CASA EX120/17-Exemption-requirements for helicopter aerial application endorsements [F2017L01332] and CASA EX143/17-Exemption-DAMP organisations to provide information to CASA [F2017L01300]-Concluded matters [2017] AUSStaCSDLM 445 (12 June 2017)

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Instrument	CASA EX120/17 – Exemption – requirements for helicopter aerial application endorsements [F2017L01332] CASA EX143/17 – Exemption – DAMP organisations to provide information to CASA [F2017L01300]
Purpose	Exempts applicants for helicopter aerial application ratings and endorsements from training requirements under the Civil Aviation Safety Regulations 1998, subject to certain conditions Exempts organisations that have implemented a drug and alcohol management plan from the requirement to report information to CASA every six months, subject to the organisation keeping records of the information
Authorising legislation	Civil Aviation Safety Regulations 1998
Portfolio	Infrastructure and Regional Development
Disallowance	15 sitting days after tabling (tabled Senate 16 October 2017) Notice of motion to disallow must be given by 7 December 2017[1]
Scrutiny principle	Standing Order 23(3)(d)
Previously reported in	Delegated legislation monitor 14 of 2017

Matters more appropriate for parliamentary enactment: exemptions

The committee previously commented as follows:

Scrutiny principle 23(3)(d) of the committee's terms of reference requires the committee to consider whether an instrument contains matters more appropriate for parliamentary enactment (that is, matters that should be enacted via principal rather than delegated legislation). This may include instruments that grant or extend exemptions from compliance with principal or enabling legislation.

The Civil Aviation Safety Regulations 1998 (CASR) require applicants for helicopter aerial application ratings and endorsements to have at least 15 hours of dual flight

in a helicopter while receiving training in aerial application operations, and at least

10 hours direct supervision within the first 110 hours of aerial application operations.

CASA EX120/17 exempts an applicant from these requirements, subject to the applicant having at least 10 hours of dual flight in a helicopter while receiving training, and 20 hours direct supervision within the first 110 hours of aerial application operations (the alternative requirements).

In relation to these matters, the explanatory statement (ES) states:

[The requirements in the CASR] have been reviewed and it has been concluded that it would be more effective if the person has 10 hours of dual flight in a helicopter while receiving training but, within the first
110 hours of aerial application operations, has 20 hours of operations under direct supervision.

It appears that the exemption granted by CASA EX120/17 has been used to introduce these improvements, rather than amending relevant provisions of the CASR to remove the less effective requirements and replace them with the alternative requirements. The ES does not provide a justification for this approach.

CASA EX143/17 exempts organisations required to have a drug and alcohol management plan (DAMP) from compliance with reporting obligations in subregulations 99.100(1) and (2) of the CASR, subject to certain conditions.

The instrument extends, until 30 September 2020, a previous three-year exemption from compliance with those reporting obligations provided by CASA EX39/15 [F2015L00225]. The ES for CASA EX143/17 states that the continuing exemption is necessary because:

CASA continues to consider that the reporting requirements in those
subregulations are not necessary and their removal will have no identifiable impact on safety. Consistent with this policy, the instrument exempts DAMP organisations from compliance with those reporting requirements.

The ES further states, under the heading of consultation, that:

Prior to the making of instrument CASA EX39/15 CASA received substantial feedback from industry about the burdensome nature of the DAMP reporting requirements.

No explanation is provided in the ES as to why an exemption continues to be used

to effectively amend the DAMP reporting requirements, rather than amending regulation 99.100 of the CASR.

In cases such as those outlined above (i.e. in relation to both CASA EX120/17 and CASA EX143/17), the committee's general preference is that exemptions are not used or do not continue for such time as to operate as de facto amendments to principal legislation (in this case to the regulations).

The committee requested the minister's advice as to:

• why it is considered more appropriate to establish or extend exemptions to the CASR in each of the above instruments, rather than making amendments to the regulations; and

• whether and when government proposes to introduce amendments to the CASR to address the matters covered in the two instruments above.

Minister's response

The Minister for Infrastructure and Transport advised:

CASA has utilised exemptions in this case as a means to provide more timely relief to industry for provisions that are intended to be implemented through regulation amendment.
However, CASA agrees that it is preferable to amend regulations rather than make exemptions. The process for making regulation amendments that will cover these exemptions is underway with CASA expecting to bring forward amending regulations in either 2018 or 2019. More specific information is included below relating to each exemption instrument.
CASA EX120/17 - Exemptions- requirements for helicopter aerial applications endorsements [F2017L01332]
Since Civil Aviation Safety Regulation 1998 (CASR) Parts 61, 141 and 142 commenced in September 2014, CASA has identified various issues or unintended consequences that were then the subject of general exemptions. CASA proposes to amend these Parts (in particular Part 61) to deal with these issues with drafting instructions for an amendment regulation expected in 2018, for making of the regulation in 2019.
CASA EX143/17 - Exemption - DAMP organisations to provide information to CASA [F2017L01300]
CASA has been intending to progress regulation amendments to deal with this exemption but the work has been delayed in order to address higher profile safety critical regulation amendments.
However, CASA has worked with the Office of Parliamentary Counsel during 2016 and 2017 to finalise an amendment package to CASR Part 99 relating to drug and alcohol management, and proposes to introduce the amendment package in early 2018 (together with a Part 99 Manual of Standards). The amendments will deal with the reporting requirements that are the subject of the exemption.

Committee's response

The committee thanks the minister for his response, and notes the minister's advice that CASA is working to address the unintended consequences of the identified provisions of the CASR, presently covered by the exemptions in these instruments, through amendments to the principal regulations in 2018 and 2019.

The committee considers that this information would have been useful in the ES.

The committee has concluded its examination of these instruments.

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[1] In the event of any change to the Senate's sitting days, the last day for the notice would change accordingly.