Explanatory Statement
Civil Aviation Regulations 1988
Exemption — recency requirements for night flying (Qantas Airways Limited)
Legislation
Section 98 of the Civil Aviation Act 1988 empowers the Governor-General to make regulations.
Subregulation 5.109 (1) of the Civil Aviation Regulations 1988 (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 requirements set out in the subregulation.
Subregulation 5.170 (1) of CAR 1988 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 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.
The exemption allows Qantas Airways Limited (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 take-offs and 3 landings in the immediately preceding 90 days that have been carried out in an approved flight simulator or an aircraft of the same type. In addition, if it appears that the required number of take-offs and landings will not be possible, that period of 90 days can be extended up to a maximum of 120 days by the pilot having carried out a take-off and landing at night, during the last 30 days, while line flying under the supervision of a pilot who holds a delegation to issue or renew a rating or conduct a flight test. If neither of the previous requirements have been satisfied then the pilot would need to have successfully undertaken, in the immediately preceding 180 days, an approved test for requalification.
The conditions in the instrument are largely consistent with the requirements of the International Civil Aviation Organization (ICAO) and the European Joint Aviation Regulations.
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. The tests and procedures in the training and checking organisation require approval by CASA.
Legislative Instruments Act
Under subregulation 308 (4) of CAR 1988, an exemption is a disallowable instrument for section 46A of the Acts Interpretation Act 1901. 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. This instrument renews instrument CASA EX02/08 which expires at the end of 31 July 2009. No changes have been made to the terms and conditions in the former instrument. The instrument is in a form consistent with ICAO and European standards. Any operator whose procedures and training and checking organisation is 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 1 August 2009 and stops having effect at the end of 31 July 2011.
The exemption has been made by a delegate of CASA in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX56/09]
Overview
The Civil Aviation Regulations 1988, enacted by the Australian Government, introduced a regulatory framework to ensure safety in the operation of aircraft. One aspect of this regulation concerns the recency requirements for night flying, specifically for commercial aeroplane pilots holding either a commercial aeroplane pilot licence or an air transport aeroplane pilot licence. The Civil Aviation Regulations 1988 stipulate that such pilots must satisfy certain recency requirements relating to night flying within the preceding 90 days, which typically involves completing a certain number of night take-offs and landings or undergoing specific proficiency checks. The Civil Aviation Regulations 1988 (Exemption—Recency Requirements for Night Flying (Qantas Airways Limited)) 2009 legislative instrument, issued under the authority of the Civil Aviation Act 1988, provides an exemption to Qantas Airways Limited, allowing the airline to use approved flight simulators to meet the recency requirements for night flying, instead of relying on actual aeroplane flights. This exemption seeks to align with international standards set by the International Civil Aviation Organization and European Joint Aviation Regulations, providing a flexible and efficient means for Qantas to maintain pilot proficiency in night flying operations.
Scope and Application
The Civil Aviation Regulations 1988 (CAR 1988) establish stringent requirements for commercial and air transport pilots to ensure safety and proficiency in night flying operations. Specifically, subregulations 5.109(1) and 5.170(1) of CAR 1988 mandate that pilots must satisfy specific recency requirements for night flying, including performing at least three take-offs and landings at night within the preceding 90 days or completing an aeroplane proficiency check at night. This regulation applies to all commercial and air transport pilots operating in Australia, ensuring a uniform standard of proficiency across the industry. The exemption granted to Qantas Airways Limited under F2009L02872 allows the airline to use approved flight simulators to meet these recency requirements, providing a flexible alternative to actual night flights. This exemption is subject to the same 90-day recency period, with an option to extend up to 120 days under specific conditions, and it aligns with international standards set by ICAO and European Joint Aviation Regulations. The exemption is a legislative instrument subject to disallowance under the Legislative Instruments Act 2003, reflecting its significance within the regulatory framework. It is noteworthy that this exemption is specific to Qantas Airways Limited and is not extended to other operators unless their procedures and training organisations are similarly approved by CASA.
Key Provisions
The main operative sections of the Civil Aviation Regulations 1988 (CAR 1988) that are relevant to this exemption are subsections 5.109(1) and 5.170(1) (paragraphs b) of both subsections). These sections mandate that a commercial aeroplane pilot or an air transport aeroplane pilot must not fly an aeroplane carrying another person unless they have satisfied certain recency requirements in the preceding 90 days. Specifically, these requirements involve the pilot having carried out at least three night take-offs and landings as pilot in command or under supervision, or having completed an aeroplane proficiency check or flight test at night. The exemption (CASA EX56/09) allows Qantas Airways Limited to use an approved flight simulator to meet these recency requirements instead of relying on actual night flights. The exemption permits the completion of the required take-offs and landings in a flight simulator or in an aircraft of the same type. It also allows for a 120-day period if a night take-off and landing under supervision have been carried out in the last 30 days. If neither of these conditions are met, the pilot must successfully complete an approved requalification test within the preceding 180 days.
The exemption imposes specific obligations on Qantas Airways Limited. Firstly, it must ensure that its pilots meet the stipulated recency requirements by using an approved flight simulator or through normal line flying under supervision. This involves maintaining a rigorous training and checking organisation that is approved by the Civil Aviation Safety Authority (CASA). The organisation must provide adequate training and testing to ensure pilots are proficient in night flying operations. Qantas must also ensure that all night flying operations are conducted in compliance with the International Civil Aviation Organization (ICAO) standards and European Joint Aviation Regulations. The exemption requires Qantas to have a robust system for monitoring and documenting the completion of night take-offs and landings, whether in a simulator or actual aircraft, to meet the stipulated timeframes.
Breaches of the Civil Aviation Regulations 1988 can lead to serious civil and criminal consequences. Under section 328 of the Civil Aviation Act 1988, any person who contravenes a regulation is liable to a penalty. For corporate bodies such as Qantas Airways Limited, the maximum penalty for a serious breach is $210,000. Additionally, under section 329, any person who knowingly contravenes a regulation is guilty of an offence and can be fined up to $210,000. For an individual pilot, the penalties are similarly severe, with fines of up to $42,000 for corporate entities and up to $8,400 for individuals. These penalties underscore the importance of strict compliance with the regulations and the exemption conditions to avoid severe legal and financial repercussions.