Explanatory Statement
Civil Aviation Order 82.6
Exemption — initial NVG pilot flight training prerequisites
Purpose
This is a legislative instrument which exempts certain trainee pilots registered with Becker Helicopter Services Pty Ltd (Becker) from initial NVG pilot flight training prerequisites on the basis of compensating safety mitigators embodied in a safety case prepared by Becker.
Background
Night vision goggles (NVG) are a head mounted night vision enhancement device. They use image intensifying technology to amplify the available ambient light sufficiently for images to be seen through the NVG eyepieces as a monochromatic green image.
Civil Aviation Order 82.6 (CAO 82.6) provides for operational and airworthiness standards and approval requirements for the use of NVG in specialised helicopter aerial work operations, namely, search and rescue, law enforcement, aerial fire fighting, aerial fire fighting support, emergency medical services, marine pilot transfers, training for any of these, and demonstration and positioning flights.
Instrument CASA 288/07 (the Direction) directed that night vision devices must not be used in private operations as the primary means of terrain avoidance for safe air navigation by means of visual surface reference external to an aircraft.
Thus together, CAO 82.6 and the Direction make unlawful any non-approved use of NVG as a primary means of terrain avoidance when using external visual surface reference.
Initial NVG pilot flight training prerequisites
Under subclause 29.1 in Appendix 3 of CAO 82.6, before commencing NVG training for an initial NVG pilot qualification, a trainee pilot must, as a minimum, meet certain requirements.
These requirements include all of the following: a current commercial pilot (helicopter) licence or air transport pilot (helicopter) licence; a current night visual flight rules (NVFR) rating for helicopters; at least 250 hours of aeronautical experience as a helicopter pilot; endorsement on the aircraft type intended for training; at least 10 hours’ experience as pilot, or co-pilot, in command at night (unaided) under the NVFR; a current command helicopter instrument rating or completion of at least 10 hours helicopter dual instrument training.
There are additional prerequisites if the trainee pilot is to undergo NVG training for an advanced operational sequence, for example, winching, or if the trainee pilot is to conduct low flying.
Discretion based on safety case
Under subclause 29.2 in Appendix 3 of CAO 82.6, CASA may, by legislative instrument, exempt a trainee pilot from a requirement mentioned in subclause 29.1 if a safety case, prepared by the trainee pilot or other relevant person, is given to CASA, documenting and demonstrating that an acceptable level of safety for NVG training and NVG operations will be preserved in spite of the exemption from the requirement.
Exemption for Becker trainees under subclause 29.2
Becker is engaged in helicopter pilot training of members of the Saudi Arabian National Guard (SANG) and the United Arab Emirates Joint Air Command (UAE JAC) (collectively referred to as the exempt trainees). An aspect of that training is NVG training.
The exempt trainees do not meet the initial NVG pilot flight training prerequisites. In order for initial NVG pilot flight training to commence for them, they must either meet these requirements or obtain an exemption from them. It is not intended that, apart from their participation in the training course, any of the exempt trainees will fly in Australia.
Becker, therefore, prepared a safety case to the effect that off-setting safety mitigators would make it safe to train the exempt trainees notwithstanding that they did not meet the requirements of subclause 29.1.
CASA conducted a risk assessment of the proposed training and concluded that the safety case documented and demonstrated that an acceptable level of safety for NVG training and NVG operations would be preserved in spite of exemption from the requirements of subclause 29.1.
CASA, therefore, decided to issue an exemption, subject to safety conditions mentioned in Schedule 1. The critical conditions relate to the additional expertise and experience required of the NVG flight instructors and the pre-NVG training that the exempt trainees must undergo.
This instrument revokes and replaces a previous exemption (CASA EX94/11; F2011L01757), which otherwise would have stopped having effect at the end of July 2013. This exemption applies to members of SANG and UAE JAC. The previous exemption was limited to members of SANG and the United Arab Emirates Presidential Guard, which is part of UAE JAC. The change in the application of the exemption has been requested by Becker to reflect new arrangements that it has entered into.
Under subsection 33 (3) of the Acts Interpretation Act 1901 (the AIA), where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Legislative Instruments Act
Paragraph 28BA (1) (b) of the Civil Aviation Act 1988 (the Act) provides that an Air Operator’s Certificate (AOC) has effect subject to any conditions “specified in the regulations or Civil Aviation Orders”. CAO 82.6, and amendments to it, take effect as conditions on AOCs. By providing that an AOC has effect subject to any conditions specified in the CAOs, paragraph 28BA (1) (b) of the Act empowers the making of CAO 82.6. Therefore, CAO 82.6 is an instrument made under an Act.
Under subsection 15AE (6) of the AIA, the term law in section 15AE is defined as an Act, or regulations, “or any other instrument made under an Act”. As an instrument made under an Act, CAO 82.6 is, therefore, a law for section 15AE of the AIA.
Under subsection 15AE (1) of the AIA, if a provision of a law requires or permits the making of an instrument that is described as a legislative instrument, then the instrument is a legislative instrument for the Legislative Instruments Act 2003 (the LIA).
Therefore, the exemption, made under subclause 29.2 in Appendix 3 of CAO 82.6, is a legislative instrument. As such, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Becker has applied for this instrument of exemption and provided input on its contents. CASA considers that no further consultation is appropriate or necessary as the instrument is beneficial in effect and applies only to a specified class of trainees registered with this operator.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Making and commencement
The exemption has been made by a person authorised by CASA.
The instrument commences on the day of registration, and expires for an exempt trainee, as if it had been repealed by another instrument, at the earlier of: the end of June 2016; or the exempt trainee ceasing to be an exempt trainee with Becker.
[Instrument number CASA EX87/13]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — initial NVG pilot flight training prerequisites
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 permits members of the Saudi Arabian National Guard and the United Arab Emirates Joint Air Command, who are registered with Becker Helicopter Services Pty Ltd (Becker) as trainee night vision goggles (NVG) pilots, to undertake NVG training for an initial NVG pilot qualification without meeting the standard requirements. The exemption is subject to conditions imposed by CASA in the interest of safety.
The legislative instrument revokes and replaces an earlier exemption (CASA EX94/11) which otherwise would have stopped having effect at the end of July 2013. It also modifies the class of exempt trainees to which it applies to reflect new arrangements entered into by Becker.
The primary purpose of the legislative instrument is to allow the trainees to undertake training if they, and the flight instructors, meet revised prerequisites specified in the conditions imposed on the exemption.
Human rights implications
This legislative instrument promotes the right to education and the right to work by removing inappropriate barriers to vocational training for trainee NVG pilots.
This legislative instrument does not otherwise engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it promotes human rights.
Civil Aviation Safety Authority