Civil Aviation Order 40.0 Amendment Order (No. 1) 2009

Overview

The Civil Aviation Order 40.0 Amendment Order (No 1) 2009 was enacted to address the need for updated English language proficiency requirements for pilots and flight engineers in line with International Civil Aviation Organization (ICAO) standards. This amendment to the Civil Aviation Regulations 1988 (CAR 1988) was introduced to ensure that all pilots and flight engineers operating under Australian-issued licences meet the necessary English language standards for safe air navigation, in accordance with ICAO’s defined levels of proficiency. The policy objective behind this amendment was to enhance aviation safety by ensuring that flight crew members possess the requisite language skills to conduct operations effectively and safely. The Amendment Order was enacted by the Director of Aviation Safety under the authority granted by the Civil Aviation Act 1988 and is subject to tabling and disallowance in the Parliament, in accordance with the Legislative Instruments Act 2003.

Scope and Application

The Civil Aviation Order 40.0 Amendment Order (No 1) 2009 applies to all pilots and flight engineers who operate under Australian-issued licences and seek to obtain or retain a flight crew licence. This amendment to the Civil Aviation Regulations 1988 (CAR 1988) pertains to the English language proficiency standards set by the International Civil Aviation Organization (ICAO) for flight crew, which CASA has adopted and implemented from 5 March 2008. The Act mandates that only individuals with a minimum English language proficiency of ICAO level 4 (operational), level 5 (extended), or level 6 (expert) are eligible to exercise the authority given by a flight crew licence. Furthermore, the Amendment Order allows CASA to approve an English language course as a General English Language Course if certain specified requirements are met, providing a pathway for applicants to meet these proficiency standards. The Amendment Order extends the application of these regulations nationally across Australia, as it pertains to licences issued under the Civil Aviation Act 1988. The Amendment Order is a legislative instrument and is subject to tabling and disallowance in the Parliament under the Legislative Instruments Act 2003.

Key Provisions

The Civil Aviation Order 40.0 Amendment Order (No 1) 2009 (Amendment Order) amends the Civil Aviation Order 40.0, which is concerned with flight crew licences and medical certificates. The Amendment Order primarily focuses on the English language proficiency requirements for pilots and flight engineers operating under Australian-issued licences, aligning these requirements with the standards set by the International Civil Aviation Organization (ICAO) (reg 3). The ICAO has established six levels of English language proficiency, with levels 4 (operational), 5 (extended) and 6 (expert) being acceptable for operational flying. Under this amendment, CASA has adopted these standards and has applied them from 5 March 2008 to ensure that all pilots and flight engineers possess the requisite English language skills to safely conduct flying operations in Australian airspace. The Amendment Order imposes several obligations and requirements on the parties it governs. Firstly, it mandates that CASA may only issue a flight crew licence to an applicant if they demonstrate sufficient knowledge of the English language, as per subregulation 5.09(1) of the Civil Aviation Regulations 1988 (CAR 1988). This requirement ensures that all licensed pilots and flight engineers can safely and effectively communicate in English, thereby enhancing the overall safety of air navigation. Additionally, the Amendment Order allows CASA to set conditions necessary for the safety of air navigation, in accordance with subregulation 5.11 of CAR 1988, which can be specified in the Civil Aviation Orders (CAOs). This provision ensures that CASA can maintain high safety standards in the issuance of flight crew licences. Failure to comply with the English language proficiency requirements outlined in the Amendment Order may result in serious consequences. Firstly, CASA is empowered to refuse the issuance of a flight crew licence to any applicant who does not meet the English language requirements, as per subregulation 5.09(1) of CAR 1988. Furthermore, any person who contravenes the conditions set out in the CAOs may be subject to civil or criminal penalties, depending on the severity of the breach. For instance, under section 26 of the Civil Aviation Act 1988, a person who contravenes a condition of their licence may be liable for a civil penalty of up to $10,500 for an individual and $52,500 for a body corporate. In more serious cases, an individual offender may also be subject to a criminal penalty of up to 2 years imprisonment, while a body corporate may be liable for a penalty of up to $525,000. These penalties serve as a deterrent to non-compliance and underscore the importance of adhering to the English language proficiency requirements for flight crew licences. The Amendment Order is a legislative instrument made under the Legislative Instruments Act 2003 (LIA) and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA. Specifically, under subsection 98(4A) of the Civil Aviation Act 1988, CAOs made for section 28BA of the Act are declared to be disallowable instruments. Additionally, the Office of Best Practice Regulation determined that a Regulation Impact Statement was not required for this amendment, as it was assessed to have only a low impact on business compliance costs. The Amendment Order was made by the Director of Aviation Safety in accordance with subsection 84A(2) of the Act and came into effect on the day after it was registered.