Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX98/21 — ATPL Flight Test Standards (Satellite-based Navigation) Exemption 2021
Purpose
The purpose of this legislative instrument is to exempt certain applicants for an air transport pilot licence with the aeroplane category rating (ATPL(A)) from the requirement, under Part 61 of the Civil Aviation Safety Regulations 1998 (CASR), to demonstrate competence in the use of satellite-based navigation systems.
The instrument applies to applicants who are undergoing flight testing on 3 specified flight simulator training devices (FSTDs).
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. Part 61 of CASR deals with the licensing of aircraft flight crew.
References in this statement to provisions that commence with the numerals “61” are to provisions of Part 61 of CASR.
The term flight test is defined in regulation 61.010 as a test conducted under regulation 61.245 for a flight crew licence (FCL), rating or endorsement.
Regulation 61.160 prescribes the criteria for the grant of an FCL. In relation to an ATPL(A), an applicant must meet the requirements mentioned in Part 61 for the grant of the licence.
Regulation 61.235 prescribes requirements for when an applicant for an FCL is eligible to take the flight test for the licence.
Regulation 61.245 states that a flight test may be conducted in an aircraft or an approved flight simulator.
Regulation 61.250 states that an applicant passes the flight test for an FCL if they are assessed by an examiner as meeting the competency standards specified in the Part 61 Manual of Standards (the Part 61 MOS) for the flight test.
Regulation 61.700 prescribes the general requirements to be satisfied by an applicant for an ATPL(A). Relevantly, for present purposes, paragraph 61.700 (3) (c) requires the applicant to have passed the flight test mentioned in the Part 61 MOS for the ATPL(A).
Regulation 61.880 states that the holder of an instrument rating is authorised to exercise the privileges of the rating, in an aircraft of a particular category, only if the holder has a valid instrument proficiency check for the aircraft category. The regulation prescribes various requirements that have to be satisfied for the holder to be taken to have a valid instrument proficiency check.
Regulation 61.1295 prescribes offences in relation to the conduct of flight tests by a flight examiner. Relevantly, for present purposes, an examiner commits an offence under subregulation 61.1295 (3) if the examiner does not conduct the flight test in accordance with the standards mentioned in the Part 61 MOS or assess the applicant for an FCL against the competency standards in the Part 61 MOS for the flight test.
Appendix K.1 of Schedule 5 to the Part 61 MOS contains certain requirements for the flight test for an ATPL(A). Paragraphs 3.3 (a) and (b) of Appendix K.1 (paragraphs 3.3 (a) and (b)) require pilots to demonstrate their ability:
(a) to ensure competency to navigate en route using satellite-based navigation systems; and
(b) to perform integrity checks for those systems.
Granting of exemption
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR relevantly provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations.
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.
Background
The instrument provides exemptions for ATPL(A) applicants, and flight examiners conducting the ATPL(A) flight test for the applicants, from the requirements of Part 61 that require a person to have satisfied paragraphs 3.3 (a) and (b) in relation to satellite-based navigation systems.
Under Part 61, an applicant for an ATPL(A) flight crew licence must demonstrate competency in the use of satellite-based navigation systems in accordance with paragraphs 3.3 (a) and (b).
Three FSTDs are not suitable for that purpose. They are the following:
(a) Beechcraft King Air 200 (AUS No. 42 Serial No. 8315);
(b) Embraer 120 Brasilia (AUS No. 45 Serial No. 8337);
(c) Fairchild Metro III (AUS No. 18 Serial No. 8321).
As a result, applicants who are being tested on these FSTDs are required to use an aeroplane of an appropriate type for the purposes of paragraphs 3.3 (a) and (b). This causes inconvenience and expense. On occasion, a qualified FSTD examiner cannot conduct a test in an aeroplane, so that a new examiner has to be obtained for that unit. Also, an aeroplane must be obtained to carry out the flight test. In addition, it is safer to use an FSTD, rather than an aircraft, to conduct training, checking and testing activities.
The instrument provides a suitable alternative approach which recognises that pilots are required to demonstrate competency in using satellite-based navigation in situations other than passing a flight test. If the pilot can demonstrate that they have done so using an acceptable alternative test specified in the instrument, they will be exempted from this aspect of paragraphs 3.3 (a) and (b) and can be assessed as having met the relevant competency standard. The flight examiner is also granted an exemption to allow them to find the applicant is competent without committing an offence under regulation 61.250 and paragraph 61.1295 (3) (b).
Instrument
Section 1 states the name of the instrument.
Section 2 states when the instrument commences and when it is repealed.
Section 3 provides definitions for the instrument. Subsection 3 (1) defines various words and terms, many of them by reference to existing definitions in CASR. Subsection 3 (2) defines the meaning of exempted pilot for the exemption. It requires the pilot to have a valid instrument proficiency check for their aeroplane category rating in accordance with regulation 61.880 of CASR.
Section 4 sets out the application of the exemptions to exempted pilots and flight examiners. Subsection 4 (1) specifies the 3 FSTDs to which the exemptions apply. Subsection 4 (2) limits the exemption to flight testing conducted in the 3 FSTDs that is referred to in paragraphs 3.3 (a) and (b). Subsection 4 (3) states that the exemptions apply to an exempted pilot or a flight examiner, to the extent set out in section 5.
Subsection 5 (1) states that an exempted pilot is exempt from paragraph 61.700 (3) (c) in relation to demonstrating competencies in a specified FSTD in relation to the use of satellite‑based navigation systems. Subsection 5 (2) states that an exempted pilot and a flight examiner, who conducts a flight test mentioned in paragraph 61.700 (3) (c) for an exempted pilot, are exempt from compliance with regulation 61.250 to the extent that the regulation requires the examiner to assess the pilot’s performance in accordance with the competency standards that relate to paragraphs 3.3 (a) and (b). Subsection 5 (3) states that a flight examiner who conducts a flight test mentioned in paragraph 61.700 (3) (c) for an exempted pilot is exempt from compliance with subregulation 61.1295 (3) of CASR to the extent that the pilot is not required to demonstrate their ability:
(a) to navigate en route using satellite-based navigation systems; and
(b) to perform integrity checks for those systems.
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. 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 is made for the purpose of paragraph 98 (5A) (a) of the Act and exempts classes of persons from complying with the specified provisions of CASR, namely, exempted pilots and flight examiners conducting flight tests for exempted pilots. 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
The exemption was proposed by industry members to encourage use of FSTDs, and is of general benefit to ATPL(A) applicants and flight examiners. The policy does not significantly increase any safety risks and assists aviation safety by encouraging the use of FSTDs. In these circumstances, CASA is satisfied that no additional consultation is appropriate or necessary for this instrument for section 17 of the LA.
In addition, CASA provided a finalised version of the instrument to an aviation industry participant who found that it was suitable for its intended purpose.
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).
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.
The economic and cost impact of the exemption has been determined by:
(a) the identification of individuals and the businesses affected by the exemption; and
(b) consideration of how the requirements to be imposed on individuals and businesses under the instrument will be different compared to existing requirements.
In this instrument, the granting of the exemption will avoid additional costs that would be incurred if the exempted pilot was required to demonstrate their ability to navigate en route using satellite-based navigation systems by undergoing that examination in an aircraft instead of one of the 3 FSTDs, perhaps with a new examiner.
The impact of the exemption is, therefore, beneficial by avoiding the incurring of additional costs by the exempted pilot, which is a significant saving during the imposition of COVID-19 pandemic restrictions.
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 listed human rights.
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 the day after it is registered and is repealed at the end of 29 February 2024.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX98/21 — ATPL Flight Test Standards (Satellite-based Navigation) Exemption 2021
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 certain applicants for an air transport pilot licence with the aeroplane category rating from the requirement, under Part 61 of the Civil Aviation Safety Regulations 1998, to demonstrate competence in the use of satellite‑based navigation systems when undertaking a flight test in any one of 3 specified flight simulator training devices (FSTDs).
The instrument only applies to applicants who are undergoing flight testing on one of the 3 specified FSTDs and flight examiners testing those applicants.
Human rights implications
The legislative instrument engages the right to work in Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights.
The right to work 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 of exempted pilots from the requirement to demonstrate competence in the use of satellite-based navigation systems when undertaking a flight test in any one of the 3 specified FSTDs. The exemption reduces the costs and inconvenience for such applicants by removing the requirement to separately undertake that test in an aeroplane when attempting to obtain a pass in that unit. The exemption, therefore, promotes the right to work of the relevant exempted pilots by facilitating the upgrading of their qualifications.
Aviation safety is not affected because the applicants are required to demonstrate the required competence in a different way.
Conclusion
This legislative instrument is compatible with human rights.
Civil Aviation Safety Authority