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Legislative changes - Explanatory statementStatutory Rules 2003, No 232

Explanatory statement
Statutory Rules 2003, No 232

Civil Aviation Act 1988
Civil Aviation Amendment Regulations 2003 (No. 6) (574K Adobe Acrobat file)
Attachment - Details of the amending Regulations (84K Adobe Acrobat file)

Issued by the authority of the Minister for Transport and Regional Services

Explanatory Statement

Section 98 of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act, and regulations in relation to safety of air navigation, being regulations with respect to matters with respect to which the Parliament has power to make laws.

Subsection 9(1) of the Act specifies that the Civil Aviation Safety Authority (CASA) has the function of conducting the safety regulation of civil air operations by means that include developing and promulgating appropriate, clear and concise aviation safety standards and issuing certificates, licences, registrations and permits.

The regulations amend the Civil Aviation Safety Regulations 1998 by inserting a new Part 67, entitled Medical, into those regulations. The new Part has been developed as part of CASA's Regulatory Reform Programme.

The regulations provide for all aspects of medical certification, including standards and administrative arrangements relating to holders of, or applicants for, various aviation licences.

The regulations provide for:

  • appointment of appropriately qualified persons as Designated Aviation Medical Examiners (DAMEs) or Designated Aviation Ophthalmologists (DAOs) and for cancellation of such appointments;
  • procedures for declaring that particular persons, or persons who hold or perform the duties of certain positions or offices, are to be taken to be DAMEs or DAOs;
  • medical standards for the issue of medical certificates; and
  • the issue and administrative control of medical certificates.

Existing legislation governing medical standards and certification resides in various areas of the Civil Aviation Regulations 1988 (CAR 1988), such as regulations 5.04 (1), 5.04 (2), 6.01 - 6.21 (inclusive), 104, 107, 269 and 301.

The existing legislation was seen to be deficient in a number of areas, as follows, in which the legislation:

  • provided for voluntary release of personal information concerning applicants for appointment or for medical certification, but contained no specific powers allowing CASA to require release of such safety-relevant information to assist in assessment of applications.
  • provided for "waivers" of required medical standards through grant of 'special' medical certificates, where the safety of air navigation will not thereby be affected, but provided no specific advice on matters to be considered prior to decisions to grant such "waivers".
  • contained medical standards which were appropriate in 1988, but changes in medical technology, in operational systems and in relevant International Civil Aviation Organisation (ICAO) requirements indicated the need for review or clarification of some of those standards.
  • contained advice on notification of relevant changes in medical condition affecting applicants for medical certification, but did not provide for fully effective reporting.
  • permitted CASA to require a medical certificate holder to provide details of relevant medical history or to undergo a targeted medical assessment, for cause, but was unclear on whether CASA may require both, and also whether assessment by non-medical specialists (e.g. psychologists) may be directed. Although the existing legislation empowered CASA to suspend a medical certificate until its holder undergoes a medical examination, certain of the relevant provisions have proven difficult to apply in practice. For example, at least one person required to undergo testing has asserted that regulation 6.17 of CAR 1988 precluded CASA from also requiring him to provide a medical history because of the phrasing 'or' which separates that regulation's subregulation (c) from its subregulation (d)
  • empowered CASA to cancel a medical certificate, for cause, and subject to usual redress mechanisms, but some sections of the aviation industry considered that it unfairly disadvantaged some medical certificate holders. For example, one respondent to the Notice of Proposed Rulemaking concerning Part 67 asserted that CASA should never be permitted to precipitately cancel a professional holder's medical certificate and that there should always be a minimum period of 14 days before any proposed cancellation took effect.
  • utilised Schedules to set out medical standards and which had the unintended effect of rendering difficult to interpret the differential application of requirements for the 3 classes of medical certificates. Furthermore, certain of the requirements affecting issue, suspension and cancellation of medical certificates were unclear in their effect.

These deficiencies in the existing legislation have resulted in a number of administrative anomalies, for example, uncertainty and inconsistency in appointments of DAMEs and DAOs, and in cancellation of such appointments, uncertainty and inconsistency in approaches to permitting other persons to perform the functions of DAMEs or DAOs, and an inability to obtain relevant information concerning the professional performance of DAMEs or DAOs (or applicants for these appointments) necessary to determine whether such appointments should be made or continued.

The regulations set out, in detail, a number of well-established current practices which have not until now been provided for in legislation. They prescribe all requirements for appointments for DAMEs and DAOs, also provide for other persons to act as though they were DAMEs or DAOs in appropriate circumstances. They also provide explicitly for suspension or cancellation of DAMEs' and DAOs' appointments.

The regulations clearly list all requirements for the 3 classes of medical certification and also describe fully all aspects of granting, restricting, suspending or cancelling medical certificates, and describe affected persons' rights of review.

The regulations also clarify the legal consequences of a medical certificate holder failing to inform CASA of a change in medical status, require DAMEs and DAOs who become aware of such changes in examinees to notify CASA promptly, and create an offence for doing an act permitted by a medical certificate while efficiency impaired.

The regulations also include transitional provisions to allow permissions and appointments made under existing legislation to carry forward under the regulations, as well as providing for those permissions to be varied, suspended or cancelled under the regulations.

The Office of Regulation Review (ORR) have given a Regulation Impact Statement (RIS) exception as the regulations are considered minor or machinery in nature, do not have a significant impact and are matters of clarification and a transposition of current practices.

Details of the Regulations are set out in the Attachment.

The Regulations commenced on gazettal.