EXPLANATORY STATEMENT

ATTACHMENT A

 

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Civil Aviation Safety Amendment (Flight Crew Licensing Measures No. 1) Regulations 2018

 

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 Disallowable Legislative Instrument

The Legislative instrument (the Regulations) makes various amendments to the Civil Aviation Safety Regulations 1998 (CASR). Parts 61 and 64 of CASR, which relate to flight crew licensing and authorisations for non-licensed personnel respectively, commenced on 1 September 2014. Part 202 of CASR contains transitional provisions for Parts 61 and 64 of CASR, many of which expire at the end of 31 August 2018.

The Regulations amend Part 61 of CASR to:

*         remove the requirement for completion of dual instrument time for the grant of a recreational navigation endorsement or for the grant of a private pilot licence with the helicopter category rating where the licence is gained after completing a non-integrated course of training;

*         remove the requirement for completion of instrument time for the grant of a commercial pilot licence with the helicopter category rating where the licence is gained after completing a non-integrated course of training;

*         provide alternate aeronautical experience requirements for the grant of a commercial pilot licence with the helicopter category rating.

The Regulations also revise transitional provisions for persons who held certain authorisations before 1 September 2014 and have not yet transitioned to an authorisation under Part 61 or 64 of CASR in accordance with the current transitional arrangement. It continues to allow those persons to apply for, and for CASA to grant, an equivalent new authorisation under Part 61 or 64 of CASR based on the existing authorisation. It replaces the requirement for CASA to grant an equivalent new authorisation under Part 61 or 64 of CASR before 1 September 2018. It also makes consequential amendments to facilitate these new transitional arrangements.

Human rights implications

This legislative instrument engages the right to work in article 6(1) of the International Covenant on Economic, Social and Cultural Rights. It promotes the right to work to the extent that it provides more opportunities for some people to obtain flight crew and other authorisations and therefore participate in work involving aviation activities for which those authorisations are required.

The revised transitional provisions could be said to limit the right to work for persons who have not yet transitioned to an authorisation under Part 61 or 64 of CASR who would otherwise have been automatically granted an authorisation under current arrangements. CASA has found it administratively impractical to grant equivalent new authorisations to all persons who held a relevant authorisation before 1 September 2014. However, under CASA's administrative practices since 1 September 2014, persons who qualified for a new licence or rating, or completed a flight review or proficiency check, were granted a new licence under Part 61 of CASR. Under Part 61 of CASR, a pilot is required to complete a flight review or proficiency check every 24 months. Therefore, the changes to the transitional arrangements will not affect a person who is currently participating in work involving aviation activities. Further, a person who held a certain authorisation before 1 September 2014 who has yet to transition to an authorisation under Part 61 or 64 of CASR will continue to be able to apply for, and be granted, an equivalent new authorisation under Part 61 or 64 of CASR based on the old authorisation until 31 August 2025.

In these circumstances, any limitation on the right to work is reasonable and proportionate.

The instrument is consistent with other human rights and freedoms.

Conclusion

The legislative instrument is compatible with human rights and to the extent that it may also limit human rights, those limitations are reasonable and proportionate to promote the practical administration of the aviation safety system for flight crew licenses and related authorisations.

 

ATTACHMENT B

 

Details of the Civil Aviation Safety Amendment (Flight Crew Licensing Measures No. 1) Regulations 2018

 

Section 1 - Name of Regulations

 

This section provides that the title of the Regulations is the Civil Aviation Safety Amendment (Flight Crew Licensing Measures No. 1) Regulations 2018.

 

Section 2 - Commencement

 

This section provides that the Regulations commence immediately before the end of 31 August 2018.

 

Section 3 - Authority

 

This section provides that the Regulations are made under the Civil Aviation Act 1988.

 

Section 4 - Schedule(s)

 

This section provides that each instrument that is specified in a Schedule to the instrument will be amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument will have effect according to its terms.

 

Schedule 1 - Amendments

 

Item 1 Subregulation 61.422(2)

 

Item 1 amends subregulation 61.422(2) by replacing "a continued authorisation" with "an old authorisation" as a consequential amendment arising from the amendment to regulations 202.272 by item 14 below. The amendment ensures the holder of a recreational pilot licence granted under the transition regulations in Part 202 of CASR 1998, based on a licence that was issued prior to 4 March 2008, can exercise the privileges of the licence without having to satisfy the aviation English language proficiency requirements in subregulation 61.422(1).

 

Item 2 Paragraph 61.495(2)(c)

 

Item 2 replaces paragraph 61.495(2)(c) and removes the requirement for dual instrument time and dual instrument flight time experience specified for the grant of a recreational navigation endorsement. The amendment is consistent with Items 5 and 9 of this Schedule, which remove the requirement for dual instrument and dual instrument flight time for the grant of a private pilot licence with helicopter category rating and for the grant of a commercial pilot licence with helicopter category rating, only if the applicant completed a non-integrated training course. The amendment addresses concerns raised by the helicopter flight training sector about the availability of suitably equipped flight training aircraft, and flight instructors capable of conducting basic instrument flight training. Other safety concerns were raised about newly qualified pilots being tempted to fly in marginal conditions in aircraft that lack basic flight instruments.  The requirement for dual instrument time and dual instrument flight time for pilots exercising the privileges of a recreational pilot licence with an aeroplane category rating and a recreational navigation endorsement are being included in a legislative instrument made by CASA under regulation 11.068.

 

Item 3 Paragraph 61.500(5)(c)

 

Item 3 replaces paragraph 61.500(5)(c) to remove the dual instrument time and dual instrument flight time experience requirement for pilots applying for a recreational navigation endorsement on the basis of equivalent authorisations issued by a recreational aviation administration organisation. The amendment harmonises the requirements with amendments made under Item 2 of this Schedule.

 

Item 4 Paragraph 61.550(1)(d)

 

Item 4 makes a punctuation correction to paragraph 61.550(1)(d) as a consequence of the repeal of subsequent paragraphs 61.550(1)(e) and (f), described under ltem 5 of this Schedule.

 

Item 5 Paragraphs 61.550(1)(e) and (f)

 

Item 5 repeals paragraphs 61.550(1)(e) and (f) to remove the requirement of two hours of dual instrument time and at least one hour of dual instrument flight time from the minimum aeronautical experience requirements, specified for an applicant of a private pilot licence with a helicopter category rating who has not completed a course of integrated flight training. The amendment harmonises the requirements with amendments made under items 2 and 3 of this Schedule.

 

Item 6 Before subregulation 61.615(1)

 

Item 6 amends subregulation 61.615(1) as a consequence of the amendment described in ltem 7 of this Schedule, which provides for alternative minimum experience requirements, specified for an applicant of a commercial pilot licence with a helicopter category rating who has not completed a course of integrated flight training.

 

The requirements are based on the previous flight crew licensing regulations, in Part 5 of Civil Aviation Regulations 1988, which were retained during the transition period. The measure makes the alternative requirements an enduring provision in Part 61 of CASR.

 

Item 7 Subregulation 61.615(1)

 

Item 7 inserts new subregulation 61.615(1A) that provides an applicant, for a commercial pilot licence with a helicopter category rating who has not completed a course of integrated flight training, alternative minimum experience requirements under new subregulation 61.615(1B) described in item 10 of this Schedule.

 

Item 8 Paragraph 61.615(1)(d)

 

Item 8 makes a punctuation correction to paragraph 61.615(1)(d) as a consequence of the repeal of subsequent paragraphs, described under item 9 of this Schedule.

 

Item 9 Paragraphs 61.615(1)(e) and (f)

 

Item 9 repeals paragraphs 61.615(1)(e) and (f) to remove the requirement of at least 10 hours of instrument time and at least 5 hours of instrument flight time from the minimum aeronautical experience requirements, specified for an applicant of a commercial pilot licence with a helicopter category rating, who has not completed a course of integrated flight training.

The amendment harmonises the requirements with amendments made under items 2, 3 and 5 of this Schedule.

 

Item 10 After subregulation 61.615(1)

 

Item 10 inserts new subregulation 61.615(1B) which specifies the alternative minimum aeronautical experience standard for the grant of a commercial pilot licence with a helicopter category rating to applicants who have not completed a course of integrated flight training. This amendment maintains the minimum aeronautical experience requirements that were prescribed under CAR 5.127 and continued under transitional regulations.

 

Item 11 Subregulation 61.615(4)

 

Item 11 amends subregulation 61.615(4) to apply the minimum standards for cross-country flight time to the new alternative minimum aeronautical experience requirements introduced in new subregulation 61.615(1B), described under item 10 of this Schedule.

 

Item 12 After regulation 61.1247

 

Item 12 inserts new regulation 61.1248 which extends the limitation on the holder of a grade 2 training endorsement (helicopter) under subregulation 202.272(5) which will expire on 31 August 2018. The regulation requires the holder of a grade 2 training endorsement (helicopter), to satisfy the minimum experience requirements for initial flight training, specified in Table 61.1235 for the endorsement, before exercising the privileges of the endorsement. The holder may continue to exercise the privileges of the grade 3 training endorsement (helicopter) which was granted under regulation 202.272.

 

Item 13 Subregulation 61.1352(2)

 

Item 13 amends subregulation 61.1352(2) by replacing "a continued authorisation" with "an old authorisation" as a consequential amendment arising from the amendment to regulation 202.272 by item 14 below. The amendment ensures the holder of a flight engineer licence granted under the transitional regulations in Part 202 of CASR 1998, based on a licence that was issued prior to 4 March 2008, can exercise the privileges of the licence without having to satisfy the aviation English language proficiency requirements in subregulation 61.422(1).

 

Item 14 Subdivision 202.CB.1.3

 

Item 14 repeals subdivision 202.CB.1.3 and inserts new transitional regulations 202.272 and 202.273. Under previous transitional regulations, pilots, flight engineers and aeronautical radio operators could continue to conduct operations using their old pilot licences, approvals, delegations and certificates (old authorisations), until 31 August 2018. Under the previous transitionals, CASA was obliged to issue new Part 61 and Part 64 authorisations to every holder of an old authorisation before 1 September 2018. Also under the previous transitionals, from 1 September 2018, a person needed to hold a new authorisation if he or she was to conduct an activity for which the new authorisation was required.

 

The proposed Regulations would extend, from 1 September 2018 to 31 August 2025, the period within which the holder of an old authorisation could apply to CASA for the grant of a new equivalent (Part 61) authorisation.

 

In certain cases, the person might need to provide CASA with evidence of holding an old authorisation where CASA has no record of the person holding the qualification. This change would not apply to approved testing officer delegations that were not valid immediately before the new regulations commenced on 1 September 2014.

 

Subregulation 202.272(1) applies the new transition provision to a person if he or she held an old authorisation at any time prior to 1 September 2014 except an authorisation that is equivalent to a Part 61 flight examiner rating. The provision does not apply if the old authorisation was cancelled or surrendered at any time before 1 September 2018.

 

Subregulation 202.272(2) provides for the recognition of an old authorisation as satisfying the requirements for the grant of a new Part 61 authorisation.

 

Subregulation 202.272(3) maintains an existing transition provision that applies if the old authorisation is an aircraft endorsement. The provision ensures the licence holder is granted the equivalent Part 61 aircraft class or type rating.

 

Subregulation 202.272(4) requires CASA to grant the new authorisation to the applicant subject to subregulations (2) and (3) and Part 11 of CASR.

 

Subregulation 202.272(5) applies to an old authorisation that is suspended. The new authorisation would be granted with the suspension terms that applied to the old authorisation including the expiry date of the old suspension.

 

Subregulation 202.272(6) ensures conditions that apply to the old authorisation are applied to the new authorisation on the same terms.

 

Item 14 also inserts regulation 202.273 which makes a reference in the Regulations to a Part 61 authorisation (such as a licence, rating or endorsements) granted under regulation 202.272 a reference to that authorisation granted before or after this amendment regulation commences.

 

Item 15 Regulation 202.277

 

Item 15 substitutes regulation 202.277 to apply the requirements to retain and produce personal logbooks for seven years from the date of the last flight recorded in the logbook under regulation 61.355 and 61.365, to logbooks that were required under CAR 5.51 prior to 1 September 2014.

 

Item 16 Subregulation 202.278(2)

 

Item 16 amends subregulation 202.278(2) to extend the period, until 31 August 2020, within which CASA may continue to recognise the training and assessment conducted by a foreign training provider, authorised by the National Aviation Authority of a foreign State, recognised by CASA, for the grant of a Part 61 pilot type rating.

 

This practice was available under the previous licensing regulations and is needed in cases where the specified training is not available in Australia. This measure continues the arrangement until 31 August 2020.

 

 

 

 

 

Item 17 Subregulation 202.279(3)

 

Item 17 amends subregulation 202.279(3) to extend the period CASA may continue to recognise the practical assessment of an instrument proficiency check conducted by a person who is authorised by the National Aviation Authority of a foreign State recognised by CASA, until 31 August 2020. This practice was also available under the previous licensing regulations and is needed where operators and pilots use flight simulators that are located overseas.

 

Item 18 Regulation 202.304 and 202.304A

 

Item 18 substitutes regulation 202.304 to extend the period for recognition of old authorisations that were issued under CAR prior to 1 September 2014, which are equivalent to a Part 64 aeronautical radio operator certificate, except those that have been cancelled or surrendered before 1 September 2018.  The holder of an old authorisation will be able to apply to CASA for the grant of an aeronautical radio operator certificate based on the old authorisation.

 

Subregulation 202.304(2) provides for the recognition of an old equivalent authorisation as satisfying the requirements for the grant of an aeronautical radio operator certificate.

 

Subregulation 202.304(3) requires CASA to grant a new aeronautical radio operator certificate to the applicant subject to subregulation (2) and Part 11 of CASR.

 

Subregulation 202.304(4) applies to an equivalent old authorisation that is suspended. The new aeronautical radio operator certificate would be granted with the suspension terms that applied to the old authorisation including the expiry date of the old suspension.

 

Subregulation 202.304(5) ensures conditions that apply to the old authorisation are applied to the new aeronautical radio operator certificate on the same terms.

 

Item 18 inserts new regulation 202.304A which makes a reference in the Regulations to an aeronautical radio operator certificate granted under regulation 202.304 a reference to an aeronautical radio operator certificate granted before or after this amendment regulation commences.

 

Item 19 Regulation 202.312

 

Item 19 substitutes regulation 203.312 which extends the expiry date of Division 202.CE.1 to 31 August 2025 for regulations 202.300, 202.304 and 202.304A. The other regulations in Division 202.CE.1 expire on 31 August 2018.