Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX84/20 — Chief Pilot Requirements (Aerial Application and Certain Aerial Work Operators) Instrument 2020
Purpose
The purpose of this instrument is to provide an alternative method to satisfy some of the requirements to be approved by CASA as a Chief Pilot of an aircraft operator that conducts Part 137 aerial application operations, or such operations together with certain aerial work operations in aeroplanes.
Legislation
Civil Aviation Act 1988 (the Act)
Section 98 of 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) and the Civil Aviation Regulations 1988 (CAR).
Under subsection 9A (1) of the Act, in exercising its powers and performing its functions, CASA must regard the safety or air navigation as the most important consideration.
Under paragraph 28BA (1) (b) of the Act, an Air Operator’s Certificate (AOC) issued by the Civil Aviation Safety Authority (CASA) has effect subject to any conditions specified in the regulations or Civil Aviation Orders (CAO). Subsection 98 (4A) of the Act empowers CASA to issue CAOs with respect to any matter in relation to which regulations may be made for the purposes of section 28BA.
Civil Aviation Order 82.0
CASA has made CAO 82.0, which applies to AOCs authorising aerial work operations (such as agricultural operations), charter operations and regular public transport operations. It sets out conditions to which such AOCs are subject for the purposes of paragraph 28BA (1) (b) of the Act.
Subsection 5 of CAO 82.0 provides that, where a Chief Pilot is required by Part 82 of the CAOs to be appointed by an operator, it is a condition of the operator’s AOC that the operator will comply with the requirements of Appendix 1 of CAO 82.0. Relevantly for operators conducting aerial work operations, paragraph 2.2 of CAO 82.1 requires the operator to establish a position of Chief Pilot and appoint a person to that position. Therefore, operators conducting aerial work operations must comply with the requirements of Appendix 1 of CAO 82.0.
Subclause 1.1 of Appendix 1 of CAO 82.0 requires that a person must not be appointed as, or act as, a Chief Pilot unless the person’s appointment has been approved in writing by CASA after application in writing by the operator.
Under subclause 1.3 of Appendix 1 of CAO 82.0, the appointment of a Chief Pilot may be approved only if the person has:
(a) in the opinion of CASA, maintained a satisfactory record in the conduct or management of flying operations; and
(b) been assessed, by an examiner appointed by CASA, as suitable to carry out the responsibilities of a Chief Pilot; and
(c) passed an oral examination, conducted by an examiner appointed by CASA, covering the regulatory requirements for the safe conduct of commercial operations; and
(d) passed a flight planning, loading and performance examination, conducted by an examiner appointed by CASA, based on the operator’s most complex aircraft; and
(e) if required by CASA — flown with a person nominated by CASA to demonstrate their suitability for appointment.
Exemptions and directions
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations and the CAOs. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations or a CAO.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons and may specify the class by reference to membership of a specified body or any other characteristic. Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant an exemption on its own initiative.
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.
Subpart 11.G of CASR provides for CASA to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a) of CASR, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245 (2) of CASR provides that CASA may issue such a direction if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, if the direction is not inconsistent with the Act, and for the purposes of CASA’s functions.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255 it is an offence of strict liability to contravene a direction under regulation 11.245.
Part 137 of CASR
Part 137 of CASR relates to aerial application operations using aeroplanes. Subregulation 137.005 (2) to (5) of CASR specifies the operators to which Part 137 applies and includes operators that have an AOC that authorises the operator to undertake agricultural operations. The terms aerial application operations (defined in regulation 137.010 of CASR) and agricultural operations (defined in regulation 2 of CAR) have different definitions, but both include a flight by an aeroplane to drop fertiliser, seeds and other material.
Under regulation 137.020 of CASR, if a provision of CASR or CAR is inconsistent with a provision in Part 137, the provision in Part 137 prevails to the extent of the inconsistency. Regulation 137.020 does not affect the operation of CAO 82.0, which is made under paragraph 28BA (1) (b) of the Act.
Under subregulation 137.065 (1) of CASR, an operator must nominate an individual to be the head of flight operations in the operator’s organisation. That subregulation is subject to subregulation 137.065 (5), which provides that a person who, under CAO 82.0, is approved as Chief Pilot of an operator, is taken to be the head of flight operations for the operator.
Civil Aviation Regulations 1988
Under paragraph 2 (7) (a) of CAR, an aircraft that is flying or operating for a commercial purpose referred to in paragraph 206 (1) (a) of CAR shall be taken to be employed in aerial work operations. Regulation 206 of CAR specifies the commercial purposes for which an aircraft operator requires an AOC, which include, under paragraph 206 (1) (a), aerial work purposes. Paragraph 206 (1) (a) lists the kinds of purposes that are aerial work purposes and includes agricultural operations, aerial surveying, aerial spotting, aerial photography, advertising, balloon flying training, ambulance functions and any other purpose that is substantially similar to any of those purposes.
Background
The Aerial Application Association of Australia (AAAA) represents operators of aircraft conducting agricultural and firefighting operations in Australia. It has developed a training course, entitled the Chief Pilots Course, that includes mandatory pre‑course activities that include skill‑based prerequisites and comprehensive reading material. It also includes mandatory attendance at a face-to-face workshop and training session, which includes multiple assessed exercises over a 3-day period. AAAA has proposed to CASA that successful completion of the course is a suitable alternative to meeting some of the requirements in subclause 1.3 of Appendix 1 of CAO 82.0.
CASA has assessed AAAA’s proposal for the Chief Pilots Course to replace the assessment, examinations and demonstration in paragraphs 1.3 (b) to (e) of Appendix 1 of CAO 82.0 and is satisfied this would have no impact on the safety of an operator’s operations. Therefore, CASA has decided that individuals who have successfully completed the course, and been assessed by the course provider as suitable to carry out the responsibilities of a Chief Pilot, need not meet the requirements in paragraphs 1.3 (b) to (e) of Appendix 1 of CAO 82.0.
AAAA conducted the course in Brisbane between 5 and 7 November 2019.
Overview of instrument
The instrument grants an exemption to a specified class of aircraft operators so that their nominee for Chief Pilot is not required to meet the requirements in paragraphs 1.3 (b) to (e) of Appendix 1 of CAO 82.0 if the nominee has, within the previous 24 months, successfully completed a specified course of training and been assessed as suitable to carry out the responsibilities of a Chief Pilot.
Content of instrument
Section 1 of the instrument states the name of the instrument.
Section 2 of the instrument specifies the duration of the instrument, being from the day after registration of the instrument on the Federal Register of Legislation until the end of 31 May 2022.
Section 3 of the instrument defines the term aerial application operation by reference to the definition of that term in regulation 137.010 of CASR. It also defines the term CAO 82.0 to mean Civil Aviation Order 82.0, as in force from time to time. A note also states that certain terms and expressions in the instrument, such as aerial work operation, AOC and Chief Pilot, have the same meaning as in the Act, regulations and CAOs.
Section 4 of the instrument specifies the aircraft operators to whom the instrument applies. The instrument applies to an operator only if:
- the operator is the holder of, or an applicant for, an AOC; and
- the only operations the AOC authorises, or is proposed to authorise, are aerial application operations or such operations together with aerial work operations in aeroplanes; and
- the AOC does not authorise, or propose to authorise, operations for the purpose of ambulance functions or any other purpose that is substantially similar to ambulance functions; and
- the operator applies to CASA for appointment of a person (referred to as the proposed person) as, or to act as, the operator’s Chief Pilot; and
- the proposed person has, within the previous 24 months, successfully completed a course of training mentioned in Schedule 1 of the instrument, and been assessed by the person conducting that course as suitable to carry out the responsibilities of a Chief Pilot.
The instrument only applies if the operator’s AOC authorises, or would authorise, Part 137 aerial application operations, or such operations together with certain aerial work operations using aeroplanes. Given the nature of the course mentioned in Schedule 1, CASA’s view is that the instrument should not apply where the operator is authorised to conduct ambulance functions, balloon flying training (which can only be conducted in a balloon) or operations for similar purposes. Similarly, the instrument will not apply to an operator whose AOC also authorises other types of activity, such as charter or regular public transport operations, or authorises operations in helicopters.
Section 5 of the instrument states that an operator (to whom the instrument applies) is exempt from the requirements in paragraphs 1.3 (b) to (e) of Appendix 1 of CAO 82.0. It also exempts the operator from the requirements of subsection 5 of CAO 82.0 to the extent that subsection 5 of CAO 82.0 requires compliance with paragraphs 1.3 (b) to (e) of Appendix 1 of CAO 82.0.
A note under section 5 explains that subclause 1.3 of Appendix 1 of CAO 82.0 requires a person to meet specified requirements before the person can be approved for appointment as an operator’s Chief Pilot. Although the requirements in subclause 1.3 of Appendix 1 of CAO 82.0 relate to the suitability and qualifications of the proposed Chief Pilot, the obligation to comply with relevant provisions of CAO 82.0 is placed on the operator.
The exemption in section 5 does not relieve the operator and proposed Chief Pilot from the requirement in paragraph 1.3 (a) of Appendix 1 of CAO 82.0. Therefore, the appointment of a person as Chief Pilot can only be approved by CASA if, in the opinion of CASA, the person has maintained a satisfactory record in the conduct or management of flying operations. The retention of that requirement ensures that CASA retains discretion to ensure that only appropriate individuals are appointed, or act, as Chief Pilots and are therefore allowed to undertake particular activities that have inherent safety risks.
Section 6 of the instrument issues a direction, under regulation 11.245 of CASR, to a person who conducts a course of training mentioned in Schedule 1. It requires the person to allow CASA to conduct an audit of the course. This will allow CASA to monitor the standard of the course and assess whether it provides the level of training required to preserve an acceptable level of aviation safety. For example, it will allow CASA to assess whether the course participants will receive appropriate training and assessment to enable them to carry out the responsibilities of a Chief Pilot.
A note under section 6 alerts readers that CASA has the power to issue directions, in the interests of the safety of air navigation, about the content and conduct of a training course mentioned in Schedule 1. CASA may use this power if, for example, a course is found to require improvements to properly address the competencies required of a Chief Pilot.
Schedule 1 of the instrument lists the courses of training that are approved as an alternative to compliance with paragraphs 1.3 (b) to (e) of Appendix 1 of CAO 82.0.
At this stage, the only course that has been recognised by CASA for the purposes of the exemption is the Chief Pilots Course that was conducted by AAAA in Brisbane in November 2019. That course is described in clause 1 of Schedule 1. If, after the commencement of the instrument, AAAA conducts a course that is substantially the same as the course mentioned in clause 1, with the elements as described in clause 2 of Schedule 1, it will also be recognised for the purposes of the exemption.
Clause 3 of Schedule 1 empowers CASA to approve additional courses of training, whether conducted by AAAA or another provider, for the purposes of the exemption. In accordance with subsection 9A (1) of the Act, in deciding whether to approve a course, CASA will regard the safety of air navigation as the most important consideration. A decision by CASA to refuse to approve a course of training under clause 3 of Schedule 1 is subject to merits review by the Administrative Appeals Tribunal.
The instrument does not prevent an operator from applying for a person who has not completed a course of training mentioned in Schedule 1 to be appointed as, or to act as, Chief Pilot of the operator if the person meets all of the requirements in subclause 1.3 of Appendix 1 of CAO 82.0. Rather, it provides alternative criteria for approval of a person’s appointment as, or to act as, a Chief Pilot.
Legislation Act 2003
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. The instrument exempts a class of persons from complying with provisions in CAO 82.0. 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
CASA has consulted on this instrument with AAAA, which represents operators of aircraft affected by this instrument and conducts the course of training mentioned in Schedule 1 of the instrument. CASA provided a draft of the instrument and explanatory statement to AAAA. CASA has considered AAAA’s comments on the draft of the instrument and explanatory statement, including comments on the application and scope of the instrument, when finalising the instrument.
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 exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
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.
Making and commencement
The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument commences on the day after registration and is repealed at the end of 31 May 2022.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX84/20 — Chief Pilot Requirements (Aerial Application and Certain Aerial Work Operators) Instrument 2020
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 legislative instrument grants an exemption to a specified class of aircraft operators that conduct aerial work operations in aeroplanes. The instrument relates to the requirements that must be met by a person who the operator nominates to be, or to act as, its Chief Pilot.
The legislative instrument removes the requirements in paragraphs 1.3 (b) to (e) of Appendix 1 of Civil Aviation Order 82.0 (CAO 82.0), which require the completion of an assessment, examinations and a demonstration by the operator’s nominee. Instead the proposed Chief Pilot is required, within the previous 24 months, to have successfully completed a course of training specified in Schedule 1 of the instrument and been assessed by the course provider as suitable to carry out the responsibilities of a Chief Pilot.
Human rights implications
The legislative instrument engages the following rights:
- The right to work (Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)); and
- The right to protection against arbitrary and unlawful interferences with privacy (Article 17 of the International Covenant on Civil and Political Rights (ICCPR)).
Right to work
The right to work in Article 6 (1) of ICESCR includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept. The right to work is engaged by the exemption from the requirements, in paragraphs 1.3 (b) to (e) of Appendix 1 of CAO 82.0, for completion of the specified assessment, examinations and a demonstration before an individual can be appointed as, or act as, a Chief Pilot. It increases the opportunity for individuals to be appointed as, or act as, a Chief Pilot. The exemption, therefore, promotes the right to work of the affected individuals.
Right to privacy
The right to protection against arbitrary and unlawful interference with privacy, contained in Article 17 of the ICCPR, provides that no one shall be subjected to arbitrary or unlawful interference with their privacy.
The right to privacy is engaged by paragraph 4 (e) of the legislative instrument, which requires an operator that is seeking to take advantage of the exemption in the instrument to provide personal information to CASA, being evidence that the proposed Chief Pilot has successfully completed a specified training course and been assessed as suitable to carry out the responsibilities of a Chief Pilot. It is necessary for CASA to receive this information to ensure that only appropriately qualified individuals are appointed as, or act as, Chief Pilots and are therefore allowed to undertake particular activities that have inherent safety risks.
The legislative instrument removes the requirements for provisions of personal information to CASA and an examiner that would otherwise by required to meet the criteria in paragraphs 1.3 (b) to (e) of Appendix 1 of CAO 82.0.
The protections provided by the Privacy Act 1988 continue to apply to personal information collected.
The requirements of the legislative instrument are necessary in order to ensure proper administration and enforcement of Australia’s aviation safety system. Any potential limitation on the right to privacy is necessary, reasonable and proportionate in promoting the objective of improving aviation safety.
Apart from the impact on the right to privacy, the exemption in the legislative instrument is beneficial in purpose and content and does not adversely affect the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Conclusion
The legislative instrument is compatible with human rights. To the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate in order to ensure the safety of aviation operations and to promote the integrity of the aviation safety system.
Civil Aviation Safety Authority