Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption – Civil Aviation Order 48.1 Instrument 2013 – aerial application operations (in aeroplanes)
Purpose
The instrument provides an exemption from compliance with the standard flight time limitations and fatigue management requirements contained in Civil Aviation Order 48.1 Instrument 2013 (the CAO 48.1 Instrument). The CAO 48.1 Instrument commenced on 30 April 2013, and individuals or corporations who became Air Operator Certificate (AOC) holders for the first time after 30 April 2013 are subject to the requirements of that instrument. The framework under the CAO 48.1 Instrument will apply to transitional AOC holders (those who held an AOC before 30 April 2013) from 1 May 2017.
The exemption applies to AOC holders and flight crew members (FCMs) conducting aerial application operations in an aeroplane. The flight time limitation and fatigue management requirements prescribed in Subpart 137.Q of the Civil Aviation Safety Regulations 1998 (CASR 1998) will continue to apply to these exempted persons. To avoid any confusion regarding the applicability of the different flight time limitation and fatigue management requirements contained in Subpart 137.Q of CASR 1998 and Civil Aviation Amendment Order (CAAO) (No. R48) 2004, the instrument also provides an exemption to the requirements of CAAO (No. R48) 2004.
Legislation
Under section 27 of the Civil Aviation Act 1988 (the Act), CASA may issue AOCs with respect to aircraft for the purpose of safety regulation. Under section 28 of the Act, CASA must issue the AOC if satisfied that the applicant can comply with the requirements of Australian civil aviation safety legislation.
Under paragraph 28BA (1) (b) of the Act, an AOC has effect subject to any conditions specified in the regulations or Civil Aviation Orders (the CAOs).
Additionally, under subsection 98 (4A) of the Act, CASA may issue CAOs, not inconsistent with the Act or the regulations, in respect to any matter in relation to which regulations may be made for the purposes of section 28BA of the Act (conditions on AOCs).
Section 98 of the Act empowers the Governor-General to make regulations for the Act and the safety of air navigation. Under subsections 98 (5A) and (5AA) of the Act, the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation of aircraft, which, if applicable to a class of persons, would be legislative instruments. Under subregulation 5 (1A) of the Civil Aviation Regulations 1988 (CAR 1988), wherever CASA is empowered or required under the regulations to issue any direction, instruction or notification, CASA may, unless the contrary intention appears, issue the direction, instruction or notification in the CAOs.
Regulation 210A of CAR 1988 further provides that CASA may give directions to the holder of a flight crew licence or to an aircraft operator about matters relating to the regulation of flight time. These matters include the number of hours that a person may fly in any period, the length of a tour of duty, the length of time an FCM is required to be available for a tour of duty, the rest periods that must be taken and the circumstances in which a person must not fly or undertake other duties associated with his or her employment.
Subpart 137.Q of CASR 1998 sets out requirements for the duty and rest times of pilots who conduct aerial application operations in aeroplanes. This Subpart prescribes certain maximum flying hours, minimum off-duty periods and maximum durations of tours of duty for these pilots. Regulation 137.300 also requires pilots to be fit for duty in order to commence an aerial application operation, and prevents operators from allowing a pilot to commence an operation if the operator has reason to believe that the pilot is not fit for duty.
Part 48 of the CAOs (comprising CAO 48.0, CAO 48.1, CAO 48.2, CAO 48.3 and CAO 48.4) contains flight and duty time limitations and related rules for various members of an aircraft’s flight crew. CAAO (No. R48) 2004 also prescribes limitations on pilots’ flight times and tours of duty, and requires pilots to be fit for duty before operating an aircraft. In particular, subsection 2 of CAAO (No. R48) 2004 prescribes these limitations where the flight crew includes not more than 2 pilots in aircraft engaged in aerial application operations, while subsection 3 prescribes these limitations for flights where the flight crew includes 3 or more pilots. For the purposes of CAAO (No. R48) 2004, aerial application operations are defined by reference to regulation 61.010 of CASR 1998.
Regulation 137.020 of CASR 1998 further provides that if a provision in the regulations is inconsistent with a provision in Part 137 of CASR 1998, the provision in Part 137 will prevail to the extent of the inconsistency.
The CAO 48.1 Instrument commenced on 30 April 2013. It provides AOC holders and FCMs with a comprehensive regulatory framework for the effective management of fatigue risk in aviation operations. Subject to transitional arrangements, from 30 April 2013 (for new AOC holders and their FCMs), and from 1 May 2017 (for existing AOC holders and their FCMs), the new framework under the CAO 48.1 Instrument replaces the previous rules for flight and duty time limitations contained in Part 48 of the CAOs. Certain related CAAOs containing Part 48 of the CAOs (including CAAO (No. R48) 2004) will also be repealed on 1 May 2017.
Paragraph 4.9 of the CAO 48.1 Instrument requires transitional AOC holders to provide CASA with either a copy of the draft amendments to be made to their operations manual for the AOC holder to comply with the CAO 48.1 Instrument, or a completed CASA Form 824B — Application for Approval of a Fatigue Risk Management System. These must be provided to CASA by no later than 31 October 2016.
Exemption
Subpart 11.F of CASR 1998 provides for the granting of exemptions from particular provisions of the regulations or the CAOs.
Under subregulation 11.160 (1), and for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of CAR 1988, CASR 1998 or a CAO in relation to a matter mentioned in subsection 98 (5A).
Under subregulation 11.160 (2) of CASR 1998, 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. For making a decision on its own initiative, CASA is guided by the requirement in subsection 9A (1) of the Act to regard the safety of air navigation as the most important consideration in exercising its powers and functions.
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 not to comply with the obligations imposed by a condition. Regulation 11.225 of CASR 1998 requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Instrument
This instrument has been made under regulation 11.160 of CASR 1998. It provides an exemption for AOC holders and FCMs involved in the aerial application operations defined under regulation 137.010 of CASR 1998 from the standard flight time limitations and fatigue management requirements contained in the CAO 48.1 Instrument. However, the flight duty time limitations and rest requirements for pilots conducting aerial application operations which are prescribed in Subpart 137.Q of CASR 1998 will continue to apply.
To provide certainty to the aerial application industry, the instrument also exempts these persons from the flight time limitations and fatigue management requirements prescribed under CAAO (No. R48) 2004. While the requirements under Subpart 137.Q of CASR 1998 and CAAO (No. R48) 2004 are similar, the exemption will confirm that only Subpart 137.Q is intended to apply to aerial application operations in an aeroplane. CAAO (No. R48) will also be repealed on 1 May 2017 via the operation of the CAO 48.1 Instrument.
The exemption from the CAO 48.1 Instrument is also subject to a condition requiring the exempted operators to be satisfied that their FCM has received awareness material, or training, in the fatigue-related risks relevant to their duties as an FCM before the FCM conducts an aerial application operation for that operator.
The commencement of this condition has been delayed until 1 May 2017 to provide AOC holders time to ensure that their FCMs understand and prepare for the fatigue management requirements relevant to their duties.
Legislation Act 2003 (the LA)
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. Under subsection 98 (5AA), an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply to a class of persons or a class of aircraft. The instrument applies to a class of persons, being AOC holders and their FCMs involved in the aerial application operations defined in the instrument.
Under section 57A of the LA, an instrument is a legislative instrument for section 8 of the LA if it is declared to be a disallowable instrument under legislation in force before 1 January 2005. Under regulation 5A of CAR 1988 (which was in force before 1 January 2005), if CASA has issued a CAO that is not an airworthiness directive, and CASA later issues an exemption that affects the operation of the CAO, the exemption is declared to be a disallowable instrument. This instrument affects the operation of the CAO 48.1 Instrument.
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 been consulting with members of the aerial application industry in regards to the continued development of flight time limitation and fatigue management standards for aerial application operations. As a part of this consultation process, CASA proposed an exemption from the requirements of the CAO 48.1 Instrument for aerial application operations while the development of these standards takes place. The consulted industry members supported this exemption.
In the interim, the existing duty and rest times for pilots prescribed under Subpart 137.Q of CASR 1998 will continue to apply to these aerial application operations. Having regard to these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LA.
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 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).
Making and commencement
The instrument has been made by the Acting 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 2019.
[Instrument number CASA EX92/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption – Civil Aviation Order 48.1 Instrument 2013 – aerial application operations (in aeroplanes)
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 this legislative instrument is to exempt Air Operator Certificate holders and their flight crew members, who are involved in aerial application operations using an aeroplane, from the requirements of Civil Aviation Order 48.1 Instrument 2013 (the CAO 48.1 Instrument) and provisions of Civil Aviation Amendment Order (No. R48) 2004.
Flight time limitations and fatigue management requirements will continue to apply to these operators under the provisions of Subpart 137.Q of the Civil Aviation Safety Regulations 1998 (CASR 1998).
The exemption from the CAO 48.1 Instrument, and the continuing application of Subpart 137.Q of CASR 1998, will provide ongoing certainty to operators involved in the aerial application industry during this time of transition for fatigue management rules in the Australian aviation sector. CASA and the aerial application industry will continue to work together to develop a new set of standards for flight time limitations and fatigue management rules for this industry.
Human rights implications
The legislative instrument may indirectly engage the right to work under the International Covenant on Economic, Social and Cultural Rights by affecting the prescribed restrictions on when and how long pilots may work in flight operations. However, the right to work is engaged in a way that is balanced by the objectives of providing pilots with safe working conditions and achieving and improving aviation safety.
The instrument is otherwise compatible with the human rights and freedoms recognised or declared by the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not otherwise engage any of the applicable rights or freedoms.
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 to protect the safety of aviation.
Civil Aviation Safety Authority