Explanatory Statement
Civil Aviation Regulations 1988
Exemption — recency requirements for night flying (Network Aviation 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 Network Aviation Pty Ltd, trading as Network Aviation Australia (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 requirement 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 that requirement is 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 EX34/11]
Overview
The Civil Aviation Regulations 1988, as amended, provide the framework for aviation safety in Australia, with specific provisions governing pilot qualifications and flight operations. In 2011, the Explanatory Statement for Civil Aviation Regulations 1988 Exemption – Recency Requirements for Night Flying (Network Aviation Pty Ltd) was introduced to address a specific gap in the regulatory framework concerning the recency requirements for night flying. This exemption was enacted to allow Network Aviation Pty Ltd to satisfy the night flying recency requirements through approved flight simulators rather than necessitating actual night flights, thereby enhancing flexibility and safety. The exemption was made under the authority of the Civil Aviation Act 1988, with the policy objective being to ensure that pilots maintain necessary proficiency without compromising safety, while also allowing the operator to leverage their approved training and checking organisation. This legislative instrument, subject to disallowance, was registered and came into effect post its registration, remaining in force until the end of February 2013.
Scope and Application
The Civil Aviation Regulations 1988 (CAR 1988) have been amended to provide a specific exemption for Network Aviation Pty Ltd, trading as Network Aviation Australia, regarding recency requirements for night flying. This exemption applies to the operator and its pilots, allowing them to satisfy certain night flying recency requirements through the use of an approved flight simulator instead of conducting flights in an aeroplane. The exemption pertains to the holders of commercial aeroplane pilot licences and air transport aeroplane pilot licences, ensuring they can carry out the necessary take-offs and landings in an approved flight simulator or complete a proficiency check in such a simulator within the stipulated periods. This exemption is subject to the operator having a current CASA-approved training and checking organisation and is in place to facilitate safer and more efficient training and testing procedures. The exemption is a disallowable instrument under the Acts Interpretation Act 1901 and is subject to tabling and disallowance in the Parliament as per the Legislative Instruments Act 2003. The exemption is effective from the day after its registration until the end of February 2013.
Key Provisions
The primary sections of the Civil Aviation Regulations 1988 (CAR 1988) that this legislation references and modifies are sections 5.109 and 5.170. These sections typically outline the requirements for commercial and air transport aeroplane pilots to ensure they meet certain recency requirements before flying an aeroplane carrying another person, specifically regarding night flying. Under these sections, pilots must have carried out at least 3 night take-offs and landings within the preceding 90 days or completed a proficiency check or flight test at night within the same period (subsections 5.109(1)(b) and 5.170(1)(b)). The exemption under consideration allows Network Aviation Pty Ltd to satisfy these recency requirements using an approved flight simulator instead of actual night flights. This means the operator can meet the night flying recency requirements by conducting 3 night take-offs and landings in a flight simulator or completing a proficiency check in a simulator within the preceding 180 days.
This exemption imposes several obligations on Network Aviation Pty Ltd. Firstly, the operator must ensure they have a current CASA-approved training and checking organisation. This organisation is responsible for conducting the necessary training and proficiency checks to satisfy the recency requirements. Additionally, the operator must ensure that all pilots comply with the conditions specified by CASA, which are deemed necessary in the interests of safety. These conditions will be outlined in the exemption and must be adhered to strictly to maintain compliance with the regulations. Furthermore, any changes to the operator's procedures, training, or checking organisation that could affect the ability to meet the recency requirements must be reported to CASA.
There are no specific offences or penalties mentioned in the legislation for breaching the conditions of this exemption. However, the exemption is a disallowable instrument under the Acts Interpretation Act 1901, meaning that if it is deemed necessary, the Parliament can disallow it. In addition, under the Legislative Instruments Act 2003, the exemption is subject to tabling and disallowance in the Parliament, providing a mechanism for parliamentary oversight. Any failure by Network Aviation Pty Ltd to comply with the conditions specified by CASA could potentially lead to the revocation of the exemption and might result in the operator being required to revert to the standard recency requirements set out in CAR 1988. This could impact the operator's ability to conduct night flying operations, potentially leading to operational disruptions.