Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from certain prerequisites for an ATPL flight test
Purpose
This instrument exempts applicants with less than a 100% pass in the aeronautical knowledge examination from certain eligibility requirement for the air transport pilot licence (ATPL) flight test. Their knowledge deficiency is re-assessed by the flight test examiner in the normal course of events.
The instrument also exempts overseas ATPL holders who apply for an Australian ATPL from particular certification of competency requirement before they may attempt the flight test. This requirement is not similarly imposed on Australian commercial pilots seeking to upgrade their qualifications to ATPL.
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.
ATPL applicants
Under subparagraph 61.235 (2) (a) (ii) of CASR 1998, an applicant for a flight crew licence (FCL) is eligible to take the flight test for the licence only if he or she has passed the aeronautical knowledge examination for the licence.
Under subparagraph 61.235 (2) (b) (i), if the applicant passed the aeronautical knowledge examination for the licence with a score of less than 100%, the applicant’s training provider must give the examiner, who is to conduct the flight test (the Examiner), a copy of the applicant’s knowledge deficiency report (KDR).
Under subparagraph 61.235 (2) (b) (ii), the applicant must satisfy the Examiner that he or she has sufficient knowledge in any competency standard mentioned in the KDR to safely exercise the privileges of the licence.
Under regulation 61.240 of CASR 1998, an applicant for an FCL is taken not to have passed a flight test if, when the test is taken, the applicant was not eligible under regulation 61.235 to take the flight test.
Overseas ATPL applicants
Under subparagraph 61.275 (1) (e) (i) of CASR 1998, the holder of an overseas FCL is taken to meet certain requirements of Part 61, in order to attempt the flight test for the grant of the licence with an aircraft category rating if, among other things, for an ATPL, a particular person certifies in writing that the applicant is competent in each unit of competency mentioned in the Part 61 Manual of Standards (MOS) for the ATPL.
Under subregulation 61.275 (5) of CASR 1998, the persons who may certify this degree of competency are the head of operations of a Part 141 or 142 operator that is authorised to conduct flight training for the Australian licence; or a person named in the Part 141 operator’s exposition as responsible for flight training for the licence.
Under paragraph 61.235 (2) (aa) of CASR 1998, an applicant for an FCL, other than an ATPL, is eligible to take the flight test for the ATPL only if a particular person certifies in writing that, among other things, the applicant has met the aeronautical knowledge examination requirements. (That is, this requirement does not apply in an upgrade from, say, a commercial pilot licence (CPL) to an ATPL.)
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
ATPL applicants
Part 61 of CASR 1998 came into force on 1 September 2014. Under paragraph 61.235 (2) (b) of CASR 1998, if an applicant passed the aeronautical knowledge examination for the ATPL licence with a score of less than 100%, the applicant’s training provider must give the Examiner a copy of the KDR, and the applicant must then satisfy the Examiner that he or she has sufficient knowledge in any competency standard mentioned in the KDR to safely exercise the privileges of the licence.
In the light of experience over the past year, CASA now considers that this is an impracticable requirement. Ideally, the knowledge gaps identified in a KDR should be addressed shortly after the examination is completed. However, this is not feasible under current arrangements. It is normal for Australian pilots to complete the ATPL examination long before they attempt the flight test. Sometimes, the relevant examination may have been completed some years ago.
In these circumstances, the gaps in knowledge identified in a KDR, progressively lose their significance and relevance as a pilot acquires other flying experience. The ATPL examination involves a very wide range of required knowledge, and the scope of the particular knowledge mentioned in a KDR may be too great for an Examiner to re-assess in a meaningful way before a flight test. It is now considered that the normal pre‑flight oral knowledge examination covering key knowledge topics, which an Examiner goes through with an applicant before a flight test, is sufficient for the purposes of the flight test.
Overseas ATPL applicants
As noted above, under subparagraph 61.275 (1) (e) (i) of CASR 1998, the holder of an overseas ATPL must have a relevant person certify in writing that the applicant is competent in each unit of competency mentioned in the Part 61 MOS for the Australian ATPL, before the person may attempt the flight test. For a person to properly and prudently so certify would require a very thorough check to be made of a very wide range of required knowledge. It would also, obviously, involve the overseas ATPL applicant having to pay such an assessor significant fees and expenses.
In addition, as noted above, this requirement is not imposed on an applicant who is upgrading their Australian commercial pilot licence to an ATPL (paragraph 61.235 (2) (aa) of CASR 1998.)
In the light of experience over the past year, CASA now considers that this is a difficult and costly requirement, in some respects impracticable, and not one imposed on a CPL upgrade. It should not be imposed on an overseas applicant for the ATPL.
The exemption
Under section 1, the instrument commences on the day of registration, and expires at the end of 30 November 2017, as if it had been repealed by another instrument. Before that time, Part 61 will have been amended to make the exemption redundant.
Section 2 contains some definitions.
Under section 3, the relevant sections of the exemption apply to ATPL applicants and to overseas ATPL holders who apply for an ATPL.
Under section 4, an ATPL applicant is exempt from the requirements of paragraph 61.235 (2) (b) concerning KDR.
The ATPL applicant is also exempted from regulation 61.240 (flight test not valid if a person is not eligible for it) — but only to the extent that, at the time the applicant takes the ATPL flight test, the eligibility requirements under paragraph 61.235 (2) (b) have not been met.
A Note acts as a reminder that before a flight test, the Examiner must conduct an oral knowledge assessment. This is provided for in clause 2 in Appendix K.1 in Section K of Schedule 5 of the Part 61 MOS. The applicant is required to demonstrate her or his knowledge of the following topics:
(a) the privileges and limitations of the air transport pilot licence with aeroplane category rating;
(b) requirements for an AOC;
(c) classification of operations;
(d) type of information contained in an operations manual;
(e) flight and duty time limits;
(f) applicability of drug and alcohol regulations;
(g) aircraft instrument requirements;
(h) emergency equipment requirements;
(i) requirements for aerodromes;
(j) fuel planning and oil requirements for the flight;
(k) managing cargo and passengers;
(l) aircraft loading system;
(m) aircraft performance and landing calculations;
(n) maintenance authorisations;
(o) aircraft speed limitations and systems;
(p) if the flight test is conducted in an FSTD, other prescribed criteria.
Under section 5, an overseas ATPL holder is exempt from subparagraph 61.275 (1) (e) (i) (certification of competency units under the Part 61 MOS).
Duration
The exemption is expressed to operate until 30 November 20
17. It is expected that before the exemption expires, appropriate amendments will be made to Part 61 of CASR 1998 to reflect the intent of the exemption and, thereby, make its continuation unnecessary.
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 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 2 different classes of persons 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 the exemption.
In this case, given CASA’s concern about the impracticable nature of some of the Air Transport Pilot Licence (ATPL) examination requirements as described above (see Background), CASA considered that an exemption would be the most appropriate and timely remedial action. Following on from this, on 18 September 2015, CASA consulted with the Flight Crew Licensing Subcommittee of the Standards Consultative Committee (a formal CASA/industry consultation forum) about varying the requirements for the ATPL flight test using the mechanism of an exemption pending the development of appropriate longer term amendments to Part 61. The Subcommittee supported CASA’s proposal.
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 30 November 2017, 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 EX222/15]
Appendix 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — from certain prerequisites for an ATPL flight
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 applicants with less than a 100% pass in the aeronautical knowledge examination from certain eligibility requirement for the air transport pilot licence (ATPL) flight test. Their knowledge deficiency is re-assessed by the flight test examiner in the normal course of events.
The instrument also exempts overseas ATPL holders who apply for an Australian ATPL from particular certification of competency requirement before they may attempt the flight test. This requirement is not similarly imposed on Australian commercial pilots seeking to upgrade their qualifications to ATPL.
Human rights implications
The exemptions in the legislative instrument are 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
The legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority