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 2020

 

The 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 main purpose of the Civil Aviation Safety Amendment (Flight Crew Licensing Measures No. 1) Regulations 2020 (the Regulations) is to effect amendments to Parts 61 and 202 of the Civil Aviation Safety Regulations 1998 (CASR). The Regulations make permanent numerous exemptions made to temporarily address issues identified following the commencement of Part 61 of CASR on 1 September 2014. In addition, it corrects minor errors and addresses several unintended consequences identified following commencement of Part 61 of CASR. Lastly, it extends the transition period of two regulations until 31 August 2023 to recognise certain training and assessment activities conducted overseas.

 

Human rights implications

Aspects of the Regulations engage Article 6 of the International Covenant on Economic Social and Cultural Rights, specifically the right to work.

 

The Right to Work

The right to work includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept. Article 6(2) also provides that the steps to be taken to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

 

Item 1 in Schedule 1 of the Regulations amends regulation 61.010(1) so that an applicant would be able to qualify for and be able to operate powered-lift aircraft which are expected to enter service in the near future. The Regulations enhance the right to work as an applicant would be able to obtain a licence to operate powered-lift aircraft. Powered-lift aircraft are expected to be disruptive entrants in the transportation industry and the Regulations positively engage with the right to work by facilitating the process for pilots to be able to work in an emerging industry.

 

Item 4 in Schedule 1 of the Regulations amends regulation 61.235(2)(b) of CASR so that an applicant for an air transport pilot licence who attains less than 100% in an aeronautical knowledge examination is not required to satisfy an examiner they have sufficient knowledge in those areas where they were deficient in the examination. The right to work would not be compromised as the minimum knowledge standard is assured and assessed by a flight examiner during flight test activity for the grant of the licence. The Regulations maintain or enhance the right to work as an applicant for an air transport pilot licence will not be required to satisfy an unnecessary requirement before attempting the flight test for the licence.

 

Item 5 in Schedule 1 of the Regulations amends subregulation 61.245(3) to remove the requirement that a flight test for a flight crew licence not be conducted by the same person who provided the certification under paragraph 61.235(2)(aa). The Regulations enhance the right to work as a flight examiner is now permitted to provide both the certification required and conduct the flight test. This accords greater flexibility for flight examiners and applicants for licences, particularly in locations with limited flight examiners.

 

Items 6 and 7 in Schedule 1 of the Regulations amends subregulation 61.275(1) to remove the requirement for the holder of an overseas flight crew licence who is an applicant for an MPL or ATPL to provide a written certification that the applicant is competent, and instead require the applicant to pass the flight test mentioned in the Part 61 Manual of Standards for the Australian licence. The right to work would not be compromised as the applicant's knowledge and competence is assured and assessed by a flight examiner during flight test activity for the grant of the licence. The Regulations maintain or enhance the right to work as the holder of an overseas flight crew licence who is an applicant for an Australian MPL or ATPL will not be required to satisfy an unnecessary requirement before attempting the flight test for the licence.

 

Item 10 in Schedule 1 of the Regulations amends regulation 61.610 so that an applicant for a commercial pilot licence can qualify for the licence with less than 100 hours aeronautical experience in certain circumstances. The Regulations maintain or enhance the right to work as an applicant for a commercial licence pilot will have greater flexibility in meeting aeronautical experience requirements, thereby promoting the right to work by enabling a person to apply for a licence earlier than otherwise available.

 

Items 11, 14, 21 and 35 in Schedule 1 of the Regulations amends paragraphs 61.640(1A)(a), 61.680(2A)(a) and 61.900(2)(a) to allow a relevant licence or endorsement holder to conduct a 3D instrument approach operation if the holder passed the flight test for the licence or endorsement within the previous 12 months. Item 35 in Schedule 1 of the Regulations inserts a new regulation in Subpart 202.CB to ensure a pilot is not penalised by the amendments to paragraphs 61.640(1A)(a), 61.680(2A)(a) or 61.900(2)(a) by authorising the pilot to conduct a 3D instrument approach operation if their flight test for the licence or endorsement was conducted prior to the commencement date of the amendment regulation and included a 3D instrument approach operation. The holder would be permitted to conduct a 3D instrument approach operation during the period starting when the holder passed the flight test and ending 24 months later or when the holder next attempts an instrument proficiency check, whichever is earlier. The Regulations maintain the right to work by providing a new transitional regulation to minimise any unintended impact in the unlikely event a completed instrument proficiency check did not include a 3D instrument approach operation.

 

Items 12, 15, 22 and 23 in Schedule 1 of the Regulations amends paragraph 61.640(1A)(b), 61.680(2A)(b) and 61.900(2)(b) to ensure that a pilot who has demonstrated competency conducting 3D instrument approach operations within the previous 15 months is authorised to conduct those kinds of operations. The pilot would not be prevented from conducting a 3D instrument approach operation if the pilot completes an instrument proficiency check that does not include a 3D instrument approach operation. The Regulations enhance the right to work as a pilot who has demonstrated competency conducting 3D instrument approach operations within the previous 15 months is authorised to conduct those kinds of operations, even if the pilot has completed an instrument proficiency check that did not include a 3D instrument approach operation.

 

Item 19 in Schedule 1 of the Regulations inserts a new subregulation 61.747(5) to recognise that the experience the holder of an aircraft class rating has accrued removes the need for the holder to complete flight training and a flight review simply because an aircraft type has been prescribed by CASA in an instrument. The Regulations enhance the right to work as affected pilots are not required to undergo flight training and a flight review where they have experience operating the aircraft type prior to CASA prescribing the type in an instrument, thereby minimising cost and time spent undergoing training and a flight review.

 

Items 24 and 25 in Schedule 1 of the Regulations amends subregulation 61.1000(1) and regulation 61.1010 to provide alternate options for the holder of a NVIS rating to demonstrate competency using night vision goggles in a particular type of helicopter, and competency using night vision goggles. The Regulations enhance the right to work as affected pilots have alternate options to demonstrate the competency required and be authorised to conduct flights.

 

Items 26 and 27 in Schedule 1 of the Regulations amends regulation 61.1025 to remove the requirement for an applicant for a Grade 1 NVIS endorsement to hold a Helicopter night VFR (visual flight rules) endorsement, and, for an applicant for a Grade 1 or 2 night vision imaging system endorsement, to have at least 20 hours of aeronautical experience at night as pilot of a helicopter or an approved flight simulation training device. The Regulations enhance the right to work as a relevant applicant will have greater flexibility in meeting aeronautical experience requirements, thereby promoting the right to work by enabling a person to apply for an endorsement earlier than otherwise available.

 

Items 28 and 29 in Schedule 1 of the Regulations amends regulation 61.1120 (table 61.1120, item 2, column 3) and paragraphs 61.1130(2)(a) and (2)(b) to require an applicant for a helicopter aerial application endorsement to have at least 10 hours of dual flight in a helicopter while receiving training in aerial application operations and have a combination of direct and indirect supervision for the first 110 hours of aerial application operations. The Regulations enhance the right to work as a relevant applicant will have greater flexibility in meeting aeronautical experience requirements, thereby promoting the right to work by enabling a person to apply for an endorsement earlier than otherwise available.

 

Items 31 and 34 in Schedule 1 of the Regulations repeals regulations 61.1172, 61.1197 and 61.1402 of CASR to ensure that holders of either a flight instructor rating, simulator instructor rating or flight engineer instructor rating granted on the basis of regulations 202.272 or 202.274 of CASR are not required to have completed either an approved course of training in principles and methods of instruction, hold a Certificate IV in training and assessment or hold a tertiary qualification in teaching in order to exercise the privileges of the rating. The Regulations maintain or enhance the right to work as, for a flight instructor rating, simulator instructor rating or flight engineer instructor rating, the Regulations remove the requirement to have completed certain courses of training and thereby accord greater flexibility in exercising the privileges of the rating.

 

Item 32 in Schedule 1 of the Regulations amends regulation 61.1235 to insert in item 19, column 2 after paragraph (b) an aerobatics (1 000) flight activity endorsement. This would allow the holder of an aerobatics training endorsement to conduct flight training for an aerobatics (1 000) flight activity endorsement. The Regulations enhance the right to work as the holder of an aerobatics training endorsement can now conduct flight training for an aerobatics (1 000) flight activity endorsement.

 

Item 1 in Schedule 2 of the Regulations amends subregulation 202.278(2) of CASR to extend, from 31 August 2020 until 31 August 2023, the period within which CASA can recognise training and assessment conducted by certain foreign training providers, for the purposes of granting a Part 61 pilot type rating. Similarly, item 2 in Schedule 2 of the Regulations amends subregulation 202.279(3) to extend, from 31 August 2020 until 31 August 2023, the period within which CASA can recognise practical assessment of an instrument proficiency check conducted by a person authorised by the National Aviation Authority of a recognised foreign State. The Regulations maintain or enhance the right to work, as they enable continued recognition of certain foreign training and/or assessment, thereby giving persons a greater opportunity to qualify for a Part 61 authorisation

 

 

Conclusion

The Regulations are 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. Aspects of the Regulations engage in a positive way with the right to work.

 

 

 

 

ATTACHMENT B

 

Details of the Civil Aviation Safety Amendment (Flight Crew Licensing Measures No. 1) Regulations 2020

 

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 2020.

 

Section 2 - Commencement

 

This section provides that the Regulations commence, potentially, on two separate dates. The items contained in Schedule 1 commence the day after the instrument is registered. The items contained in Schedule 2 commence the day after the instrument is registered, or 1 September 2020, whichever is earlier.

 

Section 3 - Authority

 

This section provides that the Civil Aviation Safety Amendment (Flight Crew Licensing Measures No. 1) Regulations 2020 are made under the Civil Aviation Act 1988.

 

Section 4 - Schedules

 

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

 

 

Schedule 1 - Amendments commencing day after registration

 

 

Item 1 After paragraph 61.020(1)(c)

Item 1 inserts a new paragraph to include powered-lift aircraft as a class of aircraft. This amendment facilitates the introduction of powered-lift aircraft in Australia. This item is related to Item 20 of this Schedule.

 

Item 2 Paragraph 61.115(1)(a)

Item 2 amends paragraph 61.115(1)(a) to extend the mandatory period between dual flight checks for student pilots from 14 to 30 days.

 

Item 3 At the end of regulation 61.115

Item 3 inserts a new subregulation 61.115(3) to ensure the solo flight time between dual flight checks restriction in paragraph 61.115(1)(b) does not apply to certain student pilots undergoing training, conducted by a Part 141 operator, for the grant of a private pilot licence (PPL), or commercial pilot licence (CPL).

 

Item 4 Paragraph 61.235(2)(b)

Item 4 amends paragraph 61.235(2)(b) to ensure an applicant for an air transport pilot licence (ATPL) is not required to meet the knowledge deficiency report (KDR) requirement in that paragraph.

 

Item 5 Subregulation 61.245(3)

Item 5 amends subregulation 61.245(3) to allow a flight test for a flight crew licence, other than a recreational pilot licence (RPL) or PPL, to be conducted by the same person who provided the certification under paragraph 61.235(2)(aa).

 

Item 6 Paragraph 61.275(1)(e)

Item 6 amends paragraph 61.275(1)(e) to remove the requirement for the holder of an overseas flight crew licence who is an applicant for an MPL or ATPL to provide written certification that the applicant is competent.

 

Item 7 After paragraph 61.275(1)(ea)

Item 7 inserts a new paragraph 61.275(1)(ea) to require an applicant for an MPL or ATPL pass the flight test mentioned in the Part 61 Manual of Standards for the Australian licence. This item is related to Item 6 of this Schedule.

 

Item 8 Regulation 61.375 (cell at table 61.375, item 3, column 1)

Item 8 clarifies that the holder of a night VFR rating or an instrument rating is permitted to conduct an operation at night under the VFR.

 

Item 9 Regulation 61.375 (cell at table 61.375, item 4, column 1)

Item 9 clarifies that the holder of a night vision imaging system (NVIS) rating is permitted to conduct an operation at night using a night vision imaging system.

 

Item 10 Paragraph 61.610(1)(b)

Item 10 amends paragraph 61.610(1)(b) to provide alternate flight time required, as pilot in command of an aeroplane, for the grant for a CPL with the aeroplane category rating. An applicant holding a CPL, or ATPL, with the helicopter category rating is required to have 60 hours flight time as pilot in command of an aeroplane. An applicant holding a PPL with the helicopter rating is required to have 80 hours flight time as pilot in command of an aeroplane. Any other applicant is required to have 100 hours flight time as pilot in command of an aeroplane.

 

Item 11 Paragraph 61.640(1A)(a)

Item 11 corrects the period in which the holder of an MPL can conduct a 3D instrument approach operation after passing the flight test for the licence to 12 months. The policy underlying this item is also applicable to Items 14, 21 and 35 of this Schedule.

 

Item 12 Paragraph 61.640(1A)(b)

Item 12 amends paragraph 61.640(1A)(b) to ensure that a pilot who has demonstrated competency conducting 3D instrument approach operations within the previous 15 months is authorised to conduct a 3D instrument approach operation. The pilot will not be prevented from conducting a 3D instrument approach operation if the pilot completes an instrument proficiency check that does not include a 3D instrument approach operation.

 

Item 13 Subregulation 61.640(4)

Item 13 amends subregulation 61.640(4) to include reference to paragraph 61.640(1A)(b), as a consequence of the amendment in Item 12 of this Schedule.

 

Item 14 Paragraph 61.680(2A)(a)

Item 14 allows the holder of an ATPL to conduct a 3D instrument approach operation if the holder passed the flight test for the licence within the previous 12 months. The policy rationale for this item is outlined in Item 11 of this Schedule.

 

Item 15 Paragraph 61.680(2A)(b)

Item 15 amends paragraph 61.680(2A)(b) to ensure that a pilot who has demonstrated competency conducting 3D instrument approach operations within the previous 15 months is authorised to conduct a 3D instrument approach operation . The pilot will not be prevented from conducting a 3D instrument approach operation if the pilot completes an instrument proficiency check that does not include a 3D operation.

 

Item 16 Subregulation 61.680(5)

Item 16 amends subregulation 61.680(5) to include reference to paragraph 61.680(2A)(b) as a consequence of the amendment in Item 15 of this Schedule.

 

Item 17 Subregulation 61.747(4)

Item 17 clarifies that subregulation 61.747(4) refers to an aircraft class rating.

 

Item 18 Subregulation 61.747(4)

Item 18 clarifies that subregulation 61.747(4) refers to the 'requirements' in subregulation 61.747(1).

 

Item 19 At the end of regulation 61.747

Item 19 inserts a new subregulation 61.747(5) to provide that the holder of an aircraft class rating is taken to meet the requirements mentioned in subregulation 61.747(1) for a type of aircraft if, before the aircraft type was prescribed in an instrument made for the purposes of regulation 61.062, the holder conducted one or more operations in aircraft of that type as pilot in command. This item recognises that the experience accrued piloting a type rated aircraft removes the need for the pilot to complete flight training and a flight review simply because an aircraft type has been prescribed in an instrument to be contained in an aircraft 'class'.

 

Item 20 After subregulation 61.755(3)

Item 20 inserts new subregulation 61.755(3A) to list certain design features relevant to powered-lift aircraft. This item will require a licence holder operating such an aircraft with the design feature to hold the relevant design-feature endorsement. This item is related to Item 1 of this Schedule.

 

Item 21 Paragraph 61.900(2)(a)

Item 21 amends paragraph 61.900(2)(a) to allow the holder of an IAP 3D instrument endorsement to conduct a 3D instrument approach operation if the holder passed the flight test for the licence within the previous 12 months. The policy rationale for this item is outlined in Item 11 of this Schedule.

 

Item 22 Paragraph 61.900(2)(b)

Item 22 amends paragraph 61.900(2)(b) to ensure that a pilot who has demonstrated competency conducting 3D instrument approach operations within the previous 15 months is authorised to conduct a 3D instrument approach operation. The pilot will not be prevented from conducting a 3D instrument approach operation if the pilot completes an instrument proficiency check that does not include a 3D operation.

 

Item 23 At the end of regulation 61.900

Item 23 inserts a new subregulation 61.900(4) to list the persons referred to in amended paragraph 61.900(2)(b). This item is be a consequential amendment arising from Item 22 of the Schedule.

 

Item 24 Subregulation 61.1000(1)

Item 24 repeals subregulation 61.1000(1) and inserts a new subregulation 61.1000(1) to provide alternate options for the holder of a NVIS rating to demonstrate competency using night vision goggles in a particular type of helicopter.

 

Item 25 Paragraphs 61.1010(b) and (c)

Item 25 repeals paragraphs 61.1010(b) and (c) and inserts a new paragraph 61.1010(b) to provide alternate options for the holder of a NVIS rating to demonstrate competency within the 6 months prior to conducting a flight using night vision goggles.

 

Item 26 Regulation 61.1025 (table 61.1025, item 1, column 3)

Item 26 amends regulation 61.1025 (table 61.1025, item 1, column 3) to remove the requirement for an applicant for a Grade 1 NVIS endorsement to hold a Helicopter night VFR (visual flight rules) endorsement.

 

Item 27 Regulation 61.1025 (table 61.1025, items 1 and 2, column 3)

Item 27 amends regulation 61.1025 (table 61.1025, items 1 and 2, column 3) to require an applicant for a Grade 1 or 2 night vision imaging system endorsement to have at least 20 hours of aeronautical experience at night as pilot of a helicopter or an approved flight simulation training device. A maximum of 10 hours of the required aeronautical experience may be accumulated in an approved flight simulation training device.

 

Item 28 Regulation 61.1120 (table 61.1120, item 2, column 3)

Item 28 amends regulation 61.1120 (table 61.1120, item 2, column 3) to require 10 hours of dual flight instead of 15 hours dual flight for the grant of a helicopter aerial application endorsement.

 

Item 29 Paragraphs 61.1130(2)(a) and (b)

Item 29 amends paragraphs 61.1130(2)(a) and (2)(b) to require the holder of a helicopter aerial application endorsement have a combination of direct and indirect supervision for the first 110 hours of aerial application operations. The holder of a helicopter aerial application endorsement is required to have direct supervision for the first 10 hours, and a combination of direct and indirect supervision for the next 100 hours, 10 hours of which must be direct supervision.

 

Item 30 After paragraph 61.1155(1)(b)

Item 30 amends regulation 61.1155 to require the holder of an aerobatics (1 000) flight activity endorsement to hold either a current class 1 or 2 medical certificate, or be accompanied by another appropriately authorised pilot, to conduct an aerobatic or spinning manoeuvre.

 

Item 31 Regulations 61.1172 and 61.1197

Item 31 repeals regulations 61.1172 and 61.1197 to ensure that holders of either a flight instructor rating or simulator instructor rating granted on the basis of regulation 202.272 or 202.274 are not required to have completed either an approved course of training in principles and methods of instruction, hold a Certificate IV in training and assessment or hold a tertiary qualification in teaching in order to exercise the privileges of the rating.

 

Item 32 Regulation 61.1235 (table 61.1235, item 19, column 2, after paragraph (b))

Item 32 amends regulation 61.1235 to insert in item 19, column 2 after paragraph (b) an aerobatics (1 000) flight activity endorsement. This allows the holder of an aerobatics training endorsement to conduct flight training for an aerobatics (1 000) flight activity endorsement.

 

Item 33 Subregulation 61.1295(2)

Item 33 repeals subregulation 61.1295(2) to remove the offence provision relating to the conduct of a flight test and certification by the same flight examiner.

 

Item 34 Regulation 61.1402

Item 34 repeals regulation 61.1402 to ensure that holders of a flight engineer instructor rating granted on the basis of regulation 202.272 or 202.274 are not required to have completed either an approved course of training in principles and methods of instruction, hold a Certificate IV in training and assessment or hold a tertiary qualification in teaching in order to exercise the privileges of the rating.

 

Item 35 In the appropriate position in Subpart 202.CB

Item 35 inserts a new regulation in Subpart 202.CB to ensure a pilot is not penalised by the amendments to paragraphs 61.640(1A)(a), 61.680(2A)(a) or 61.900(2)(a) - see items 11, 14 and 21 of this Schedule. The new transitional regulation authorises the pilot to conduct a 3D instrument approach operation if their flight test for the licence or endorsement was conducted prior to the commencement date of the amendment regulation and included a 3D instrument approach operation. The holder will be permitted to conduct a 3D instrument approach operation during the period starting when the holder passed the flight test and ending 24 months later or when the holder next attempts an instrument proficiency check, whichever is earlier.

 

Schedule 2 - Amendments commencing 1 September 2020 (at latest)

 

Item 1 Subregulation 202.278(2)

Item 1 amends subregulation 202.278(2) to extend the period, until 31 August 2023, 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 recognised foreign State (according to the regulations) which is recognised by CASA, for the purposes of granting a Part 61 pilot type rating.

 

Item 2 Subregulation 202.279(3)

Item 2 amends subregulation 202.279(3) to extend the period, until 31 August 2023, within which CASA may continue to recognise the practical assessment of an instrument proficiency check conducted by a person authorised by the National Aviation Authority of a recognised foreign State.