Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 40.3.0 Amendment Instrument 2013 (No. 1)
Purpose
Civil Aviation Order 40.3.0 (CAO 40.3.0) includes provisions to give primacy to the use of qualified synthetic training devices (QSTDs) (like flight simulators) for conversion training in certain helicopters. Certain types of conversion training in a helicopter give rise to significant safety risks whereas the same training in a QSTD represents a significant safety enhancement.
The purpose of Civil Aviation Order 40.3.0 Amendment Instrument 2013 (No. 1) (the CAO amendment) is to repeal a time-limited direction to those approved to give the relevant helicopter conversion training (that such training may only be conducted in a QSTD) and replace it with an opened-ended condition on their approvals to the same effect.
The CAO amendment also provides that this condition does not apply in relation to relevant helicopter conversion training for a co-pilot endorsement. This corrects an inconsistency that arose from another provision of CAO 40.3.0 to the effect that CASA may issue certain co-pilot endorsements without the applicant necessarily having qualified solely through QSTD conversion. The manoeuvres required for relevant co‑pilot conversion training do not represent such a significant risk as to justify mandatory and exclusive QSTD training.
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.
CAO 40.3.0 — legislative background
Under subregulation 5.21 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may approve a person who holds a helicopter (or aeroplane) pilot licence to give helicopter (or aeroplane) conversion training.
Under subregulation 5.22 (1) of CAR 1988, CASA may give directions in the Civil Aviation Orders (the CAOs) prescribing the aircraft endorsements that must be held, in particular, by a flight crew licence holder to carry out the duties authorised by the licence in a type or class of aircraft.
Under subregulation 5.23 (1) of CAR 1988, CASA may give directions in CAOs setting out the requirements for issue of an aircraft endorsement to, in particular, the holder of a flight crew licence.
CAO 40.3.0 contains these directions to, in particular, the holders of flight crew licences for helicopters. Subregulations 5.22 (1) and 5.23 (1) of CAR 1988 do not apply to holders of conversion training approvals and, therefore, new requirements added to CAO 40.3.0 for holders of conversion training approvals require an appropriate, different head of power.
Under regulation 11.245 of the Civil Aviation Safety Regulations 1998 (CASR 1998), CASA may, by instrument (such as a CAO if the direction is to apply to more than one person), issue directions necessary for the safe navigation and operation of aircraft. Under regulation 11.250 of CASR 1998, a direction specifying a date on which it is to cease to be in force, ceases on that date. (Directions without a cease-by date would cease to be in force after 1 year.) Under regulation 11.255, contravention of a direction is a strict liability offence.
Under subregulation 11.068 (1) of CASR 1998, for subsection 98 (5A) of the Act, CASA may issue a legislative instrument that imposes a condition relating to (in effect) aviation safety on a specified class of authorisations.
Under regulation 11.077 of CASR 1998, contravention of such a condition is a strict liability offence with a penalty similar to that for contravention of a direction under regulation 11.245.
Under regulation 11.015 of CASR 1998, for Part 11 of CASR 1998 generally, authorisation includes most forms of civil aviation authorisation (a CAA).
Under section 3 of the Act, a CAA means an authorisation, under the Act or the regulations, to undertake a particular activity. An approval to conduct conversion training is, therefore, a CAA, and in turn an authorisation for Part 11, and, as a specified class of authorisations, open to the imposition, by a legislative instrument, of a class‑wide condition under subregulation 11.068 (1) of CASR 1998. A CAO (particularly a CAO applying to more than 1 person) is, by definition, a legislative instrument under which such class-wide conditions may be imposed.
Conversion training
There are always safety risks associated with the conduct of training in aircraft. For this reason, CASA mandates the use of flight simulators or flight training devices for certain helicopter conversion training rather than use of a helicopter as such.
This was achieved by Civil Aviation Order 40.3.0 Amendment Instrument 2012 (No. 1) directing, under regulation 11.245 of CASR 1998, that the training may not be conducted in a helicopter if a QSTD for the training is available in Australia or in a recognised foreign State. Because such directions are time-limited, this direction was expressed to expire on 31 March 2016.
Since it was intended that the new requirements would be an ongoing arrangement, it was not ideal to have such an expiry within a CAO and requiring eventual renewal.
Using the power under regulation 11.068 of CASR 1998, the CAO amendment places a condition on the class of CASA approvals which authorise the giving of certain conversion training, to the effect that, it is a condition on the approval of a person approved by CASA under paragraph 5.21 (1) (b) of CAR 1988 to give helicopter conversion training, that the person may only give the training in accordance with paragraph 2B.3 of CAO 40.3.0.
Under new paragraph 2B.3, subject to paragraph 2B.4, the conversion training must not be conducted in a helicopter but must be conducted in a QSTD in certain circumstances.
The CAO amendment does not change these circumstances which are as follows:
(a) for a multi-engine helicopter with a passenger seating capacity of not less than 10, and not more than 19, seats — if a QSTD for the helicopter type is available in Australia;
(b) for an helicopter with a passenger seating capacity of not less than 20 seats — if a QSTD for the helicopter type is available in Australia or in a recognised foreign State.
Under new paragraph 2B.4, paragraph 2B.3 does not apply for helicopter conversion training for the issue of a co-pilot endorsement provided the conversion training is in accordance with the requirements of the syllabus in a relevant Appendix of the Order and involves no other manoeuvres.
The requirement does not apply generally to the issue of a co-pilot endorsement because the syllabus of training for a co-pilot endorsement does not contain what CASA considers to be high-risk exercises. However, where a pilot with a co-pilot endorsement operates certain helicopters for an AOC holder under Civil Aviation Order 82.0 (CAO 82.0), the pilot will require additional training, conducted in a QSTD, as outlined in CAO 82.0.
Under the previous amendments made by Civil Aviation Order 40.3.0 Amendment Instrument 2012 (No. 1), CASA could issue certain co-pilot endorsements without the applicant necessarily having qualified solely through QSTD conversion. However, this exception had not also been expressed in relation to the direction given to conversion approval holders, creating an inconsistency. The exception regarding co-pilots has now been included in the CAO amendment as a condition on conversion approval holders.
Legislative Instruments Act 2003 (the LIA)
Under subregulation 5.22 (1) of CAR 1988, CASA may give directions in CAOs prescribing aircraft endorsements. Under subsections 98 (5) and 98 (5AAA) of the Act, such a CAO is a legislative instrument for the LIA. The CAO amendment is, therefore, a legislative instrument. It is subject to registration, and tabling and disallowance in the Parliament, under sections 24, and 38 and 42, of the LIA.
Consultation
The CAO amendment is essentially a machinery one which does not make a substantive change to the law. It provides relief to those approval holders conducting conversion training for an applicant’s co-pilot endorsement, which was the original intent of Civil Aviation Order 40.3.0 Amendment Instrument 2012 (No. 1). Consultation under section 17 of the LIA has been carried out by referring the proposal to the Standards Consultative Committee (SCC), a joint CASA/industry consultation group. The SCC had no objections to the proposal.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (the RIS) was prepared for the mandating of certain flight simulator training, which was implemented in part by Civil Aviation Order Amendment 40.3.0 Instrument 2012 (No. 1). The RIS was assessed as adequate by OBPR (OBPR id: 13510). This CAO amendment further implements the requirements outlined in the RIS. Therefore, CASA has met the OBPR requirements for this CAO amendment by preparing the aforementioned RIS.
Statement of Compatibility with Human Rights
The Statement in Appendix 2 is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Commencement and making
The CAO amendment commences on the day of registration. This will be simultaneously with a related amendment to CAO 40.1.0 in relation to aeroplanes. It has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Civil Aviation Order 40.3.0 Amendment Instrument 2013 (No. 1)]
Appendix 1
Details of Civil Aviation Order 40.3.0 Amendment Instrument 2013 (No. 1)
1 Name of instrument
Under this section, the instrument is the Civil Aviation Order 40.3.0 Amendment Instrument 2013 (No. 1).
2 Commencement
Under this section, the instrument commences on the day of registration.
3 Amendment of Civil Aviation Order 40.3.0
Under this section, Schedule 1 amends Civil Aviation Order 40.3.0.
Schedule 1 Amendment
[1] Paragraph 2B.1
substitute
2B.1This paragraph indicates that subsection 2B is for regulation 11.068 of CASR 1998.
2B.2Under this paragraph, it is a condition on the approval of a person approved by CASA under paragraph 5.21 (1) (a) of CAR 1988 to give helicopter conversion training, that the person may only give the training in accordance with paragraph 2B.3.
2B.3Under this paragraph, subject to paragraph 2B.4, conversion training for certain helicopters must not be conducted in the helicopter but must be conducted in a QSTD if such a device for the helicopter type is available either in Australia (for multi-engine helicopters with 10 to 19 seats), or in Australia or in a recognised foreign State (for any helicopter with 20 or more seats).
2B.4Under this paragraph, paragraph 2B.3 does not apply for helicopter conversion training for the issue of a co-pilot endorsement if the conversion training is conducted wholly in accordance with the training syllabus in Appendix III of this Order, and no other training or flight manoeuvre is conducted during a flight for the conversion training.
[2] Paragraph 2B.2, Note 1 and Note 2
Under this amendment, a new Note replaces the previous 2 Notes. It explains that subsection 2B constitutes a condition on the approval of a person to conduct helicopter conversion training, adding that it is intended to ensure that conversion training is not conducted in a helicopter, but rather in a QSTD, in the circumstances to which subsection 2B applies.
[3] Paragraph 2B.2
This amendment merely provides for the consequential renumbering of the paragraph.
Appendix 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Civil Aviation Regulations 1988
Civil Aviation Order 40.3.0 Amendment Instrument 2013 (No. 1)
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The CAO amendment repeals a time-limited direction to those approved to give relevant helicopter conversion training (that such training may only be conducted in a qualified synthetic training device (a QSTD)), and replaces it with an opened-ended condition to the same effect imposed on all relevant approval holders as a class. Since it was intended that the new requirements would be an ongoing arrangement, it was not ideal to have such an expiry within a CAO and requiring eventual renewal using another CAO amendment. Thus, the outcome is the same as before, including as to the potential penalties for contravening the requirements. The CAO amendment also provides that this particular condition on all relevant approval holders as a class does not apply in relation to relevant helicopter conversion training for co-pilot conversion endorsement where the same risks do not arise provided the conversion training is in accordance with the requirements of the syllabus in the relevant Appendix of the Order and involves no other manoeuvres.
Since the purpose of the CAO amendment is to make these machinery amendments and corrections to CAO 40.3.0, it is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The CAO amendment does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Human rights implications
The CAO amendment is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority
[Civil Aviation Order 40.3.0 Amendment Instrument 2013 (No 1)]