Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from the spinning FAE
Purpose
This instrument exempts a person from the requirement to have a spinning flight activity endorsement (a spinning FAE) if, between 1 September 2014 and immediately before the date of registration of the instrument, the person had been granted a grade of training endorsement on a flight instructor rating (an FIR) which required a spinning FAE, or a prerequisite grade of training endorsement which itself required a spinning FAE.
It has recently come to light that, since 1 September 2014, some persons have been granted a Grade 3 training endorsement (aeroplane) for an FIR but, apparently inadvertently, without the persons having first obtained a spinning FAE. The failure to obtain a spinning FAE as a prerequisite may have rendered the Grade 3 training endorsement (aeroplane), and in some cases the FIR, invalid. For a person with an FIR and no other training endorsement than the Grade 3 training endorsement (aeroplane), the invalidity of the endorsement may render the FIR also invalid.
The exemption will allow the exempted persons to continue to use their purported FIR and training endorsement(s) until 31 March 2016, by which time or sooner, they must have obtained the spinning FAE and (as appropriate) been granted a valid FIR and training endorsement(s) by CASA.
Safety conditions place limitations on the nature and extent of the flight training which may be given by a person who uses the exemption.
Legislation — CASR Part 61
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation. Part 61 of the Civil Aviation Safety Regulations 1998 (CASR 1998) sets out flight crew licensing requirements.
Under subregulation 61.1175 (1) of CASR 1998, a flight instructor is authorised to conduct flight training mentioned in item 3A in Table 61.1235) only if the instructor also holds a spinning FAE.
Under paragraph 61.1185 (1) (b) of CASR 1998, an applicant for a flight instructor rating must meet the requirements for the grant of at least 1 training endorsement. For some of the persons to whom the exemption instrument applies, the relevant training endorsement is the Grade 3 training endorsement (aeroplane).
Under subregulation 61.1245 (1) of CASR 1998, the holder of a Grade 3 training endorsement (aeroplane) is authorised to conduct flight training mentioned in item 3A in Table 61.1235, only if the holder is authorised to exercise the privileges of the spinning FAE in the aeroplane.
Under paragraph 61.1250 (1) (b) of CASR 1998 (and item 3A in Table 61.1235), an applicant for a Grade 3 training endorsement (aeroplane) must hold an FIR and a spinning FAE.
Legislation — exemptions
Subpart 11.F of CASR 1998 deals with exemptions. Under subregulation 11.160 (1), and for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of CASR 1998 in relation to a matter mentioned in subsection 98 (5A). Subsection 98 (5A) matters are, in effect, those affecting the safety, airworthiness or design of aircraft.
Under subregulation 11.160 (2), an exemption may be granted to a person or a class of persons. Under subregulation 11.160 (3), CASA may grant an exemption on application, or on its own initiative. For an application for an exemption, CASA must regard as paramount the preservation of an acceptable level of safety.
For making a decision on its own initiative, CASA is guided by the requirement in subsection 9A (1) of the Act that in exercising its powers and functions CASA must regard the safety of air navigation as the most important consideration.
Under regulation 11.205, CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition. Under regulation 11.225, CASA must, as soon as practicable, publish on the Internet details of all exemptions under Subpart 11.F.
Under subregulation 11.230 (1), an exemption (but not an exceptional circumstances exemption for regulation 11.185 about major emergencies) may remain in force for 3 years or for a shorter period specified in the instrument.
Under subregulation 11.230 (3), an exemption in force in relation to a particular aircraft owned by a particular person, ceases to be in force when the aircraft ceases to be owned by that person. Under regulation 11.235, an exemption is not transferable (as between operators, aircraft etc.).
Background
Part 61 of CASR 1998 commenced on 1 September 2014. To be authorised to conduct flight training, a person must be granted an FIR. A prerequisite for the grant of an FIR is to meet the requirements for the grant of at least 1 training endorsement. A person is authorised to conduct flight training that is mentioned in item 3A of Table 61.1265 only if a Grade 3 training endorsement (aeroplane) is held. To be granted a Grade 3 training endorsement (aeroplane), a person must hold a spinning FAE and be authorised to exercise the privileges of that endorsement.
CASA has discovered that some industry flight examiners have erroneously issued Grade 3 training endorsements (aeroplane) without recognising that the applicant must first have a spinning FAE.
Similarly, some industry flight examiners have erroneously issued Grade 2 training endorsements (aeroplane) without recognising that the applicant must first have a Grade 3 training endorsement (aeroplane) for which a spinning FAE is a prerequisite. Also, some industry flight examiners may have erroneously issued Grade 1 training endorsements (aeroplane) without recognising that the applicant must first have a Grade 2 training endorsement (aeroplane) based on a Grade 3 training endorsement (aeroplane) for which a spinning FAE is a prerequisite.
Where the holder of an FIR was eligible for the FIR by virtue of holding only 1 training endorsement, namely the Grade 3 training endorsement (aeroplane), or other grade of training endorsement (aeroplane) as mentioned above, and that training endorsement was granted without the applicant first meeting the prerequisite for a spinning FAE, it is likely that the FIR is invalid.
Where the holder of an FIR was eligible for the FIR by virtue of holding a training endorsement, but also held a Grade 3 training endorsement (aeroplane), or other grade of training endorsement (aeroplane) as mentioned above, granted without the applicant first meeting the prerequisite for a spinning FAE, it is likely that the Grade 3 training endorsement (aeroplane), or other grade of training endorsement (aeroplane) as mentioned above, is invalid.
The way forward
The exemption would rectify this situation for relevant FIR holders, until 31 March 2016, by permitting them to continue instructing, subject to important safety limitations. The exemption would expire at the end of 31 March 2016, by which time all relevant FIR holders would be expected to have obtained the spinning FAE and been regranted a new FIR and training endorsement(s) as appropriate.
In the meantime, the use of their existing invalid grade of training endorsement and FIR would be allowed by means of the exemption having relieved them of the spinning FAE requirement whose absence otherwise renders their grade of training endorsement and FIR invalid on a continuing basis. As explained below, the exemption is entirely beneficial for the relevant FIR holders and the safety of the outcome is protected by conditions and limitations.
CASA considers that any aviation safety issue that may possibly arise before 31 March 2016 as a result of the exemption and the fact that its beneficiaries have not yet obtained the spinning FAE, can be effectively managed by the relevant flight training operators.
The relevant FIR holders have already met other necessary requirements for the holding of an FIR and their grade of training endorsement, including stringent flight testing and only inadvertently lack the spinning FAE.
This does not signal any insignificance in the requirement to have the spinning FAE as a prerequisite qualification for a Grade 3 training endorsement (aeroplane), which itself is a prerequisite for an FIR (if it is the only training endorsement held). The spinning FAE is essential for holders of the FIR and a Grade 3 training endorsement (aeroplane).
However, the matter having only come to light recently, it is considered that, particularly given the highly limiting conditions to which the exemption is subject, the relevant FIR and endorsement holders may potentially be recognised by their employing organisations as having acquired, through their instructing and supervision experiences, a sufficient level of essential knowledge and competency to permit them to continue instructing (subject to the conditions) until not later than 31 March 2016.
CASA considers that in these circumstances, it would have been unfair, and not required by the interests of aviation safety, to simply ground the relevant FIR holders until they had obtained the spinning FAE.
CASA has notified all relevant flight examiners, and flying training organisations, of this issue and of the requirements that:
(a) after the date of registration of the exemption instrument, any FIR applicant for a grade of training endorsement must have obtained the spinning FAE; and
(b) the cohort of persons to whom the exemption applies must comply with the limitations of the exemption and have obtained the spinning FAE by not later than 31 March 2016.
CASA will make arrangements for the regranting of valid grades of training endorsements and FIRs as appropriate.
A person benefitting from the exemption must obtain the spinning FAE before 31 March 2016, if he or she is to avoid being required, under Part 61 of CASR 1998, to take the relevant flight test again.
Details of the exemption
Under section 1, the exemption instrument commences on the day of registration and expires at the end of 31 March 2016. A Note explains that the exemption will not be renewed, and that by not later than 31 March 2016, each person to whom the exemption applies must have obtained the spinning FAE for CASA to grant a valid grade of training endorsement (aeroplane), and FIR as appropriate.
Section 2 of the instrument contains some definitions.
Under section 3, the instrument applies to a person (the relevant FIR holder) who, since 1 September 2014, has been granted a grade of training endorsement on an FIR under regulation 61.165 of CASR 1998 without recourse to regulation 202.272 of CASR 1998, although the person has not obtained the spinning FAE as required by item 3A in Table 61.1235 of CASR 1998.
Section 4 contains the technical exemptions.
Thus, a relevant FIR holder is exempted from compliance with the requirements of subregulation 61.1175 (1) of CASR 1998 (authorisation to conduct aeroplane flight training only if the relevant grade of training endorsement (aeroplane) is held) — but only to the extent that the exercise of the privileges of a grade of training endorsement (aeroplane) mentioned in an item of Table 61.1235 requires the holding of a spinning FAE.
A relevant FIR holder is exempted from paragraph 61.1185 (1) (b) (meeting the requirements for the grant of at least 1 training endorsement is a prerequisite for the FIR) — but only to the extent of meeting the requirement of holding a spinning FAE for the grant of a Grade 3 training endorsement (aeroplane).
A relevant FIR holder is exempted from subregulation 61.1245 (1) (authorisation to conduct flight training only if the training endorsement holder is authorised to exercise privileges of the prerequisite endorsement) — but only to the extent that flight training under a grade of training endorsement (aeroplane) requires authorisation to exercise the privileges of the spinning FAE.
A relevant FIR holder is exempted from subregulation 61.1245 (1) (authorisation to conduct flight training only if the training endorsement holder is authorised to exercise the privileges of the prerequisite endorsement) — but only to the extent that flight training under a Grade 2 training endorsement (aeroplane) requires a Grade 3 training endorsement (aeroplane) which itself requires authorisation to exercise the privileges of the spinning FAE.
A relevant FIR holder is exempted from subregulation 61.1245 (1) (authorisation to conduct flight training only if the training endorsement holder is authorised to exercise privileges of the prerequisite endorsement) — but only to the extent that flight training under a Grade 1 training endorsement (aeroplane) requires a Grade 2 training endorsement (aeroplane) which requires a Grade 3 training endorsement (aeroplane) which itself requires authorisation to exercise the privileges of the spinning FAE.
Finally, a relevant FIR holder is exempted from paragraph 61.1250 (1) (b) (holding a relevant endorsement is a prerequisite for holding a training endorsement) — but only to the extent that the grade of training endorsement (aeroplane) requires a person to hold a spinning FAE or a prerequisite training endorsement for which the spinning FAE is one of the underlying requirements.
To avoid doubt, subsection 4 (2) explains that in each paragraph of section 4, the words in italics are for guidance only and do not affect the meaning of the paragraph.
The exemption is subject to conditions in section 5.
Thus, an exemption does not take effect for a person to whom it applies until the day after the person has notified CASA in writing that the person intends to use the exemption.
The notification must be by email to a dedicated CASA address, namely instructorexemption@casa.gov.au and must include the following:
(a) the person’s Aviation Reference Number;
(b) the name of the organisation or organisations for whom the person conducts flying training;
(c) the person’s confirmation that, as of the date of the email, the person has informed the Chief Flying Instructor or the Head of Operations of the organisation or organisations that the person is using the exemption in respect of the requirement under Part 61 of CASR 1998, that:
(i) a Grade 3 training endorsement (aeroplane) requires a person to hold a spinning FAE; or
(ii) for a Grade 2 training endorsement (aeroplane), subparagraph (i) is a prerequisite; or
(iii) for a Grade 1 training endorsement (aeroplane), subparagraph (ii) is a prerequisite.
This latter condition is important because, in the final analysis, despite the exemption, it is the Chief Flying Instructor or the Head of Operations who must always decide on the
fitness and suitability of the organisation’s FIR holders to carry out flight training for the organisation.
There are also additional conditions in the form of limitations on the nature of the flight training which a relevant FIR may conduct.
Thus, a person to whom the exemption applies must not permit a pilot under flight instruction to manipulate the controls during any of the following manoeuvres:
(a) a short field landing or short field take-off;
(b) a maximum obstacle clearance take-off and climb;
(c) a steep turn;
(d) a stall, or an approach to a stall.
Further, except during normal take-off and landing manoeuvres, a person to whom the exemption applies must immediately take control of the aeroplane if at any time:
(a) the speed of the aeroplane drops below 1.3Vs airspeed for the configuration at the time; or
(b) the angle of attack approaches the stalling angle.
No retrospectivity
The exemption instrument is expressed in section 3 to apply to certain persons who, between 1 September 2014 and immediately before the date of registration of this instrument, has been granted a Grade 3 training endorsement (aeroplane), or a Grade 2 or Grade 1 training endorsement (aeroplane) on an FIR. The instrument is expressed in section 5 to take effect for a person only after he or she has notified CASA of certain information. The instrument does not, in its terms, take retrospective effect for a person on and from 1 September 2014 until immediately before the date of registration.
Statutory constraints are placed on retrospective legislative instruments by subsection 12 (2) of the Legislative Instruments Act 2003 (the LIA). Under subsection 12 (2), a legislative instrument would have no effect if (apart from the subsection), “it would take effect before the date it is registered” and, as a result, as of the date of registration, the rights of a person other than the Commonwealth would be adversely affected; or liabilities would be imposed on a person other than the Commonwealth for acts or omissions done before the date of registration (prejudicial retrospective effects).
It can reasonably be said that there are no prejudicial retrospective effects from the exemption instrument. No one has been adversely affected in flight training directly as a result of relevant FIR holders not having obtained a spinning FAE, notwithstanding the broader legal consequences of that omission.
Transitional preservation of the status of the relevant FIR holders is entirely beneficial in its effects, temporarily rectifying the position they have found themselves in without compromising aviation safety, and without extending beyond the relevant cohort of persons involved or beyond a reasonable amount of time for them to obtain the spinning FAE.
In any event, the instrument is not expressed to take retrospective effect before the date it is registered, and the period between 1 September 2014 and immediately before the date of registration is used only to denote the cohort of persons to whom the instrument applies. Therefore, the exemption can lawfully take effect on registration.
Legislative Instruments Act 2003
As noted above, exemptions under Subpart 11.F of CASR 1998 are “for subsection 98 (5A)” of the Act, that is, for regulations which empower the issue of certain instruments, like exemptions, in relation to “(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft”, and “(b) the airworthiness of, or design standards for, aircraft”.
The exemption is clearly one in relation to matters affecting the safe navigation and operation of aircraft. Under subsection 98 (5AA) of the Act, an exemption issued under paragraph 98 (5A) (a), for such matters, is a legislative instrument if expressed to apply in relation to a class of persons, a class of aircraft or a class of aeronautical products (as distinct from a particular person, aircraft or product).
The exemption applies to a class of persons (the relevant FIR holders) and is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under sections 24, and 38 and 42 of the LIA.
Consultation
CASA considers that exemptions from regulatory requirements are beneficial for those to whom they apply, who voluntarily elect to take advantage of them, and who comply with their conditions. In this context, CASA considers that it is rarely necessary to engage in extensive public consultation on a proposed exemption. However, except in urgent circumstances, it is CASA’s policy to consult in an appropriate way with those parts of the aviation industry most likely to avail themselves of an exemption so that they may have the opportunity to comment on the possible or likely terms, scope and appropriateness of an exemption.
In this case, having identified anomalies in the granting of certain flight instructor training endorsements without the spinning flight activity endorsement as described above (see Background), CASA consulted with FIR holders and operators on the options available. This was the sector of the aviation industry most affected by the discrepancies and any proposed remedial action. CASA considered that an exemption would be the most appropriate and timely remedial action. The holders and operators consulted supported this approach. All FIR holders and operators were advised about how to take advantage of the exemption.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the exemption instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for an exemption (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement in Appendix 1 is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Commencement and making
The exemption commences on the day of registration and expires at the end of 31 March 2016, as if it had been repealed by another instrument.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX214/15]
Appendix 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — from the spinning FAE
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 instrument exempts a person from the requirement to have a spinning flight activity endorsement (a spinning FAE) if, between 1 September 2014 and immediately before the date of registration of the instrument, the person had been granted a grade of training endorsement (aeroplane) on a flight instructor rating (an FIR) which required a spinning FAE, or a prerequisite grade of training endorsement (aeroplane) which itself required a spinning FAE.
It has recently come to light that, since 1 September 2014, some persons have been granted a Grade 3 training endorsement (aeroplane) for an FIR but, apparently inadvertently, without the persons having first obtained a spinning FAE. The failure to obtain a spinning FAE as a prerequisite may have rendered the Grade 3 training endorsement (aeroplane), and in some cases the FIR, invalid. For a person with an FIR and no other training endorsement than the Grade 3 training endorsement (aeroplane), the invalidity of the endorsement may render the FIR also invalid.
The exemption will allow the exempted persons to continue to use their purported FIR and training endorsement(s) until 31 March 2016, by which time or sooner, they must have obtained the spinning FAE and (as appropriate) been granted a valid FIR and training endorsement(s) by CASA.
Safety conditions place limitations on the nature and extent of the flight training which may be given by a person who uses the exemption.
Human rights implications
The exemption in the 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. The 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