CASA EX45/08 - Exemption - requirements for instrument rating - Timothy John Nolan

Overview

The Civil Aviation Regulations 1988, enacted to ensure the safety and regulation of civil aviation in Australia, address the gap in provisions concerning specific exemptions for individual cases where standard regulations might not apply due to unique circumstances. The Civil Aviation (Exemption — requirements for instrument rating — Timothy John Nolan) Instrument 2008 was introduced to provide a tailored solution for Mr. Timothy John Nolan, who, despite holding an equivalent overseas air transport pilot licence, does not meet the standard requirements for an Australian instrument rating due to the absence of a current UK medical certificate and Australian instrument rating. This exemption, issued under the authority of the Civil Aviation Act 1988 and subject to the Legislative Instruments Act 2003, allows Mr. Nolan to attempt the instrument rating flight test, with a condition to hold a student pilot licence during the test, ensuring the continuation of air navigation safety. The exemption was enacted by a delegate of the Civil Aviation Safety Authority (CASA) and is effective until 31 October 2008, highlighting the flexibility within the regulatory framework to accommodate exceptional cases.

Scope and Application

The Civil Aviation Regulations 1988, as amended, provide the legal framework governing aviation activities in Australia. Under Section 98 of the Civil Aviation Act 1988, the Governor-General has the authority to enact regulations, and the Civil Aviation Regulations 1988 (CAR 1988) outline these regulations. Specifically, Paragraph 5.165(2)(a) of the CAR 1988 stipulates that a person is qualified to hold an air transport pilot (aeroplane) licence if they hold, or have held, a command (multi-engine aeroplane) grade of instrument rating. The Civil Aviation Safety Authority (CASA) can issue directions in Civil Aviation Orders (CAO) that detail the requirements for the issuance of flight crew ratings or grades of flight crew ratings. Civil Aviation Order 40.2.1 (CAO 40.2.1) sets out the requirements for the issue of an instrument rating, including the aeronautical experience and test requirements a person must meet. However, in specific cases, CASA may grant exemptions to these requirements, as demonstrated by the exemption for Mr. Timothy John Nolan, who applied for an ATP(A)L but does not meet the standard requirements for an instrument rating. This exemption allows Mr. Nolan to attempt the instrument rating flight test under specific conditions, ensuring the safety of air navigation by requiring him to hold a student pilot licence during the test. The exemption is a legislative instrument and is subject to the Legislative Instruments Act 2003, which governs the disallowance process in Parliament.

Key Provisions

The Civil Aviation Regulations 1988 (CAR 1988) govern a wide range of aviation activities in Australia, and under section 98 of the Civil Aviation Act 1988, the Governor-General is empowered to make regulations. Section 5.165(2)(a) of the CAR 1988 outlines the qualifications for an air transport pilot (aeroplane) licence, which include holding or having held a command (multi-engine aeroplane) grade of instrument rating. The Civil Aviation Orders (CAO) further detail the requirements for various flight crew ratings, including instrument ratings. Specifically, CAO 40.2.1, subsection 8, stipulates that a person seeking an aeroplane instrument rating must hold a valid private pilot (aeroplane) licence, a commercial pilot (aeroplane) licence, an air transport pilot (aeroplane) licence, or a certificate of validation that equates to one of these licences. Sub-section 10 of CAO 40.2.1 specifies the test requirements for the instrument rating, with sub-paragraph 10.4.3(b) indicating that an individual may only attempt the instrument rating test if they meet the requirements of subsection 8. In terms of obligations and requirements, the regulations impose specific conditions on individuals seeking various types of pilot licences and ratings. For instance, subregulation 5.14(1) of the CAR 1988 mandates that the Civil Aviation Safety Authority (CASA) may issue directions through Civil Aviation Orders, setting out the requirements for the issue of a flight crew rating or grade of flight crew rating. Furthermore, paragraph 5.27(1)(a) of the CAR 1988 outlines the criteria for a person to apply to CASA for a certificate of validation for an overseas authorisation, including the need for the authorisation and any required medical certificates to be valid, current, and not suspended or cancelled. The legislation also outlines potential consequences for non-compliance. Under subregulation 308(4) of the CAR 1988, any exemption granted is considered a disallowable instrument, making it subject to tabling and disallowance in Parliament as per the Legislative Instruments Act 2003. Additionally, any failure to meet the stringent requirements for obtaining a pilot licence or rating, such as attempting a test without holding the necessary qualifications, could result in severe penalties. Such violations might not only affect the individual's ability to obtain a licence but could also lead to criminal or civil consequences, depending on the severity of the breach. In the specific case of Mr. Timothy John Nolan, the exemption granted allows him to attempt the instrument rating flight test despite not holding the necessary current UK CAA issued licence or medical certificate. This exemption stipulates that Mr. Nolan must hold a student pilot licence at the time he attempts the flight test, ensuring that safety is not compromised. The exemption, which is a legislative instrument subject to the Legislative Instruments Act 2003, will remain in effect until the end of 31 October 2008, and it has been made by a delegate of CASA under subregulation 7(1) of the CAR 1988. This exemption, while tailored to Mr. Nolan, sets a precedent for similar cases where individuals meet the specified conditions.