Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — Virgin Australia International Airlines from subregulation 217 (2) of CAR 1988 and paragraph 3.3 of Civil Aviation Order 82.5
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 section 27 of the Act, CASA may issue Air Operator’s Certificates (AOCs) with respect to aircraft for the purpose of safety regulation. Under section 28 of the Act, CASA must issue an AOC if satisfied that the applicant can comply with the requirements of Australian civil aviation safety legislation.
Under paragraph 28BA (1) (b) of the Act, an AOC has effect subject to any conditions specified in the regulations or Civil Aviation Orders (the CAOs).
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A), CASA may grant an exemption from a provision of the Regulations, including the Civil Aviation Regulations 1988 (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.
Details of exemption
Regulation 217 of CAR 1988 provides that an operator of a regular public transport (RPT) service must provide a training and checking organisation to ensure that its operating crews maintain their competency. Under subregulation 217 (2), the operator must ensure that the organisation provides for the making in each calendar year, at intervals of not less than 4 months, of 2 proficiency checks to test the competency of the members of the operating crews.
Part 82 of the CAOs specifies conditions on AOCs for various kinds of operations. CAO 82.5 contains conditions on AOCs that authorise RPT operations in high capacity aircraft. A high capacity aircraft is defined in paragraph 2.1 of CAO 82.0 as an aircraft certificated as having a maximum seating capacity exceeding 38 seats or a maximum payload exceeding 4 200 kilograms.
Paragraph 3.3 of CAO 82.5 provides that each operator must ensure that a person does not act as an operating crew member on a scheduled revenue service unless that person has satisfactorily completed all necessary training programs and proficiency checks and has been certified by a check pilot as competent to act as an operating crew member.
Paragraph 3.3 applies to Virgin Australia Airlines Pty Ltd (VAA) and Virgin Australia International Airlines Pty Ltd (VAIA).
VAA, the Virgin Australia Holdings’ domestic carrier, services Denpasar through an arrangement with VAIA. An Indonesian presidential decree has been issued requiring the operator and the marketing carrier to be the same entity. As a result, the present arrangement cannot continue beyond mid-December.
To comply with the decree, VAIA requires the induction of current VAA B737 NG aircraft, the expansion of its training and checking organisation established under regulation 217, the taking of responsibility for the B737 NG operating crews currently employed by VAA, and substantial changes to its Air Operator’s Certificate documentation suite. This process is to be completed by 30 June 2013. In the meantime, this exemption from subregulation 217 (2) has been issued to allow the VAA training and checking organisation to continue to supervise training and checking of the B737 NG operating crews now employed by VAIA and to carry out proficiency checks under subregulation 217 (2) of CAR 1988 on the B737 NG operating crews. The obligation placed on VAIA to comply with paragraph 3.3 is also given to VAA to discharge in respect of its former crews.
The exemption only applies to operating crews employed on the Denpasar route by VAIA.
The exemption ceases to have effect at the end of 30 June 2013, by which date VAIA should be able to assume responsibility for the functions the subject of the exemption.
Subsequent training and proficiency checks will be carried out by VAIA as they fall due.
Legislative Instruments Act
Subsection 98 (5A) of the Act gives CASA the power to grant an exemption from compliance with a provision of the Regulations or the CAOs. Under subsection 98 (5AA) of the Act, 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. This instrument applies to a class of aircraft and is, therefore, legislative. 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 not been undertaken in this case. It will apply only to 2 related operators and will allow the specified operations to continue in accordance with current arrangements until new arrangements can be completed to allow the responsibilities for supervision and training to be transferred to VAIA from VAA.
Compatibility with human rights and freedoms
This 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.
The instrument sets out an exemption from legislative requirements as described above to facilitate a change in current practice. The instrument does not engage any of the applicable rights or freedoms.
Commencement and making
The instrument commences on the day after registration. It stops having effect at the end of 30 June 2013.
The 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 EX186/12]