Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Order 40.2.1 Amendment Order (No. 2) 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 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 CAO 40.2.1 which is amended by Civil Aviation Order 40.2.1 Amendment Order (No. 2) 2006 (the CAO Amendment).
The CAO Amendment
Regulation 2 of CAR 1988 defines a synthetic flight trainer as a flight simulator, a flight training device or a synthetic trainer. Under paragraph 9.2 of CAO 40.2.1, a synthetic flight trainer may be approved for accruing certain instrument time, and to meet flight test and recent experience requirements. Instrument rating credits applicable to an approved synthetic flight trainer are mentioned in Appendix II of CAO 40.2.1.
Paragraph 9.1 of CAO 40.2.1 states that the operational standards for synthetic flight trainers that may be approved are detailed in documents entitled FSD-1 Operational Standards and Requirements — Approved Flight Simulators (FSD-1), and FSD‑2 Operational Standards and Requirements — Approved Synthetic Trainers (FSD2). However, the standards in FSD-1 were superseded by those contained in Manual of Standards (MOS) — Part 60 Synthetic Training Devices, made under Part 60 of the Civil Aviation Safety Regulations 1998 (CASR 1998). The reference to FSD-1 is, therefore, out-of-date. The CAO Amendment deletes the reference to FSD-1 and substitutes a reference to the MOS. The name of FSD2 is also corrected.
Appendix II of CAO 40.2.1 deals with the instrument rating credits for approved synthetic flight trainers. As a result of the MOS, the classification of approved flight simulators referred to in section 1 of Appendix II is out-of-date. The designation of the levels of classifications has changed and some classifications have been combined. The CAO Amendment, therefore, substitutes a new section 1 in Appendix II and modifies the Note to mention the MOS instead of FSD-1.
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 of a minor or machinery nature designed to correct out-of-date references.
The CAO Amendment is consequential on Part 60 of CASR 1998 and the MOS made under it. Part 60 was the subject of Regulation Impact Statement CASA #0301 (the RIS) approved by the Office of Regulation Review. Paragraph 4.19 of the RIS foreshadowed this consequential amendment and no further RIS is required.
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. 2) 2006]
Overview
The Civil Aviation Order 40.2.1 Amendment Order (No. 2) 2006, enacted to address outdated references and ensure consistency with current regulatory standards, amends the Civil Aviation Order 40.2.1, which sets out the requirements for issuing flight crew ratings. This amendment was introduced to rectify discrepancies caused by the replacement of the operational standards for synthetic flight trainers, previously outlined in FSD-1 Operational Standards and Requirements – Approved Flight Simulators, with the more recent Manual of Standards (MOS) under Part 60 of the Civil Aviation Safety Regulations 1998. The amendment corrects references within the Civil Aviation Order, replacing outdated references to FSD-1 with references to the MOS, thereby ensuring that the regulatory framework aligns with current safety and operational standards. This legislative instrument was created by the Director of Aviation Safety on behalf of the Civil Aviation Safety Authority (CASA) and is subject to tabling and disallowance in the Parliament, as per the Legislative Instruments Act 2003.
Scope and Application
The Civil Aviation Order 40.2.1 Amendment Order (No. 2) 2006 amends the Civil Aviation Order 40.2.1 concerning the requirements for flight crew ratings, particularly those related to synthetic flight trainers. This amendment applies to any individual or entity that utilises a synthetic flight trainer for accruing instrument time and meeting flight test and recent experience requirements. This includes pilots, flight training organisations, and any other entities involved in the issuance or regulation of flight crew ratings under the Civil Aviation Act 1988. The amendment has a national jurisdictional reach as it pertains to the overarching federal regulatory framework governing civil aviation in Australia. The amendment does not introduce new exclusions, exemptions, or thresholds; rather, it updates references to align with more recent regulatory standards, such as the Manual of Standards (MOS) under the Civil Aviation Safety Regulations 1998. The amendment also clarifies the authority and limitations of flight crew ratings by updating the relevant operational standards for synthetic flight trainers. As a legislative instrument, the amendment is subject to tabling and disallowance in the Parliament under the Legislative Instruments Act 2003.
Key Provisions
The main operative sections of the Civil Aviation Order 40.2.1 Amendment Order (No. 2) 2006 (CAO Amendment) focus on updating and correcting references in the Civil Aviation Order 40.2.1 (CAO 40.2.1) to ensure alignment with current regulatory standards. Specifically, regulation 2 of the CAO Amendment updates the definition of a synthetic flight trainer to incorporate flight simulators, flight training devices, and synthetic trainers. This change is intended to streamline the terminology and ensure consistency with the Manual of Standards (MOS) under the Civil Aviation Safety Regulations 1998 (CASR 1998). Paragraph 9.2 of CAO 40.2.1 is amended to align with the new standards by deleting the outdated reference to FSD-1 Operational Standards and Requirements—Approved Flight Simulators (FSD-1) and replacing it with a reference to the MOS—Part 60 Synthetic Training Devices. Additionally, Appendix II of CAO 40.2.1 is revised to correct the classification of approved flight simulators and to update the instrument rating credits for approved synthetic flight trainers in line with the MOS.
The CAO Amendment imposes obligations on flight training organisations and flight instructors to ensure their training programs and devices meet the updated standards outlined in the MOS. Flight training organisations must ensure that synthetic flight trainers used for accruing instrument time and meeting flight test and recent experience requirements comply with the new operational standards. Flight instructors must be adequately trained and certified to operate these updated training devices. Furthermore, the amendment requires that any references to FSD-1 be corrected to align with the current regulatory framework, ensuring that all documentation and records reflect the most recent standards and requirements.
Failure to comply with the provisions of the CAO Amendment may result in various consequences. While specific offences, penalties, or civil/criminal consequences are not explicitly stated in the CAO Amendment, it is reasonable to infer that non-compliance with Civil Aviation Orders can lead to regulatory enforcement actions. Such actions may include administrative penalties, suspension or revocation of flight crew ratings, or other corrective measures deemed necessary by the Civil Aviation Safety Authority (CASA). The severity of these penalties would be determined based on the nature and extent of the non-compliance, with potential maximum penalties being prescribed under the Civil Aviation Act 1988 and related regulations. Ensuring adherence to the updated standards is therefore critical to maintaining the safety and integrity of flight training practices in Australia.