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]
Overview
The Civil Aviation Regulations 1988 (CAR 1988) were amended in 2010 to allow Tiger Airways Australia Pty Limited an exemption from certain recency requirements for night flying, as outlined in F2010L01966. This exemption was introduced to address the specific challenges faced by the operator in meeting the mandatory night flying recency requirements through traditional means, by empowering the operator to use an approved flight simulator to satisfy these requirements instead. This change was made under the authority granted by section 98 of the Civil Aviation Act 1988, with the objective of enhancing safety in night flying operations through the use of a specialised training program. The exemption, which was declared a legislative instrument under the Legislative Instruments Act 2003, is subject to disallowance by the Parliament and was designed to align with international standards set by the International Civil Aviation Organization and the European Joint Aviation Regulations. The exemption was effective until 31 July 2012 and was made by the Director of Aviation Safety in accordance with the Civil Aviation Act 1988.
Scope and Application
The Civil Aviation Regulations 1988 Exemption (Recency Requirements for Night Flying) pertaining to Tiger Airways Australia Pty Limited applies to commercial aeroplane pilots and air transport aeroplane pilots who are required to meet specific recency requirements for night flying operations as set out in the Civil Aviation Regulations 1988. The exemption allows Tiger Airways Australia Pty Limited to use approved flight simulators to satisfy the recency requirements instead of solely relying on flights in an aeroplane. This exemption modifies the existing regulations by allowing the completion of necessary take-offs and landings in an approved flight simulator or an aircraft of the same type within the specified period. The exemption is aligned with the standards set by the International Civil Aviation Organization and European Joint Aviation Regulations, facilitating a uniform approach to night flying recency requirements across different jurisdictions. The exemption is subject to disallowance under the Legislative Instruments Act 2003, indicating its legislative nature and parliamentary oversight. The exemption is effective from the day following its registration and will cease on 31 July 2012, providing a temporary allowance for the specified operations.
Key Provisions
The main operative sections of the legislation pertain to exemptions under the Civil Aviation Regulations 1988 (CAR 1988) for night flying recency requirements for Tiger Airways Australia Pty Limited. Section 98 of the Civil Aviation Act 1988 allows the Governor-General to make regulations, which include exemptions from certain requirements. Under subregulation 5.109(1) and subregulation 5.170(1) of CAR 1988, commercial and air transport pilots must meet specific recency requirements before flying an aeroplane at night. These requirements include completing at least 3 take-offs and landings at night within the previous 90 days or passing relevant proficiency checks and flight tests. However, the exemption in this legislation allows Tiger Airways Australia Pty Limited to use an approved flight simulator to meet these night flying recency requirements instead of relying solely on flights in an aeroplane. This exemption permits the pilot to complete the required take-offs and landings using a flight simulator or an aircraft of the same type. Additionally, if the required number of take-offs and landings cannot be achieved within 90 days, the period can be extended up to 120 days with certain conditions, such as performing a night take-off and landing under supervision or passing an approved requalification test within the preceding 180 days.
The Act imposes specific obligations on Tiger Airways Australia Pty Limited, primarily concerning compliance with the exemption conditions. The operator must ensure that its pilots meet the stipulated night flying recency requirements by using an approved flight simulator or by meeting the alternative conditions outlined in the exemption. This includes documenting and maintaining records of all simulator sessions and supervised night flying activities to demonstrate compliance. Furthermore, the operator is required to adhere to the training and proficiency program that includes specific night flying sequences in the approved simulator. This program must be approved and overseen by the Civil Aviation Safety Authority (CASA) to ensure that it meets the safety standards consistent with the International Civil Aviation Organization (ICAO) and European Joint Aviation Regulations. The operator must also ensure that all pilots involved in night flying operations are adequately trained and proficient, thereby contributing to the safe conduct of night operations.
Breach of the conditions outlined in the exemption may result in various consequences, including both civil and criminal penalties. Under section 46A of the Acts Interpretation Act 1901, the exemption is a disallowable instrument, meaning it can be subject to disallowance by Parliament. If the exemption conditions are not met, CASA may take enforcement action against Tiger Airways Australia Pty Limited. This could include administrative penalties, such as fines, or more severe measures, such as the suspension or revocation of the operator's licence. In terms of criminal liability, if the breach of the exemption conditions leads to an aviation accident or incident that results in harm or death, the operator and its personnel could face criminal charges, including charges under the Civil Aviation Act 1988, which could result in imprisonment. The exact penalties for non-compliance would depend on the specific nature and severity of the breach, as well as any resulting harm or damage.