Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from the PIRC
Purpose
This instrument exempts a person from the requirement to have passed the pilot instructor rating aeronautical knowledge examination (the PIRC) if, between 1 September 2014 and immediately before the date of registration of the instrument, the person had been granted a flight instructor rating (an FIR).
In order to hold a valid FIR, applicants must pass an FIR flight test for which they are eligible by, among other things, having passed the PIRC. It has recently come to light that, since 1 September 2014, some persons have been granted an FIR following success in an FIR flight test conducted by industry examiners but, apparently inadvertently, without the persons having first passed the PIRC. The failure to pass the PIRC as a prerequisite may have rendered the flight test, and hence the FIR, invalid.
The exemption will allow the exempted persons to continue to use their purported FIR until 31 March 2016, by which time or sooner, they must have passed the PIRC and (as appropriate) been granted a valid FIR by CASA. The exemption is subject to safety conditions.
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 subparagraph 61.235 (4) (a) (i) of CASR 1998, an applicant for a flight crew rating (like an FIR) is eligible to take a flight test for the rating only if he or she has been certified as having passed the aeronautical knowledge examination for the rating.
Under regulation 61.240 of CASR 1998, an applicant for a flight crew rating is taken not to have passed a flight test if, when the applicant took the flight test, the applicant was not eligible under regulation 61.235 to take the flight test.
Under subregulation 61.375 (7) of CASR 1998 (and item 7 in Table 61.375), the holder of a pilot licence is authorised to conduct flight training in the exercise of the privileges of the licence, only if the holder also holds an FIR.
Under paragraph 61.1185 (2) (a) of CASR 1998, an applicant for a flight instructor rating must have passed the PIRC aeronautical knowledge examination as a prerequisite for the grant of the FIR.
Under paragraph 61.1250 (1) (a) of CASR 1998 (and item 3A in Table 61.1235), an applicant for a Grade 3 training endorsement (aeroplane) must hold an FIR.
Under regulation 61.165 of CASR 1998, CASA or an examiner may grant flight crew ratings. Under transitional arrangements in regulation 202.272 of CASR 1998, CASA may grant flight crew ratings based on equivalent authorisations held before 1 September 2014.
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. In order to be granted an FIR, applicants must pass an FIR flight test for which they are eligible by, among other things, having passed the PIRC. It has come to light that, since 1 September 2014, some persons have been issued with an FIR following success in an FIR flight test conducted by industry examiners but, apparently inadvertently, without having first passed the PIRC. The failure to pass the PIRC as a prerequisite may have rendered the flight test, and hence the FIR, invalid.
Following on from this, these persons may not have been authorised to conduct flight training because, for this activity, a person must hold an FIR, and he or she would not be eligible to hold the FIR by not having passed the PIRC.
Similarly, holding an FIR is a prerequisite for being granted a Grade 3 training endorsement (aeroplane), an endorsement necessary for conducting flight training in an aeroplane. A valid FIR may not have been held by virtue of the person not having completed the PIRC, and by not having passed the flight test for the FIR through ineligibility for it solely because of not having completed the PIRC.
CASA has discovered that some industry flight examiners had erroneously granted FIRs without recognising that the PIRC must first be passed in order to create the cascade of necessary eligibility for flight testing and holding the relevant training endorsement.
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 certain conditions. The exemption would expire at the end of 31 March 2016, by which time all relevant FIR holders would be expected to have passed the PIRC and been granted new FIRs.
In the meantime, the use of their existing invalid FIRs would be allowed by means of the exemption having relieved them of the PIRC requirement whose absence otherwise renders their FIRs 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.
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 passed the PIRC, 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, including stringent flight testing and only inadvertently lack the PIRC examination.
This does not mean that the PIRC, as an aeronautical knowledge examination, is not important. It is essential for holders of the FIR and the Grade 3 training endorsement (aeroplane).
However, the matter having only come to light recently, it is considered that, given the 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 experiences and supervision, a sufficient level of essential knowledge and competency to permit them to continue instructing 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 completed the PIRC.
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 must have completed the PIRC before they are eligible for flight testing; and
(b) the cohort of persons to whom the exemption applies must have completed the PIRC by not later than 31 March 2016.
CASA will make arrangements for the grant of valid FIRs as appropriate.
A person benefitting from the exemption must pass the PIRC 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 passed the PIRC for CASA to grant a valid FIR.
Section 2 of the instrument contains some definitions, including a definition of PIRC as the pilot instructor rating aeronautical knowledge examination within the meaning of section 11, and Appendix 2.4 in Schedule 4, of the Part 61 Manual of Standards.
Under section 3, the instrument applies to a person (the relevant FIR holder) who, since 1 September 2014, has been granted an FIR under regulation 61.165 of CASR 1998 without recourse to regulation 202.272 of CASR 1998, although the person has not passed the PIRC as required by paragraph 61.1185 (2) (a) of CASR 1998.
Section 4 contains the technical exemptions.
Thus, a relevant FIR holder is exempted from compliance with the requirements of subparagraph 61.235 (4) (a) (i) of CASR 1998 (concerning eligibility to take a flight test for a rating) — but only to the extent that eligibility to take the flight test for an FIR requires a person to have passed the PIRC.
A relevant FIR holder is exempted from regulation 61.240 (a flight test for a rating is not passed if the person was not eligible to take the test) — but only to the extent that a person is taken not to have passed a flight test solely because he or she is not eligible for the test by virtue of not having passed the PIRC.
A relevant FIR holder is exempted from subregulation 61.375 (7) of CASR 1998 (authorisation to conduct an activity only if the FIR rating is held) — but only to the extent that:
(a) to conduct flight training a person must hold an FIR; and
(b) the person is a person who would hold the FIR but for not having passed the PIRC.
A relevant FIR holder is exempt from paragraph 61.1185 (2) (a) of CASR 1998 (passing the aeronautical knowledge examination is a prerequisite for the grant of an FIR) — but only to the extent that the person is required to pass the PIRC for the grant of an FIR;
Finally, a relevant FIR holder is exempted from paragraph 61.1250 (1) (a) (holding an FIR is a prerequisite for holding a training endorsement) — but only to the extent that an FIR is not held by virtue of the following:
(a) not having completed the PIRC;
(b) not having passed the flight test for the FIR by virtue of not being eligible solely because of not having completed the PIRC.
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 which 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 for passing the PIRC.
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.
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, have been granted 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 passed the PIRC as such, 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 pass the PIRC.
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 relation to certain flight instructor training endorsements and the pilot instructor rating aeronautical knowledge examination 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 EX215/15]
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 PIRC
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 exempts a person from the requirement to have passed the pilot instructor rating aeronautical knowledge examination (the PIRC) if, between 1 September 2014 and immediately before the date of registration of the instrument, the person had been granted a flight instructor rating (an FIR).
In order to hold a valid FIR, applicants must pass an FIR flight test for which they are eligible by, among other things, having passed the PIRC. It has recently come to light that, since 1 September 2014, some persons have been granted an FIR following success in an FIR flight test conducted by industry examiners but, apparently inadvertently, without the persons having first passed the PIRC. The failure to pass the PIRC as a prerequisite may have rendered the flight test, and hence the FIR, invalid.
The exemption will allow the exempted persons to continue to use their purported FIR until 31 March 2016, by which time or sooner, they must have passed the PIRC and (as appropriate) been granted a valid FIR by CASA. The exemption is subject to safety conditions.
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