CASA EX100/18 — Flight Examiner Rating for CAO 82.0 Check Pilots Exemption 2018

The instrument relies on and links three principal regulatory concepts: the flight examiner rating, the check pilot/approval construct under CAO 82.0, and the operator proficiency check regime within Part 61 of CASR.

• Flight examiner rating. The instrument references the term “flight examiner rating” as having the same meaning as in Part 61 of CASR (s 3). The exemption targets the legal requirement in subregulation 61.375(7) that relates to this rating (s 5(1)). The instrument does not redefine the rating; it temporarily relieves particular check pilots from the obligation to hold it in specified circumstances.
• Check pilot and check pilot approval. The instrument adopts the CAO 82.0 definition of “check pilot” by reference (s 3). It also uses the administrative concept of a “check pilot approval”, defined here to mean the document granting CASA’s approval of the person as a check pilot (s 3). The scope of the exemption is tied expressly to the scope of that approval (s 4).
• Operator proficiency check. The instrument applies when a check pilot is conducting an “operator proficiency check” as defined by regulation 61.010 of CASR (s 3). It excludes certain operator proficiency checks conducted for the purposes of particular CASR provisions (61.650, 61.695, 61.880) (s 4).

Operational mechanics. The exemption functions only while the three stated conditions are satisfied (s 5(2), s 6). The second condition (s 6(2)) requires adherence to the operator’s approved training and checking system “as existing from time to time”, which links the exemption to the operator’s contemporaneous approved procedures and therefore imports a dynamic (changing) compliance standard. The third condition (s 6(3)) requires compliance with all conditions in the check pilot approval document; that links the exemption to any limitations or qualifications CASA may have placed on the approval.

Temporal limitation. The instrument has fixed commencement and repeal dates, creating a built‑in sunset that ends the exemption at the stated time unless reissued or replaced (s 2).

Documentary and definitional reliance. The instrument does not attempt to restate the substantive content of CAO 82.0 or Part 61 CASR; instead it operates by cross‑reference. Practically, applying the exemption requires consulting the referenced instruments and approvals.

Primary parties affected are the persons who meet the instrument’s definition of “check pilot” under CAO 82.0, the operators who engage those check pilots, and CASA as the approving and overseeing regulator.

• Check pilots. The instrument directly changes the regulatory status of check pilots who would otherwise be required, under subregulation 61.375(7) of CASR, to hold a flight examiner rating when conducting operator proficiency checks. The exemption only applies where the check pilot is operating within the scope of their CASA check pilot approval and complies with the conditions in s 6. Therefore check pilots who are employed or contracted by the operator, who perform checks in accordance with the operator’s approved training and checking system and in accordance with their approval conditions, benefit from being permitted to conduct checks without holding the flight examiner rating (s 4-6).
• Operators. Employers and contractors of affected check pilots are materially affected. Operators gain the ability to have check pilots who do not hold a flight examiner rating carry out certain operator proficiency checks, subject to the instrument conditions (s 4-6). That impacts operator staffing, rostering, and internal quality assurance. Operators must maintain an approved training and checking system and ensure checks are conducted in accordance with it (s 6(2)). The instrument thereby shifts compliance responsibility onto operators to ensure that the substantive conditions are satisfied when relying on the exemption.
• CASA. The instrument was made by a CASA delegate under delegated powers in CASR (preamble). CASA retains its role in issuing check pilot approvals and therefore controls the “scope” referenced in s 4 as well as any conditions mentioned in the check pilot approval (s 3 and s 6(3)). CASA is also the body whose regulatory requirement is being temporarily altered via the exemption from subregulation 61.375(7) (s 5(1)).
• Indirectly affected persons. Pilots undergoing proficiency checks and third parties who rely on the integrity of operator checks are indirectly affected because the qualification of the person performing the check is varied. The instrument does not create a new class of approvals or alter the substance of operator proficiency checks themselves, but it changes the pool of eligible check pilots available to an operator.

Boundaries and exclusions. The instrument excludes operator proficiency checks conducted for the purposes of regulations 61.650, 61.695 or 61.880 of CASR from its application (s 4). Check pilots seeking to rely on the exemption must therefore be attentive to whether the check in question falls into one of those excluded categories.

Temporal import. Because the instrument had a finite duration ending 31 August 2021 (s 2(b)), any person relying on the instrument had an obligation to monitor the instrument’s expiry and any successor instruments. The instrument text itself provides the dates; it does not create a mechanism within its text for extension.

The instrument substitutes duties and rights derived from CASA approvals and operator systems for the statutory duty to hold a flight examiner rating in a specific context.

Rights created by the instrument

• Exemption right. A check pilot to whom the instrument applies is given an exemption from the statutory requirement in subregulation 61.375(7) of CASR to hold a flight examiner rating while conducting an operator proficiency check within the scope of the check pilot approval, except where the check is for the purposes of regs 61.650, 61.695 or 61.880 (s 4-5). The instrument thus creates a limited, conditional right to perform those checks without the flight examiner rating.

Duties imposed by the instrument

• Employment or contract requirement. The check pilot must be employed or contracted by the operator for which the check is conducted (s 6(1)). That is an eligibility condition. The accompanying duty on the operator is to ensure the person is in that employment or contractual relationship when the check is carried out.
• Adherence to operator approved training and checking system. The check pilot must conduct the operator proficiency check “in accordance with the operator’s approved training and checking system, as existing from time to time” (s 6(2)). In practice this links the exemption to operational procedures that are subject to operator approval and to change. Operators must therefore maintain approved systems and ensure that checks under the exemption follow those systems at the time of the check.
• Compliance with check pilot approval conditions. The check pilot must also conduct the operator proficiency check in accordance with “all the conditions mentioned in the check pilot approval” (s 6(3)). This imports any conditions CASA included in the approval document and places a duty on the check pilot to respect those limits.

Limits and exclusions

• Scope limitation. The instrument is expressly limited to checks “within the scope of the check pilot approval” (s 4). Any check outside that scope is not covered.
• Specified exclusions. The instrument does not apply to operator proficiency checks conducted for purposes of regs 61.650, 61.695 or 61.880 (s 4). Those checks therefore remain subject to the statutory requirement to hold a flight examiner rating.

Procedural implications

• Dynamic compliance standard. The phrase “as existing from time to time” in s 6(2) means the operator’s current approved system at the time of the check governs compliance. That creates a duty to track and implement current approved procedures rather than a static duty tied to a particular edition.
• Documentation and approvals. The instrument ties rights and duties to the content of the check pilot approval document (s 3 and s 6(3)). Check pilots and operators therefore have an administrative duty to know the approval’s conditions and to ensure documentation is available to prove the approval and its scope at the time of the check.

Absence of new statutory powers or penalties

• The instrument does not itself create new statutory powers to discipline or penalise non‑compliance; nor does it alter the text of CASR. It operates as an exemption and leaves the underlying regulatory architecture in place. The check pilot and operator remain subject to CASR obligations except to the extent expressly exempted (s 5(1)-(2)).

The instrument itself does not set out penalty or enforcement provisions. It is an exemption made under the delegated powers in CASR and therefore interacts with CASR’s existing enforcement and penalty framework by altering compliance obligations for a specific circumstance. The instrument should be read alongside CASR to identify the consequences of non‑compliance with either the instrument’s conditions or with other statutory obligations.

What the instrument says

• No penalty clauses. The instrument contains no express penalty or enforcement mechanism. It grants an exemption (s 5) and imposes conditions on that exemption (s 6), but it does not specify criminal or civil penalty provisions in the exemption instrument itself.

How enforcement is practically likely to operate

• Reliance on CASA’s existing regulatory role. Because the instrument operates within the CASR regulatory structure (preamble references regulations 11.160 and 11.205 as the enabling provisions), enforcement actions for breaches of CASR beyond the exemption would remain governed by CASR and CASA’s enforcement powers. The instrument does not purport to alter CASA’s enforcement powers or to create new offences.
• Non‑compliance with conditions as regulatory risk. A check pilot or operator who fails to meet the conditions in s 6 while purporting to rely on the exemption would not have the protection of the exemption for that instance. In that circumstance, the person performing the check would remain subject to the statutory requirement in subregulation 61.375(7) and could be treated as non‑compliant with CASR as applicable. The instrument itself does not set out the enforcement consequences but the absence of an exemption in that situation means CASR obligations and associated enforcement powers would be engaged.

Practical burden of proof and record keeping

• Demonstrating eligibility for the exemption. Because the exemption is conditional, the relevant operator and check pilot would be prudent to keep contemporaneous records demonstrating: the employment or contractual arrangement (s 6(1)); the operator’s approved training and checking system that was current at the time (s 6(2)); and the content of the check pilot approval showing the scope and conditions (s 6(3)). Those materials would be central evidence in any regulatory inquiry about whether the exemption applied to a particular check.

Temporal enforcement considerations

• Sunset and post‑sunset non‑compliance. The instrument’s repeal date (s 2(b)) is integral to enforcement risk. Actions taken after the end of the instrument’s operation would not be covered by its exemption. Parties relying on the instrument during its operation needed to monitor the instrument’s expiry to avoid retrospective non‑compliance.

Limitations on the instrument’s remedial effect

• The instrument does not purport to confer retrospective immunity for past breaches of subregulation 61.375(7). It is forward‑facing and applies only within its stated commencement and repeal dates. The instrument does not create an administrative immunity from other CASR requirements that could give rise to different enforcement actions.

The instrument is an exemption within the CASR regulatory ecosystem. It cross‑references CAO 82.0 and specified provisions of CASR, and therefore should be read in conjunction with those instruments.

Primary statutory interactions

• Enabling provisions. The instrument is made under regulations 11.160 and 11.205 of CASR (preamble). Those CASR provisions are the legal basis for CASA’s power to make such instruments and exemptions. The instrument does not reproduce the content of those enabling provisions; instead it relies on them as authority for the exemption.
• Subregulation 61.375(7) of CASR. The instrument grants an exemption from the requirement in subreg 61.375(7) that a person conducting an operator proficiency check must hold a flight examiner rating (s 5(1)). The exemption therefore operates as an exception to that specific regulatory duty.
• Part 61 definitions. The instrument treats “flight examiner rating” as having the same meaning as in Part 61 of CASR and treats “operator proficiency check” as defined in reg 61.010 (s 3). Consequently, the substantive operation and legal consequences of those Part 61 provisions remain relevant; the exemption does not alter their substantive content beyond the narrow exemption.
• CAO 82.0. The instrument imports the CAO 82.0 conceptual definition of “check pilot” by reference (s 3). The scope of the exemption is thus bounded by CAO 82.0 paragraph 2.1.

Excluded interactions

• Exclusions for specific CASR provisions. The instrument explicitly excludes operator proficiency checks conducted for the purposes of regs 61.650, 61.695 or 61.880 of CASR (s 4). Those parts of CASR therefore remain unaffected by the exemption and must be complied with in the ordinary way.

Operational interaction with approvals and operator systems

• Check pilot approvals. The exemption applies only to checks “within the scope of the check pilot approval” (s 4) and requires compliance with “all the conditions mentioned in the check pilot approval” (s 6(3)). That makes the content of CASA’s approval instrument relevant lawfully to the extent it imposes conditions or scope limitations.
• Operator approved training and checking systems. The instrument ties compliance to an operator’s approved training and checking system (s 6(2)). Those approval instruments, and the process by which an operator obtains approval for systems, are therefore part of the legal matrix governing whether the exemption applies.

No alteration to CASR enforcement architecture

• The instrument does not amend CASR itself. It operates as an exemption instrument and thus leaves in place CASR’s substantive offences, enforcement powers and administrative processes. Any dispute about interpretation or enforcement of the exemption would be resolved within the existing legal framework, including reference to the underlying CASR provisions that the instrument cross‑references.

Temporal and documentary overlays

• Changing approved systems. Because the exemption references an operator’s approved system “as existing from time to time” (s 6(2)), the instrument creates an interaction with the process and timing of approval amendments under CASR. Changes to an operator’s approved system will change the compliance standard for checks conducted under the exemption at later points in time.

The instrument’s text contains explicit dates and a single making date. The instrument itself shows no amendments within the text supplied.

Chronology provided by the instrument

• Made date and delegate. The instrument was made by CHRISTOPHER PAUL MONAHAN, Executive Manager, National Operations & Standards, a delegate of CASA, and signed on 28 August 2018 (preamble).
• Commencement. The instrument commences on 1 September 2018 (s 2(a)).
• Repeal. The instrument is repealed at the end of 31 August 2021 (s 2(b)).

Absence of subsequent amendment language

• No amendments are recorded in the instrument text provided. The instrument does not include amending provisions or transitional arrangements beyond the commencement and repeal dates. The text does not indicate any extensions, replacements or renewals.

Implication of the fixed repeal

• Time‑limited nature. The presence of a firm repeal date means the instrument was intended to operate for a finite period. Any continuation of the policy effect beyond 31 August 2021 would require a fresh instrument or amendment to this instrument prior to its repeal, or a regulatory change in CASR itself. The instrument text does not record any such follow‑on action.

Practical record keeping

• Users and regulators. Parties who operated under the instrument during its operative period needed to track the dates in s 2 to know when the exemption applied and when it ceased to apply. The instrument does not provide transition or savings clauses beyond the stated dates; any transitional arrangements would need to be provided elsewhere if intended.

No legislative history beyond the instrument

• The instrument itself contains no explanatory memorandum or second reading speech text. The only material internal to this instrument relevant to its history are the dates and signature. Any further amendment history, if it exists, is not recorded in the text supplied.

The instrument text contains no record of litigation, judicial interpretation, or appeals. There are no cases named or referred to in the instrument.

What the instrument states

• The instrument is silent on litigation. It contains definitions, application, exemption, conditions, commencement and repeal dates, and the signature of the CASA delegate who made it. It does not reference any court decisions, administrative appeals, or dispute resolution procedures beyond the normal CASA and CASR framework.

Consequences of the absence of recorded litigation

• No binding judicial interpretation included in the text. Because the instrument does not record any litigation, there is no judicially created body of law embedded in the instrument that clarifies ambiguous terms in the instrument itself.
• Reliance on CASR and approvals for interpretation. Any disputes about the instrument’s meaning or scope would be interpreted against the text of the instrument together with the interacting instruments it references (CAO 82.0 and CASR Part 61). The absence of case law in the instrument means that parties would need to rely on the ordinary statutory and administrative law interpretive tools and any subsequent judicial decisions, none of which are recorded in this instrument.

Practical effect for users and reviewers

• Unsettled questions. Any ambiguities in phrases such as “within the scope of the check pilot approval” or “as existing from time to time” would need to be resolved through administrative processes or litigation outside the instrument because the instrument contains no in‑built clarifying commentary or precedent.
• Record keeping to forestall disputes. Because litigation history does not clarify application, operators and check pilots relying on the exemption would be prudent to document the factual circumstances and approvals underpinning each instance in which the exemption is relied upon.

The instrument contains several specificity and scope features that may catch operators, check pilots or advisers who only read the headline that the requirement to hold a flight examiner rating is removed.

Fixed sunset

• Expiry risk. The instrument was repealed at the end of 31 August 2021 (s 2(b)). Any reliance beyond that date required a new instrument or other regulatory change. Failing to observe the repeal date would expose a check pilot and operator to the full original requirement in subregulation 61.375(7). The instrument itself contains no automatic renewal mechanism.

Narrow scope and express exclusions

• Limited application. The exemption applies only to operator proficiency checks “within the scope of the check pilot approval” (s 4). If a check falls outside the approval’s scope, the exemption does not apply.
• Specific exclusions. The instrument does not apply to operator proficiency checks for the purposes of regs 61.650, 61.695 or 61.880 of CASR (s 4). Users must identify whether a particular check is for one of those purposes.

Employment or contract requirement

• Relationship requirement. The check pilot must be employed or contracted by the operator for which the check is conducted (s 6(1)). Independent or third‑party check pilots not in an employment or contractual relationship with the operator cannot rely on the exemption.

Dynamic approved systems

• Changing standards. The check must be conducted “in accordance with the operator’s approved training and checking system, as existing from time to time” (s 6(2)). Approved systems can be updated; the version current at the time of the check dictates compliance. Relying on an old or superseded version could negate the exemption for that specific check.

Dependence on approval conditions

• Full scope of approval. The check pilot must comply with “all the conditions mentioned in the check pilot approval” (s 6(3)). Those approval conditions may contain qualifications, time limits, or scope constraints that narrow or even preclude using the exemption in practice. Operators and check pilots must ascertain and record the precise content of the approval.

No stand‑alone protection from CASR obligations

• Limited carve‑out. The instrument exempts only from subregulation 61.375(7) for the described circumstances (s 5). It does not exempt check pilots from other CASR requirements or from the need to comply with other regulatory duties that might apply. Relying on the exemption in one respect does not negate other compliance obligations.

Evidence burden in a regulatory inquiry

• Documentation required. Because the instrument imposes conditions but provides no enforcement detail, operators and check pilots bear the practical burden of assembling proof that the exemption applied in any particular case. That includes employment or contract documents, contemporaneous approved system documentation and the check pilot approval itself.

Administrative coordination

• Managerial and record‑keeping burden. Operators who choose to rely on the exemption must have administrative processes to ensure that only check pilots who meet the conditions conduct relevant checks. Failure to do so could lead to inadvertent non‑compliance.

Potential for scope misclassification

• Identifying the correct check. Determining whether a particular operator proficiency check is within the excluded categories (regs 61.650, 61.695, 61.880) may not be obvious in every case. Incorrect classification could result in unrecognised non‑compliance.

No transitional clauses in the text

• No grandfathering or transitional protection. The instrument does not provide transitional protection or savings clauses for conduct around commencement or repeal dates. Parties must apply the instrument only within the stated operative period.

Compliance under this instrument is conditional and documentary. To rely safely on the exemption, check pilots and operators should satisfy, document and retain evidence of each of the conditions in s 6 and the scope conditions in s 4.

Step 1: Confirm the check pilot approval scope and conditions

• Obtain and retain a copy of the CASA check pilot approval document for the person performing the check. The instrument defines “check pilot approval” as the document granting CASA’s approval (s 3). The exemption applies only to checks “within the scope of the check pilot approval” (s 4) and requires adherence to “all the conditions mentioned in the check pilot approval” (s 6(3)). Ensure that the approval’s scope explicitly covers the type of operator proficiency check to be conducted and note any limitations or conditions.

Step 2: Confirm the check type is within the instrument’s application

• Verify that the competency check is an “operator proficiency check” as defined in reg 61.010 of CASR (s 3). Confirm that the check is not being conducted for the purposes of regs 61.650, 61.695 or 61.880, which are specifically excluded (s 4). If the check falls within those excluded purposes, do not rely on the exemption and ensure the person holds the flight examiner rating required by subregulation 61.375(7).

Step 3: Establish and document employment or contract relationship

• Ensure the person conducting the check is employed or contracted by the operator for which the check is conducted. The instrument makes this an explicit precondition (s 6(1)). Maintain a clear contract or employment record that establishes the relationship and its effective dates, and retain it for regulatory inspection.

Step 4: Verify and document adherence to the operator’s approved training and checking system

• Confirm which version of the operator’s approved training and checking system is current at the time of the check. The instrument requires checks to be conducted “in accordance with the operator’s approved training and checking system, as existing from time to time” (s 6(2)). Keep a dated copy of the specific edition of the approved system that the check followed, and records showing the procedures employed during the check matched that edition.

Step 5: Keep contemporaneous evidence of the check

• For each operator proficiency check conducted under the exemption, preserve records that establish: the identity of the check pilot and their approval document; the employment or contract documents; the relevant operator approved system version; and the check conduct records demonstrating adherence to the approved system and to any conditions in the approval. These items will be necessary to demonstrate entitlement to the exemption in any regulatory inquiry.

Step 6: Monitor instrument status and CASR requirements

• Monitor the commencement and repeal dates specified by the instrument (s 2(a)-(b)). Because the instrument contained a repeal date (31 August 2021), any reliance had to be limited to the instrument’s operative period. Operators should watch for any replacement instruments, amendments to CASR Part 61, or changes to CAO 82.0 that affect the availability of the exemption.

Step 7: Internal governance and rostering

• Implement an internal control process to ensure that only those check pilots who meet the employment/contract, approval scope and approved system criteria undertake operator proficiency checks under the exemption. This includes rostering rules, competency matrices and pre‑check verification steps.

Step 8: Risk assessment and insurance considerations

• Although the instrument does not address insurance or commercial liability, operators should assess whether performing checks with persons who do not hold a flight examiner rating has any contractual or insurance implications in their commercial environment and, if necessary, obtain advice from insurers or legal counsel.

Step 9: Seek clarification or formal advice where ambiguous

• In cases where the scope of the check, the precise content of the approval, or the classification of the check against the excluded regs is unclear, obtain written clarification from CASA or formal legal advice. The instrument does not include interpretive guidance beyond the text; contemporaneous administrative clarification can reduce enforcement risk.

Step 10: Maintain an audit trail for compliance

• Keep an audit trail sufficient to demonstrate, for each check carried out under the exemption: the approval scope, the employment/contract relationship, the approved system edition used, and the procedural adherence to the approved system and approval conditions. This will be the primary evidence demonstrating compliance with the instrument’s conditions (s 6).

Applying this compliance checklist aligns operational practice with the instrument’s text: reliance on the exemption requires satisfying the conditions in s 6 and ensuring the check falls within the scope and outside the excluded categories in s 4. The instrument does not create broader exemptions from CASR or from other legal obligations, so operators and check pilots must continue to comply with the remaining regulatory framework.