Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 40.0 Amendment Order (No. 1) 2006
Legislation
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.
Airborne collision avoidance systems
Division 5 of Part 14 of the Civil Aviation Regulations 1988 (CAR 1988) (regulations 262AA to 262AJ, inclusive) provide for the use of an airborne collision avoidance system (ACAS) as an important aviation safety enhancement device. A TCAS II is a special type of ACAS and is the currently acceptable type of ACAS.
Under Division 5 of CAR 1988, the pilot in command of an Australian aircraft that is a turbine‑powered commercial aeroplane must not begin a flight if the aircraft is not fitted with an approved and serviceable TCAS II (regulation 262AC). The TCAS II must be activated at all times while the aircraft is in flight (regulation 262AD).
When these provisions were inserted into CAR 1988 in 1998, no express provision was made to mandate relevant ACAS training. International statistical evidence suggested low pilot understanding of ACAS operations, with the potential to compromise safety. This was considered to be the case for all aircraft operations and not only turbine-powered commercial aeroplanes. As a result, regulations 5.26B to 5.26J, inclusive, of CAR 1988, were inserted in December 2000 to set out the training requirements that would apply on or after 1 May 2001 before a person could act as pilot in command of an Australian aircraft with ACAS fitted and activated.
CASR Part 61
The wording of regulations 5.26B to 5.26J was complex and resulted in some confusion and misunderstanding about when training was required and when it was completed. It was recognised that the proposed introduction of CASR Part 61 would rectify these concerns. Under CASR Part 61, ACAS competency will become a non-renewable endorsement rather than a logbook entry, and the training will be signed off by any ACAS-approved flight or ground instructor (including airline check pilots who will also be required to hold instructor ratings). The addition of CASA-approved persons with such sign off powers will also make it possible for CASA to evaluate overseas ACAS training courses and grant approvals on merit to overseas instructors to sign off the training.
However, finalisation of CASR Part 61 has been delayed and there is uncertainty about when it will become effective. In the meantime, the problems caused by the wording of regulations 5.26B to 5.26J remained. There were concerns that some pilots using ACAS were not ACAS-current (as required by regulation 5.26F) and that some operators were unable to comply with the requirements for currency because of the complexity of the process involved.
CASA, therefore, decided to seek the repeal of regulations 5.26B to 5.26J of CAR 1988. The repeal was effected by Civil Aviation Amendment Regulations 2006 (No. 1) published as Select Legislative Instrument 2006 No. 184 (the Amendment Regulations). It was intended to substitute an appropriate, interim, regulatory framework for training through amendments to Civil Aviation Order 40.0 (the CAO Amendment).
Legislation for CAO Amendment
Under subregulation 5.11 (1) of CAR 1988, CASA may issue flight crew licenses subject to conditions necessary in the interests of safety. Under paragraph 5.11 (2) (c), conditions can be set out in Civil Aviation Orders (the CAOs) made under regulation 303 of CAR 1988. Under regulation 303 of CAR 1988, where CASA is empowered by regulations to issue flight crew licences, subject to conditions, the conditions may be specified in CAOs of general application.
The CAO Amendment
The CAO Amendment provides that it is a condition of each private pilot licence, commercial pilot licence and air transport pilot licence that its holder may act as the pilot in command (PIC) of an Australian aircraft with an activated ACAS only in restricted circumstances.
Firstly, the licence holder can act as PIC if he or she is an employee acting for an operator with a training and checking organisation (TCO) approved by CASA under regulation 217 of CAR 1988. The PIC must have been assessed by an appropriate person in the TCO, in accordance with its training and checking manual (T&C manual) and currency requirements, as meeting the competency standards mentioned in CASA’s ACAS syllabus as prepared and published under paragraph 5.59 (h) of CAR 1988 (the competency standards).
Secondly, the licence holder can act as PIC if, not earlier than 24 months before so acting, an appropriate person had certified in the holder’s personal logbook that he or she meets the competency standards.
Thirdly, the licence holder can act as PIC if an appropriate person is instructing or assessing the holder to determine whether he or she meets the competency standards.
There are 4 categories of appropriate person: a CASA flying operations inspector; the holder of a grade 1, grade 2 or grade 3 flight instructor (aeroplane) rating whose personal log book is itself certified for the competency standards within the previous 24 months; a person approved by CASA; or, for TCO purposes, a person approved by the operator to provide training and checking in accordance with the operator’s T&C manual.
Legislative Instruments Act
Regulation 5.11 provides that conditions may be imposed on flight crew licences by the CAOs. Under subsection 98 (5) of the Act, where regulations provide for an instrument to be issued in the form of a CAO, the CAO is declared to be a disallowable instrument. Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. The CAO Amendment is, therefore, a legislative instrument. It is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Before seeking to have the Amendment Regulations made, CASA consulted with the affected stakeholders through the Standards Consultative Committee (an aviation industry/CASA consultative forum).
Office of Regulation Review
The Office of Regulation Review (the ORR) considered that the substance of the then proposed Amendment Regulations were adequately considered by the Regulation Impact Statement (RIS) prepared by CASA and cleared by the ORR on 20 August 2004 for CASR Part 61 (ORR ID No. 2777). No further RIS was necessary for the Amendment Regulations (ORR ID No. 7999 refers).
The CAO Amendment is consequential on Amendment Regulations and is, therefore, regarded as not requiring preparation of a specific RIS.
The CAO Amendment comes into effect on the day after it is registered.
It has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 84A (2) of the Act.
[Civil Aviation Order 40.0 Amendment Order (No. 1) 2006]