Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — recency requirements for night flying (Surveillance Australia Pty Ltd)
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation.
Subsection 98 (5A) of the Act provides that the regulations may empower CASA to issue instruments in relation to the following:
(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft; or
(b) the airworthiness of, or design standards for, aircraft.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A), CASA may grant an exemption from a provision of these Regulations (including the Civil Aviation Regulations 1988 (CAR 1988)) or a provision of the Civil Aviation Orders in relation to a matter mentioned in that subsection.
Under subregulation 11.160 (2) of CASR 1998, an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation.
Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement) or, if no day is specified, 3 years after commencement.
Subregulation 5.109 (1) of 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 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 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 under regulation 11.160 of CASR 1998 allows Surveillance Australia Pty Ltd, trading as Cobham Aviation Services Pty Ltd – Special Mission (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 3 take-offs and 3 landings 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, if it appears that the required number of take-offs and landings will not be possible, that period of 90 days can be extended up to a maximum of 120 days by the pilot having carried out a take-off and landing at night, during the last 30 days, while line flying, or in a flight simulator, under the supervision of a pilot who holds a delegation to issue or renew a rating or conduct a flight test.
The conditions in the instrument are largely consistent with the requirements of the International Civil Aviation Organization (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 instead of requiring the pilot to undergo special flight tests as may be required by CASA.
Legislative Instruments Act
Exemptions issued under regulation 11.160 of CASR 1998 are issued under subsection 98 (5A) of the Act. Subsection 98 (5A), in paragraph (a), states that the regulations may empower CASA to issue an instrument relating to the safe navigation and operation, or the maintenance, of aircraft. Subsection (5AA) states that an instrument issued under paragraph (5A) (a) is a legislative instrument if it applies to a class of persons. This exemption is accordingly a legislative instrument.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003.
Consultation
Consultation within the aviation industry as a whole has not taken place. The exemption is based on several previous exemptions issued to other operators. The instrument is in a form consistent with ICAO and European standards.
Any operator whose procedures are considered by CASA to make satisfactory provision for testing and training pilots for night flying operations would be granted a similar exemption.
The exemption commences on the day after registration and stops having effect at the end of 31 July 2014.
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 EX89/11]