Civil Aviation Order 40.2.1 Amendment Order (No. 1) 2006

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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 copilot 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]

Overview

The Civil Aviation Order 40.2.1 Amendment Order (No. 1) 2006 is an amendment to the Civil Aviation Order 40.2.1 (CAO 40.2.1) which governs the requirements for flight crew instrument ratings under the Civil Aviation Act 1988. This amendment addresses several issues related to the clarity and functionality of the existing regulations concerning instrument ratings, aiming to enhance safety and streamline the regulatory framework. The instrument was enacted by the Director of Aviation Safety on behalf of the Civil Aviation Safety Authority (CASA), under the authority conferred by section 84A(2) of the Civil Aviation Act 1988. The overarching policy objective of the amendment is to ensure that the conditions and requirements for instrument ratings are clearly defined, thereby reducing ambiguity and promoting a consistent approach to safety and training standards within the aviation industry. This amendment introduces several changes to clarify and refine the requirements for instrument ratings, including allowing for either NDB or VOR as the navigation aid that must be logged when an instrument rating is issued or renewed. Additionally, it removes redundant sections and modifies conditions to ensure that both pilots and co-pilots are adequately trained and competent in using the relevant navigation aids. The changes aim to enhance the overall safety and efficiency of instrument rating procedures by ensuring that all personnel involved are appropriately trained and certified, and that the regulations reflect current industry practices and safety standards.

Scope and Application

The Civil Aviation Order 40.2.1 Amendment Order (No. 1) 2006 amends Civil Aviation Order 40.2.1 to provide clarity and consistency in the regulations governing flight crew ratings and instrument rating endorsements, specifically addressing the conditions under which these ratings can be issued, the requirements for maintaining these ratings, and the circumstances in which they can be exercised. The amendments apply to all pilots and flight crew members subject to the Civil Aviation Regulations 1988, ensuring that they meet the safety standards necessary for operating under instrument flight rules (IFR). The changes are intended to streamline the process for obtaining and maintaining instrument ratings while maintaining high safety standards. The amendments clarify that navigation aid endorsements, such as NDB or VOR, are not tied to a specific grade of instrument rating and that proficiency testing requirements are consistent across all grades. Additionally, the amendments address the role of co-pilots in the use of navigation aids, ensuring they are trained and competent in their use. The Order extends to the national jurisdiction of Australia and is subject to disallowance under the Legislative Instruments Act 2003. This amendment is considered minor and did not require the preparation of a Regulation Impact Statement.

Key Provisions

The Civil Aviation Order 40.2.1 Amendment Order (No. 1) 2006 amends Civil Aviation Order 40.2.1, which sets out the requirements for instrument ratings for flight crew. The main changes introduced by the amendment include modifications to the conditions for instrument rating endorsements, the duration and scope of these endorsements, and the conditions for taking the instrument rating test. For instance, under the amendment, when an instrument rating is issued or renewed, the endorsement for the navigation aid NDB can now also include VOR (paragraph 6). This change allows for greater flexibility in the types of navigation aids that can be endorsed in a pilot's log book. Additionally, navigation aid endorsements are clarified to be of unlimited duration and not tied to any specific grade of instrument rating, though their use must comply with relevant experience and proficiency testing requirements (paragraph 6.6). The amendment also removes redundant provisions and clarifies the conditions under which instrument rating tests can be attempted, including for those who are eligible to hold a relevant pilot licence but have not yet obtained the necessary security clearance (paragraph 10.4.3). The obligations imposed by the CAO Amendment on the parties it governs primarily involve ensuring that pilots maintain accurate and updated endorsements in their log books, comply with the specified conditions for instrument rating tests, and adhere to the safety conditions related to the use of navigation aids. Pilots must ensure that any navigation aids they use during Instrument Flight Rules (IFR) operations are endorsed in their log books, and co-pilots must be trained and proficient in the navigation aids they support the pilot in using. Furthermore, pilots must comply with the conditions set out for taking instrument rating tests, including the timelines for completing the tests and the requirement to demonstrate proficiency in specific navigation aids or procedures. The amendment does not introduce new offences or penalties but reinforces existing obligations and conditions. Failure to comply with the requirements for endorsements, proficiency testing, and the use of navigation aids could result in civil or criminal liability under the Civil Aviation Act 1988, depending on the nature and severity of the breach. For example, operating an aircraft without the necessary endorsements or proficiency could lead to enforcement actions by the Civil Aviation Safety Authority (CASA), potentially resulting in fines or other penalties. Additionally, serious breaches could lead to criminal charges under the Act, with penalties including substantial fines and imprisonment. The specific penalties would be determined based on the circumstances of the breach and the provisions of the Civil Aviation Act 1988.

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Aviation Law
Instrument
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.