Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 82.6 Amendment Order (No. 2) 2008
Background
Night vision goggles (NVG) are a head mounted night vision enhancement device. They use image intensifying technology to amplify the available ambient light sufficiently for images to be seen through the NVG eyepieces as a monochromatic green image.
NVG technology evolved mainly in advanced military forces, including in Australia. In certain strictly controlled circumstances, the use of NVG can enhance crew situational awareness and improve overall flight safety under night visual flight rules (NVFR). As a result of helicopter industry interest, and overseas developments, in the use of NVG for civilian helicopter operations, CASA established an assessment trial to facilitate the use of NVG in certain public interest helicopter operations.
Civil Aviation Order 82.6 (CAO 82.6) supports the trial by providing for operational and airworthiness standards and approval requirements for the use of NVG in specialised helicopter aerial work operations, namely search and rescue, law enforcement, aerial fire fighting, aerial fire fighting support, emergency medical services, marine pilot transfers, training for any of these, and demonstration and positioning flights.
CAO 82.6 makes unlawful any non-approved use of NVG as a primary means of terrain avoidance for safe air navigation by means of visual surface reference external to an aircraft.
Background to the CAO amendment
The purpose of the Civil Aviation Order 82.6 Amendment Order (No. 2) 2008 (the CAO amendment) is to correct and revise 2 amendments that appeared in the Civil Aviation Order 82.6 Amendment Order (No. 1) 2008 (the No. 1 amendment). The latter was registered on 30 May 2008. It amended CAO 82.6 essentially to take into account representations made to CASA by the joint CASA/industry NVG Trial Monitoring and Evaluation Group (the Group) at its March 2008 meeting.
The Group, which is comprehensively representative of the relevant helicopter industry involved with NVG, was established by CASA for the purpose of overseeing various aspects of the NVG trial. An important part of its role is to suggest for consideration amendments to CAO 82.6 to ensure that the trial of NVG is as effective and as safe as possible so that it may be relied upon to guide future developments in the use of NVG.
The earlier amendments
Amendment 14 in the No. 1 amendment increased from to 40 to 50, the number of hours of NVG flight time required to be approved as an NVG flight instructor. However, the amendment erroneously required that these 50 hours must be accumulated during the 12 months preceding the application for the NVG flight instructor approval. It was not intended that such a restriction be imposed.
Amendment 15 in the No. 1 amendment made it a new requirement for the NVG flight instructor approval that a candidate must have successfully completed an NVG flight instructor training course acceptable to CASA. Completion was to be during the 12 months preceding the application for the NVG flight instructor approval, and the course was to be of at least 5 hours duration. However, it was not intended that such a 12 month time restriction be imposed, and it was intended that the 5 hours should refer to minimum NVG flight training time rather than the overall duration of the training course.
In the course of preparing corrections to these matters, it was also decided to expressly ensure that the new requirement for successful completion of an NVG flight instructor training course could be satisfied by successful completion of such a course run by acceptable overseas or military trainers. Under the No.1 amendment this was arguably the case but it was decided to place the matter beyond doubt.
The CAO amendment
The CAO amendment, therefore, amends the provisions affected by the incorrect No. 1 amendments. Details of the new amendments are set out in Attachment 1.
Legislation
The legislative basis for CAO 82.6 is set out in Attachment B. The CAO amendment is made under the same legislative framework.
Legislative Instruments Act 2003 (the LIA)
CAO 82.6, and amendments to it, take effect as conditions on Air Operator Certificate holders’ certificates.
Under subsections 98 (4A) and (4B) of the Civil Aviation Act 1988 (the Act), Civil Aviation Orders made for section 28BA of the Act (conditions on Air Operators’ Certificates) are expressly declared to be legislative instruments.
The CAO amendment is, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case because it is considered to have taken place already. CAO 82.6, as amended by the No. 1 amendment, did not accurately reflect the CASA/Industry NVG Trial Monitoring Group’s recommendation for NVG flight instructor requirements. The CAO amendment accurately implements that recommendation and clarifies its scope. To this extent no further consultation was required on the proposal.
Regulation Impact Statement
OBPR does not require a RIS for the CAO amendment because a preliminary assessment of the business compliance costs indicates that the CAO amendment will have only a nil to low impact on business.
Commencement and making
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 82.6 Amendment Order (No. 2) 2008]
Attachment A
Details of CAO amendment
Amendment No.1
This amendment revokes amended paragraph 15 (f) of Appendix 3 of CAO 82.6 and substitutes a new paragraph.
New paragraph 15 (f) provides that an applicant to be approved as an NVG flight instructor must (among other things), after receiving an NVG qualification, and unless CASA approves otherwise in writing, have at least 50 hours of NVG flight, and not less than 12 months of NVG flying experience. This flight time and flying experience must be as an NVG pilot in command, an NVG pilot in command under supervision (known as ICUS), an NVG pilot under post-initial qualification dual training, or any combination of these.
Amendment No. 2
This amendment revokes amended paragraph 15 (fa) of Appendix 3 of CAO 82.6 and substitutes a new paragraph.
New paragraph 15 (fa) provides that an applicant to be approved as an NVG flight instructor must (among other things), successfully complete an NVG flight instructor training course, acceptable to CASA, that includes at least 5 hours of NVG dual flight training.
The course must also have a syllabus which includes development of the ability to instruct effectively for competency in the subjects mentioned in subclause 30.4 of Appendix 3, or, for an applicant relying on an overseas or military NVG flight instructor training course, an equivalent range of subjects acceptable to CASA.
In addition, the course must be conducted by an approved operator in accordance with his or her operations manual, or, for an applicant relying on an overseas or military NVG flight instructor training course, be conducted by an overseas or military operator acceptable to CASA.
A Note explains that the 50 hours of NVG flight for paragraph (f) may include the hours of NVG dual flight training from the NVG flight instructor training course.
Another Note explains that the NVG flight instructor training course syllabus may also provide for development of other instructional abilities relevant to the requirements of the operator’s specific NVG operations.
A final Note explains that CASA will indicate in writing its acceptance of an equivalent range of subjects, a relevant overseas or military operator or an NVG flight instructor training course, as the case requires.
Attachment B
Legislative basis for CAO 82.6 and amendments to it
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.
CAR 1988
Under subregulation 5 (1) of the Civil Aviation Regulations 1988 (CAR 1988), where CASA is empowered to issue certain instruments, it may do so in a CAO.
Under subregulation 157 (1) of CAR 1988, the pilot in command of an aircraft must not fly over a city, town or populous area at a height lower than 1 000 feet, or over any area at a height lower than 500 feet. Bruce Byron
Under subregulation 174B (1) of CAR 1988, except for take-off and landing, the pilot in command of an aircraft must not fly it at night under the visual flight rules (V.F.R.) at a height of less than 1 000 feet above the highest obstacle within 10 miles.
Under subregulation 195 (1) of CAR 1988, at night and in conditions of poor visibility, the operator and pilot in command of an aircraft must comply with the rules in Part 13 of CAR 1988 about the lights to be displayed for the aircraft.
Under subregulation 207 (2) of CAR 1988, a person must not use an Australian aircraft in a class of operation if the aircraft is not fitted with the instruments and equipment approved and directed by CASA. In approving or directing, CASA may have regard only to the safety of air navigation.
Under subregulation 215 (3) of CAR 1988, CASA may give directions requiring an operator to include, revise or vary information, procedures or instructions in the operations manual (operating procedures).
Under subregulations 217 (1) and (3) of CAR 1988, CASA may specify operators who must provide an approved training and checking organisation (a TCO) to ensure that members of the operator’s operating crews maintain their competency.
Under subregulation 308 (1) of CAR 1988, in relation to particular aircraft or categories of aircraft, CASA may exempt the aircraft, or persons in, on, or otherwise associated with the operation of, the aircraft, from compliance with specified provisions of CAR 1988. Under subregulation 308 (2), before making an exemption, CASA must take relevant safety considerations into account. Under subregulation 308 (3), CASA may make an exemption subject to necessary safety conditions.
Under section 27 of the Act, CASA may issue Air Operators’ Certificates (AOCs) for its functions. Under subsections 27 (2) and (9) of the Act, an aircraft operator must hold an AOC in order to operate for certain prescribed purposes. Paragraph 206 (1) (a) of CAR 1988, prescribes aerial work purposes of various kinds, including aerial spotting, flying training, ambulance functions, and purposes that are substantially similar to these. Substantially similar purposes are generally taken to include search and rescue, law enforcement, aerial fire fighting and marine pilot transfers.
Under paragraph 28BA (1) (b) of the Act, an AOC has effect subject to, among other things, conditions specified in Civil Aviation Orders.