Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX87/25 — Obtaining Experience (Grant of RePL for Medium RPA and RePL Upgrade to Different Category of Small or Medium RPA) Exemption 2025
Purpose
The main purpose of CASA EX87/25 — Obtaining Experience (Grant of RePL for Medium RPA and RePL Upgrade to Different Category of Small or Medium RPA) Exemption 2025 (the instrument) is to continue to make it more practical for remote pilot licence (RePL) holders to gain experience in operating other remotely piloted aircraft (RPA) with a view to obtaining a licence upgrade for a different type of RPA or for a different category of RPA.
The instrument renews CASA EX91/23 – Obtaining Experience for Grant of RePL for Medium RPA, and for RePL Upgrade to Different Category of Small or Medium RPA, Exemption 2023 (CASA EX91/23) in virtually identical terms except its duration, and minor editorial changes that do not affect the operation of the instrument.
The rules for licence upgrades in Part 101 of the Civil Aviation Safety Regulations 1998 (CASR) provide a person with 2 upgrade pathways: through an approved training organisation or through a Civil Aviation Safety Authority (CASA) flight test. Generally, for medium RPA, CASA flight testing is the most practical option for some RePL upgrades. However, some of those rules make it difficult for applicants to acquire sufficient operating experience with the relevant medium RPA to ensure that the flight test can be conducted safely. The instrument continues to provide exemptions from those rules and to impose related conditions in the interests of aviation safety.
The instrument continues to be necessary because proposed amendments of Part 101 of CASR, described in more detail below under the heading “Background”, have not yet been made.
The broader operation of CASA EX91/23 is described in more detail below under, respectively, the headings “Background” and “Content of instrument”.
Legislation
Section 98 of the Civil Aviation Act 1988 (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 CASR.
CASR — Exemptions and Conditions (Division 11.F.1 and Subpart 101.F)
Unless otherwise stated, each provision mentioned in this section is a provision of CASR.
Division 11.F.1 provides for the granting of exemptions from particular provisions of, relevantly, CASR. Paragraph 11.160(1)(a) provides that, for subsection 98(5A) of the Act, CASA may grant an exemption from a provision of a CASR in relation to a matter mentioned in that subsection. Paragraph 98(5A)(a) of the Act mentions matters affecting the safe navigation and operation, or the maintenance, of aircraft.
Under subregulation 11.160(2), CASA may grant an exemption 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), CASA may grant an exemption either on application by a person or on its own initiative.
Under subregulation 11.175(4), in deciding whether to renew 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 renew an exemption on its own initiative.
Regulation 11.205 provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence (with a maximum penalty of 50 penalty units) not to comply with the obligations imposed by a condition.
Regulation 11.225 requires an exemption to be published on the internet. Under subregulation 11.230(1), the maximum duration of an exemption is 3 years.
CASR — Part 101
Part 101 relates to unmanned aircraft and rockets.
Subpart 101.A sets out preliminary matters including, relevantly, the meaning of RPA and definitions of types of RPA.
Regulation 101.021 provides that an RPA is a remotely piloted aircraft, other than the following:
(a) a balloon;
(b) a kite;
(c) a model aircraft.
Regulation 101.022 sets out the meaning of types of RPA including, relevantly at items 3 and 4 of the table in that regulation, the following:
- small RPA means an RPA with a gross weight of more than 2 kg, but not more than 25 kg;
- medium RPA means:
(a) an RPA with a gross weight of more than 25 kg, but not more than 150 kg; or
(b) a remotely piloted airship with an envelope capacity of not more than 100 m3.
Subpart 101.F relates to RPA.
Regulation 101.235 provides that Subpart 101.F applies to the operation of several types of RPA including, relevantly, small RPA and medium RPA.
Subregulation 101.237(1) provides that regulation 101.237 sets out what is an excluded RPA. Relevantly, the following provisions apply:
- subregulation 101.237(4) provides that a small RPA is an excluded RPA if it is being operated:
(a) by or on behalf of the owner of the RPA; and
(b) over land owned or occupied by the owner of the RPA; and
(c) in standard RPA operating conditions; and
(d) for the purposes of one or more of the activities mentioned in paragraph 101.237(4)(d), for which no remuneration is received by the operator or the owner of the RPA, the owner or occupier of the land or any person on whose behalf the activity is being conducted;
- subregulation 101.237(6) provides that a small RPA is an excluded RPA if it is being operated in standard RPA operating conditions by:
(a) a person for the sole purpose of meeting the experience requirement mentioned in paragraph 101.295(2)(c) for the grant of a remote pilot licence; or
(b) the holder of a remote pilot licence for the sole purpose of getting practical experience and gaining competency in the operation of an RPA of a category that is specified in the licence;
- subregulation 101.237(7) provides that a medium RPA is an excluded RPA if it is being operated:
(a) by or on behalf of the owner of the RPA; and
(b) by a person who holds a remote pilot licence that authorises the person to operate the RPA; and
(c) over land owned or occupied by the owner of the RPA; and
(d) in standard RPA operating conditions; and
(e) for the purposes of one or more of the activities mentioned in paragraph 101.237(7)(e), for which no remuneration is received by the operator or owner of the RPA, the owner or occupier of the land or any person on whose behalf the activity is being conducted.
Under Part 1 of the Dictionary, remote pilot licence means a licence granted under Division 101.F.3.
Regulation 101.238 provides that an RPA is operated in standard RPA operating conditions if, at all times during the operation:
(a) the RPA is operated in accordance with the requirements – related to location; visual line of sight; maximum height; time of operation; and proximity to a person who is not directly associated with the operation of the RPA – mentioned in paragraphs 101.238(aa) to (e); and
(b) the person operating the RPA operates only that RPA — see paragraph 101.238(f).
Regulation 101.252 relates to the requirement for a remote pilot licence for certain RPA.
Subregulation 101.252(1) provides that regulation 101.252 does not apply in relation to the operation of an excluded RPA.
Under subregulation 101.252(2), a person commits an offence of strict liability (with a penalty of 50 penalty units) if:
(a) the person operates an RPA; and
(b) the person does not hold a remote pilot licence that authorises the person to operate the RPA.
Regulation 101.270 relates to the requirement for an RPA operator’s certificate.
Subregulation 101.270(1) provides that regulation 101.270 does not apply in relation to the operation of an excluded RPA.
Under subregulation 101.270(2), a person commits an offence of strict liability (with a penalty of 50 penalty units) if:
(a) the person conducts operations using RPA; and
(b) the person does not hold a certificate as an RPA operator under Division 101.F.4 that authorises the person to conduct the operations.
Regulation 11.055 sets out criteria that apply to CASA when granting an authorisation.
Regulation 101.295 relates to eligibility for a remote pilot licence.
Under subregulation 101.295(2), subject to regulation 11.055, CASA must grant a remote pilot licence to the applicant if the applicant:
(a) has passed:
(i) an examination of a kind mentioned in subparagraph 101.295(2)(a)(i) or (ii); or
(ii) a theory component of a course of a kind mentioned in subparagraph 101.295(2)(a)(iii) or (iv); and
(b) has completed:
(i) a training course of a kind mentioned in subparagraph 101.295(2)(a)(i) or (ii); or
(ii) a flight test conducted by CASA for the purposes of subparagraph 101.295(b)(iii); and
(c) has at least 5 hours’ experience in operating an RPA under standard RPA operating conditions.
The Legislation Act 2003 (the LA) and the Act
Under subsection 14(1) of the LA, a legislative instrument may make provision in relation to matters by applying, adopting or incorporating provisions of an Act or disallowable legislative instrument as in force at a particular time or as in force from time to time. A legislative instrument may also make provision in relation to matters by applying, adopting or incorporating any matter contained in any other instrument or writing as in force at, or before, the time the legislative instrument commences. Under subsection 14(2) of the LA, unless the contrary intention appears, the legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.
However, subsection 98(5D) of the Act provides that, despite section 14 of the LA, a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.
Paragraph 98(5A)(a) of the Act provides that the regulations may empower CASA to 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 the following 2 classes of persons from complying with the particular provisions of CASR mentioned, for the classes of persons, in the instrument:
(a) RePL holders for a category of small RPA who operate the same category of medium RPA;
(b) RePL holders for a category of small RPA or a medium RPA who operate a different category of small RPA or medium RPA.
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.
Background
Since April 2021, CASA has made the following 3 instruments that are substantially similar to the instrument:
- CASA EX38/21 – Obtaining Experience for Grant of RePL for Medium RPA, and for RePL Upgrade to Different Category of Small or Medium RPA – Exemption Instrument 2021 (CASA EX38/21);
- CASA EX17/22 – Obtaining Experience for Grant of RePL for Medium RPA, and for RePL Upgrade to Different Category of Small or Medium RPA – Exemption Instrument 2022 (CASA EX17/22);
- CASA EX91/23.
CASA 17/22 renewed, with minor variations, CASA EX38/21.
CASA EX91/23 renewed, with minor variations, CASA EX17/22. CASA EX91/23 will be repealed at the end of 30 September 2025.
The Explanatory Statement for CASA EX91/23 includes the following background information:
When CASA EX17/22 was registered on 1 April 2022, it was expected that, by 30 September 2023, regulatory amendments would have been made to amend the regulations in Part 101 of CASR whose inadvertent effect was to prevent the easier accumulation of relevant experience for upgrading purposes. However, it is now tentatively expected that the Part 101 amendments may not be made and registered until 2025, giving rise to the need to reissue CASA EX17/22.
The instrument continues to be required because those proposed amendments will not have been made and registered before CASA EX91/23 is repealed.
CASA continues to intend to include proposed amendments in Part 101 of CASR to give effect to the policy related to the instrument. CASA anticipates that those amendments will commence before the date on which the instrument is expressed to repeal: 30 September 2028. However, CASA will repeal the instrument if, after those amendments are made, they include content that:
(a) has the same effect as the instrument as a whole; and
(b) commences before the instrument is repealed.
Overview of instrument
The instrument is intended to continue to make it more practical for RePL holders to gain experience in operating other RPA with a view to obtaining a licence upgrade for a different type of RPA or for a different category of RPA.
The instrument also contains minor editorial changes to CASA EX91/23 but is for all substantive purposes intended to be identical in its operation and scope to CASA EX91/23.
CASA has assessed that the instrument preserves an acceptable level of aviation safety, including by retaining the conditions and limitations in CASA EX91/23.
Documents incorporated by reference
The instrument incorporates by reference the following, as in force from time to time:
(a) the standard RPA operating conditions mentioned in regulation 101.238 of CASR — see paragraphs 5(a) and 7(b);
(b) the experience requirement for the grant of a RePL mentioned in paragraph 101.295(2)(c) of CASR — see subparagraphs 5(b)(i) and 7(c)(i).
CASR is freely available on the Federal Register of Legislation.
Content of instrument
Section 1 names the instrument.
Section 2 sets out the duration of the instrument.
The note below the section 3 heading is intended to assist users of the instrument to locate the meaning of some terms and expressions in the Act, CASR and the Part 101 Manual of Standards.
Section 3 contains definitions and an interpretation provision.
Section 4 exempts a RePL holder for a small RPA who operates the same category of medium RPA from compliance with the requirements of subregulation 101.252(2), but only to the extent that the holder would otherwise commit an offence because the medium RPA is not an excluded RPA.
Under section 5, the exemption in section 4 is subject to the condition that the RePL holder may operate the medium RPA only if the operation meets all of the requirements mentioned in paragraphs 5(a), (b) and (c).
Section 6 exempts a RePL holder for a category of small or a medium RPA who operates a different category of small or medium RPA from compliance with the requirements of subregulation 101.252(2) of CASR, but only to the extent that the holder would otherwise commit an offence because:
(a) for the medium RPA — it is not an excluded RPA; and
(b) for the small RPA or medium RPA — the holder does not hold a RePL for the different category.
Under section 7, the exemption in section 6 is subject to the condition that the RePL holder may operate the different category of medium RPA only if the operation meets all of the requirements mentioned in paragraphs 7(a), (b), (c) and (d).
Section 8 exempts a person from compliance with the requirements of regulation 101.270 of CASR, but only to the extent that the person would otherwise commit an offence under subregulation 101.270(2) for the reason mentioned in section 8.
Under section 9, the exemption in section 8 is subject to the condition that:
(a) the exemption in section 4 and the condition in section 5, or the exemption in section 6 and the condition in section 7, as the case may be, apply to the person; and
(b) the person complies with the relevant conditions in those sections, as applicable.
Sunsetting
Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument, because the instrument relates to aviation safety and is made under CASR (see item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015).
However, this instrument will be repealed at the end of 30 September 2028, which will occur before the sunsetting provisions would have repealed the instrument if they had applied. Any renewal of the instrument will be subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA. Therefore, the exemption from sunsetting does not affect parliamentary oversight of this instrument.
Consultation
Consultation under section 17 of the LA has not been undertaken in this case.
However, CASA conducted significant industry consultation with industry stakeholders for CASA EX38/21 and CASA EX17/22, including the following:
(a) engagement with the Aviation Safety Advisory Panel’s Technical Working Group in July 2021;
(b) a public consultation process on broader amendments of Part 101 of CASR in late 2021 and early 2022.
That consultation resulted in widespread industry support for incorporating the exemptions in the instrument into CASR. Therefore, CASA expects that the renewal will be well-received by industry.
In those circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for the instrument for section 17 of the LA.
Sector risk, 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.
As the instrument replaces an expiring instrument with the same (or substantially the same) provisions and conditions, there will be no change of economic or cost impact on individuals, businesses or the community.
Impact on categories of operations
The instrument is likely to continue a beneficial effect on RPA operations that began with CASA EX38/21 by retaining more practical means for RePL holders to obtain experience in different types and categories of RPA.
Impact on regional and remote communities
The instrument is likely to continue a beneficial effect on regional and remote communities that began with CASA EX38/21, to the extent that RPA operations benefit those communities, and RePL holders come from and service those communities.
Office of Impact Analysis (OIA)
An Impact Analysis (IA) is not required in this case, as the exemption is covered by a standing agreement between CASA and OIA under which an IA is not required for exemptions (OIA id: OIA23-06252).
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. The instrument is compatible with human rights and, to the extent that it engages a particular right (the right to work), it does so in a way that is reasonable, necessary and proportionate.
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260(1) of CASR.
The instrument commences on 1 October 2025 and is repealed at the end of 30 September 2028.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX87/25 — Obtaining Experience (Grant of RePL for Medium RPA and RePL Upgrade to Different Category of Small or Medium RPA) Exemption 2025
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 main purpose of the instrument is to continue to make it more practical for remote pilot licence (RePL) holders to gain experience in operating other remotely piloted aircraft (RPA) with a view to obtaining a licence upgrade for a different type of RPA or for a different category of RPA.
The rules for those licence upgrades in Part 101 of the Civil Aviation Safety Regulations 1998 (CASR) provide a person with 2 upgrade pathways: through an approved training organisation or through a Civil Aviation Safety Authority (CASA) flight test. Generally, for medium RPA, CASA flight testing is the most practical option for some RePL upgrades. However, some of those rules make it difficult for applicants to acquire sufficient operating experience with the relevant medium RPA to ensure that the flight test can be conducted safely. The instrument continues to provide exemptions from those rules and to impose related conditions in the interests of aviation safety.
The instrument continues to be necessary because proposed amendments of Part 101 of CASR, to give effect to the policy related to the instrument, have not yet been made.
The instrument renews instrument CASA EX91/23 – Obtaining Experience for Grant of RePL for Medium RPA, and for RePL Upgrade to Different Category of Small or Medium RPA, Exemption 2023 in virtually identical terms except its duration, and minor editorial changes that do not affect the operation of the instrument.
Human rights implications
The instrument may engage the right to work under Article 6(1) of the International Covenant on Economic, Social and Cultural Rights.
The effect of current rules for relevant RPA upgrades in Part 101 of CASR is that CASA flight testing is the only realistic option. The instrument is designed to make it easier for applicants to accumulate the RPA operating experience necessary to pass a flight test without jeopardising the safety of the flight tester.
However, acquiring that experience is subject to conditions which constrain the way the person operates the relevant RPA. These constraints are reasonable, proportionate and necessary in the interests of aviation safety. Therefore, the instrument recognises the right to work of the classes of persons that it mentions and provides them with a more realistic means of upgrading their RePLs.
In the absence of the instrument, flight testing would be less safe and applicants may be less likely to pass the test because of difficulties in lawfully accumulating the necessary operating experience. Failure to pass the test may interfere with their employment opportunities in the RPA sector and lead to further expense in retesting. The instrument will make both those outcomes less likely.
Conclusion
This legislative instrument is compatible with human rights, to the extent that it engages a particular right (the right to work), it does so in a way that is reasonable, necessary and proportionate in the interests of aviation safety.
Civil Aviation Safety Authority