgrade their Australian commercial pilot licence to an ATPL.
Human rights implications
The right to work, contained 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 positively engaged by the exemption from the requirement for an overseas ATPL applicant to, before attempting the ATPL flight test, meet the certification of competence requirement in subparagraph 61.275 (1) (e) (i) of CASR. The exemption increases the opportunity of an overseas ATPL applicant to obtain an Australian ATPL and, therefore, promotes the right to work of overseas ATPL applicants.
This legislative instrument does not otherwise engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not adversely affect any human rights.
Civil Aviation Safety Authority