CASA EX75/10 – Exemption – recency requirements for night flying (Virgin Blue Airlines Pty Limited)

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Legislation au F2010L02396 Not in force Legislative Instrument

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Explanatory Statement

Civil Aviation Regulations 1988

Exemption — recency requirements for night flying (Virgin Blue Airlines Pty Limited)

 

Legislation

Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations.

 

Subregulation 5.109 (1) of the Civil Aviation Regulations 1988 (CAR 1988) provides that a commercial (aeroplane) pilot (the holder of a commercial aeroplane pilot licence) must not fly an aeroplane carrying another person unless the pilot satisfies the requirements set out in the subregulation.

 

Subregulation 5.170 (1) of CAR 1988 provides that an air transport (aeroplane) pilot (the holder of an air transport aeroplane pilot licence) must not fly an aeroplane carrying another person unless the pilot satisfies the requirements set out in the subregulation.

 

Paragraphs 5.109 (1) (b) and 5.170 (1) (b) of CAR 1988 both mention certain requirements (recency requirements) that the pilot must have satisfied in the immediately preceding period of 90 days, being requirements relating to take-offs and landings at night. These requirements are that the pilot has, within the period, carried out at least 3 take-offs and 3 landings at night, while flying the aeroplane as pilot in command, or as pilot acting in command under supervision or in dual flying. Alternatively, in that period, the pilot must have satisfactorily completed an aeroplane proficiency check that was completed at night or passed a flight test that was conducted at night for the issue, or renewal, of an aeroplane pilot rating.

 

The exemption allows Virgin Blue Airlines Pty Limited, Aviation Reference Number 567591 (the operator), to use an approved flight simulator to satisfy recency requirements instead of relying on flights in an aeroplane. It differs from paragraphs 5.109 (1) (b) and 5.170 (1) (b) of CAR 1988 in that it allows the recency requirement to be satisfied by 1 night take-off and 1 night landing in the immediately preceding 90 days that have been carried out in an approved flight simulator or an aircraft of the same type. In addition, it requires the pilot to have carried out at least 3 night take-offs and 3 night landings in the immediately preceding 180 days in an approved flight simulator or an aircraft of the same type.

 

Alternatively, in that period, the pilot must have satisfactorily completed an aeroplane night operations proficiency check that was conducted in an approved flight simulator or an aircraft of the same type.

 

If the flight to which the exemption applies includes a circling approach, then the pilot must have, within the immediately preceding 90 days, carried out at least 1 night circling approach in an approved flight simulator or an aircraft of the same type.

If the flight to which the exemption applies includes an approach without a serviceable electronic or visual slope guidance system, then the pilot must have, within the immediately preceding 180 days, carried out at least 1 night approach without using an electronic or visual slope guidance system in an approved flight simulator or an aircraft of the same type.

 

Any flight to which the exemption applies may be conducted only to an aerodrome that is a certified aerodrome and has an authorised instrument approach procedure for night operations.

 

Any flight to which the exemption applies may be conducted only by an operator that has a current CASA approved training and checking organisation and that also has a current CASA approval as the user of a flight simulator representative of the aircraft type.

 

The conditions in the instrument are largely consistent with and, in some cases, may be additional to, the requirements of the International Civil Aviation Organisation (ICAO) and the European Joint Aviation Regulations.

 

The exemption would allow the operator to rely on flight simulators to meet the recency requirements and would also allow the operator to rely on normal line flying and on its training and checking organisation instead of requiring the pilot to undergo special flight tests as may be required by CASA. The tests and procedures in the training and checking organisation require approval by CASA.

 

Legislative Instruments Act

Under subregulation 308 (4) of CAR 1988, an exemption is a disallowable instrument for section 46A of the Acts Interpretation Act 1901. 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. The instrument 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

Consultation within the aviation industry as a whole has not taken place. The exemption is in a form consistent with and, in some cases, may be additional to ICAO and European standards. Any operator whose procedures and training and checking organisation is considered by CASA to make satisfactory provision for testing and training pilots for night flying operations would be granted an equivalent exemption.

 

The exemption commences on the day after it is registered and stops having effect at the end of 31 August 2012.

 

The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.

 

[Instrument number CASA EX75/10]

Overview

The Civil Aviation Regulations 1988 were amended in 2010 to introduce an exemption for Virgin Blue Airlines Pty Limited regarding the recency requirements for night flying operations. This legislative instrument, known as F2010L02396, was enacted to address the specific needs of the airline by allowing the use of approved flight simulators to meet certain night flying recency requirements instead of requiring pilots to fly in an actual aeroplane. The exemption was introduced under the authority of Section 98 of the Civil Aviation Act 1988, with the objective of aligning the airline's training and operational practices with international standards, particularly those of the International Civil Aviation Organisation (ICAO) and European Joint Aviation Regulations. This exemption permits the airline to use flight simulators to satisfy the necessary recency requirements, thus allowing for more flexible and efficient training methods. The exemption is subject to specific conditions, such as the use of certified aerodromes and adherence to CASA-approved training and checking organisations. It is noteworthy that the exemption is consistent with, and in some cases exceeds, international standards and is designed to provide a streamlined approach for Virgin Blue Airlines while maintaining safety standards.

Scope and Application

The Civil Aviation Regulations 1988 Exemption for recency requirements for night flying applies specifically to Virgin Blue Airlines Pty Limited, Aviation Reference Number 567591. This exemption allows the airline to satisfy the recency requirements for night flying operations through the use of an approved flight simulator, rather than relying solely on flights in an aeroplane. This exemption applies to commercial aeroplane pilots and air transport aeroplane pilots who must adhere to the recency requirements stipulated in the Civil Aviation Regulations 1988. The exemption modifies the conditions set out in subregulations 5.109(1)(b) and 5.170(1)(b) of the Civil Aviation Regulations 1988 by allowing these pilots to satisfy the recency requirements through the use of a flight simulator. This exemption has a national jurisdictional reach, as it is an instrument of the Civil Aviation Act 1988, which is Commonwealth legislation. The exemption is subject to disallowance under section 46A of the Acts Interpretation Act 1901 and the Legislative Instruments Act 2003, and it is required to be tabled and may be disallowed by the Parliament. The exemption is in line with, and in some cases exceeds, the requirements of the International Civil Aviation Organisation and the European Joint Aviation Regulations. The exemption is effective from the day after its registration and will cease to have effect at the end of 31 August 2012.

Key Provisions

The primary sections of the legislation, including subregulations 5.109(1) and 5.170(1) of the Civil Aviation Regulations 1988 (CAR 1988), establish the baseline requirements for commercial and air transport aeroplane pilots to carry out specific night flying recency tasks. These tasks include completing at least three take-offs and landings at night or passing a proficiency check at night within a 90-day period. The exemption in question, however, modifies these requirements for Virgin Blue Airlines Pty Limited. Instead of the specified night flying tasks, the operator can satisfy these recency requirements by conducting a night take-off and landing in an approved flight simulator within the last 90 days, or through additional tasks over a 180-day period. The exemption imposes specific obligations on Virgin Blue Airlines Pty Limited. It mandates that the operator must have a current Civil Aviation Safety Authority (CASA) approval as a user of a flight simulator representative of the aircraft type, and that the operator must have a current CASA-approved training and checking organisation. Furthermore, any flight conducted under the exemption must be to a certified aerodrome that has an authorised instrument approach procedure for night operations. This means that the operator must ensure their pilots are adequately trained and that the flight simulators used meet CASA standards. There are no explicit offences, penalties, or consequences mentioned in the text for breach of the exemption provisions. However, the exemption is a disallowable instrument under section 46A of the Acts Interpretation Act 1901, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003. This implies that if the exemption were to be breached or if the conditions were not met, the operator could face scrutiny and potential regulatory action by CASA, which could include further investigations or revocation of the exemption. The exemption is tailored to allow Virgin Blue Airlines Pty Limited to use approved flight simulators to meet the recency requirements for night flying, thereby reducing the need for actual night flying operations. This is particularly beneficial for the operator as it allows reliance on normal line flying and the established training and checking organisation, instead of requiring additional special flight tests as mandated by CASA. The exemption is designed to align with and, in some cases, exceed the requirements set by the International Civil Aviation Organisation (ICAO) and European Joint Aviation Regulations.

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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.