Explanatory Statement
Civil Aviation Regulations 1988
Exemption — recent experience requirements
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 subregulation 5.18 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may give directions in Civil Aviation Orders (the CAOs) setting out the authority given by a flight crew rating, or grade of flight crew rating, and the limitations on that authority and the flight tests that must be passed, or any requirement that must be satisfied, before the authority may be exercised.
CASA has issued a direction in Civil Aviation Order 40.2.1 (CAO 40.2.1). Paragraph 11.4 of CAO 40.2.1 provides that the holder of a command instrument rating must not carry out an ILS or LLZ approach in I.M.C. as pilot in command of an aircraft unless, within the preceding 35 days, he or she has not performed in flight, or in an approved synthetic trainer, either 1 of those approaches.
Under subregulation 308 (1) of CAR 1988, CASA may exempt persons from compliance with specified provisions of CAR 1988 in relation to a category of aircraft. Under subregulation 308 (3), an exemption is subject to the person complying with any conditions which CASA specifies to be necessary in the interests of safety.
The ILS recency requirements have been in place for many years. It has not taken into consideration technological advancements and aircraft design. Modern aircraft design has simplified ILS approaches.
The instrument exempts the holder of a command instrument rating from the requirement of paragraph 11.4 of CAO 40.2.1 in relation to having performed in flight, or in a synthetic trainer, either an ILS or LLZ approach in I.M.C. within the preceding 35 days. The exemption is subject to conditions which include the holder participating in the cyclic training and proficiency program of Qantas Airways Limited (Qantas).
Legislative Instruments Act
Under regulation 5A of CAR 1988 if CASA has issued a CAO that is not an Airworthiness Directive and a prescribed direction or exemption is issued, given or granted and the prescribed direction or exemption has the effect of repealing, amending or otherwise affecting the operation of anything in the CAO, the prescribed direction or exemption is a disallowable instrument. Because the exemption affects the operation of paragraph 11.4 of CAO 40.2.1, it is declared to be a disallowable instrument under regulation 5A of CAR 1988.
By operation of subregulation 308 (4) of CAR 1988 and subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), the exemption is a legislative instrument for section 5 of the LIA. It is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Consultation has not been undertaken. This instrument has been requested by Qantas. Any operator who meets the requirements will be able to be issued with a similar instrument.
The exemption commences on the day after it is registered. It stops having effect at the end of 31 July 2011.
The exemption has been made by a delegate of CASA under subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX67/09]
Overview
The Civil Aviation Regulations 1988, as amended, provide a framework for the regulation of aviation activities in Australia, including setting standards for pilot qualifications and operations. In 2009, an exemption was introduced to address the outdated recent experience requirements for instrument landing systems (ILS) and localiser performance with vertical guidance (LLZ) approaches, which did not account for advancements in aircraft design and technology. The exemption, issued under the authority of the Civil Aviation Act 1988, allows holders of a command instrument rating to be exempt from the requirement of performing an ILS or LLZ approach in instrument meteorological conditions within the preceding 35 days, provided they participate in a specified cyclic training and proficiency program, such as that offered by Qantas Airways Limited. This exemption was enacted by the Civil Aviation Safety Authority (CASA) and is subject to conditions deemed necessary for safety, as well as parliamentary disallowance provisions under the Legislative Instruments Act 2003. The exemption is effective from the day after registration until 31 July 2011.
Scope and Application
The Civil Aviation Regulations 1988, amended by the exemption in question, apply to holders of a command instrument rating, specifically those employed by Qantas Airways Limited who wish to perform Instrument Landing System (ILS) or Localiser Performance with Vertical Guidance (LPV) approaches in Instrument Meteorological Conditions (IMC). The exemption, which modifies the requirements set out in Civil Aviation Order 40.2.1, is geographically applicable within the Commonwealth of Australia and pertains to the operation of civil aircraft under the purview of the Civil Aviation Act 1988. The exemption relieves the affected pilots from the necessity of performing an ILS or LPV approach within the preceding 35 days, provided they participate in Qantas' cyclic training and proficiency program. However, the exemption does not extend to other operators unless they meet the specific conditions set forth by the Civil Aviation Safety Authority (CASA). The exemption is a disallowable instrument under the Legislative Instruments Act 2003, subject to disallowance by Parliament, and it is effective from the day after registration until 31 July 2011.
Key Provisions
The primary operative sections of this legislation focus on the exemption of certain recent experience requirements for pilots holding a command instrument rating, as stipulated in paragraph 11.4 of Civil Aviation Order 40.2.1 (CAO 40.2.1). Specifically, Section 308(1) of the Civil Aviation Regulations 1988 (CAR 1988) allows the Civil Aviation Safety Authority (CASA) to exempt individuals from compliance with certain provisions of the regulations. This exemption, detailed in the instrument CASA EX67/09, exempts the holder of a command instrument rating from the requirement of performing an ILS or LLZ approach in Instrument Meteorological Conditions (IMC) within the preceding 35 days, provided the pilot participates in a cyclic training and proficiency program. This exemption is intended to accommodate the advancements in aircraft technology and design, which have simplified such approaches.
The obligations imposed by this legislation are primarily on the holders of a command instrument rating who seek to avail themselves of the exemption. To qualify, these individuals must participate in the cyclic training and proficiency program offered by Qantas Airways Limited (Qantas). This requirement ensures that pilots maintain the necessary skills and competencies, despite the reduced frequency of required approach exercises. Additionally, the exemption is subject to the broader conditions specified by CASA, which are aimed at ensuring that safety standards are maintained. CASA retains the authority to specify additional conditions that it deems necessary for safety reasons.
Failure to comply with the conditions of this exemption could result in civil or criminal consequences. Although specific penalties are not outlined in the document, general provisions under the Civil Aviation Act 1988 (the Act) and the Civil Aviation Regulations 1988 (CAR 1988) suggest that non-compliance could lead to enforcement actions by CASA. This could include fines, revocation of flight crew ratings, or other regulatory measures. The maximum penalties for such breaches would typically be in line with those stipulated in the broader aviation regulatory framework, which can include substantial financial penalties and potential criminal charges for serious violations. The legislation also outlines that this exemption is a disallowable instrument under regulation 5A of CAR 1988, and as such, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (LIA).