Explanatory Statement
Civil Aviation Safety Regulations 1998
Repeal – exemption – from demonstrating competence using GLS approach in B737NG aircraft (Virgin Australia)
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the safety of air navigation.
Subpart 61.M of the Civil Aviation Safety Regulations 1998 (CASR 1998) sets out the privileges and requirements for the grant of instrument ratings. Regulation 61.855 provides that, subject to Subpart 61.E and regulations 61.860 to 61.880, the holder of an instrument rating is authorised to pilot an aircraft under the I.F.R. or at night under the V.F.R.
Regulation 61.860 of CASR 1998 sets out the limitations on the exercise of the privileges of an instrument rating. Subregulation 61.860 (5) provides that the holder of an instrument rating is authorised to conduct an instrument approach operation in an aircraft using a procedure of a particular kind only if the holder has (a) completed training in the conduct of instrument approach operations using the procedure and (b) demonstrated, to a person mentioned in subregulation 61.860 (6), his or her competence in the conduct of instrument approach operations using the procedure. Subregulation 61.860 (6) subsequently prescribes these persons mentioned in paragraph 61.860 (5) (b) to be CASA, or an examiner who is authorised to conduct an instrument approach operation using the same procedure, or a person who holds an approach under regulation 61.040 to assess the holder’s competence.
Subpart 11.F of CASR 1998 provides for the granting of exemptions from particular provisions of the regulations. Under subregulation 11.160 (1), and for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from CASR 1998 in relation to a matter mentioned in subsection 98 (5A).
Subregulation 11.170 (3) of CASR 1998 provides that in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of aviation safety. Under subregulation 11.205 (1), CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.210, it is an offence to fail to comply with a condition of an exemption.
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
This legislative instrument repeals instrument CASA EX142/15, which applied in relation to Virgin Australia Airlines Pty Ltd (the operator) when its pilots operated B737NG aircraft. CASA EX142/15 provided an exemption from the requirement for the operator’s pilots to demonstrate competence in the conduct of instrument approach operations using the GLS approach procedure required under paragraph 61.860 (5) (b) of CASR 1998 in order to conduct an instrument approach operation, subject to the pilots being competent to use the ILS approach procedure that is substantively the same.
CASA has issued a new non-legislative instrument of exemption that, for paragraph 98 (5AB) (a) of the Act, is expressed to apply in relation to the operator. The new instrument replaces instrument CASA EX142/15 and corrects deficiencies in the drafting of CASA EX142/15.
Legislation Act 2003 (the LA)
Instrument CASA EX176/16 repeals CASA EX142/15, which is an existing legislative instrument. Paragraph 10 (1) (d) of the LA provides that an instrument will be a legislative instrument if it includes a provision that amends or repeals another legislative instrument.
Instrument CASA EX176/16 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 is repealing CASA EX142/15 in order to issue a new non‑legislative instrument of exemption for the operator on this matter. Having regard to these circumstances, it is CASA’s view that it is not reasonably practicable or appropriate to undertake any further consultation under section 17 of the LA.
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 for exemptions (OBPR id: 14507).
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 1998.
The instrument commences on 2 December 2016.
[Instrument number CASA EX176/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Repeal – exemption – from demonstrating competence using GLS approach in B737NG aircraft (Virgin Australia)
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 repeals instrument CASA EX142/15, that applied in relation to Virgin Australia Airlines Pty Ltd (the operator) when its pilots operated B737NG aircraft.
The instrument provided an exemption from the requirement for the operator’s pilots to demonstrate competence in the conduct of instrument approach operations using the GLS approach procedure in order to conduct an instrument approach operation. CASA considers that GLS approaches are substantively the same as ILS approaches, for which the operator’s B737NG pilots demonstrate the necessary competence.
CASA has issued a new non-legislative instrument of exemption that applies in relation to the operator. The new instrument replaces the exemption granted under instrument CASA EX142/15 and corrects deficiencies in the drafting of CASA EX142/15.
The purpose of this instrument is to repeal a legislative instrument that is no longer 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