Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Authorisations, approval, permission, directions and exemption — helicopter operations (Aeropower)
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and the safety of air navigation.
Subregulation 151 (1) of the Civil Aviation Regulations 1988 (CAR 1988) provides that the pilot in command of an aircraft in flight must not allow persons or objects to be picked up by the aircraft. However, under subregulation 151 (3) of CAR 1988, CASA may give prior written authority to the person or object to be picked up while the aircraft is in flight.
Under subregulation 207 (1) of CAR 1988, a person must not use an Australian aircraft in a class of operation (for example, charter operation or aerial work operation) if CASA has not authorised and approved the particular type of aircraft for that use. Under subregulation 207 (3) of CAR 1988, CASA may direct that a person fit, carry or use an instrument or item of equipment on an aircraft.
Under subregulation 250 (2) of CAR 1988, CASA may permit, for a particular flight or flights of a particular kind, a person to be carried on or in a part of an aircraft that is not designed for the accommodation of crew or passengers while the aircraft is in flight.
Subregulation 251 (1) of CAR 1988 provides, among other things, that seat belts shall be worn by all crew members and passengers when the aircraft is flying at a height of less than 1 000 feet above the terrain. Failure to comply with this requirement is a strict liability offence. Subregulation 251 (9) provides that it is a defence to prosecution if CASA has directed that seat belts not be worn in that circumstance. Subregulation 251 (3) further provides that CASA may direct that a type of safety harness specified in the direction shall be worn in place of a seat belt in the circumstances set out in the direction.
Civil Aviation Order 20.16.3 (CAO 20.16.3) deals with the carriage of persons during air service operations. Among other things, paragraph 3.1 of CAO 20.16.3 provides that each crew member and each passenger shall occupy a seat of an approved type when the aircraft is flying at a height less than 1 000 feet above the terrain. Paragraph 4.1 also provides, among other things, that seat belts shall be worn by all persons at all times for the circumstances listed in paragraph 3.1.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including CAR 1988, or a provision of the Civil Aviation Orders (the CAOs), in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement) or, if no day is specified, 3 years after commencement.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Instrument
CASA 113/15 is an instrument that, in essence, allows Aeropower Pty Ltd (the operator), its helicopters and its employees to conduct aerial work operations, and training exercises, for the purpose of installing, repairing and maintaining transmission lines and transmission line tower structures. During these maintenance operations, the maintenance technician will disembark from the helicopter onto the transmission line tower structure, and vice versa, while being secured to at least one of those objects.
Given the inherent safety risks and level of skill required for these operations, the operator has developed an operations manual and operational procedures that, to CASA’s satisfaction, appropriately mitigate these risks. Accordingly, CASA is giving the operator, its aircraft and its personnel (pilots in command and maintenance technicians):
- authorisation and approval, under subregulation 207 (1) of CAR 1988, to use MD500 and MD600 type helicopters for maintenance operations
- authorisation, under subregulation 151 (3) of CAR 1988, for the maintenance person to be picked up by the helicopter while it is hovering in flight
- permission, under subregulation 250 (2) of CAR 1988, for the maintenance person to be carried on the undercarriage of the aircraft while the person is embarking or disembarking
- directions, under subregulations 207 (3), 251 (3) and 251 (9) of CAR 1988, with respect to the wearing of a safety harness, instead of a seat belt, and the carriage of equipment and aircraft instruments in accordance with the operator’s operations manual
- an exemption, issued under regulation 11.160 of CASR 1998, from compliance with paragraphs 3.1 and 4.1 of CAO 20.16.3 with respect to seating and seat belt requirements.
The instrument is subject to 2 conditions, specifically, that during maintenance operations, the operator’s aircraft may only carry up to 3 persons being the pilot in command and no more than 2 maintenance persons; and that maintenance operations must be conducted in accordance with the operator’s operations manual.
CASA 113/15 repeals and replaces CASA 16/15 which was issued to the operator in February 2015. CASA 16/15 limited the operator to carrying 1 pilot in command and 1 maintenance person.
Legislative Instruments Act 2003 (the LIA)
Under subparagraph 6 (d) (i) of the LIA, an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. Under regulation 5A of CAR 1988, which was in force before the commencement of the LIA, if CASA has issued a CAO, and CASA later issues an exemption that affects the operation of the CAO, the later document is declared to be a disallowable instrument. This instrument exempts the operator from the requirements of paragraphs 3.1 and 4.1 of CAO 20.16.3 and is, therefore, a legislative instrument.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The instrument has been prepared at the request of the operator in order to allow the operator to continue conducting aerial work operations to maintain transmission lines and transmission line tower structures. The operator has demonstrated safe operating procedures to CASA, which are recorded in the operator’s operations manual. Similar instruments are issued to other operators for comparable aerial work operations. It is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required (OBPR id: 14507).
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation in subregulation 11.260 (1) of CASR 1998.
The instrument commences on the day of registration and expires, as if it had been repealed by another instrument, at the end of February 2018.
[Instrument number CASA 113/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Authorisations, approval, permission, directions and exemption —
helicopter operations (Aeropower)
This 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
This legislative instrument allows Aeropower Pty Ltd (the operator) to conduct highly skilled transmission line and transmission line tower structure maintenance operations in a helicopter. The instrument authorises and approves the operations to be undertaken in MD500 and MD600 type helicopters and permits the operator’s aircraft to carry a maintenance technician on the undercarriage of the aircraft. The instrument also exempts the operator’s aircraft from seat belt and seating requirements for crew and passengers.
The instrument is subject to conditions that CASA has imposed in the interests of aviation safety, including that the operator must conduct its maintenance operations in accordance with its operations manual.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority