Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Order 40.2.1 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.
Under subregulation 5.14 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may give directions in Civil Aviation Orders (the CAOs) setting out the requirements for the issue of flight crew ratings.
Under subregulation 5.16 (1) of CAR 1988, CASA may issue flight crew ratings subject to conditions necessary in the interests of safety. Under paragraph 5.16 (2) (c), conditions can be set out in the CAOs made under regulation 303 of CAR 1988. Under regulation 303 of CAR 1988 where CASA is empowered by regulations to issue, among other things, flight crew ratings subject to conditions, the conditions may be specified in CAOs of general application.
Under regulation 5.18 of CAR 1988, CASA may give directions in the CAOs setting out the authority given by, and the limitations of, a flight crew rating, and the requirements to be met for the authority to be exercised. Directions and conditions for flight crew instrument ratings are set out in Civil Aviation Order 40.2.1 (CAO 40.2.1) which is amended by Civil Aviation Order 40.2.1 Amendment Order (No. 1) 2006 (the CAO Amendment).
The CAO Amendment
Subsection 6 of CAO 40.2.1 deals with the instrument rating endorsements to be entered in a personal log book. When an instrument rating is issued or renewed, the Order requires that the navigation aid NDB must also be entered in the pilot’s log book. The minimum navigation equipment required to be fitted and operational in an aircraft operating under the I.F.R. can be either an ADF (for which the pilot needs an NDB endorsement) or a VHF omni-range (for which the pilot needs a VOR endorsement). The CAO Amendment now allows for either NDB or VOR as the navigation aid that must be entered in the log book when an instrument rating is issued or renewed. Since the instrument rating test for a navigation aid endorsement is the same for all grades of instrument rating, there is no need in subparagraph 6.5 (b) to mention that a test must be applicable to a grade of rating.
The CAO Amendment includes a new paragraph 6.6 to make it clear that navigation aid endorsements are entered in the holder’s log book and are, therefore, not limited in duration and are not attached to any particular grade of instrument rating. However, their use is subject to compliance with the relevant recent experience, and proficiency testing requirements of subsection 11 of CAO 40.2.1.
Paragraphs 10.4 and 10.4.1 of CAO 40.2.1, dealing with instrument rating test requirements, are consequentially redundant and are removed.
Navigation aid endorsements are not attached to any particular grade of instrument rating. Under paragraphs 10.10 and 10.11 of CAO 40.2.1, instrument rating tests may be conducted as a series of tests but must all be passed within a period of 28 days. The purpose of the amendment to paragraph 10.5 is to ensure that if a person attempts, as a series of tests, the instrument rating flight test for both aeroplane and helicopter categories of aircraft, a demonstration of proficiency using a navigation aid in 1 of the aircraft categories is taken to be a demonstration of proficiency for the other aircraft category, provided proficiency in at least 1 instrument approach is demonstrated in each category.
Other CAO amendments are consequential to allow for either NDB or VOR to satisfy the requirements of an instrument rating test.
Under paragraph 10.4.3 of CAO 40.2.1, a person may attempt the instrument rating test for initial issue of a particular grade of instrument rating only if, among other things, the person already holds the pilot licence mentioned in subsection 8 of CAO 40.2.1, that is relevant for the rating. However, although otherwise eligible to have it issued, a person may not actually hold the relevant pilot licence until the person has obtained an appropriate security clearance in accordance with the requirements of the Aviation Transport Security Regulations 2005. The CAO Amendment modifies the CAO to permit a person to attempt the instrument rating test if they are, in effect, eligible to hold the relevant pilot licence because they have satisfied all relevant requirements for its issue under CAR 1988.
Subsection 13 of CAO 40.2.1 deals with the privileges and limitations of the various grades of instrument ratings. Paragraph 13.3.4 contains a safety condition imposed on each instrument rating under subregulation 5.16 (1) of CAR 1988, namely that “the holder of the rating” when exercising its authority “must use the types of navigation aids or procedures endorsed in the holder’s personal log book”.
This formulation of the condition has been open to a misinterpretation that it applies only to the pilot actually manipulating the controls of an aircraft and not to the co‑pilot who may not be doing so. However, even though a co-pilot may not be physically manipulating the controls, his or her duties include supporting the pilot who is doing so. This support is by means of configuring a navigation aid being used to navigate the aircraft, by in-putting data to the aid, by deriving navigational data using the aid and by monitoring the progress of the flight that is using the navigation aid. While performing these essential roles, the co-pilot is using the navigation aid and consequently needs to be trained and competent, which was the intent of the provision.
To make this obligation as clear as possible, paragraph 13.3.4 has been recast. It is a condition of each instrument rating that its holder may act as a pilot in command or as a co-pilot in an aircraft being flown under the I.F.R. only if each navigation aid or procedure that is used to navigate the aircraft during the flight has been endorsed in his or her personal log book.
However, a new paragraph 13A.3 will allow a co-pilot who, as part of an AOC holder’s approved cyclic training and proficiency program, has received endorsement training and demonstrated proficiency in the use of a navigation aid, to use that navigation aid, without holding an endorsement. He or she may only do so while acting as a co-pilot of an aircraft operated by the AOC holder.
Subparagraph 13.4 (a) about the use of distance measuring equipment (DMEs) is amended to align and clarify its meaning with its original intent which is that the holder of an instrument rating may use the DME for navigation purposes and not merely to determine the position of the DME itself.
Appendix I of CAO 40.2.1 deals with instrument rating tests. Paragraph 4.1 is redrafted to clarify the requirements for demonstrating proficiency using synthetic flight trainers and flight tests. It also clarifies the proficiency credits allowed for certain navigation aids if the applicant for renewal has demonstrated proficiency in certain other navigation aids.
Paragraph 4.2 of Appendix I is redrafted to make it clear that when a grade of instrument rating is being renewed, a person who has a DME or GPS arrival procedures endorsement is taken to have demonstrated proficiency in the navigation procedure for paragraph 11.6 of CAO 40.2.1 only.
Legislative Instruments Act
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 under section 17 of the LIA has not been undertaken in this case because the amendments are essentially clarifications of the relevant legislation rather than new rules.
The CAO Amendment will not, therefore, substantially alter existing arrangements and is regarded as being of a minor or machinery nature. The Office of Regulation Review has agreed that it may proceed without the preparation of a Regulation Impact Statement.
The instrument comes into effect on the day after it is registered.
The instrument 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 40.2.1 Amendment Order (No. 1) 2006]