Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — recency flying at night by holders of night V.F.R. agricultural ratings
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.
Under subregulation 5.14 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may give directions in Civil Aviation Orders (the CAOs) setting out the requirements for the issue of a flight crew rating to a person. Under subregulation 5.14 (1A) of CAR 1988, the CAOs may include any requirements and conditions to be satisfied by the person.
CASA has issued a direction in Civil Aviation Order 40.2.2 (the Order). Under subparagraph 5 (1) (a) of Appendix II of the Order, the holder of a night V.F.R. agricultural rating must not exercise the authority given by the rating unless he or she has obtained a minimum of 20 hours’ flying experience at night in agricultural operations in the 12 months preceding the flight. Agricultural pilots are not able to meet the recency requirements because of the nature of the operations.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including CAR 1988, or a provision of the CAOs, 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 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.
The instrument exempts the holder of a night V.F.R. agricultural rating from the requirement to have obtained a minimum of 20 hours’ flying experience at night in agricultural operations in the 12 months preceding the flight. However, as a condition of the exemption, a recency requirement option of either 10 hours’ flying experience or assessment of competence is substituted. Further restrictions are placed on beginning an agricultural operation later than 20 minutes before night, including a requirement for recent experience in agricultural operations, or practice of the necessary manoeuvres in an unladen aircraft, at night. CASA does not think that safety will be compromised if the conditions are met.
Legislative Instruments Act
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. The instrument applies to a class of persons, namely agricultural pilots. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
Consultation under section 17 of the LIA has been undertaken in the form of discussions with the Aerial Agricultural Association of Australia. The instrument remakes a previous instrument, CASA EX28/11, which ceases to have effect at the end of February 2013.
Human Rights Compatibility Statement
A statement of compatibility with human rights is at Attachment 1.
Making and commencement
The exemption commences on 1 March 2013 and stops having effect at the end of February 2016.
This exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
[Instrument number CASA EX18/11]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — recency flying at night by holders of night V.F.R. agricultural ratings
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 permits a pilot, who is the holder of a night V.F.R. agricultural rating, to exercise the authority given by that rating despite not having met the standard recent experience requirements set out in Civil Aviation Order 40.2.2. The exemption is subject to conditions imposed by CASA in the interest of safety which require the pilot to meet an alternative recent experience requirement or to have recently demonstrated competence in conducting agricultural operations at night.
The primary purpose of the legislative instrument is to allow pilots to continue to conduct agricultural operations at night, with appropriate safeguards, in circumstances where they are not able to meet the standard recent experience requirements.
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