Explanatory Statement
Civil Aviation Regulations 1988
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 other 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.
Under subregulation 308 (1) of CAR 1988, CASA may exempt persons from compliance with specified provisions of CAR 1988 in relation to a category of aircraft. Under subregulation 308 (3) of CAR 1988, an exemption is subject to the person complying with any conditions which CASA specifies to be necessary in the interests of safety.
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. As a condition of the exemption, however, a recency requirement option of 10 hours or practice of the necessary manoeuvres by night in an unladen agricultural aircraft is substituted. CASA does not think that safety will be compromised if the conditions are met.
Legislative Instruments Act
By operation of subregulation 308 (4) of CAR 1988 and subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), the exemption is a legislative instrument for section 5 of the LIA. It is subject to tabling and disallowance in the Parliament under sections 38 and 42 of 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 and at a Part 137 post-implementation review workshop. The instrument revokes instrument CASA 691/08 which was prepared under the Civil Aviation Order and therefore not legislative in character.
The exemption commences on the day after it is registered and stops having effect at the end of February 2011.
The exemption has been made by a delegate of CASA under subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX22/09]
Overview
The Civil Aviation Regulations 1988 were amended by the instrument F2009L00827 to address the practical challenges faced by holders of night Visual Flight Rules (VFR) agricultural ratings. This amendment was introduced to provide a more flexible approach to the recency flying requirements for night operations, recognising the operational constraints of agricultural pilots. The instrument was enacted under the authority of the Civil Aviation Act 1988, empowering the Governor-General to make regulations for the Act, specifically aimed at ensuring the safety of air navigation. The Civil Aviation Safety Authority (CASA) issued the exemption as a legislative instrument under the Legislative Instruments Act 2003, subject to the usual parliamentary oversight processes of tabling and disallowance. The policy objective was to maintain safety standards while accommodating the unique operational realities of agricultural pilots.
Scope and Application
The Civil Aviation Regulations 1988, as amended by the exemption in instrument CASA EX22/09, applies to holders of night V.F.R. agricultural ratings, allowing them to operate under specific conditions that differ from the general requirements set out in the regulations. The exemption is intended to address the unique challenges faced by agricultural pilots in meeting the usual recency flying requirements due to the sporadic nature of agricultural operations. It applies nationally, as it is issued by the Civil Aviation Safety Authority (CASA) under the Civil Aviation Act 1988, and is subject to disallowance by the Parliament under the Legislative Instruments Act 2003. The exemption provides a reduced recency requirement, substituting the need for 20 hours of night flying experience with either 10 hours of flying experience or practice of necessary manoeuvres by night in an unladen agricultural aircraft, with CASA deeming these conditions sufficient for maintaining safety standards. The exemption is effective from the day after its registration until the end of February 2011.
Key Provisions
The main operative sections of the Civil Aviation Regulations 1988 provide that holders of night VFR agricultural ratings are exempt from the requirement of obtaining 20 hours of flying experience at night in agricultural operations within the 12 months preceding the flight, provided they meet an alternative recency requirement. Specifically, Section 98 of the Civil Aviation Act 1988 empowers the Governor-General to make regulations for the Act, and under subregulation 308(1) of the Civil Aviation Regulations 1988 (CAR 1988), the Civil Aviation Safety Authority (CASA) can exempt persons from compliance with specified provisions of CAR 1988. This exemption is detailed in subregulation 308(3) of CAR 1988, which allows CASA to impose conditions necessary for safety. The exemption is further elaborated in Civil Aviation Order 40.2.2, particularly in subparagraph 5(1)(a) of Appendix II, which specifies the initial requirement for 20 hours of night flying experience for holders of night VFR agricultural ratings.
Holders of night VFR agricultural ratings must meet an alternative recency requirement to exercise their rating. This requirement stipulates that they must either complete 10 hours of flying at night in an unladen agricultural aircraft or practice the necessary manoeuvres by night. These conditions are intended to ensure that pilots maintain proficiency and safety standards without compromising operational realities. By substituting the stringent 20-hour requirement with a more flexible 10-hour or practice-based option, CASA aims to accommodate the unique challenges faced by agricultural pilots. This flexibility is a crucial aspect of the exemption, balancing operational needs with safety imperatives.
Failure to comply with the specified conditions of the exemption may result in civil or criminal consequences. Under the Civil Aviation Act 1988, any non-compliance with the regulations and conditions set by CASA can lead to penalties. Although the specific penalties are not detailed in the text, non-compliance with aviation regulations can typically result in fines, revocation of licenses, or other enforcement actions. The exemptions and conditions are designed to ensure that any deviation from these requirements could potentially compromise the safety of air navigation, leading to stringent repercussions for non-compliance.
The exemption provided by the Civil Aviation Regulations 1988 is subject to parliamentary scrutiny under the Legislative Instruments Act 2003. As per subparagraph 6(d)(i) of the LIA, this exemption is considered a legislative instrument for section 5 of the LIA, necessitating its tabling and disallowance in the Parliament as per sections 38 and 42 of the LIA. This ensures that the exemption undergoes appropriate legislative oversight, allowing for review and validation by parliamentary bodies to safeguard public interest and safety. The consultation process with stakeholders, such as the Aerial Agricultural Association of Australia, also ensures that the exemption reflects the practical needs of the industry while maintaining high safety standards.