Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX58/19 — Carriage of Passengers on Proficiency Check and Flight Test Flights Instrument 2019
Purpose
The purpose of this legislative instrument is to continue to allow applicants for a flight examiner rating or appointment or approval as a check pilot to observe, as a passenger, the conduct of a flight test or proficiency check where the aircraft control seats are occupied by a student pilot and a flight examiner, a training and checking captain or a Civil Aviation Safety Authority (CASA) officer. The carriage of passengers during a flight that simulates emergency procedures or involves low flying practice would otherwise be in contravention of subregulation 249 (1) of the Civil Aviation Regulations 1988 (CAR).
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation. In particular, paragraph 98 (5A) (a) of the Act provides that the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft.
Subregulation 249 (1) of CAR provides that the pilot in command of an aircraft that carries a passenger must not engage in certain specified types of flying. In particular, paragraph 249 (1) (b) provides that the pilot in command must not engage in practice of emergency procedures in the aircraft, and paragraph 249 (1) (c) provides that the pilot must not engage in low flying practice.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
Under regulation 11.225 of CASR, an exemption must be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Subpart 11.G of CASR provides for CASA to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a) of CASR, for subsection 98 (5A) of the Act, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245 (2) provides that CASA may issue such a direction if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, if the direction is not inconsistent with the Act, and for the purposes of CASA’s functions.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255, it is an offence of strict liability to contravene a direction under regulation 11.245.
Background
Following completion of a course of training, applicants for issue of a flight examiner rating or for approval as a check pilot in a training and checking organisation are assessed by CASA. The course of training may include training with an industry mentor or a training and checking captain. The training usually includes flights where the applicant observes the conduct of a flight test or proficiency check in which the control seats are occupied by the mentor or training and checking captain and another pilot undergoing a check or a flight test. These checks may include simulated emergency procedures or low flying as required to confirm competence of the pilot undergoing a check or flight test. Additionally, CASA officers who receive on the job training benefit from observing flight tests or proficiency checks. The practice of the applicant or CASA officer observing a flight test enhances safety through standardisation and practical training of flight testing methods.
This practice enables the observer to observe the techniques employed by an experienced flight examiner or training and checking captain. However, the observer is a passenger as the CASR Dictionary defines passenger, where relevant, as “a person who … is on board the aircraft for a flight … and who is not a member of the crew of the aircraft for the flight.” With a passenger on board, the pilot in command would be in breach of regulation 249 of CAR. CASA has previously allowed this practice by means of an instrument of exemption. For the most recent exemption, see CASA EX58/18 (FRL ref: F2018L00786), which is repealed at the end of 31 May 2019.
Instrument
This instrument applies in relation to the pilot in command of an aircraft that carries a passenger if the pilot conducts a proficiency check or a flight test of another pilot in the aircraft. For the instrument to apply, the pilot in command must meet 1 of the descriptions in paragraphs 3 (a) to (d). That is, the pilot must be a flight examiner, a check pilot, a person approved under regulation 61.040 of CASR to conduct the proficiency check or flight test, or a CASA officer whose duties include the conduct of the check or test.
Section 4 of the instrument exempts the pilot in command from compliance with paragraphs 249 (1) (b) and (c) of CAR in relation to the operation. This exemption is made under regulation 11.160 of CASR.
Section 5 of the instrument directs the pilot in command of the aircraft to comply with the requirements set out in Schedule 1 of the instrument. This direction is made under regulation 11.245 of CASR.
The requirements in Schedule 1 include that the passenger must be an applicant for a check pilot approval or appointment, an applicant for a flight examiner rating or a CASA officer who is on board the aircraft in the course of the officer’s duties relating to the conduct of the flight test or proficiency check. The pilot in command must ensure that the passenger does not interfere with the conduct of the proficiency check or flight test. The passenger must not occupy a control seat.
Limitations are also placed on the conduct of flight manoeuvres during the proficiency check or flight test so that only necessary manoeuvres are carried out during the flight. In particular, demonstration of competence in emergency procedures and low flying is only to be conducted to the extent necessary for the proficiency check or flight test.
Incorporation by reference
The legislative instrument applies, adopts or incorporates matters contained in other legislative instruments, being CAR, CASR and the Part 61 Manual of Standards made under CASR. These instruments are freely available on the Federal Register of Legislation. In accordance with section 14 of the Legislation Act 2003 (the LA), the instruments are incorporated as in force from time to time. This ensures that each flight is conducted in accordance with current regulatory requirements.
Legislation Act 2003
Paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. The instrument exempts a class of persons, being certain pilots in command of aircraft conducting proficiency checks and flight tests in specific circumstances, from complying with the provisions in paragraphs 249 (1) (b) and (c) of CAR and directs those pilots to comply with specified requirements. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
CASA has provided similar exemptions for a number of years and the exemptions have been well-utilised by observers of flight tests and proficiency checks. The instrument of exemption made in 2015 (CASA EX74/15) for the same purpose as the present instrument was requested by the aviation industry.
The exemption is beneficial to the aviation industry since flight examiner and check pilot applicants can learn from qualified flight examiners or training and checking captains during the conduct of flight tests and proficiency checks. Furthermore, through the observation of real testing scenarios and the pre- and post-flight briefing of those flights, the trainee examiners or check pilots gain a higher level of understanding and competence to perform their duties once they become an examiner or check pilot, thus enhancing aviation safety outcomes.
This instrument continues and updates previous exemptions, which have not been the subject of any negative feedback to CASA.
In these circumstances, it is CASA’s view that it is not necessary or appropriate to conduct any further consultation under section 17 of the LA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions and directions (OBPR id: 14507).
Making and commencement
This instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The exemption commences on 1 June 2019 and is repealed at the end of 31 May 2022.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX58/19 — Carriage of Passengers on Proficiency Check and Flight Test Flights Instrument 2019
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The purpose of the legislative instrument is to continue to allow applicants for a flight examiner rating or appointment or approval as a check pilot to observe, as a passenger, the conduct of a flight test or proficiency check where the aircraft control seats are occupied by a student pilot and a flight examiner, a training and checking captain or a CASA officer. The carriage of passengers during a flight that simulates emergency procedures or involves low flying practice would otherwise be in contravention of subregulation 249 (1) of the Civil Aviation Regulations 1988.
The instrument provides an exemption from that requirement and directs that a range of requirements, specified by CASA in the interests of aviation safety, must be met.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority