Explanatory Statement
Civil Aviation Regulations 1988
Exemption — recency requirements for night flying (National Jet Systems Pty Ltd)
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations.
Subregulation 308 (1) of the Civil Aviation Regulations 1988 (CAR 1988) provides that CASA may, in relation to a particular aircraft or specified type or category of aircraft, exempt that aircraft, type or category from compliance with the regulations. Subregulation 308 (3) provides that the exemption is subject to the aircraft complying with any conditions specified by CASA as being necessary in the interests of safety. Under subregulation 308 (4), the exemption is a disallowable instrument for section 46A of the Acts Interpretation Act 1901.
Subregulation 5.109 (1) of CAR 1988 provides that a commercial (aeroplane) pilot (the holder of a commercial aeroplane pilot licence) must not fly an aeroplane carrying another person unless the pilot satisfies the requirements set out in the subregulation. Subregulation 5.170 (1) provides that an air transport (aeroplane) pilot (the holder of an air transport aeroplane pilot licence) must not fly an aeroplane carrying another person unless the pilot satisfies the requirements set out in the subregulation.
Paragraphs 5.109 (1) (b) and 5.170 (1) (b) of CAR 1988 both mention certain requirements (recency requirements) that the pilot must have satisfied in the immediately preceding period of 90 days, being requirements relating to take-offs and landings at night. These requirements are that the pilot has, within the period, carried out at least 3 take-offs and 3 landings at night, while flying the aeroplane as pilot in command, or as pilot acting in command under supervision or in dual flying; alternatively, in that period the pilot must have satisfactorily completed an aeroplane proficiency check that was completed at night or passed a flight test that was conducted at night for the issue, or renewal, of an aeroplane pilot rating or (for paragraph 5.109 (1) (b) only) for the issue of an aeroplane pilot licence.
The exemption allows National Jet Systems Pty Ltd, trading as Cobham Aviation Services Australia – Airline Services (the operator), to use an approved flight simulator to satisfy recency requirements instead of relying on flights in an aeroplane. It differs from paragraphs 5.109 (1) (b) and 5.170 (1) (b) of CAR 1988 in that it allows the recency requirements to be satisfied by 3 night take-offs and 3 night landings in the immediately preceding 90 days that have been carried out in an approved flight simulator or an aircraft of the same type. Alternatively, if the requirements are not satisfied, it requires the pilot to have completed, in the immediately preceding 180 days, a proficiency check in an approved flight simulator.
The operator must have a current CASA approved training and checking organisation.
The exemption would allow the operator to rely on flight simulators to meet the recency requirements and would also allow the operator to rely on normal line flying and on its training and checking organisation instead of requiring the pilot to undergo special flight tests as may be required by CASA.
Legislative Instruments Act
Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. The instrument 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
Consultation within the aviation industry as a whole has not taken place. Any operator whose procedures and training and checking organisation are considered by CASA to make satisfactory provision for testing and training pilots for night flying operations would be granted an equivalent exemption.
The exemption commences on the day after it is registered and stops having effect at the end of February 2013.
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 EX33/11]
Overview
The Civil Aviation Regulations 1988 were amended in 2011 to include an exemption allowing National Jet Systems Pty Ltd, trading as Cobham Aviation Services Australia – Airline Services, to use approved flight simulators to meet recency requirements for night flying. This exemption was introduced to address the need for flexible training and proficiency maintenance options for commercial pilots, particularly in scenarios where actual flight time might be limited. The Civil Aviation Act 1988 empowers the Governor-General to enact regulations, and this amendment was made under the authority granted in Section 98 of the Act. The Civil Aviation Safety Authority (CASA) issued this exemption under subregulation 308, subject to conditions that ensure safety. The policy objective is to provide an alternative to in-flight training for maintaining night flying recency, thereby supporting efficient and safe aviation operations.
Scope and Application
The Civil Aviation Regulations 1988 (CAR 1988) under the Civil Aviation Act 1988 grant the Civil Aviation Safety Authority (CASA) the authority to exempt particular aircraft, types, or categories from compliance with certain regulations, subject to safety conditions. Specifically, subregulation 308(1) of the CAR 1988 allows CASA to exempt aircraft, types, or categories from compliance with the regulations, while subregulation 308(3) mandates that such exemptions are contingent on the aircraft complying with any conditions deemed necessary by CASA for safety reasons. This exemption pertains to National Jet Systems Pty Ltd, trading as Cobham Aviation Services Australia – Airline Services, and permits the operator to utilise an approved flight simulator to meet the recency requirements instead of conducting flights in an aeroplane. This exemption allows for the completion of 3 night take-offs and 3 night landings in the preceding 90 days using an approved flight simulator or an aircraft of the same type. Alternatively, if the requirements are not satisfied, the pilot must have completed a proficiency check in an approved flight simulator within the preceding 180 days. To qualify for this exemption, the operator must possess a current CASA-approved training and checking organisation. The exemption is applicable to the operator and exempts them from the need for special flight tests as may be required by CASA, allowing them to rely on normal line flying and their training and checking organisation instead. This exemption is a disallowable instrument under section 46A of the Acts Interpretation Act 1901 and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003. The exemption is effective from the day after its registration and ceases to have effect at the end of February 2013.
Key Provisions
The main operative sections of the Civil Aviation Regulations 1988 (CAR 1988) as amended by this legislation concern the exemption of recency requirements for night flying. Specifically, subregulation 308(1) of CAR 1988 allows the Civil Aviation Safety Authority (CASA) to exempt a particular aircraft, type, or category of aircraft from compliance with certain regulations, subject to specified conditions (subregulation 308(3)). This exemption is a disallowable instrument under section 46A of the Acts Interpretation Act 1901 (subregulation 308(4)). The exemption in question allows National Jet Systems Pty Ltd, trading as Cobham Aviation Services Australia – Airline Services, to use an approved flight simulator to satisfy recency requirements for night flying (paragraph 5.109(1)(b) and 5.170(1)(b) of CAR 1988). These requirements include completing at least 3 night take-offs and 3 night landings in the preceding 90 days, either in an aeroplane or an approved flight simulator, or completing a proficiency check in an approved flight simulator in the preceding 180 days.
The obligations imposed by this Act on National Jet Systems Pty Ltd include ensuring that they have a current CASA approved training and checking organisation. They must also ensure that their procedures and training and checking organisation are considered by CASA to make satisfactory provision for testing and training pilots for night flying operations. This means that the operator must comply with all conditions specified by CASA as necessary in the interests of safety. These conditions include the use of approved flight simulators and reliance on normal line flying and their training and checking organisation instead of requiring the pilot to undergo special flight tests as may be required by CASA.
Breaches of the conditions specified by CASA as necessary in the interests of safety could result in civil or criminal consequences. Under the Legislative Instruments Act 2003 (LIA), the instrument is a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA. However, no maximum penalties are specified in the Act for breaches of the conditions. It is important to note that any operator whose procedures and training and checking organisation are considered by CASA to make satisfactory provision for testing and training pilots for night flying operations would be granted an equivalent exemption. The exemption commences on the day after it is registered and stops having effect at the end of February 2013.