CASA EX59/13 - Exemption — Brindabella Airlines Pty Ltd from subregulation 217 (2) of CAR 1988 and paragraph 3.3 of CAO 82.3

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Legislation au F2013L00887 Not in force Legislative Instrument

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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

Overview

The Civil Aviation Safety Regulations 1998, as amended, empower the Civil Aviation Safety Authority (CASA) to issue exemptions from certain regulatory requirements to ensure the safety of air navigation. In 2013, an exemption was granted to Brindabella Airlines Pty Ltd under section 98 of the Civil Aviation Act 1988, allowing the company to take over the assets and organisation of Aeropelican Air Services, including its Jetstream J32 aircraft and operating crews. This exemption recognises the proficiency checks carried out by Aeropelican and permits Brindabella's training and checking organisation to account for these checks. The exemption applies only to the operating crews of Jetstream J32 aircraft and is subject to the conditions set out in the Civil Aviation Safety Regulations 1998 and Civil Aviation Orders. This legislative instrument ensures that pilots can continue to fly aircraft for which they have already been trained and checked, while also undergoing training and checking by their new employer as it becomes due. The exemption was made under the authority of CASA and is subject to tabling and disallowance in the Parliament under the Legislative Instruments Act 2003. The exemption is compatible with human rights, as it does not engage any of the applicable rights or freedoms.

Scope and Application

The Civil Aviation Safety Regulations 1998 (CASR 1998) empower the Civil Aviation Safety Authority (CASA) to issue exemptions from certain regulatory requirements, including those in the Civil Aviation Regulations 1988 (CAR 1988) and Civil Aviation Orders (CAOs), for the purpose of ensuring the safety of air navigation. This particular exemption, made under the authority of the Civil Aviation Act 1988, applies specifically to Brindabella Airlines Pty Ltd in its capacity as the new operator of Jetstream J32 aircraft previously operated by Aeropelican Air Services. The exemption allows Brindabella Airlines to consider the proficiency checks already conducted by Aeropelican for its operating crews, thereby facilitating a smoother transition of operations without compromising safety standards. The exemption applies to the operating crews of Jetstream J32 aircraft and is limited in scope and duration, ceasing to have effect on 31 May 2014. The exemption is subject to the conditions stipulated in the CASR 1998 and is considered a legislative instrument under the Legislative Instruments Act 2003, although consultation under the Legislative Instruments Act was deemed unnecessary given the limited impact of this exemption.

Key Provisions

The main operative sections of the Civil Aviation Safety Regulations 1998 (CASR 1998) pertinent to this exemption include subregulation 11.160, which provides the authority for CASA to grant exemptions from provisions of the Regulations, including the Civil Aviation Regulations 1988 (CAR 1988) or Civil Aviation Orders (CAO), in the interest of the safety of air navigation. This specific exemption concerns subregulation 217(2) of CAR 1988 and paragraph 3.3 of CAO 82.3. Subregulation 11.205 allows CASA to impose conditions on the exemption if necessary for the safety of air navigation, and regulation 11.225 mandates that the exemption must be published on the internet. The exemption will cease no later than 3 years after its commencement, as per subregulation 11.230. The obligations imposed by this exemption on Brindabella Airlines Pty Ltd primarily revolve around ensuring the competency and qualifications of its operating crews. Brindabella must take into account the proficiency checks carried out on its Jetstream J32 aircraft crews by Aeropelican Air Services, as these checks are deemed satisfactory. Brindabella is also required to ensure that its pilots undergo the necessary training and checking by their new employer as these become due. This obligation is in line with the conditions set out in subregulation 217(2) of CAR 1988 and paragraph 3.3 of CAO 82.3, which mandate proficiency checks and certification by a check pilot for operating crew members on scheduled revenue services. Any breach of the conditions set out in this exemption could lead to civil or criminal consequences. As this exemption is a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003. Failure to comply with the conditions could result in CASA taking corrective actions, which may include enforcement actions such as fines or the revocation of the Air Operator's Certificate (AOC). However, the specific penalties for non-compliance are not detailed in the text provided. The exemption ceases to have effect at the end of 31 May 2014, as if it had been repealed by another instrument.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.