Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
CASA 05/21 — Number of Cabin Attendants (Regional Express) Direction 2021
Purpose
The purpose of CASA 05/21 — Number of Cabin Attendants (Regional Express) Direction 2021 (the instrument) is to enable Regional Express Pty Ltd (Regional Express) to carry at least 1 cabin attendant for every 50 passenger seats or less fitted to a relevant aircraft.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Regulations 1988 (CAR) and the Civil Aviation Safety Regulations 1998 (CASR).
Subpart 11.G of CASR enables the Civil Aviation Safety Authority (CASA) to issue directions in relation to matters affecting the safety of air navigation.
Paragraph 11.245 (1) (a) of CASR empowers CASA, for subsection 98 (5A) of the Act, to issue a direction about any matter affecting the safe navigation and operation of aircraft.
Under subregulation 11.245 (2), CASA may issue such a direction:
(a) only if CASA is satisfied it is necessary to do so in the interests of the safety of air navigation; and
(b) only if the direction is not inconsistent with the Act; and
(c) only for the purposes of CASA’s functions.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255 of CASR, it is an offence of strict liability if a person contravenes a direction under regulation 11.245.
Under regulation 208 of CAR, CASA may give directions relating to the operating crew members required to be carried on an aircraft during a flight, having regard to the safety of air navigation.
Subparagraph 6.1 (b) of Civil Aviation Order (CAO) 20.16.3 was made under regulation 208 of CAR. It states that if an aircraft engaged in charter, or regular public transport, operations carries more than 36 but not more than 216 passengers on a flight, it must carry at least 1 cabin attendant for each unit of 36 or less passengers carried.
Under Part 1 of the CASR Dictionary, type certificate data sheet (TCDS) means a sheet attached to a type certificate for an aircraft, aircraft engine or propeller that sets out the limitations prescribed by the applicable airworthiness requirements for the aircraft, aircraft engine or propeller, and any other limitations and information necessary for type certification of the aircraft, aircraft engine or propeller.
Background
The minimum cabin attendant-to-passenger ratio requirement stated in subparagraph 6.1 (b) of CAO 20.16.3 is a unique Australian requirement, which is more onerous than the equivalent requirement applying in other countries. The minimum ratio permitted in Europe, the United States of America and most other countries is for an airline to carry at least 1 cabin attendant for every 50 passenger seats on the aircraft or part of that number. CASA permits operators to adopt the internationally-accepted ratio in certain circumstances, as assessed on a case-by-case basis. The internationally-accepted ratio will apply from the commencement of the Civil Aviation Safety Amendment (Part 121) Regulations 2018 (Part 121 of CASR).
Content of instrument
Section 1 states the name of the instrument.
Section 2 states the duration of the instrument.
Section 3 contains definitions of terms used in the instrument. In particular, relevant aircraft means a B737-800 series aircraft with a TCDS that provides for a maximum seating capacity of 189 passengers.
Section 4 states the instrument applies to Regional Express in relation to its operation of the relevant aircraft in charter, or regular public transport, operations.
Subsection 5 (1) overrides the minimum cabin attendant-to-passenger ratio requirement stated in subparagraph 6.1 (b) of CAO 20.16.3.
Subsection 5 (2) directs Regional Express to assign for duty at least 1 cabin attendant for every 50, or part of 50, passenger seats fitted to the relevant aircraft.
Subsection 5 (3) directs Regional Express to give written notice to CASA of any proposed revision of any part of Regional Express’ operations manual that relates to emergency procedures for the relevant aircraft, including in relation to exits. Under subsection 5 (4), the notice must be given at least 14 days before making the proposed revision.
CASA is satisfied it is necessary to issue the directions in the interests of the safety of air navigation.
Document incorporated by reference
The instrument incorporates by reference CAO 20.16.3 in accordance with section 14 of the Legislation Act 2003 (the LA). This document is a disallowable legislative instrument made under CAR, and is freely available on the Federal Register of Legislation.
Subsection 98 (5D) of the Act states that a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing at a particular time, or from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.
The instrument incorporates by reference the TCDS, for the relevant aircraft, as it exists at the commencement of the instrument. The US Federal Aviation Administration (the FAA) has published the TCDS for the relevant aircraft. The document is freely available, and accessible on the following webpage: https://rgl.faa.gov/Regulatory_and_Guidance_Library/rgMakeModel.nsf/0/1c2b973615d72f9c8625861c00508676/$FILE/A16WE_Rev66.pdf.
Legislation Act 2003
The instrument is being registered as a legislative instrument. Therefore, it is a legislative instrument under subsection 8 (3) of the LA, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Initial consultation under section 17 of the LA was undertaken following the issue of the CASA report that recommended the recognition of the FAA and European Union Aviation Safety Agency certification standards in relation to setting the ratio of cabin attendants to passenger seats.
More recently, CASA consulted extensively with industry and the public about adopting the ratio of at least 1 cabin attendant for every 50 passenger seats or less fitted to a relevant aircraft engaged in charter, or regular public transport, operations. This ratio has been accepted as the new standard for the operation of aeroplanes under Part 121 of CASR.
The instrument has been issued at the request of the operator.
Therefore, CASA is satisfied that, for section 17 of the LA, no further consultation is appropriate or reasonably practicable for the instrument.
Office of Best Practice Regulation (OBPR)
A Regulatory Impact Statement (RIS) is not required in this case as the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for directions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights as it does not raise any human rights issues.
Making and commencement
The instrument has been made by a delegate of CASA, relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on the day after it is registered, and is repealed at the earlier of the following:
(a) the commencement of Part 121 of CASR;
(b) the end of 30 November 2022.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA 05/21 — Number of Cabin Attendants (Regional Express) Direction 2021
The legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The legislative instrument allows Regional Express Pty Ltd to operate a stated aircraft with 1 cabin attendant for every 50 passenger seats or less fitted to a relevant aircraft.
Human rights implications
The legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
The legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority