Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX99/23 – Amendment of CASA EX87/21 – Instrument 2023 (No. 2)
Purpose
The purpose of CASA EX99/23 – Amendment of CASA EX87/21 – Instrument 2023 (No. 2) (the exemption instrument) is to amend and insert a number of exemptions and directions within CASA EX87/21 – Flight Operations Regulations – SMS, HFP&NTS and T&C Systems – Supplementary Exemptions and Directions Instrument 2021 (CASA EX87/21 or the principal instrument). CASA EX87/21 makes a number of exemptions and directions relating to Parts 119, 121, 133, 135 and 138 of the Civil Aviation Safety Regulations 1998 (CASR). These Parts are some of CASA’s new Flight Operations Regulations (FOR) that commenced on 2 December 2021.
Legislation — exemptions
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Subpart 11.F of CASR deals with exemptions. Under subregulation 11.160 (1), and for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of CASR in relation to a matter mentioned in subsection 98 (5A). Subsection 98 (5A) matters are, in effect, those affecting the safety, airworthiness or design of aircraft.
Under subregulation 11.160 (2), 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.
Under subregulation 11.170 (3), for an application for an exemption, CASA must regard as paramount the preservation of an acceptable level of safety. For making a decision on its own initiative, CASA is guided by the requirement in subsection 9A (1) of the Act that in exercising its powers and functions CASA must regard the safety of air navigation as the most important consideration. The preservation of an acceptable level of safety remains paramount.
Under regulation 11.205, CASA may impose conditions on an exemption if this is 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. Under regulation 11.225, CASA must, as soon as practicable, publish on the internet details of all exemptions under Subpart 11.F of CASR.
Under subregulation 11.230 (1), an exemption may remain in force for 3 years or for a shorter period specified in the instrument.
Under subregulation 11.230 (3), an exemption, in force in relation to a particular aircraft owned by a particular person, ceases to be in force when the aircraft ceases to be owned by that person. Under regulation 11.235, an exemption is not transferable (as between operators, aircraft, etc.).
Legislation — directions
Section 98 of the Act empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Under subregulation 11.245 (1) of CASR, for subsection 98 (5A) of the Act, CASA may, by instrument, issue a direction about, among other things, any matter affecting the safe navigation and operation of aircraft.
Under subregulation 11.245(2), CASA may issue such a direction: only if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation; and only if the direction is not inconsistent with the Act; and only for the purposes of CASA’s functions.
Under regulation 11.250 of CASR, a direction ceases to be in force on a day specified in the instrument or, if no day is specified, 1 year after the instrument commences. Under subregulation 11.255 (1), it is an offence to contravene a direction under regulation 11.245 that is applicable to the person.
Background
Analysis by CASA of feedback from Australian air transport operators, aerial work operators and other stakeholders regarding the implementation of civil aviation legislation relating to Australian air transport operations and aerial work operations requires amendments to be made to the principal instrument.
Along with some minor corrections, the exemption instrument amends the principal instrument to allow more time for relevant operators to transition to full compliance with the FOR, while ensuring that an acceptable level of safety is preserved.
Details of the exemption instrument are set out in Appendix 1.
Aviation safety
In determining whether to issue the exemption instrument, CASA had regard to the safety of air navigation as the most important consideration.
CASA is satisfied that, given the nature of the amendments involved, and the necessary conditions imposed, an acceptable level of aviation safety will be preserved, and the safety of air navigation thereby maintained.
Legislation Act 2003 (the LA)
Exemptions under Subpart 11.F of CASR are “for subsection 98 (5A)” of the Act, that is, for regulations which empower the issue of certain instruments, like exemptions, in relation to “(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft”, and “(b) the airworthiness of, or design standards for, aircraft”.
The exemption instrument is clearly one in relation to matters affecting the safe navigation and operation of aircraft. Under subsection 98 (5AA) of the Act, an exemption issued under paragraph 98 (5A) (a), for such matters, is a legislative instrument if expressed to apply in relation to a class of persons, a class of aircraft or a class of aeronautical products (as distinct from a particular person, aircraft or product).
The exemption instrument is generic in nature and applies to classes of persons. It is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under section 15G, and sections 38 and 42, of the LA.
Sunsetting
As the instrument relates to aviation safety and is made under CASR, that means that Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument (as per item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015).
The instrument deals with aviation safety matters that, once identified, require a risk response or treatment plan. Generally speaking, item 15, when invoked, is necessary in order to ensure that, in the interests of aviation safety, a relevant instrument has enduring effect, certainty and clarity for aviation operators, both domestic and international.
In this case, the instrument amends the principal instrument and is almost immediately spent and repealed in accordance with the automatic repeal provisions in Subdivision A in Division 1 of Part 3 of Chapter 3 of the LA. The principal instrument is itself repealed at the end of 1 December 2024 by virtue of the terms of section 2 of the principal instrument (as amended). Thus, in practice, no sunsetting avoidance issues arise and there is no impact on parliamentary oversight.
Incorporations by reference
Under subsection 98 (5D) of the Act, the exemption instrument may apply, adopt or incorporate any matter contained in any instrument or other writing. A non-legislative instrument may be incorporated into a legislative instrument made under the Act, as that non-legislative instrument exists or is in force at a particular time or from time to time (including a non-legislative instrument that does not exist when the legislative instrument is made). Under paragraph 15J (2) (c) of the LA, the Explanatory Statement must contain a description of the incorporated documents and indicate how they may be obtained.
References to provisions of CASR are taken to be as they are in force from time to time, by virtue of paragraph 13 (1) (c) of the LA. CASR is freely available online on the Federal Register of Legislation.
The following documents are applied, adopted or incorporated for the purposes of the exemption instrument.
Document | Description | Manner of incorporation | Source |
Civil Aviation Order 82.3 | Sets out requirements for an FDAP (flight data analysis program) for smaller aircraft. | As in force immediately before 2 December 2021. | This document is available for free on the Federal Register of Legislation. |
Civil Aviation Order 82.5 | Sets out requirements for an FDAP (flight data analysis program) for larger aircraft. | As in force immediately before 2 December 2021. | This document is available for free on the Federal Register of Legislation. |
Operator expositions (T&C (training and checking) SMS, HFP&NTS (human factors principles and non-technical skills) program (including certain manuals which for aerial work operations are the equivalent of expositions) | A document, or suite of documents, that sets out the plans, processes, procedures, programs and systems implemented by the operator to comply with the civil aviation legislation.
Various kinds of exposition deal with different matters. | As in force from time to time by virtue of subsection 98 (5D) of the Civil Aviation Act 1988, and in accordance with the definition of exposition in the CASR Dictionary. | These are the proprietary intellectual and commercial property of specific operators and apply only to the operator and its personnel. Further, the operator is under obligations to make the exposition available to its personnel who have obligations under the document. |
Consultation
Under section 16 of the Act, in performing its functions and exercising its powers, CASA must consult government, industrial, commercial consumer and other relevant bodies and organisations as far as CASA considers such consultation to be appropriate.
Under section 17 of the LA, before a legislative instrument is made, CASA must be satisfied that it has undertaken any consultation it considers appropriate and practicable in order to draw on relevant expertise and involve persons likely to be affected by the proposals.
Exemptions from regulatory requirements are considered to be beneficial for those to whom they apply, who voluntarily elect to take advantage of them, and who comply with their conditions. It is, therefore, rarely necessary to engage in extensive public consultation on a proposed exemption. However, it is CASA’s policy to consult, where possible, in an appropriate way with those parts of the aviation industry most likely to avail themselves of, or be affected by, an exemption so that they may have the opportunity to comment on the possible or likely terms, scope and appropriateness of the exemption.
Although a formal, public consultation has not been undertaken in relation to this exemption instrument, the amendments to the principal instrument have arisen from informal consultation with the aviation industry relating to the continuing implementation of the FOR in relation to Australian air transport operators and aerial work operators. The amendments are designed to provide flexibility of timing and methodology for the aviation industry and CASA in relation to implementing the remaining elements of the FOR, thereby, enabling intended safety outcomes in the short, medium and long term.
Office of Impact Analysis (OIA)
An Impact Analysis (IA) is not required because the instrument is covered by a standing agreement between CASA and the OIA under which an IA is not required for exemption or direction instruments (OIA 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.
In terms of economic and cost impacts for subsection 9A (3) of the Act, the exemption instrument will relieve operators from requirements that might otherwise have involved compliance costs.
Sector risks
For aviation safety reasons, the exemption instrument is specific to those operators who fall within its scope and who choose to take the benefit of the exemptions and comply with its conditions.
Environmental impact
Under subsection 9A (2) of the Act, while regarding the safety of air navigation as the most important consideration, CASA must exercise its powers and perform its functions in a manner that ensures that, as far as practicable, the environment is protected from the effects and associated effects of the operation and use of aircraft.
It is not anticipated there will be any negative environmental impacts as a result of the exemption instrument, as compared to the baseline that existed on 1 December 2021, since the instrument does not create any new environmental impacts arising from flight operations.
Statement of Compatibility with Human Rights
The Statement in Appendix 2 is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The exemption instrument is compatible with human rights: with its aviation safety focus, it promotes the right to life, the right to work, and the right to safe and healthy working conditions, and it does so in a way that is reasonable, necessary and proportionate in the context of aviation safety.
Making and commencement
The instrument commences on 2 December 2023. The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
Appendix 1
Details – CASA EX99/23 – Amendment of CASA EX87/21 – Instrument 2023 (No. 2)
1 Name
This section names the instrument.
2 Commencement
Under this section, the instrument commences on 2 December 2023.
3 Amendment of CASA EX87/21
Under this section, Schedule 1 amends CASA EX87/21 – Flight Operations Regulations – SMS, HFP&NTS and T&C Systems – Supplementary Exemptions and Directions Instrument 2021 (the principal instrument).
Schedule 1 Amendments
[1] Section 2
This amendment modifies the date of repeal of the principal instrument to be the end of 1 December 2024.
[2] Subsection 3 (1), definitions
This amendment principally redefines the meaning of CAR (the Civil Aviation Regulations 1988) to be the version as in force from time to time. Particular provisions will refer to CAR as in force immediately before 2 December 2021 where that version is intended to be the operative version for the provision.
[3] Subsection 3 (1), definition of HFP&NTS program
The amendment corrects an error. The definition is to focus on operational safety-critical personnel, essentially ground-based staff, not crew members.
[4] Subsection 3 (1), new definition
The amendment adds a definition of Subpart 121.Z operation.
[5] Subsection 3 (4)
This amendment indicates that unless the contrary intention is expressed, any document incorporated into the instrument is so incorporated as it is in force from time to time.
[6] Subsection 7 (1)
This amendment removes a requirement to obtain approval before commencing scheduled air transport operations, and replaces it with a requirement to comply with the directions in section 8.
[7] Section 8, the heading
This amendment is consequential on the removal, under amendment 6, of approvals before commencing scheduled air transport operations.
[8] Paragraph 8 (1) (b)
Section 8 contained directions to relevant operators that, if they had taken the benefit of an exemption, they must give CASA an implementation plan (not later than the end of 3 April 2023), and apply for approval of the related SMS exposition content (not later than the end of 3 June 2024).
Under the amendment, the proposed SMS exposition content must be submitted by a specified date (of which there would be at least 3 months’ notice) and they must not commence using the proposed SMS exposition content until the day they receive CASA’s written advice that they may do so. CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
[9] After subsection 8 (2)
This amendment is consequential on amendment 8. Thus, the prohibition on using the proposed SMS exposition content until receipt of CASA advice about it, does not apply if the use is for purposes other than compliance with civil aviation legislation, for example, using proposed SMS exposition content for the purpose of meeting a customer’s contractual requirement for the operator to have and use an SMS.
[10] Section 8A, including the Note
This amendment is consequential on the removal, under amendment 8, of the requirement for SMS exposition content approvals.
[11] Section 9, including the Note
Previously, the exemptions under section 6 of the principal instrument were to expire for a relevant operator at the earlier of: the end of 1 December 2024, or when CASA’s approval of the operator’s proposed SMS exposition content takes effect.
Under the amendment, the exemptions expire for a relevant operator at the end of a date specified in writing by CASA of which there will be at least 3 months’ notice. CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
[12] Subsection 17 (1)
Previously, under subsection 17 (1), it was a condition of the exemptions in section 16 that the relevant operator must not commence a relevant aerial work operation of a kind that the operator was not authorised to conduct immediately before 2 December 2021 until CASA had approved the operator’s SMS manual content for the operation.
This amendment makes it a condition of the exemptions that the operator must not commence a relevant aerial work operation until the operator has complied with the directions in section 18, rather than requiring a CASA approval.
[13] Section 18, the heading
This amendment is consequential on the removal, under amendment 12, of the requirement for approvals.
[14] Paragraph 18 (1) (b)
Section 8 contained directions to relevant operators that, if they had taken the benefit of an exemption under section 6, they must give CASA an implementation plan (not later than the end of 3 April 2023), and apply for approval of the related SMS manual content (not later than the end of 3 June 2024).
Under the amendment, the proposed SMS manual content must be submitted by a specified date (of which there would be at least 3 months’ notice) and they must not commence using the proposed SMS manual content until the day they receive CASA’s written advice that they may do so. CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
[15] After subsection 18 (2)
This amendment is consequential on amendment 14. Thus, the prohibition on using the proposed SMS manual content until receipt of CASA advice about it, does not apply if the use is for purposes other than compliance with civil aviation legislation, for example, using proposed SMS manual content for the purpose of meeting a customer’s contractual requirement for the operator to have and use an SMS.
[16] Section 18A, including the Note
This amendment is consequential on amendment 14.
[17] Section 19, including the Note
Previously, the exemptions under section 14 of the principal instrument were to expire for a relevant operator at the earlier of: the end of 1 December 2024, or when CASA’s approval of the operator’s proposed SMS manual content takes effect.
Under the amendment, the exemptions expire for a relevant operator at the end of a date specified in writing by CASA of which there will be at least 3 months’ notice. CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
[18] Part 5, the heading
This amendment removes a redundant heading.
[19] Section 27
Under this amendment, it is a condition of the exemptions in section 26 of the principal instrument that the relevant operator must not commence scheduled air transport operations until the relevant operator has complied with the directions in section 28.
[20] Section 28
Previously, section 28 contained directions to relevant operators that, if they had taken the benefit of an exemption under section 26, they must give CASA their proposed HFP&NTS program exposition content by a specified date.
Under the amendment, proposed HFP&NTS program exposition content must be submitted by a specified date (of which there would be at least 3 months’ notice) and they must not commence using the proposed HFP&NTS program exposition content until the day they receive CASA’s written advice that they may do so. A Note explains that receiving the written advice would permit a relevant operator to use the proposed HFP&NTS program exposition content immediately. In any event, it must be used as soon as the exemption expires on the specified date mentioned in section 29.
CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
[21] Section 28A, including the Notes
This amendment is consequential on the removal of the removal requirement under amendment 20.
[22] Section 29, including the Note
This amendment is also consequential on the removal of the requirement for CASA approval of an HFP&NTS program exposition before it could take effect.
Under the amendment, the exemptions in section 26 expire for a relevant operator at the end of a date specified in writing by CASA of which there will be at least 3 months’ notice.
CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
[23] Paragraph 30 (b)
This amendment is consequential on the redefinition of CAR. Thus CAR mentioned in this provision is the version as in force immediately before 2 December 2021.
[24] Subsection 32 (1)
This amendment is similarly consequential on the redefinition of CAR. It is also consequential on the removal from section 33 of the requirement for CASA approval of training and checking (T&C) exposition content.
[25] Section 33
Section 33 contained directions to relevant operators that, if they had taken the benefit of an exemption under section 31, they must give CASA the proposed T&C exposition content for approval not later than the end of 3 April 2023.
Under the amendment, the proposed T&C exposition content must be submitted by a specified date (of which there would be at least 3 months’ notice) and they must not commence using the proposed T&C exposition content until the day they receive CASA’s written advice that they may do so.
The amendment also provides that the bar on non-commencement does not apply to an operator’s use of the proposed T&C exposition content for purposes other than compliance with civil aviation legislation, for example, using the proposed T&C exposition content for the purpose of meeting a customer’s contractual requirement for the operator to have and use a T&C system.
CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
[26] Section 33A, including the Notes
The amendment is consequential on the removal, under amendment 25, of the requirement for approvals for proposed T&C exposition content.
[27] Section 34, including the Note
This amendment is consequential on the removal of the requirement for CASA approval of proposed T&C exposition content before it could be used.
Under the amendment, the exemptions in section 31 expire for a relevant operator at the end of a date specified in writing by CASA of which there will be at least 3 months’ notice.
CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
[28] Paragraph 34A (b)
This amendment is consequential on the redefinition of CAR. Thus CAR mentioned in this provision is the version as in force immediately before 2 December 2021.
[29] Section 34D
Section 34D contained directions to relevant operators that, if they had taken the benefit of an exemption under section 34B, they must give CASA the proposed T&C exposition content for approval not later than the end of 3 April 2023.
Under the amendment, the proposed T&C exposition content must be submitted by a specified date (of which there would be at least 3 months’ notice) and they must not commence using the proposed T&C exposition content until the day they receive CASA’s written advice that they may do so.
The amendment also provides that the bar on non-commencement does not apply to an operator’s use of the proposed T&C exposition content for purposes other than compliance with civil aviation legislation, for example, using the proposed T&C exposition content for the purpose of meeting a customer’s contractual requirement for the operator to have and use an enhanced T&C system.
CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
[30] Section 34DA, including the Notes
The amendment is consequential on the removal, under amendment 29, of the requirement for approvals for proposed T&C exposition content.
[31] Section 34E, including the Note
This amendment is consequential on the removal of the requirement for CASA approval of proposed T&C exposition content before it could be used.
Under the amendment, the exemptions in section 34B expire for a relevant operator at the end of a date specified in writing by CASA of which there will be at least 3 months’ notice.
CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
[32] Paragraph 35 (b)
This amendment is consequential on the redefinition of CAR. Thus, CAR mentioned in this provision is the version as in force immediately before 2 December 2021.
[33] Subsection 37 (1)
This amendment is consequential on the redefinition of CAR. Thus CAR mentioned in this provision is the version as in force immediately before 2 December 2021. It is also consequential on the removal from section 34E of the requirement for CASA approval of training and checking (T&C) exposition content.
[34] Section 38
Section 38 contained directions to relevant operators that, if they had taken the benefit of an exemption under section 36, they must give CASA the proposed T&C exposition content for approval not later than the end of 3 April 2023.
Under the amendment, the proposed T&C exposition content must be submitted by a specified date (of which there would be at least 3 months’ notice) and they must not commence using the proposed T&C exposition content until the day they receive CASA’s written advice that they may do so.
The amendment also provides that the bar on non-commencement does not apply to an operator’s use of the proposed T&C exposition content for purposes other than compliance with civil aviation legislation, for example, using the proposed T&C exposition content for the purpose of meeting a customer’s contractual requirement for the operator to have and use an enhanced T&C system.
CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
[35] Section 38A, including the Notes
The amendment is consequential on the removal, under amendment 34, of the requirement for approvals for proposed T&C exposition content.
[36] Section 39, including the Note
This amendment is consequential on the removal of the requirement for CASA approval of proposed T&C exposition content before it could be used.
Under the amendment, the exemptions in section 36 expire for a relevant operator at the end of a date specified in writing by CASA of which there will be at least 3 months’ notice.
CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
[37] Part 9, the heading
This amendment modifies the heading of Part 9 to include mention of Subpart 121.Z operations. Part 9 deals with T&C systems for Australian air transport operators in Part 135 operations (that is, aircraft with a maximum operational passenger seat configuration of not more than 9, and a maximum take-off weight of not more than 8 618 kg). Subpart 121.Z operations are single‑engine aeroplanes of the same weight limitation, but with a maximum operational passenger seat configuration of more than 9.
[38] Section 40, the chapeau
Section 40 is an application section for the Part. The amendment extends the application to Subpart 121.Z operations.
[39] Paragraph 40 (b)
This amendment is consequential on the redefinition of CAR. Thus, CAR mentioned in this provision is the version as in force immediately before 2 December 2021.
[40] Subsection 42 (1)
This amendment is consequential on the redefinition of CAR. Thus, CAR mentioned in this provision is the version as in force immediately before 2 December 2021. It is also consequential on the removal from section 43 of the requirement for CASA approval of training and checking (T&C) exposition content.
[41] Paragraph 42 (2) (b)
This amendment is consequential on amendments 37 and 38 so that the relevant conditions apply to both Part 135 operations and Subpart 121.Z operations.
[42] Paragraph 42 (2) (c)
This amendment is consequential on amendments 37 and 38 so that the relevant conditions apply to both Part 135 operations and Subpart 121.Z operations.
[43] Paragraph 42 (3) (a)
This amendment is consequential on amendments 37 and 38 so that the relevant conditions apply to both Part 135 operations and Subpart 121.Z operations.
[44] Section 43
Section 43 contained directions to relevant operators that, if they had taken the benefit of an exemption under section 41, they must give CASA the proposed T&C exposition content for approval not later than the end of 3 April 2023.
Under the amendment, the proposed T&C exposition content must be submitted by a specified date (of which there would be at least 3 months’ notice) and the operator must not commence using the proposed T&C exposition content until the day they receive CASA’s written advice that they may do so.
The amendment also provides that the bar on non-commencement does not apply to an operator’s use of the proposed T&C exposition content for purposes other than compliance with civil aviation legislation, for example, using the proposed T&C exposition content for the purpose of meeting a customer’s contractual requirement for the operator to have and use an enhanced T&C system.
CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
[45] Section 43A, including the Notes
The amendment is consequential on the removal, under amendment 44, of the requirement for approvals for proposed T&C exposition content.
[46] Section 44, including the Note
This amendment is consequential on the removal of the requirement for CASA approval of proposed T&C exposition content before it could be used.
Under the amendment, the exemptions in section 41 expire for a relevant operator at the end of a date specified in writing by CASA of which there will be at least 3 months’ notice.
CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
[47] Paragraph 45 (2) (b)
This amendment is consequential on the redefinition of CAR. Thus, CAR mentioned in this provision is the version as in force immediately before 2 December 2021.
[48] Subsection 47 (1), excluding the Note
This amendment is consequential on the redefinition of CAR. Thus, CAR mentioned in this provision is the version as in force immediately before 2 December 2021. It is also consequential on the removal from section 48 of the requirement for CASA approval of proposed T&C manual content.
[49] Section 48
Section 48 contained directions to relevant operators that, if they had taken the benefit of an exemption under section 46, they must give CASA the proposed T&C manual content for approval not later than the end of 3 April 2023.
Under the amendment, the proposed T&C manual content must be submitted to CASA by a specified date (of which there would be at least 3 months’ notice) and the operator must not commence using the proposed T&C manual content until the day they receive CASA’s written advice that they may do so.
The amendment also provides that the bar on non-commencement does not apply to an operator’s use of the proposed T&C manual content for purposes other than compliance with civil aviation legislation, for example, using the proposed T&C manual content for the purpose of meeting a customer’s contractual requirement for the operator to have and use an enhanced T&C system.
CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
[50] Section 48A, including the Notes
The amendment is consequential on the removal, under amendment 49, of the requirement for approvals for proposed T&C manual content.
[51] Section 49, including the Note
This amendment is consequential on the removal of the requirement for CASA approval of proposed T&C manual content before it could be used.
Under the amendment, the exemptions in section 46 expire for a relevant operator at the end of a date specified in writing by CASA of which there will be at least 3 months’ notice.
CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
[52] Section 52
Previously, section 52 made it a condition of the exemption in section 51 that the operator must not commence a scheduled air transport operation in an aircraft that required, or would have required, an FDAP under Civil Aviation Order 82.3 or 82.5, as in force immediately before 2 December 2021, until CASA’s approval of the operator’s exposition content that meets the requirements of regulation 119.195 of CASR takes effect.
Under the amendment, the approval requirement is removed and replaced with a requirement that the relevant operator has complied with the directions in section 53.
[53] Section 53
Section 53 contained directions to relevant operators that, if they had taken the benefit of an exemption under section 51, they must give CASA the proposed exposition content for approval not later than the end of 3 June 2024.
Under the amendment, the proposed T&C exposition content must be given to CASA by a specified date (of which there would be at least 3 months’ notice) and the operator must not commence using the proposed T&C exposition content until the day they receive CASA’s written advice that they may do so.
The amendment also provides that the bar on non-commencement does not apply to an operator’s use of the proposed T&C exposition content for purposes other than compliance with civil aviation legislation, for example, using the proposed T&C exposition content for the purpose of meeting a customer’s contractual requirement for the operator to have and use a FDAP.
CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
[54] Section 53A
The amendment is consequential on the removal, under amendment 53, of the requirement for approvals for proposed exposition content.
[55] Section 54, including the Note
This amendment is consequential on the removal of the requirement for CASA approval of proposed exposition content before it could be used.
Under the amendment, the exemptions in section 51 expire for a relevant operator at the end of a date specified in writing by CASA of which there will be at least 3 months’ notice.
CASA is working with relevant operators to reach a point where exemptions and directions are not required, but with limited resources it is not possible at this stage to specify a date of effect for completion of that process. The principal instrument expires at the end of 1 December 2024 and it will be possible then to reassess what progress has been made towards this goal.
Appendix 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX99/23 – Amendment of CASA EX87/21 – Instrument 2023 (No. 2)
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 CASA EX99/23 – Amendment of CASA EX87/21 – Instrument 2023 (No. 2) (the exemption instrument) is to amend and insert a number of exemptions and directions within CASA EX87/21 – Flight Operations Regulations – SMS, HFP&NTS and T&C Systems – Supplementary Exemptions and Directions Instrument 2021 (CASA EX87/21 or the principal instrument). CASA EX87/21 makes a number of exemptions and directions relating to Parts 119, 121, 133, 135 and 138 of the Civil Aviation Safety Regulations 1998. These Parts are some of CASA’s new Flight Operations Regulations (FOR) that commenced on 2 December 2021.
Human rights implications
The legislative instrument engages with the following human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011:
the right to life under Article 6 of the International Covenant on Civil and Political Rights (the ICCPR)
the right to safe and healthy working conditions under Article 7 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR)
the right to work under Article 6 of the ICESCR.
Right to life under the ICCPR
Right to safe and healthy working conditions under the ICESCR
Right to work under the ICESCR
This engagement is in the context of CASA’s statutory purpose. The aim of CASA and its regulatory framework is to uphold aviation safety by prescribing the conduct of individuals and organisations involved in civil aviation operations, including flight operations. It is, therefore, a threshold requirement for all CASA legislative instruments that they preserve, promote and enhance aviation safety and, thereby, contribute to safe and healthy working conditions for crew and ground staff.
Along with some minor corrections, the instrument further amends the principal instrument to allow more time for relevant operators to transition to full compliance with the FOR while ensuring that an acceptable level of safety is preserved. The amendments are designed to provide flexibility of timing and methodology for the aviation industry and CASA in relation to implementing the remaining elements of the FOR, thereby, enabling intended safety outcomes in the short, medium and long term.
Human rights implications
This legislative instrument is compatible with human rights and to the extent that it may engage certain rights it does so in a way that promotes the right to life, the right to work, and safe and healthy working conditions on board relevant aircraft. These measures are considered to be reasonable, necessary and proportionate in the interests of aviation safety.
Conclusion
This legislative instrument is compatible with human rights.
Civil Aviation Safety Authority