Explanatory Statement
Civil Aviation Regulations 1988
Exemption — requirements for instrument rating – Warren Felix Bertschinger
Legislation
Section 98 of the Civil Aviation Act 1988 empowers the Governor-General to make regulations.
Paragraph 5.165 (2) (a) of the Civil Aviation Regulations 1988 (CAR 1988) provides that a person is qualified to hold an air transport pilot (aeroplane) licence if the person holds, or has held, a command (multi-engine aeroplane) grade of instrument rating.
Subregulation 5.14 (1) of CAR 1988 provides that CASA may give directions in Civil Aviation Orders setting out requirements for the issue of a flight crew rating, or grade of flight crew rating, to a person.
Civil Aviation Order 40.2.1 (CAO 40.2.1) sets out the requirements for the issue of an instrument rating, including a command (multi-engine aeroplane) instrument rating.
Subsection 8 of CAO 40.2.1 sets out the aeronautical experience a person seeking an aeroplane instrument rating must hold. Paragraph 8.2 states that a person seeking an aeroplane instrument rating must hold a private pilot (aeroplane) licence (PP(A)L), a commercial pilot (aeroplane) licence (CP(A)L), an air transport pilot (aeroplane) pilot licence (ATP(A)L) or a certificate of validation (COV) that has effect as if it were 1 of those licences.
Subsection 10 of CAO 40.2.1 sets out the instrument rating test requirements. Subparagraph 10.4.3 (b) states that a person may attempt the instrument rating test for initial issue of a grade of instrument rating only if the person meets the requirements of subsection 8.
Paragraph 5.27 (1) (a) of CAR 1988 provides that a person may apply to CASA for the issue of a COV for an overseas authorisation held by the person if:
(a) the person’s overseas authorisation:
(i) is valid; and
(ii) is current; and
(iii) is not suspended or cancelled; and
(b) where the person is required to hold an overseas medical certificate, the medical certificate must be:
(i) valid; and
(ii) current; and
(iii) not suspended or cancelled.
Background
Mr Warren Felix Bertschinger, Aviation Reference Number 575394, has applied to CASA for an ATP(A)L. Mr Bertschinger holds an air transport pilot licence (ATPL), which was issued by the Federal Office for Civil Aviation, Switzerland. The Swiss ATPL is an equivalent licence to the ATP(A)L. A person wanting to use a Swiss ATPL must also hold a valid and current Swiss issued class 1 medical certificate. Mr Bertschinger does not hold a current Swiss issued licence or medical certificate and is, therefore, not eligible for the issue of a COV. Mr Bertschinger does not hold, and has never held, an Australian command (multi-engine aeroplane) instrument rating.
To be eligible for the issue of an ATP(A)L, Mr Bertschinger must obtain a command (multi‑engine aeroplane) instrument rating. To be eligible for an instrument rating flight test, Mr Bertschinger must hold a PP(A)L, CP(A)L, ATP(A)L or a COV that has the effect as if it were one of those licences.
The exemption will allow Mr Bertschinger to attempt the instrument rating flight test and, if successful, be issued with a command (multi-engine aeroplane) instrument rating. To ensure the safety of air navigation, Mr Bertschinger must meet a specified condition. He must hold a student pilot licence at the time that he attempts the flight test. CASA does not consider that safety will be compromised if Mr Bertschinger attempts the instrument rating flight test without holding the required licences.
Legislative Instruments Act
Subregulation 308 (4) of CAR 1988 declares an exemption to be a disallowable instrument. 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 under section 17 of the LIA has not been undertaken in this case. The exemption is only for a particular individual who needs this to enable him to undertake a flight test. A similar exemption will be issued any person who satisfies the same requirements.
The instrument commences on the day after it is registered and stops having effect at the end of 31 October 2008.
The exemption has been made by a delegate of CASA under subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX53/08]