Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — Pearl Aviation Australia Pty Ltd – low-level rating requirement
Purpose
This instrument applies to the holder of a pilot licence (the relevant pilot) employed or engaged by Pearl Aviation Australia Pty Ltd (the operator), who is authorised in writing by the operator to conduct a low-level operation (a relevant low-level operation) in accordance with the operator’s air operator’s certificate (AOC). The instrument exempts this class of pilots from the requirement in subregulation 61.375 (7) of the Civil Aviation Safety Regulations 1998 (CASR 1998) to hold a low-level rating or aerial application rating in order to conduct relevant low-level operations for the operator. A number of safety conditions must be met.
Legislation — exemption
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.
Under subregulation 11.160 (1) of CASR 1998, for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of the Civil Aviation Regulations 1988 (CAR 1988), CASR 1998 or a Civil Aviation Order in relation to a matter mentioned in subsection 98 (5A). 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), the maximum duration of an exemption is 3 years.
Legislation — low-flying permission
Under regulation 157 of CAR 1988, the pilot in command of an aircraft must not fly the aircraft over any city, town or populous area at a height lower than 1 000 feet, or over any other area at a height lower than 500 feet.
However, under paragraph 157 (4) (b) of CAR 1988, this rule does not apply if the aircraft is engaged in aerial work operations that require low flying, and the owner or operator of the aircraft has received a permit from CASA.
Under its AOC, the operator conducts flying operations which include navigation aid flight testing and inspection. These operations may involve low-level flying. For these operations, the operator has the benefit of a CASA low-flying permission under paragraph 157 (4) (b) of CAR 1988.
Legislation — low-level rating requirement
Under regulation 61.010 of CASR 1998, a low-level operation is defined as an operation below 500 feet above ground level other than climbing from take-off, descending to land or an aerial application operation.
Under subregulation 61.065 (1) of CASR 1998, the holder of a flight crew licence commits an offence if he or she conducts an activity (like a low-level operation) and “the holder is not authorised under [Part 61] to conduct the activity”.
Under subregulation 61.375 (7) of CASR 1998, the holder of a pilot licence is only authorised to conduct a low-level operation in exercising licence privileges if the holder also holds a low-level rating or an aerial application rating described in item 5 of Table 61.375. In this form, this is a pilot requirement complementary to regulation 157 of CAR 1988.
Background
Before the commencement of Part 61 of CASR 1998 on 1 September 2014, the operator’s pilots had not been required to hold low-level authorisations as such, since they fall within the scope of the operator’s permission mentioned above.
The operator’s pilots are subject to rigorous training and checking requirements which are approved by CASA and form part of its operations manual. The training and checking system addresses the knowledge and skill competencies required to conduct the specialised low-level operations in which they are involved.
Given the particular nature of the operations in which the operator is engaged, the aircraft used, the training and checking system in place and the existing low-flying permission, CASA considers that the requirement for the operator’s relevant pilots to hold a low‑level rating or aerial application rating is, in these circumstances, not essential for aviation safety and creates an unnecessary regulatory burden.
CASA issued the operator with an exemption instrument that exempts its pilots from the requirement to hold a low-level rating or an aerial application rating, subject to appropriate conditions (CASA EX11/15 refers, expiring at the end of January 2016). The operator has requested that the exemption be renewed.
Instrument
CASA EX22/16 is an instrument of exemption that replaces CASA EX11/15. CASA EX22/16 applies to the holder of a pilot licence who is employed or engaged by the operator, and who is authorised in writing by the operator, to conduct a relevant low-level operation in accordance with the operator’s AOC.
Under the instrument, each relevant pilot is exempt from the requirements of subregulation 61.375 (7) and item 5 of Table 61.375 of CASR 1998 to the extent that, to conduct a relevant low-level operation in the exercise of the privileges of the pilot’s licence, the pilot would otherwise be required to hold a low-level rating or an aerial application rating.
Each relevant pilot is also exempt from the requirements of subregulation 61.065 (1), to the extent that it prohibits the pilot from conducting a relevant low-level operation in the exercise of the privileges of the licence while not holding a low-level rating or an aerial application rating.
It is a condition that the relevant pilot must be a participant in the operator’s training and checking program and successfully complete all training and checking requirements of the program, including proficiency checks. At least once within the previous 12 months, under the operator’s training and checking program, the relevant pilot must have successfully completed a specific proficiency check of low-level flying competency for relevant low-level operations. In any relevant low-level operation in accordance with the operator’s AOC, the pilot must conduct the operation in accordance with the operator’s operations manual.
Legislative Instruments Act 2003 (the LIA)
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations or the Civil Aviation Orders. 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. CASA EX22/16 applies to a class of persons, being holders of a pilot licence who are conducting operations for the operator and who are authorised in writing to do so.
The exemption is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The exemption has been made at the request of the operator. CASA has assessed the operator’s safety case and considers that aviation safety will not be adversely affected. For section 17 of the LIA, CASA considers that further consultation is not necessary or appropriate in this case. A similar exemption would be issued to any other operator in similar circumstances.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Commencement and making
The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The exemption commences on the day of registration and expires at the end of August 2017, as if it had been repealed by another instrument.
[Instrument number CASA EX22/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Civil Aviation Safety Regulations 1998
Exemption — Pearl Aviation Australia Pty Ltd – low-level rating requirement
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 applies to the holder of a pilot licence who is conducting operations for Pearl Aviation Australia Pty Ltd (the operator), and who is authorised in writing by the operator to conduct a low-level operation in accordance with the operator’s air operator’s certificate. The instrument exempts this class of pilots from the requirement in subregulation 61.375 (7) of the Civil Aviation Safety Regulations 1998 to hold a low-level rating or an aerial application rating in order to conduct particular low-level operations for the operator. A number of safety conditions must be met.
For its specialist flying operations in navigation aid flight testing and inspection, the operator operates under a CASA permission for low-level operations. Given the particular nature of the operations in which the operator is engaged, the aircraft used, the CASA permission, and the operator’s training and checking system, CASA considers that the requirement for its pilots to hold a low-level rating or an aerial application rating is not essential for aviation safety and has issued an exemption to this class of pilots.
Human rights implications
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