Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — Brindabella Airlines Pty Ltd from subregulation 217 (2) of CAR 1988 and paragraph 3.3 of CAO 82.3
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation.
Under section 27 of the Act, CASA may issue Air Operator’s Certificates (AOCs) with respect to aircraft for the purpose of safety regulation. Under section 28 of the Act, CASA must issue an AOC if satisfied that the applicant can comply with the requirements of Australian civil aviation safety legislation.
Under paragraph 28BA (1) (b) of the Act, an AOC has effect subject to any conditions specified in the regulations or Civil Aviation Orders (the CAOs).
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A), CASA may grant an exemption from a provision of the Regulations, including the Civil Aviation Regulations 1988 (CAR 1988) or a provision of the CAOs, 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 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement) or, if no day is specified, 3 years after commencement.
Details of exemption
Regulation 217 of CAR 1988 provides that an operator of a regular public transport (RPT) service must provide a training and checking organisation to ensure that its operating crews maintain their competency. Under subregulation 217 (2), the operator must ensure that the organisation provides for the making in each calendar year, at intervals of not less than 4 months, of 2 proficiency checks to test the competency of the members of the operating crews.
Part 82 of the CAOs specifies conditions on AOCs for various kinds of operations. Civil Aviation Order (CAO) 82.3 contains conditions on AOCs that authorise RPT operations in high capacity aircraft. A high capacity aircraft is defined in paragraph 2.1 of CAO 82.0 as an aircraft certificated as having a maximum seating capacity exceeding 38 seats or a maximum payload exceeding 4 200 kilograms.
Paragraph 3.3 of CAO 82.3 provides that each operator must ensure that a person does not act as an operating crew member on a scheduled revenue service unless that person has satisfactorily completed all necessary training programs and proficiency checks and has been certified by a check pilot as competent to act as an operating crew member.
Paragraph 3.3 applies to Aeropelican Air Services (Aeropelican) and to Brindabella Airlines Pty Ltd (Brindabella).
Brindabella is taking over the assets and organisation of Aeropelican, including its Jetstream J32 aircraft and their operating crews. To enable it to do so, this exemption from subregulation 217 (2) has been issued to allow the Brindabella training and checking organisation to take account of proficiency checks carried out under subregulation 217 (2) of CAR 1988 on J32 operating crews by Aeropelican. The exemption also recognises the proficiency checks carried out by Aeropelican under paragraph 3.3 of CAO 82.3.
The exemption only applies to operating crews of Jetstream J32 aircraft.
Legislative Instruments Act
Subsection 98 (5A) of the Act gives CASA the power to grant an exemption from compliance with a provision of the Regulations or the CAOs. Under subsection 98 (5AA) of the Act, an instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. This instrument applies to a class of aircraft and is, therefore, legislative. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. It will apply only to 2 related operators and will allow pilots to continue to fly aircraft for which they have already been trained and checked and found proficient in accordance with regulation 217 and CAO 82.3. They will undergo training and checking by their new employer as it becomes due. The training and checking organisations and systems of the 2 operators, which are related organisations, have been compared and found to be consistent and the new operator is satisfied as to the competency and qualifications of its new J32 pilots.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on the day of registration. It ceases to have effect at the end of 31 May 2014, as if it had been repealed by another instrument.
[Instrument number CASA EX59/13]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption – Brindabella Airlines Pty Ltd from subregulation 217 (2) of CAR 1988 and paragraph 3.3 of CAO 82.3
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 legislative instrument permits Brindabella Airlines Pty Ltd, when taking over the Jetstream J32 aircraft operated by Aeropelican Air Services and their crews, to take account of training and proficiency checks carried out on the crews by Aeropelican Air Services.
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