Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from the flight instructor rating flight test
Purpose
This instrument (the current exemption) exempts a person, to whom CASA EX215/15 applies, from the requirement to have passed the flight instructor rating (FIR) flight test in order to be granted a new FIR.
CASA EX215/15 is a recent exemption instrument which applies to certain persons who, between 1 September 2014 and immediately before the date of registration of that instrument, were granted an FIR following a flight test by an industry Examiner, although the person had not passed the pilot instructor rating aeronautical knowledge examination (the PIRC). A person is not eligible for the FIR flight test if he or she has not first passed the PIRC. Therefore, the FIR subsequently granted may have been invalid. (In this Explanatory Statement, this “purported” FIR is referred to as an FIR.)
CASA EX215/15 allows 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. However, to be granted a new valid FIR thereafter, the persons must pass the FIR flight test which they have already passed, albeit that they were not eligible for it.
The purpose of the current exemption is to exempt these persons, when they pass the PIRC, from having to pass the FIR flight test again.
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 subregulations 61.155 (1) and (2) of CASR 1998, a person must formally apply in writing for a flight crew licence, rating or endorsement.
Under paragraph 61.165 (a) of CASR 1998, the grant of a flight crew rating is dependent on an application for it.
Under paragraph 61.165 (c) of CASR 1998, the grant of a flight crew rating is dependent on the applicant meeting the requirements mentioned in Part 61 for the grant of the rating.
Under paragraph 61.1185 (2) (c) of CASR 1998, an applicant for an FIR must have passed the flight test mentioned in the Part 61 Manual of Standards for the FIR.
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 erroneously been granted 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.
CASA EX215/15 will rectify this situation for relevant FIR holders who have registered their names and intent with CASA. Until 31 March 2016, they will be able to continue instructing, subject to certain conditions. The exemption will 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.
However, to be granted a new, valid FIR these persons would ordinarily be required to pass a flight test for the FIR. In these cases, this is not necessary for safety purposes because these persons have already passed the relevant FIR flight test, albeit that they were not eligible for it because of the absence of the PIRC.
Therefore, a person who, for the purposes of CASA EX215/15 passes the PIRC before 31 March 2016, is exempted by the current exemption from having to take the relevant flight test again, provided the person complies with certain conditions.
Details of the exemption
Under section 1, the instrument commences on the day of registration, and expires at the end of 31 March 2016.
Section 2 contains some definitions.
Under section 3, the instrument is expressed to apply to a person (a relevant person):
(a) to whom CASA EX215/15 applies; and
(b) for whom CASA EX215/15 has taken effect (by the person registering with CASA); and
(c) who has previously passed the flight test for an FIR while lacking eligibility for the test solely because he or she had not passed the PIRC; and
(d) who, when the person has passed the PIRC, desires CASA to grant a new FIR without the person having to pass the flight test again.
Under section 4, a relevant person is exempted from compliance with subregulations 61.155 (1) and (2) of CASR 1998 (making an application for an FIR) — but only to the extent that the relevant person must make an application for the grant of an FIR.
The person is exempted from paragraph 61.165 (a) of CASR 1998 (application required for the grant of an FIR) — but only to the extent that the relevant person must make an application for the grant of an FIR.
The person is exempted from paragraph 61.165 (c) of CASR 1998 (the requirements mentioned in Part 61 must be met for the grant of an FIR) — but only to the extent of the requirement under paragraph 61.1185 (2) (c) of CASR 1998 that the relevant person must pass the flight test for the grant of an FIR.
Finally, the person is exempted from paragraph 61.1185 (2) (c) of CASR 1998 (passing the flight test mentioned in the Part 61 Manual of Standards for the FIR) — but only to the extent that a flight test is required under paragraph 61.1185 (2) (c) for CASA to grant an FIR after the relevant person has passed the PIRC for the PIRC exemption.
Conditions
The exemption is subject to conditions in section 5 as follows.
The exemption instrument takes effect for a relevant person only if, as soon as practicable after the commencement of the instrument, the person:
(a) passes the PIRC; and
(b) provides CASA with the following information and documents by email to the following address, instructorexemption@casa.gov.au:
(i) the person’s name and Aviation Reference Number (which will be matched with the person’s initial registration with CASA for CASA EX215/15 to apply);
(ii) details of when the flight test for an FIR was previously passed while the person lacked eligibility for the test solely because he or she had not passed the PIRC;
(iii) details of when the PIRC for the PIRC exemption was passed; and
(c) requests CASA, on the basis of this exemption instrument to grant an FIR to the person without the person having to pass the FIR flight test again; and
(d) acknowledges that the person’s next instructor proficiency check must be carried out at the intervals as if the previous FIR were still in force. The grant a new FIR could delay the time for a relevant person’s next instructor proficiency check. Therefore, this condition is important to ensure that the time for a relevant person’s next instructor proficiency check is the same as it would have been had the previous FIR and training endorsements been validly granted.
Legislative Instruments Act 2003 (the LIA)
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 granted 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 related flight tests 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. However, the exemption only takes effect for a person when they have notified CASA as required under section 5 of the 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 EX218/15]
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 flight instructor rating flight test
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 (the current exemption) exempts a person, to whom CASA EX215/15 applies, from the requirement to have passed the flight instructor rating (FIR) flight test in order to be granted a new FIR.
CASA EX215/15 is a recent exemption instrument which applies to certain persons who, between 1 September 2014 and immediately before the date of registration of that instrument, were granted an FIR following a flight test by an industry Examiner, although the person had not passed the pilot instructor rating aeronautical knowledge examination (the PIRC). A person is not eligible for the FIR flight test if he or she has not first passed the PIRC. Therefore, the FIR subsequently granted may have been invalid.
CASA EX215/15 allows 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. However, to be granted a new valid FIR thereafter, the persons must pass the FIR flight test which they have already passed, albeit that they were not eligible for it.
The purpose of the current exemption is to exempt these persons, when they pass the PIRC, from having to pass the FIR flight test again.
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