EX01/13-Exemption-recency requirements for night flying (Alliance Airlines Pty Limited) [F2013L00114]; and EX08/13-Exemption-from standard take-off and landing minima-DHL Air Ltd [F2013L00145]-Concluded matters [2013] AUSStaCSDLM 195 (16 May 2013)

• CASA EX01/13 - Exemption - recency requirements for night flying (Alliance Airlines Pty Limited) [F2013L00114]; and CASA EX08/13 - Exemption - from standard take-off and landing minima - DHL Air Limited [F2013L00145]
• Insufficient explanation provided regarding consultation

CASA EX01/13 - Exemption - recency requirements for night flying (Alliance Airlines Pty Limited) [F2013L00114]; and CASA EX08/13 - Exemption - from standard take-off and landing minima - DHL Air Limited [F2013L00145]

Purpose	(1) Exempts the pilot in command flying for Alliance Airlines Pty Ltd from compliance with paragraphs 5.109 (1) (b) and 5.170 (1) (b) of the Civil Aviation Regulations 1988 to update their night recency requirements by using flight simulators; and (2) Allows DHL Air Ltd to continue to conduct take-offs and landings in meteorological conditions below the standard take-off and landing minima
Last day to disallow	15 May 2013 and 16 May 2013
Authorising legislation	Civil Aviation Safety Regulations 1998
Department	Infrastructure and Transport

ISSUE:

Insufficient explanation provided regarding consultation

Section 17 of the Legislative Instruments Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument, particularly where that instrument is likely to have an effect on business. Section 18, however, provides that in some circumstances such consultation may be unnecessary or inappropriate. The ES which must accompany an instrument is required to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (section 26). With reference to these requirements, the committee notes that the ES for the instrument states only that consultation was not undertaken, that the operators had requested the exemption to replace previous exemptions and that the instruments are in the same terms as 'many instruments issued to foreign operators'. It is not clear to the committee how, of itself, the stated reason for not consulting in relation to the making of the instrument necessarily relates to a conclusion by the rule maker that consultation was 'unnecessary' or 'inappropriate' (as provided for by section 18) [the committee sought further information from the minister and requested that the ES be updated in accordance with the requirements of the Legislative Instruments Act 2003].

MINISTER'S RESPONSE:

The minister advised that consultation within the aviation industry as a whole did not take place as the exemption concerned only a single operator who had been determined as suitable to conduct the relevant procedures. Any operator whose organisation and procedures were considered by CASA to make satisfactory provision for these operations would be granted an equivalent exemption, and similar exemptions had been issued to both Australian and foreign operators. The minister further advised that the ES would be amended in accordance with the committee's request.

COMMITTEE RESPONSE:

The committee thanks the minister for his response and has concluded its interest in the matter.