CASA EX53/08 - Exemption - requirements for instrument rating - Warren Felix Bertschinger

Overview

The Civil Aviation Regulations 1988, as amended, provide the legal framework governing aviation safety and operations in Australia. Enacted by the Parliament of Australia, the Act addresses the need for stringent regulations to ensure the safety and efficiency of civil aviation. Specifically, the legislation was introduced to fill gaps in regulatory requirements concerning pilot qualifications and licensing, ensuring that pilots meet stringent safety standards. This regulation allows for the exemption of certain requirements for a particular individual, in this case, Warren Felix Bertschinger, to facilitate his attempt at an instrument rating flight test. The exemption aims to allow Mr Bertschinger to attempt the flight test while holding a student pilot licence, ensuring safety standards are met without compromising the overarching goal of maintaining high safety standards in civil aviation.

Scope and Application

This legislation, F2008L02717, concerns an exemption from certain requirements for a person, Warren Felix Bertschinger, to hold an air transport pilot (aeroplane) licence under the Civil Aviation Regulations 1988. It applies specifically to Mr Bertschinger, who holds a Swiss air transport pilot licence but does not meet the requirements to obtain an Australian command (multi-engine aeroplane) instrument rating. The exemption allows Mr Bertschinger to attempt the instrument rating flight test and, if successful, be issued with the required instrument rating. The exemption is subject to Mr Bertschinger holding a student pilot licence at the time he attempts the flight test to ensure the safety of air navigation. The exemption is effective from the day after it is registered and expires at the end of 31 October 2008. The exemption is made under the authority of the Civil Aviation Act 1988 and the Civil Aviation Regulations 1988, with the specific legislative instrument being a disallowable instrument under the Legislative Instruments Act 2003. Although consultation under the Legislative Instruments Act was not undertaken for this specific exemption, it is noted that similar exemptions could be issued to other individuals meeting the same criteria.

Key Provisions

The main operative sections of the Civil Aviation Regulations 1988 (CAR 1988) and Civil Aviation Order 40.2.1 (CAO 40.2.1) establish the criteria for obtaining an air transport pilot (aeroplane) licence and a command (multi-engine aeroplane) instrument rating. Section 98 of the Civil Aviation Act 1988 allows the Governor-General to make regulations, and paragraph 5.165(2)(a) of CAR 1988 specifies that a person is qualified for an air transport pilot licence if they hold or have held a command (multi-engine aeroplane) grade of instrument rating. Furthermore, subregulation 5.14(1) of CAR 1988 authorises CASA to set out requirements for the issuance of flight crew ratings, including instrument ratings, through Civil Aviation Orders. CAO 40.2.1 outlines the requirements for an aeroplane instrument rating, including the necessary aeronautical experience and the test requirements. The Act imposes specific obligations on Mr Warren Felix Bertschinger, the individual for whom the exemption has been granted. To be eligible for an air transport pilot licence, Mr Bertschinger must obtain a command (multi-engine aeroplane) instrument rating. This requires him to hold a private pilot (aeroplane) licence (PP(A)L), a commercial pilot (aeroplane) licence (CP(A)L), an air transport pilot (aeroplane) licence (ATP(A)L), or a certificate of validation (COV) that functions as one of these licences, as stipulated in subsection 8 of CAO 40.2.1. Additionally, he must meet the instrument rating test requirements outlined in subsection 10 of CAO 40.2.1, including the aeronautical experience requirements in subparagraph 8.2. Mr Bertschinger must also hold a student pilot licence when attempting the instrument rating flight test, as specified in the exemption conditions to ensure the safety of air navigation. Any breach of the Civil Aviation Regulations 1988 or the Civil Aviation Orders could result in civil or criminal consequences, including penalties. Although the explanatory statement does not specify the maximum penalties, violations of these regulations can lead to enforcement actions by CASA, which may include fines, suspension or revocation of licences, and other administrative penalties. For instance, attempting the instrument rating flight test without the required licence or failing to meet the specified conditions could be considered non-compliance, leading to potential enforcement actions. The exemption for Mr Bertschinger is a legislative instrument declared under subregulation 308(4) of CAR 1988 as a disallowable instrument, and it is subject to the Legislative Instruments Act 2003. This means the exemption can be tabled and disallowed in Parliament under sections 38 and 42 of the LIA. The exemption, issued by a delegate of CASA, is effective from the day after registration until 31 October 2008. It is important to note that consultation under section 17 of the LIA was not undertaken in this instance as the exemption is specific to an individual and similar exemptions could be granted to others meeting the same requirements.