Explanatory Statement
Civil Aviation Regulations 1988
Exemption — recency requirements for night flying (Tiger Airways Australia Pty Limited)
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) 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 Tiger Airways Australia Pty 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 normal line flying and on its training and proficiency program, instead of requiring the pilot to undergo special flight tests as may be required by CASA. The operator’s training and proficiency program contains specific night flying sequences in an approved simulator that are not ordinarily available in the aircraft. This benefits the safe conduct of night operations.
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. The instrument is in a form consistent with ICAO and European standards. It also follows previous exemptions granted to other operators for the same purpose. Any operator whose procedures include a similar training and proficiency program for night flying operations would be granted an equivalent exemption.
The exemption commences on the day after it is registered. It stops having effect at the end of 31 July 2012.
The exemption has been made by the Director of Aviation Safety in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX58/10]