Explanatory Statement
Civil Aviation Act 1988
Exemption — from CASR 60.055
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation.
Legislation — CASR 1998
Under subregulation 60.055 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998), a person who proposes to be the user of a qualified flight simulator must apply to CASA in writing for approval to do so.
Under subregulation 60.055 (2) of CASR 1998, CASA must take into account the differences between the flight simulator and the relevant aircraft, as well as the user’s operating and training competencies.
Exemptions from CASR 1998
Under subregulation 11.160 (1) of CASR 1998, CASA may grant an exemption from compliance with a provision of CASR 1998. Under subregulation 11.160 (3), CASA may grant an exemption on its own initiative. In deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety.
Under subregulation 11.205 (1), CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.210, it is an offence to fail to comply with a condition of an exemption.
Under regulation 11.225, an exemption must be published on the World Wide Web. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 2 years after its commencement) or, if no day is specified, 2 years after commencement.
Legislation — the CAO amendment
Civil Aviation Order 40.2.1 Amendment Order (No. 1) 2007 (the CAO amendment), amends Civil Aviation Order 40.2.1 (CAO 40.2.1) concerning instrument ratings. The CAO amendment has been made to permit the use of overseas training providers and flight simulators for renewal of instrument ratings where certain safety conditions are met.
Thus, the holder of a grade of instrument rating is taken to meet the requirements for the renewal of the rating if, instead of passing the relevant instrument rating test under CAO 40.2.1, the person complies with new subsection 12A in CAO 40.2.1.
Under new subsection 12A, the holder may undertake an instrument proficiency check overseas on a flight simulator with a training provider whose flight simulator qualification certificates are recognised by CASA (a recognised certificate State or RCS).
The holder must give CASA at least 10 working days’ notice of the proposed instrument proficiency check on the flight simulator.
Under Advisory Circular AC 60-2 (1) (May 2007), CASA currently recognises flight simulator qualification certificates issued by Canada, Hong Kong (Special Administrative Region of China), New Zealand, the United States of America, Belgium, the Czech Republic, Denmark, Finland, France, Germany, Ireland, Italy, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland and the United Kingdom.
The overseas training provider and the person conducting the checks must be approved by the national airworthiness authority of the RCS to undertake the instrument proficiency checks in the flight simulator.
The checks must conform to Australian instrument procedures and comply with the Australian instrument rating renewal requirements in Appendix I of CAO 40.2.1 (except paragraphs 4.1 (a), (b) and (c) dealing with use of synthetic flight trainers).
Oral test
The holder must also successfully complete an oral aeronautical knowledge test based on the matters mentioned in subclause 1.1 of Appendix 1 of CAO 40.2.1 and relevant to the instrument rating to be renewed.
Effect of the exemption
In the light of this, the effect of the exemption is to relieve the holder, seeking renewal of the instrument rating by means of the overseas flight simulator, of the additional requirement under subregulation 60.055 (1) of CASR 1998 to obtain CASA’s separate approval to use the overseas flight simulator to renew the rating.
It is considered that the requirements of new subsection 12A in the CAO amendment, including the requirement to notify CASA about the proposal to go overseas for the instrument proficiency check, are sufficiently protective of aviation safety not to require an additional, separate, flight simulator user approval under subregulation 60.055 (1). CASA considers that, in the circumstances, exemption from the user approval requirement preserves an acceptable level of safety.
Details of the exemption
Having itself been registered, the exemption commences immediately after the commencement of the CAO amendment.
The exemption stops having effect at the earlier of the revocation of subsection 12A of Civil Aviation Order 40.2.1, made by the CAO amendment, or 2 years after the exemption commences.
The exemption applies to each holder who under subsection 12A of CAO 40.2.1 uses an overseas flight simulator training provider to conduct an instrument proficiency check for the renewal of the holder’s grade of instrument rating, and complies with paragraph 12A.2 of CAO 40.2.1. This paragraph requires notification to CASA of the proposal at least 10 working days before undertaking the overseas instrument proficiency check.
The exemption exempts the holder from compliance with regulation 60.055 of CASR 1998.
Legislative Instruments Act
Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. Regulation 11.215 of CASR 1998 declares an exemption to be a disallowable instrument. The exemption is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
On 24 October 2007, CASA published a notice of proposed rule making (NPRM) for the CAO amendment, inviting public and industry consideration of, and comment on, the proposals. The proposed exemption was part of the proposal and, therefore, part of this consultation. The NPRM attracted formal responses from 4 industry participants leading CASA to fine-tune some aspects of the CAO amendment and its supporting civil aviation advisory publication (CAAP) material.
The CASA Operational Standards Sub-Committee, a joint CASA/industry consultative forum involving a variety of industry organisations, was notified of the proposed CAO amendment and related exemption and was fully supportive of them.
The exemption has been made by the Chief Executive Officer, in accordance with section 84A of the Act.
[Instrument number CASA EX68/07]