CASA EX222/15-Exemption from certain prerequisites for an ATPL flight test [F2016L00015]-Response required [2016] AUSStaCSDLM 49 (24 February 2016)

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Instrument	CASA EX222/15 - Exemption — from certain prerequisites for an ATPL flight test [F2016L00015]
Purpose	Exempts applicants with less than a 100% pass in the aeronautical knowledge examination from certain eligibility requirements for the air transport pilot licence flight test
Last day to disallow	11 May 2016
Authorising legislation	Civil Aviation Safety Regulations 1998
Department	Infrastructure and Regional Development
Scrutiny principle	Standing Order 23(3)(a)

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. However, section 18 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 to the instrument states:

By providing alternative compliance mechanisms for a holder or operator, an exemption of its nature is always beneficial and does not require statutory consultation.

While the committee does not usually interpret section 26 as requiring a highly detailed description of consultation undertaken, it considers that an overly bare or general description is insufficient to satisfy the requirements of the Legislative Instruments Act 2003. In the committee's view, the general statement that exemptions of this nature are always beneficial and therefore do not require statutory consultation is insufficient to meet those requirements, particularly as there may be instances where consultation is regarded as necessary or convenient—for example, industry-wide consultation may be regarded as appropriate in relation to the development and implementation of proposed statutory exemptions. In terms of complying with sections 17 and 18 of the Legislative Instruments Act 2003, the committee considers it would be better for the ES to have also explicitly stated, with a supporting explanation, that consultation was considered unnecessary or inappropriate in this case.

The committee's expectations in this regard are set out in the guideline on consultation contained in Appendix 2.

The committee requests the advice of the minister in relation to this matter; and requests that the ES be updated in accordance with the requirements of the Legislative Instruments Act 2003.