Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from certain low-level rating requirements
Purpose
This instrument exempts the holder of a low-level rating from certain recency and flight review requirements provided alternative requirements are met.
The exemption is a reissue of CASA EX92/15 that expires on 30 April 2017, with minor technical changes for clarity but no substantive changes.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation. Part 61 of the Civil Aviation Safety Regulations 1998 (CASR) sets out flight crew licensing requirements.
Regulation 61.1040 provides that the holder of a pilot licence with a low-level rating is authorised to conduct low-level operations.
Regulation 61.1055 makes the exercise of the privileges of a low-level rating subject to a recent experience requirement (recency). Under subregulation 61.1055 (1), the holder of a low-level rating is authorised to exercise the privileges of the rating only if the holder has, within the previous 6 months, completed at least 2 hours of low-level operations, or been assessed as competent to conduct low-level operations by a flight instructor who holds a low-level training endorsement.
Under subregulation 61.1055 (2), the holder is taken to meet the requirements of subregulation (1) if the holder has successfully completed an operator proficiency check in low-level operations within the previous 6 months, or has successfully completed a flight review for the rating within the previous 6 months.
Regulation 61.1060 makes the exercise of the privileges of a low-level rating subject to a fight review requirement. The holder of a low-level rating is authorised to exercise the privileges of the rating only if the holder has, within the previous 12 months, successfully completed a flight review for the rating.
Under subregulation 61.1060 (2), the holder is taken to meet the requirements of subregulation (1) if he or she:
(a) has passed a low-level rating flight test within the previous 12 months; or
(b) has passed a low‑level endorsement flight test within the previous 12 months (but more than 6 months after passing the rating flight test); or
(c) has successfully completed an aerial application proficiency check within the previous 12 months; or
(d) within the previous 12 months, has successfully completed an operator proficiency check covering operations under the low-level rating or aerial application rating; or
(e) is successfully participating in a relevant operator’s approved training and checking system.
The requirements in regulations 61.1055 and 61.1060 do not distinguish between aerial mustering operations and other low-level operations.
Relevantly, under subregulation 11.160 of CASR CASA may grant an exemption from a provision of regulations. CASA may grant the exemption on application or on its own initiative; see 11.160 (3).
Under regulation 11.205, CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition.
Under subregulation 11.230 (1), an exemption may remain in force for 3 years or for a shorter period specified in the instrument.
Background
Part 61 of CASR commenced on 1 September 2014. Before that, under Civil Aviation Order 29.10 (CAO 29.10), a person authorised for aerial mustering operations had a recency requirement of at least 20 hours in the 12 months before a relevant operation. A flight test could also satisfy the requirement. Not to have such recent experience of an aerial mustering operation was considered unsafe. Because of its inherent dangers, aerial mustering was a special case and other low-level rating operations did not have this requirement, apart from a general requirement to have a current aeroplane or helicopter flight review as applicable to the category of aircraft being operated.
In developing the Part 61 flight review requirements for low-level operations, the differing nature and requirements of rotorcraft and aeroplane operations presented difficulty in determining optimal flight review frequency (or the frequency of flight review equivalents). In the event, 12 monthly flight reviews were considered optimal, although this constituted a change for rotorcraft.
Since 1 September 2014, CASA has had the opportunity to re-examine the safety implications of the recency and flight review requirements for low-level operations in the light of experience and operator feed-back and concluded that, in some conditional circumstances, there may be equally effective alternative requirements.
Further consideration has been given to the different levels of safety risk associated with aerial mustering operations as compared to other low-level operations, and the consequential need to have more stringent requirements in place such as checks and recent experience.
CASA decided on its own initiative to issue a conditional exemption for certain low‑level operations, to be effective until Part 61 is amended. The first such exemption was issued on 25 May 2015 with a duration of approximately 2 years; see CASA EX92/15.
The exemption
The exemption reissues CASA EX92/15 with minor technical changes for clarity but not substantive changes.
The exemption exempts the holder of a low-level rating from compliance with the requirements of regulations 61.1044, 61.1055 and 61.1060, subject to the conditions mentioned in section 5 of the instrument.
The exemption in combination with the conditions set out in subsection 5 (1) has the effect that the recurrence period for the range of options available (a flight review or a flight review equivalent) would be set at 24 months instead of 12.
The exemption in combination with the conditions set out in subsection 5 (2) has the effect that a pilot who is the holder of a low-level rating with an aerial mustering endorsement can carry out aerial mustering operations without the required recent experience but only if he or she has demonstrated recent competency in aerial mustering through an operator proficiency check or a low‑level flight review within the 12 months before the operation.
The 12 month recurrence period for recency is consistent with that which applied for aerial mustering under subsection 11 of CAO 29.10 before 1 September 2014.
Legislative instrument
An exemption issued under regulation 11.160 of CASR is a legislative instrument if it applies to a class of persons, aircraft or aeronautical product under subsection 98 (5AA) of the Act. This instrument is applies to all holders of a pilot licence with a low level rating which is a class of persons and is therefore a legislative instrument.
Consultation
CASA has not undertaken consultation in relation to the instrument as the instrument is a reissuing of rules which have previously been consulted about and have not been altered. Reissuing the exemption will ensure that continued relief is provided in relation to the particular low-level rating requirements in the absence of the making of the proposed amendments to Part 61 to give effect to the policy within the CASR.
In these circumstances CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the Legislation Act 2003.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation
This instrument does not require the preparation of a Regulation Impact Statement (RIS) as it is covered by a standing agreement between CASA and the Office Best Practice Regulation under which a RIS is not required for an exemption (OBPR id: 14507).
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 1 May 2017 and is repealed at the end of 30 April 2020.
[Instrument number CASA EX48/17]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Civil Aviation Safety Regulations 1998
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 the holder of a low-level rating from certain recency and flight review requirements provided alternative requirements are met. The instrument is a reissue of CASA EX92/15 with minor technical changes for clarity but no substantive changes.
Human rights implications
The exemption in the 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. The 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