Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX83/22 – Amendment of CASA EX83/21 (Person Conducting Part 121 Proficiency Checks) – Instrument 2022 (No. 1)
Purpose
The purpose of CASA EX83/22 – Amendment of CASA EX83/21 (Person Conducting Part 121 Proficiency Checks) – Instrument 2022 (No. 1) (the exemption instrument) is to insert additional exemptions into CASA EX83/21 – Part 121 and Part 91 of CASR – Supplementary Exemptions and Directions Instrument 2021 (CASA EX83/21 or the principal exemptions instrument) to, in effect, remove an unnecessary and inadvertent requirement for duplication of certain Part 121 proficiency check events.
CASA EX83/21 made a number of exemptions and directions relating to Part 121 and Part 91 of the Civil Aviation Safety Regulations 1998 (CASR). These CASR Parts are elements of CASA’s new Flight Operations Regulations that commenced on 2 December 2021. Part 121 generally deals with Australian air transport operations in larger aeroplanes; Part 91 deals with the general aircraft operating rules and the rules of the air.
Background
The exemption instrument is for the operator of an aeroplane for a flight that is a Part 121 operation. It relates to the process for approving a person to conduct Part 121 proficiency checks (a flying skills-related check event for flight crew) if the person does not otherwise hold the prescribed qualification, namely, a flight examiner rating under Part 61 of CASR.
Generally, such a person (an applicant) applies to be approved and obtains the approval under regulation 121.010 of CASR, by successfully demonstrating to CASA the conduct of the relevant proficiency check. This demonstration normally involves the applicant “checking” actual flight crew members who require such checking (the persons being checked).
However, legally, the persons being checked during the demonstration have been “checked” by an applicant for the relevant checking approval, and not by an actually approved person, even though, at the end of the successful demonstration, the applicant is approved by CASA.
The persons being checked must, therefore, undergo a repetition of the check they had already received, but this time by a legally approved person.
This duplication was an unintended consequence of the relevant provisions in Part 121 of CASR. The purpose of the exemption instrument is to, in effect, allow the “check” conducted by the ultimately successful applicant for approval, to be valid for the persons being checked, and this obviates any need for the unintended duplication.
Thus, the exemption instrument removes an inadvertent duplication of an approval process under the Part 121 regulations. This unintended consequence will be remedied on a more permanent basis when the regulations are amended in 2023.
Legislation — exemptions
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Subpart 11.F of CASR deals with exemptions. Under subregulation 11.160 (1), and for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of CASR in relation to a matter mentioned in subsection 98 (5A). Subsection 98 (5A) matters are, in effect, those affecting the safety, airworthiness or design of aircraft.
Under subregulation 11.160 (2), an exemption may be granted to a person or a class of persons. Under subregulation 11.160 (3), CASA may grant an exemption on application, or on its own initiative. Under subregulation 11.170 (3), for an application for an exemption, CASA must regard as paramount the preservation of an acceptable level of safety. For making a decision on its own initiative, CASA is guided by the requirement in subsection 9A (1) of the Act that in exercising its powers and functions CASA must regard the safety of air navigation as the most important consideration.
Under regulation 11.205, 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 a strict liability offence not to comply with the obligations imposed by a condition.
Under regulation 11.225, CASA must, as soon as practicable, publish on the internet details of all exemptions under Subpart 11.F.
Under subregulation 11.230 (1), an exemption may remain in force for 3 years or for a shorter period specified in the instrument.
Under subregulation 11.230 (3), an exemption, in force in relation to a particular aircraft owned by a particular person, ceases to be in force when the aircraft ceases to be owned by that person.
Under regulation 11.235, an exemption is not transferable (as between operators, aircraft, etc.).
Legislation — directions
Under paragraph 11.245 (1) (a) of CASR, for subsection 98 (5A) of the Act, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Under subregulation 11.245 (2), CASA may issue such a direction only if CASA is satisfied that it is necessary in the interests of safety, only if the direction is not inconsistent with the Act, and only for the purposes of CASA’s functions.
Under regulation 11.250, a direction ceases to be in force on a day specified in the instrument or, if no day is specified, 1 year after the instrument commences. Under subregulation 11.255 (1), it is an offence to contravene a direction under regulation 11.245 that is applicable to the person.
Although no new directions are included in the exemption instrument, the empowerment is retained for consistency with the empowerment of the principal exemptions instrument.
Legislation — CASR
The exemption instrument grants exemptions from the following provisions of Part 121 of CASR (explained below) in relation to the conduct of a Part 121 proficiency check, but only to the extent of who may conduct it under paragraph 121.580 (2) (b):
(a) subregulation 121.580 (2), as applicable to a check for a pilot — this provision prescribes who may carry out pilot proficiency checks;
(b) subregulation 121.580 (5), as applicable to a flight engineer — this provision prescribes who may carry out flight engineer proficiency checks;
(c) paragraph 121.475 (2) (c) — for subparagraph 121.480 (1) (a) (ii), but only to the extent of paragraph 121.565 (b) — these provisions, in effect, prescribe 1 of the 2 required command training competency checks;
(d) paragraph 121.475 (2) (f), for paragraph 121.495 (1) (b) — but only to the extent of paragraph 121.565 (b) — these provisions also, in effect, prescribe 1 of the 2 required command training competency checks;
(e) paragraph 121.475 (2) (k) — but only to the extent of paragraph 121.560 (3) (a) — these provisions, in effect, prescribe the conversion training pre-line training proficiency check;
(f) paragraph 121.475 (2) (l) — but only to the extent of subparagraph 121.570 (1) (a) (i) — these provisions, in effect, prescribe the recurrent training and checking proficiency check required in addition to the recurrent line check;
(g) paragraph 121.540 (1) (b) — for paragraph 121.540 (3) (a), but only to the extent of paragraph 121.540 (4) (c) — these provisions, in effect, prescribe that the successful conduct of a Part 121 proficiency check is an acceptable form of recent experience.
Under subregulation 121.005 (1), Part 121 of CASR applies to the operation of a multi‑engine aeroplane for an Australian air transport operation (a relevant aeroplane) if either or both of the following apply in relation to the aeroplane: (a) it has a maximum operational passenger seat configuration of more than 9; (b) it has a maximum take-off weight of more than 8 618 kg.
Subpart 121.N of CASR applies to such operations. Subpart 121.N also applies to the operation of a multi-engine aeroplane if either or both of paragraphs (a) and (b) above apply in relation to the aeroplane, and the operator holds an Australian air transport AOC that authorises Part 121 operations, and the operation is of a kind specified in the operator’s exposition.
Under subregulation 121.475 (1) in Subpart 121.N, the operator of a relevant aeroplane for a flight contravenes the subregulation if, when the flight begins various requirements are not met. These requirements include requirements for flight crew members to undertake Part 121 proficiency checks at particular intervals and before being permitted to conduct certain air transport operations.
Under subregulation 121.580 (2) of CASR, a proficiency check for a pilot of a relevant aeroplane must be conducted by a prescribed individual. One such individual is a person who holds a flight examiner rating for the relevant aeroplane (an FER holder), or a CASA approval under regulation 121.010 of CASR to conduct the relevant proficiency check (a relevant approval holder).
Due to the intertwining of the defined term Part 121 proficiency check with multiple Subpart 121.N regulations, under subregulations 121.475 (1) and (5), the operator of an aeroplane commits an offence of strict liability if a Part 121 proficiency check is conducted by a person who does not hold a flight examiner rating under Part 61 of CASR, or does not hold an actual CASA approval for the purpose under regulation 121.010.
Thus, for a person who did not hold an FER, the successful demonstration to CASA of competency to be granted such an approval, performed by “checking” actual pilots who require such checking, would not constitute a valid check for those pilots and would have to be repeated, this time by an actually approved individual (or an FER holder).
The condition
The exemption instrument will remove that duplicative requirement by, in effect, allowing the applicant’s successful demonstration check to be valid for the pilots who were thus checked.
However, this outcome is conditional and only permitted if:
- the applicant is simultaneously under assessment by a CASA officer for the purpose of being granted an approval under regulation 121.010
- the assessment results in the applicant being granted an approval
- the operator records the outcome in the operator’s training and checking record for the applicant.
Of course, if the assessment does not result in the applicant being granted an approval, the demonstration has failed, and it is inevitable, in the interests of aviation safety, that the flight crew members who were being “checked” would have to undergo another, valid, Part 121 proficiency check.
However, if an applicant is approved in this way under the exemption, the flight crew members — the persons being checked — are regarded as having been lawfully checked.
Further, the applicant thereby holds a CASA approval under regulation 121.010 and, consequently, the exemption instrument is no longer required in relation to that particular person’s subsequent conduct of Part 121 proficiency checks.
Description of the exemption instrument
The way in which the exemption instrument operates is described in Appendix 1. (Note: for those seeking to have the benefit of an exemption, an Explanatory Statement is never a substitute for reading the terms of the exemption instrument itself, including the scope of its application, and its conditions.)
Aviation safety
In determining whether to issue the exemption instrument, CASA had regard to the safety of air navigation as the most important consideration. In deciding whether to impose particular conditions on the particular exemptions, CASA considered what would be necessary in the interests of the safety of air navigation.
CASA is satisfied that, given the nature of the processes involved, and the necessary conditions imposed by the instrument, an acceptable level of aviation safety will be preserved, and the safety of air navigation thereby maintained.
Legislation Act 2003 (the LA)
Exemptions under Subpart 11.F of CASR are “for subsection 98 (5A)” of the Act, that is, for regulations which empower the issue of certain instruments, like exemptions, in relation to “(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft”, and “(b) the airworthiness of, or design standards for, aircraft”.
The exemption instrument is clearly one in relation to matters affecting the safe navigation and operation of aircraft. Under subsection 98 (5AA) of the Act, an exemption issued under paragraph 98 (5A) (a), for such matters, is a legislative instrument if expressed to apply in relation to a class of persons, a class of aircraft or a class of aeronautical products (as distinct from a particular person, aircraft or product).
The exemption instrument applies to classes of persons and is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under section 15G, and sections 38 and 42, of the LA.
Sunsetting
As the exemption instrument relates to aviation safety and is made under CASR, that means that Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument (as per item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015).
The instrument deals with aviation safety matters that, once identified, require a risk response or treatment plan. Generally speaking, item 15, when invoked, is necessary in order to ensure that, in the interests of aviation safety, a relevant instrument has enduring effect, certainty and clarity for aviation operators both domestic and international.
In this case, the instrument amends the principal exemption instrument and is almost immediately spent and repealed in accordance with the automatic repeal provisions in Subdivision A in Division 1 of Part 3 of Chapter 3 of the LA.
The principal exemptions instrument is itself repealed at the end of 1 December 2024 by virtue of the terms of paragraph 2 (b) of the principal exemptions instrument.
Thus, in practice, no sunsetting avoidance issues arise. The fact that the instrument is formally not subject to sunsetting does not impact on the potential for parliamentary oversight.
Incorporations by reference
Under subsection 98 (5D) of the Act, the instrument may apply, adopt or incorporate any matter contained in any instrument or other writing.
A non-legislative instrument may be incorporated into a legislative instrument made under the Act as that non-legislative instrument exists or is in force at a particular time or from time to time (including a non-legislative instrument that does not exist when the legislative instrument is made).
Under paragraph 15J (2) (c) of the LA, the Explanatory Statement must contain a description of the incorporated documents and indicate how they may be obtained. There are no such specific documents.
References to provisions of CASR are taken to be as they are in force from time to time, by virtue of paragraph 13 (1) (c) of the LA. CASR is freely available online on the Federal Register of Legislation.
Consultation
Under section 16 of the Act, in performing its functions and exercising its powers, CASA must consult government, industrial, commercial consumer and other relevant bodies and organisations insofar as CASA considers such consultation to be appropriate.
Under section 17 of the LA, before a legislative instrument is made, CASA must be satisfied that it has undertaken any consultation it considers appropriate and practicable in order to draw on relevant expertise and involve persons likely to be affected by the proposals.
Exemptions from regulatory requirements are considered to be beneficial for those to whom they apply, who voluntarily elect to take advantage of them, and who comply with their conditions. It is, therefore, rarely necessary to engage in extensive public consultation on a proposed exemption. However, it is CASA’s policy to consult, where possible, in an appropriate way with those parts of the aviation industry most likely to avail themselves of, or be affected by, an exemption so that they may have the opportunity to comment on the possible or likely terms, scope and appropriateness of the exemption.
The duplicated checking which the exemption instrument is designed to remedy was unintended and not identified in preparing the final draft of Part 121 of CASR. However, there would have been an implicit understanding among all concerned in earlier relevant consultation that pre-existing industry practices, whereby duplicated flight crew member checking events were not necessary, would be continued under the new Part 121. Therefore, CASA considered that further formal consultation was not necessary or appropriate before making for the current exemption instrument.
Nevertheless, there has been informal consultation with elements of the aviation industry and discussions about the ongoing need to adjust the requirements placed on industry by the new Flight Operations Regulations, of which Part 121 is an element, consistent with previously consulted statements and understandings of its intent.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for Exemption or Direction instruments (OBPR id: 14507).
Economic and cost impact, and sector risks
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.
In terms of economic and cost impacts for subsection 9A (3) of the Act, the exemption instrument will remove an unnecessary and unintended duplication in the checking of flight crew members.
Thus, the exemption instrument will have the effect of lowering some costs for industry that might otherwise have arisen.
Sector risks
For aviation safety reasons, the exemption instrument is specific to those Part 121 operators who fall within its scope and who choose to take the benefit of the exemptions and comply with its conditions.
Rural and regional impacts
The Minister’s Statement of Expectations for the CASA Board states: “I expect that CASA will: … (b) fully consider the impact of new regulations on general aviation, with a particular focus on regional and remote Australia. All Explanatory Statements drafted by CASA for subordinate legislation should identify the impact on the various categories of operations as well as on communities in regional and remote Australia served by those operations and how these impacts have been considered.”
There are no identified rural and regional impacts that differ in any material way from the general economic and cost impacts, or sector risks described above.
Environmental impact
Under subsection 9A (2) of the Act, while regarding the safety of air navigation as the most important consideration, CASA must exercise its powers and perform its functions in a manner that ensures that, as far as practicable, the environment is protected from the effects and associated effects of the operation and use of aircraft.
It is not anticipated there will be any negative environmental impacts as a result of the exemption instrument, as compared to the baseline that existed on 1 December 2021, since the instrument is removing an unintended duplication of a checking process which would otherwise have involved duplicated flights for operators not required to use, or not opting to use, flight simulators.
Thus, the exemption instrument as such will have no specific negative effect on the environment.
Statement of Compatibility with Human Rights
The Statement in Appendix 2 is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The exemption instrument is compatible with human rights: with its aviation safety focus, it promotes the right to life, and it does so in a way that is reasonable, necessary and proportionate in the context of the regulatory aviation safety framework. By reducing some checking costs it may support the right to work.
Commencement and making
The instrument commences on the day after it is registered.
The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
Appendix 1
Details of:
CASA EX83/22 – Amendment of CASA EX83/21 (Person Conducting Part 121 Proficiency Checks) – Instrument 2022 (No. 1)
1 Name
This instrument is CASA EX83/22 – Amendment of CASA EX83/21 (Person Conducting Part 121 Proficiency Checks) – Instrument 2022 (No. 1).
2 Commencement
Under this section, the instrument commences on the day after it is registered.
3 Amendment of CASA EX83/21
Under this section, Schedule 1 amends CASA EX83/21 – Part 121 and Part 91 of CASR – Supplementary Exemptions and Directions Instrument 2021.
Schedule 1 Amendments
[1] After section 14D – new section 14DA – Part 121 proficiency checks – approval to conduct – exemption
This amendment inserts a new section 14DA, Part 121 proficiency checks — approval to conduct — exemption.
(1) Under new subsection 14DA (1), the section applies to the operator of an aeroplane for a flight that is a Part 121 operation (the operator).
(2) Under new subsection 14DA (2), the operator is exempted from compliance with Part 121 proficiency checks under the following provisions of Part 121, but only to the extent of who may conduct the check under paragraph 121.580 (2) (b):
(a) subregulation 121.580 (2), as applicable to a check for a pilot;
(b) subregulation 121.580 (5), as applicable to a flight engineer;
(c) paragraph 121.475 (2) (c) — for subparagraph 121.480 (1) (a) (ii), but only to the extent of paragraph 121.565 (b);
(d) paragraph 121.475 (2) (f), for paragraph 121.495 (1) (b) — but only to the extent of paragraph 121.565 (b);
(e) paragraph 121.475 (2) (k) — but only to the extent of paragraph 121.560 (3) (a);
(f) paragraph 121.475 (2) (l) — but only to the extent of subparagraph 121.570 (1) (a) (i);
(g) paragraph 121.540 (1) (b) — for paragraph 121.540 (3) (a), but only to the extent of paragraph 121.540 (4) (c).
(3) Under new subsection 14DA (3), each exemption under subsection (2) is subject to the condition that the operator must ensure that the person who conducts the Part 121 proficiency check (the task) is a person who:
(a) while conducting the task, is simultaneously under assessment by a CASA officer for an approval under regulation 121.010 to conduct a Part 121 proficiency check; and
(b) is granted the approval; and
(c) is recorded in the operator’s training and checking record for the persons undertaking the Part 121 proficiency check, as a person who meets the relevant requirements in paragraphs (a) and (b).
(4) Under new subsection 14DA (4), the exemptions in subsection (2) are subject to the condition that a Part 121 proficiency check for which the operator takes the benefit of the exemption must:
(a) conform to the validity requirements of:
(i) regulation 121.575, as if the check were a Part 121 proficiency check conducted by a person mentioned in subregulation 121.580 (2) or (5) (as applicable); or
(ii) subparagraph (i), taking into account the effect of section 13; and
(b) meet the requirements of Division 5 of Chapter 12 of the Part 121 Manual of Standards, as if the check were a Part 121 proficiency check.
A Note explains that the exemptions under this section do not affect subregulation 119.170 (6) or (7). Regulation 119.170 concerns the requirement that Australian air transport operators must have a training and checking system. Under subregulation 119.170 (6), certain checking must be conducted, and under subregulation 119.170 (7), such checking must be by the operator’s (in effect, properly qualified, or approved under the exemption instrument) employees.
Appendix 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX83/22 – Amendment of CASA EX83/21 (Person Conducting Part 121 Proficiency Checks) – Instrument 2022 (No. 1)
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 purpose of CASA EX83/22 – Amendment of CASA EX83/21 (Person Conducting Part 121 Proficiency Checks) – Instrument 2022 (No. 1) (the exemption instrument) is to insert additional exemptions into CASA EX83/21 – Part 121 and Part 91 of CASR – Supplementary Exemptions and Directions Instrument 2021 (CASA EX83/21 or the principal exemptions instrument) to, in effect, remove an unnecessary and inadvertent requirement for duplication of Part 121 proficiency check events.
CASA EX83/21 made a number of exemptions and directions relating to Part 121 and Part 91 of the Civil Aviation Safety Regulations 1998 (CASR). These CASR Parts are elements of CASA’s new Flight Operations Regulations that commenced on 2 December 2021. Part 121 generally deals with Australian air transport operations in larger aeroplanes; Part 91 deals with the general aircraft operating rules and the rules of the air.
Background
The exemption instrument is for the operator of an aeroplane for a flight that is a Part 121 operation. It relates to the process for approving a person to conduct Part 121 proficiency checks (a flying skills-related check event for flight crew) if the person does not otherwise hold the prescribed qualification, namely, a flight examiner rating under Part 61 of CASR.
Generally, such a person (an applicant) applies to be approved and obtains the approval under regulation 121.010 of CASR, by successfully demonstrating to CASA the conduct of the relevant proficiency check. This demonstration normally involves the applicant “checking” actual flight crew members who require such checking (the persons being checked).
However, legally, the persons being checked during the demonstration have been “checked” by an applicant for the relevant checking approval, and not by an actually approved person, even though, at the end of the successful demonstration, the applicant is approved by CASA.
The persons being checked must, therefore, undergo a repetition of the check they had already received, but this time by a legally approved person.
This duplication was an unintended consequence of the relevant provisions in Part 121 of CASR. The purpose of the exemption instrument is to, in effect, allow the “check” conducted by the ultimately successful applicant for approval, to be valid for the persons being checked, and this obviates any need for the unintended duplication.
Thus, the exemption instrument removes an inadvertent duplication of an approval process under the Part 121 regulations. This unintended consequence will be remedied on a more permanent basis when the regulations are amended in 2023.
Human rights implications
The legislative instrument may indirectly engage the following human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011:
- the right to life under Article 6 of the International Covenant on Civil and Political Rights
- the right to work under Article 6 of the International Covenant on Economic, Social and Cultural Rights.
This engagement is in the context of CASA’s statutory purpose. The aim of CASA and its regulatory framework is to uphold aviation safety by prescribing the conduct of individuals and organisations involved in civil aviation operations, including flight operations. It is, therefore, a threshold requirement for all CASA legislative instruments that they preserve, promote or enhance aviation safety.
The relevant exemptions facilitate Part 121 aeroplane operators in the cost-effective checking of flight crew members by removing a requirement that imposes unintended duplicated proficiency checking.
The checking itself promotes safety and hence protects the right to life.
Removal of unnecessary duplication of that checking is a cost-saving measure that ultimately contributes to economic viability and the right to work.
Thus, the instrument has no negative effect of human rights, and may be said to support the 2 rights mentioned above.
Human rights implications
This legislative instrument is compatible with human rights and to the extent that it may engage certain rights it does so in a way that promotes the right to life and the right to work in relation to the operations of relevant aircraft. These measures are considered to be reasonable, necessary and proportionate in the interests of aviation safety.
Conclusion
This legislative instrument is compatible with human rights.
Civil Aviation Safety Authority