Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX64/21 — Naming of Alternate Key Personnel (Parts 141 and 142 Operators) Exemption 2021
Purpose
The purpose of CASA EX64/21 — Naming of Alternate Key Personnel (Parts 141 and 142 Operators) Exemption 2021 (the instrument) is to exempt aircraft operators that provide flight training from having to name at least 1 person to carry out the responsibilities of a key personnel position when the holder of the position is absent or unable to carry out the responsibilities. The instrument aims to assist smaller operators and those who provide occasional flight training.
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. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR).
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, the Civil Aviation Safety Authority (CASA) may grant an exemption from compliance with a provision of the regulations.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons.
Under subregulation 11.175 (4) of CASR, in deciding whether to reissue an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
Regulation 11.225 of CASR requires an exemption to be published on the internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Part 141 of CASR deals with the conduct of non-integrated recreational, private and commercial pilot flight training and provides for matters relating to Part 141 certificates. Subregulation 141.015 (3) of CASR defines a Part 141 operator as the holder of a Part 141 certificate. A Part 141 certificate is a certificate issued under regulation 141.060 of CASR.
Regulation 141.020 of CASR defines key personnel for a Part 141 operator. They are the persons that hold, or carry out the responsibilities of, the positions of chief executive officer and head of operations in the operator’s organisation.
Regulation 141.260 of CASR sets out the matters that must be included in the operations manual of a Part 141 operator. Subparagraph 141.260 (1) (e) (iv) requires that the manual include, for each of the key personnel of the operator, the name of each person authorised to carry out the responsibilities of the position when the position holder is absent from the position or cannot carry out the responsibilities. Subparagraph 141.260 (1) (e) (v) requires that the manual include a description of how the operator will manage the responsibilities of the position in either of these circumstances. It is an offence under regulation 141.265 of CASR for a Part 141 operator to contravene a provision of its operations manual.
Part 142 of CASR deals with, among other things, the conduct of integrated and multi-crew pilot flight training and Part 142 authorisations. Subregulation 142.015 (4) of CASR defines a Part 142 operator as the holder of a Part 142 authorisation. Subregulation 142.020 (5) defines a Part 142 authorisation as an Air Operator’s Certificate that authorises a Part 142 activity in an aircraft or a certificate under Division 142.B.2 that authorises the conduct of a Part 142 activity in a flight simulation training device.
Regulation 142.025 of CASR defines key personnel for a Part 142 operator. They are the persons that hold, or carry out the responsibilities of, the positions of chief executive officer and head of operations and, if the operator conducts specified kinds of activities, safety manager and quality assurance manager.
Regulation 142.340 of CASR sets out the matters that must be included in the exposition of a Part 142 operator. Subparagraph 142.340 (1) (e) (iv) requires that the exposition include, for each of the key personnel of the operator, the name of each person authorised to carry out the responsibilities of the position when the position holder is absent from the position or cannot carry out the responsibilities. Subparagraph 142.340 (1) (e) (v) of CASR requires that the exposition include a description of how the operator will manage the responsibilities of the position in either of these circumstances. It is an offence under regulation 142.345 of CASR for a Part 142 operator to contravene a provision of its exposition.
Background
CASR requires the operations manual of a Part 141 operator and the exposition of a Part 142 operator to include, for each of the operator’s key personnel, the name of each person authorised to carry out the responsibilities of the position when the position holder is absent from the position or cannot carry out their responsibilities. Some Part 141 and Part 142 operators who conduct flight training do not always have staff available to be nominated for these purposes.
Smaller operators that only conduct flight training on a part-time basis may only have a chief executive officer, a head of operations and 1 or 2 instructors who do not meet the requirements for a head of operations. An example of a smaller Part 141 operator is agriculture operators who may only train seasonally, for a few weeks each year, for the grant of aerial application ratings. Part 142 operators that conduct type rating training infrequently, or multi-crew cooperation training once or twice a year, may also benefit from the exemption from these CASR requirements.
The requirement in CASR for Part 141 operators to name in their operations manual, and for Part 142 operators to nominate in their exposition, alternate key personnel was preventing some operators from transitioning from operating in accordance with Subpart 202.GA (Transitional provisions for Part 141) and Subpart 202.GB (Transitional provisions for Part 142), to operating under Part 141 or 142 of CASR. The requirements are also preventing some new operators from being granted either a Part 141 certificate or a Part 142 authorisation under those Parts. Exempting operators from the relevant requirements mentioned above will remedy this issue until Parts 141 and 142 of CASR are amended. The exemption is limited to alleviating operators from the requirement to name an alternate person for key positions that would otherwise allow operations to continue. Operators would be expected to cease operations in the event that key personnel are absent from the position or unable to carry out their responsibilities.
CASA has previously issued an exemption in instrument CASA EX89/18 — Naming of Alternate Key Personnel (Part 141 and 142 Operators) Exemption 2018 (CASA EX89/18), which is in substantially the same terms. Drafting has commenced on the proposed amendments to Parts 141 and 142 of CASR and is expected to be completed sometime in 2022.
Overview of instrument
The instrument provides exemptions for Part 141 and Part 142 operators, and persons who apply for a Part 141 certificate or a Part 142 authorisation, from compliance with the applicable requirement in CASR to name, for each of the operator’s key personnel, a person authorised to carry out the responsibilities of the position when the position holder is absent from the position or unable to carry out the position’s responsibilities.
CASA has assessed the impact this instrument will have on aviation safety and is satisfied that it will have no impact. CASR requires an operator who does not nominate alternate key personnel in their operations manual or exposition to still provide, and comply with, a description of how the operator will manage the responsibilities of the position during the circumstances mentioned.
Content of instrument
Section 1 sets out the name of the instrument.
Section 2 sets out the duration of the instrument by providing that it commences on 1 July 2021 and is repealed at the end of 31 May 2024.
Section 3 sets out some definitions of terms used in the instrument.
Section 4 exempts specified persons from CASR requirements to name alternate key personnel. Subsection 4 (1) exempts a person who applies for a Part 141 certificate or who is a Part 141 operator from compliance with subparagraph 141.260 (1) (e) (iv) of CASR. That subparagraph requires the operations manual for an operator to include the name of each person authorised to carry out the responsibilities of each key personnel position when the holder of the position is absent or cannot carry out their responsibilities. Subsection 4 (2) exempts a person who is a Part 142 operator, or who applies for a Part 142 authorisation, from compliance with the requirement in subparagraph 142.340 (1) (e) (iv) of CASR to include this information in the exposition for the operator.
Section 4 also includes a note reminding operators that, even if they do not name alternate key personnel in their operations manual or exposition, they must still describe in it, and follow, procedures for the management of the responsibilities of each key personnel position in the circumstances mentioned. The note makes it clear that a procedure may be that the operator will not conduct operations in those circumstances. A second note points out that it is an offence under CASR not to comply with a provision of an operations manual or exposition.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Additionally, 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. This instrument exempts the following classes of persons from specified requirements of CASR: persons who are Part 141 or Part 142 operators or persons who apply for Part 141 certificates or Part 142 authorisations. 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
The instrument will remove an unnecessary regulatory burden from flight training operators. CASA considers the exemption is necessary to address an unintended consequence of CASR requirements to nominate alternate key personnel. CASA also considers there is no safety risk in issuing the instrument as there are other safeguards in CASR, such as the requirement for the operator to describe its procedures for managing key personnel responsibilities in their absence or when unable to carry them out.
Consultation was undertaken by the CASA Part 61 Solutions Task Force and its Industry Advisory Panel in 2016. The panel, comprising industry representatives and CASA, supported the policy underpinning the instrument and a future amendment to the regulations.
CASA has not received any adverse feedback from industry stakeholders on the previous instrument, CASA EX89/18. The policy objective of CASA EX64/21 remains the same as CASA EX89/18. The effect of the exemption will be incorporated into amendments to flight crew licensing regulations in 2022. This regulation amendment package will be subject to full public consultation prior to implementation.
CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Sector risk, economic and cost impact
Subsection 9A (1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A (3) of the Act states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9 (1) (c), CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.
As the instrument replaces an expiring instrument with the same provisions, there will be no change of economic or cost impact on individuals, businesses or the community.
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on 1 July 2021 and is repealed at the end of 31 May 2024.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX64/21 — Naming of Alternate Key Personnel (Parts 141 and
142 Operators) Exemption 2021
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
CASA EX64/21 — Naming of Alternate Key Personnel (Parts 141 and 142 Operators) Exemption 2021 (the instrument) provides exemptions for Part 141 and Part 142 operators, which are flight training organisations, and persons who apply for a Part 141 certificate or a Part 142 authorisation. It exempts them from compliance with the applicable requirement in the Civil Aviation Safety Regulations 1998 (CASR) to name, for each of the operator’s key personnel, a person authorised to carry out the responsibilities of the position when the position holder is absent from the position or unable to carry out the position’s responsibilities.
The instrument exempts specified persons from CASR requirements to name alternate key personnel. It exempts a person who applies for a Part 141 certificate or who is a Part 141 operator from compliance with subparagraph 141.260 (1) (e) (iv) of CASR. That subparagraph requires the operations manual for an operator to include the name of each person authorised to carry out the responsibilities of each key personnel position when the holder of the position is absent or cannot carry out their responsibilities. It also exempts a person who is a Part 142 operator, or who applies for a Part 142 authorisation, from compliance with the requirement in subparagraph 142.340 (1) (e) (iv) of CASR to include this information in the exposition for the operator.
Human rights implications
The instrument does not engage any of the applicable rights or freedoms.
Conclusion
The instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority