Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — requirement to obtain a pass in an instrument rating theory examination
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation.
Subsection 98 (5A) of the Act provides that the regulations may empower CASA to issue instruments in relation to the following:
(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft; or
(b) the airworthiness of, or design standards for, aircraft.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the Regulations, including the Civil Aviation Regulations 1988 or a provision of the Civil Aviation Orders, in relation to a matter mentioned in that subsection. 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, an exemption must be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Under subregulation 101.290 (1A) of CASR 1998, an individual may apply to CASA, in writing, for certification as an unmanned aerial vehicle (UAV) controller.
Under subregulation 101.295 (2) of CASR 1998, subject to regulation 11.055, CASA must certify an applicant as a UAV controller if he or she:
(a) qualifies for the issue of an aeronautical radio operator certificate; and
(b) has been awarded a pass in an aviation licence theory examination (other than a flight radio operator’s examination); and
(c) has been awarded a pass in an instrument rating theory examination; and
(d) has completed a training course in the operation of the type of UAV that he or she proposes to operate, conducted by the UAV’s manufacturer; and
(e) has at least 5 hours’ experience in operating UAVs outside controlled airspace.
Instrument
The legislative instrument applies to an applicant for certification as a UAV controller where the proposed certification is to be subject to certain conditions limiting the operations to be conducted under the certificate. Specifically, the instrument only applies where the applicant has applied for certification to operate a type of UAV for which the applicant has completed an appropriate training course, where the operations will be in visual line of sight, and clear of cloud.
It is CASA’s view that there is no added safety benefit in requiring a UAV controller conducting such limited operations to have been awarded a pass in an instrument rating theory examination. Consequently, CASA has issued this legislative instrument, which exempts such an applicant from the requirement of paragraph 101.295 (2) (c) of CASR 1998 relating to obtaining a pass in an instrument rating theory examination. The exemption is subject to a condition that all other requirements for certification, with the exception of the requirement for a pass in an instrument rating theory examination, must be met.
Legislative Instruments Act 2003 (the LIA)
Under section 5 of the LIA, subject to sections 6, 7 and 9 of the LIA, a legislative instrument is an instrument in writing that is of a legislative character, and that is or was made in the exercise of a power delegated by the Parliament.
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations. 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. The instrument applies to a class of persons, namely, applicants for UAV controller certification, and is, therefore, a legislative instrument.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The instrument replaces CASA EX152/12, a similar exemption on the same subject, which expired at the end of September 2015. It is expected that the instrument will not have a negative impact on aviation safety.
In these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for subordinate instruments of this kind (OBPR id: 14507).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on the day of registration and expires, as if it had been repealed by another instrument, at the end of January 2019.
[Instrument number CASA EX24/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — requirement to obtain a pass in an instrument rating theory examination
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 legislative instrument applies to an applicant for certification as an unmanned aerial vehicle (UAV) controller where the proposed certification will only allow the UAV controller to operate a type of UAV for which the UAV controller has completed an appropriate training course, in visual line of sight, and clear of cloud.
The legislative instrument exempts an applicant for certification as a UAV controller from the requirement of paragraph 101.295 (2) (c) of the Civil Aviation Safety Regulations 1998, which requires the applicant to obtain a pass in an instrument rating theory examination.
The instrument replaces CASA EX152/12, a similar exemption on the same subject, which expired at the end of September 2015.
Human rights implications
This legislative 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