Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX33/19 — Flight Test Prerequisites (Certain Applicants for Air Transport Pilot Licence) Exemption 2019
Purpose
This instrument exempts applicants for an air transport pilot licence (ATPL) with less than a 100% pass in the aeronautical knowledge examination from certain eligibility requirements for the ATPL flight test. This instrument also exempts overseas applicants who hold an overseas equivalent to an ATPL from meeting a certification of competence requirement before they may attempt the ATPL flight test.
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. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR) and Civil Aviation Regulations 1988 (CAR).
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, the Civil Aviation Safety Authority (CASA) may grant an exemption from a provision of the regulations.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons.
Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.175 (4) of CASR, in deciding whether to reissue an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant an exemption on its own initiative.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Part 61 of CASR sets out flight crew licensing requirements.
Applicants for an ATPL
Paragraph (a) of the definition of flight crew licence and paragraph (a) of the definition of pilot licence, both in regulation 61.010 of CASR, have the combined effect of including an ATPL within the definition of flight crew licence.
Regulation 61.235 of CASR sets out the prerequisites for flight tests for, relevantly, flight crew licences (including ATPLs). Under subparagraph 61.235 (2) (a) (ii), an applicant for a flight crew licence (including an ATPL) is eligible to take the flight test for the licence only if the applicant has passed the aeronautical knowledge examination for the licence.
Under subparagraph 61.235 (2) (b) (i) of CASR, if an applicant for a flight crew licence (including an ATPL) passed the aeronautical knowledge examination for the licence with a score of less than 100%, the applicant’s training provider must give a copy of the applicant’s knowledge deficiency report to the flight examiner who is to conduct the flight test.
Under subparagraph 61.235 (2) (b) (ii) of CASR, if an applicant for a flight crew licence (including an ATPL) passed the aeronautical knowledge examination for the licence with a score of less than 100%, the applicant must satisfy the examiner that he or she has sufficient knowledge in any competency standard mentioned in the knowledge deficiency report to safely exercise the privileges of the licence.
Overseas ATPL applicants
Under subparagraph 61.275 (1) (e) (i) of CASR, the holder of an overseas flight crew licence who applies for an ATPL with an aircraft category rating is taken to meet the requirements under Part 61 of CASR if a person specified in subregulation 61.275 (5) certifies in writing that the applicant is competent in each unit of competency mentioned, for the ATPL, in the Part 61 Manual of Standards.
Under subregulation 61.275 (5) of CASR, one of the persons who may certify the applicant’s competence is the head of operations of a Part 141 or 142 operator that is authorised to conduct flight training for the Australian licence. The other persons are a person named in the Part 141 operator’s operations manual, or the Part 142 operator’s exposition, as responsible for flight training for the ATPL.
Regulation 61.235 of CASR states the criteria for an applicant for a flight crew licence, other than an applicant under regulation 61.275, to be eligible to take a flight test. Under the criterion in paragraph 61.235 (2) (aa), an applicant for a flight crew licence, other than an ATPL, is eligible to take the flight test for the licence only if a particular person certifies in writing that, relevantly, the applicant has met the aeronautical knowledge examination requirements. The expression “other than an ATPL” means that the criterion does not apply to an applicant seeking to upgrade an Australian commercial pilot licence to an ATPL.
Background
On 24 December 2015, instrument CASA EX222/15 was issued giving relevant applicants for an ATPL an exemption from the knowledge deficiency report requirements in paragraph 61.235 (2) (b) and regulation 61.240 of CASR, and overseas ATPL applicants an exemption from the competency certification requirement in subparagraph 61.275 (1) (e) (i) of CASR. CASA EX222/15 was replaced by instrument CASA EX168/17 which expired at the end of 30 November 2018. This instrument replaces CASA EX168/17.
The exemption, for applicants for an ATPL who passed the aeronautical knowledge examination with a score of less than 100%, from the knowledge deficiency report requirements of CASR is necessary because the requirement is impractical to administer and the knowledge deficiencies identified may progressively lose their significance as a pilot acquires other flying experience. It is normal for pilots to complete their ATPL aeronautical knowledge examination well before they attempt their ATPL flight test, in some cases years beforehand. It is, therefore, difficult for a flight examiner to assess the candidate’s knowledge in the areas of deficiency as the scope of knowledge tested may have been too detailed and vast for an examiner or instructor to check in any meaningful way at that later time. Instead, key general knowledge topics can be covered adequately during the flight test process and CASA considers this to be sufficient.
The exemption for overseas ATPL applicants from the requirement in subparagraph 61.275 (1) (e) (i) of CASR to provide certification of competency from a person specified in subsection 61.275 (5), such as the head of operations of a Part 141 or Part 142 operator, is required because a thorough check would be required for such a person to legitimately certify that an ATPL applicant is competent in all of the units of competency for an ATPL. Obtaining the certification may also be difficult and costly for the applicant. The regulations do not require this certification for applicants who are upgrading their Australian commercial pilot licence to an ATPL — see paragraph 61.235 (2) (aa) of CASR.
CASA is exploring options for arrangements that would allow applicants to comply with the competency certification requirement in regulation 61.275 of CASR and possibly also the knowledge deficiency report requirement in regulation 61.235. If such arrangements cannot be put in place, CASA would propose amendments to Part 61 of CASR to remove the need for the related exemption. Those amendments are expected to be made in 2021.
Overview of instrument
The instrument has effect to exempt an applicant for an ATPL who has passed the aeronautical knowledge examination with a score of less than 100% from the requirement in paragraph 61.235 (2) (b) of CASR. The instrument also exempts an overseas applicant for an ATPL from subparagraph 61.275 (1) (e) (i) of CASR. No conditions are imposed on either exemption.
CASA has assessed the impact the exemptions in the instrument would have on aviation safety and is satisfied that they will preserve an acceptable level of safety.
Content of instrument
Section 1 of the instrument sets out the name of the instrument.
Section 2 sets out the duration of the instrument. The instrument commenced on the day after it was registered and is repealed at the end of 31 March 2022.
Section 3 sets out definitions for the instrument.
Section 4 sets out an exemption for an applicant for an ATPL who has passed the aeronautical knowledge examination with a score of less than 100%. Such an applicant is exempt from paragraph 61.235 (2) (b) and regulation 61.240 of CASR, 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 under section 4 acts as a reminder that the eligibility requirements in paragraph 61.235 (2) (b) relate to knowledge deficiency reports.
Section 5 sets out an exemption for an overseas ATPL applicant. An overseas ATPL applicant is exempt from subparagraph 61.275 (1) (e) (i) of CASR. A note under section 5 acts as a reminder that this subparagraph requires, for an overseas ATPL applicant, a certification of competence by a person mentioned in subregulation 61.275 (5) of CASR.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument exempts a class of persons, being certain applicants for an ATPL, from complying with paragraph 61.235 (2) (b) and regulation 61.240 of CASR. The instrument also exempts another class of persons, being overseas ATPL applicants, from complying with subparagraph 61.275 (1) (e) (i) of CASR. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
This instrument replaces CASA EX168/17, which expired at the end of 30 November 2018, and in relation to which no adverse comment was received by CASA. The instrument is made in substantially similar terms to CASA EX168/17. The exemptions are beneficial to industry and maintain the current status quo until new arrangements can be made to comply with the regulations, or until amendments are made removing the need for the exemptions.
In these circumstances, it is CASA’s view that it is not necessary or reasonably practicable to undertake any further consultation under section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as 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
The instrument is compatible with human rights and promotes the right to work. A Statement of Compatibility with Human Rights, prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, 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.
The instrument commences on the day after it is registered and is repealed at the end of 31 March 2022.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX33/19 — Flight Test Prerequisites (Certain Applicants for
Air Transport Pilot Licence) Exemption 2019
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 exempts applicants for an air transport pilot licence (ATPL) with less than a 100% pass in the aeronautical knowledge examination from the knowledge deficiency report eligibility requirements for the ATPL flight test. Meeting these requirements is impractical given that pilots generally take their ATPL examinations well before the ATPL flight tests and general knowledge topics can be covered adequately during the flight test process.
This instrument also exempts overseas applicants who hold an overseas equivalent to an ATPL from meeting a particular certification of competence requirement before they may attempt the ATPL flight test. Obtaining such certification may be difficult and costly for the applicant and is not a requirement imposed on Australian commercial pilots seeking to upgrade their Australian commercial pilot licence to an ATPL.
Human rights implications
The right to work, contained in Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights, includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept. The right to work is positively engaged by the exemptions in this instrument, as they reduce administrative costs that outweigh any safety benefits. The exemptions, therefore, increase the opportunities for relevant ATPL applicants to obtain an Australian ATPL and, therefore, promote the right to work of such applicants.
This legislative instrument does not otherwise engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights and promotes the right to work.
Civil Aviation Safety Authority