Explanatory Statement
Civil Aviation Regulations 1988
Permission and direction — helicopter special operations
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.
Subregulation 250 (1) of the Civil Aviation Regulations 1988 (CAR 1988) provides that the operator of an aircraft and the pilot in command must not permit a person to be carried on the wings or undercarriage of the aircraft. Subregulation 250 (2) provides that a person may, with the permission of CASA given in respect of flights of a particular kind, be carried on, or in a part of, an aircraft that is not designed for the accommodation of the crew or passengers. Subregulation 250 (3) provides that CASA may, when granting a permission, specify conditions subject to which a person may be carried.
Subregulation 251 (1) of CAR 1988 provides that seat belts must be worn by all crew members and passengers in various circumstances, including when the aircraft is flying at less than 1 000 feet above the terrain. However, under subregulation 251 (9), CASA may direct that a seat belt need not be worn in this particular circumstance.
Subregulation 207 (2) of CAR 1988 provides that an Australian aircraft must not be used in any class of operations unless it is fitted with or carries such equipment, including emergency equipment, as CASA approves or directs. Subregulation 207 (3) provides that the equipment must be fitted, carried or used in accordance with the directions (if any) of CASA. Subregulation 207 (4) provides that in giving a direction, CASA must have regard only to the safety of air navigation.
In accordance with subregulations 207 (2) and (3) of CAR 1988, paragraph 3.1 of Civil Aviation Order 20.16.3 (CAO 20.16.3) provides, among other things, that each crew member and each passenger must 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 provides that seat belts must also be worn at certain times.
This instrument allows passengers in a helicopter engaged in special operations and in the hover to be carried on the undercarriage for the purpose of leaving or boarding the helicopter. It also allows a passenger not to wear a seat belt, or occupy a seat, at a height less than 1 000 feet above the terrain, when the helicopter is in the hover for the purpose of permitting a passenger to leave or board the helicopter during the special operation.
A special operation is described in Schedule 1 as a search and rescue operation, law enforcement operation, firefighting operation or training for one of those operations in which it is necessary to leave or board the helicopter when a landing is not possible or safe. There are some circumstances where, for suitably trained and experienced operators and personnel, emplaning and deplaning in the hover or partial hover is a safer option than live-load winching when a landing is not possible or safe. The instrument is, therefore, designed to facilitate such emergency operations (or training for them) by operators whom CASA considers are capable of conducting them safely.
Schedule 2 specifies the operator (Touchdown Helicopters Pty Limited) to whom the instrument applies. Schedule 3 contains a condition that the operations must be carried out in accordance with the instructions, approved by CASA, set out in the operator’s operations manual.
Legislative Instruments Act
Under regulation 5A of CAR 1988, if CASA has issued a Civil Aviation Order (CAO), and CASA later issues a direction, instruction, notification, permission, approval or authority that in any way affects the operation of the CAO, the later document is declared to be a disallowable instrument. Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (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. The instrument affects the operation of paragraphs 3.1 and 4.1 of CAO 20.16.3 which requires that passengers must occupy seats of an approved type in certain circumstances. It is, therefore, a legislative instrument for the purposes of section 5 of the LIA. It is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument is identical to others issued to operators who have been approved by CASA to conduct helicopter special operations.
The instrument commences on the day after it is registered and stops having effect at the end of March 2011.
The instrument has been issued by a delegate of CASA under subregulation 7 (1) of CAR 1988.
[Instrument number CASA 146/09]
Overview
The Civil Aviation Regulations 1988, amended by F2009L01246, aim to address the operational challenges associated with helicopter special operations, particularly those involving search and rescue, law enforcement, and firefighting. This legislation was introduced to ensure the safety of air navigation while allowing for practical and safer alternatives to traditional methods, such as live-load winching, when landing is not possible or safe. Enacted under the authority of the Civil Aviation Act 1988, the instrument allows passengers to be carried on the undercarriage of a helicopter during hover for the purpose of boarding or disembarking, provided the operation is conducted by a suitably trained and experienced operator approved by the Civil Aviation Safety Authority (CASA). This amendment facilitates emergency operations by ensuring that such procedures are carried out safely and in accordance with CASA-approved instructions. The policy objective is to enhance operational flexibility and safety for operators involved in critical missions where conventional landing procedures are impractical.
Scope and Application
The instrument F2009L01246, issued under the Civil Aviation Regulations 1988, applies specifically to Touchdown Helicopters Pty Limited, as outlined in Schedule 2. This regulation permits the operation of special helicopter missions, including search and rescue, law enforcement, firefighting, or training for these operations, where landing is not feasible or safe. Under this regulation, passengers can be carried on the undercarriage of the helicopter during the hover to board or disembark, and passengers may forgo wearing a seat belt or occupying a seat when the helicopter is in the hover, specifically for the purpose of embarking or disembarking during these special operations. This regulation is intended to provide flexibility and safety for specially trained and experienced operators and personnel in emergency situations. The geographic scope of this regulation is national, as it pertains to Australian aircraft operations and is subject to the overarching Civil Aviation Act 1988. The instrument is designed to allow CASA-approved operations that deviate from standard seating and seatbelt requirements, ensuring they are conducted safely and in compliance with the Civil Aviation Order 20.16.3. The instrument is subject to disallowance under the Legislative Instruments Act 2003, given its impact on the Civil Aviation Order 20.16.3.
Key Provisions
The Civil Aviation Regulations 1988, as amended by F2009L01246, provide specific permissions for helicopter special operations, allowing for certain exceptions to standard safety requirements. According to subregulation 250(2) of CAR 1988, with the permission of the Civil Aviation Safety Authority (CASA), a person may be carried on or in a part of an aircraft, such as a helicopter, that is not designed for the accommodation of the crew or passengers, provided the flight is of a particular kind. This permission is granted in respect of flights where special operations are necessary, including search and rescue, law enforcement, firefighting, and training for these operations, as defined in Schedule 1 of the instrument. These special operations involve scenarios where landing is not possible or safe, and boarding or leaving the helicopter in the hover is considered a safer option than live-load winching. Additionally, subregulation 251(9) allows CASA to direct that a seat belt need not be worn when the aircraft is in the hover for the purpose of permitting a passenger to leave or board the helicopter during such special operations.
The Act imposes several obligations on the parties involved. Operators, such as Touchdown Helicopters Pty Limited as specified in Schedule 2, must adhere to the conditions set forth in their operations manual, which must be approved by CASA. This includes ensuring that all operations are conducted in accordance with the instructions outlined in their operations manual, which must be approved by CASA. Operators must also ensure that any personnel involved in these special operations are suitably trained and experienced. Furthermore, under subregulation 207(2) and (3) of CAR 1988, as well as paragraph 3.1 of CAO 20.16.3, each crew member and passenger must occupy a seat of an approved type when the aircraft is flying at a height less than 1,000 feet above the terrain, unless a direction is given by CASA stating otherwise.
There are specific consequences for breaching the provisions of this instrument. While the explanatory statement does not detail specific offences or penalties, it is clear that failure to comply with the conditions set by CASA could result in legal repercussions. The Legislative Instruments Act 2003 (LIA) declares that any subsequent direction, instruction, notification, permission, approval, or authority issued by CASA that affects the operation of a Civil Aviation Order (CAO) is a disallowable instrument. This means that the instrument is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA. Although the explanatory statement does not specify maximum penalties, non-compliance with aviation safety regulations generally can lead to civil penalties, criminal charges, and potential revocation of operating permits.
In summary, the Civil Aviation Regulations 1988, as amended by F2009L01246, provide specific permissions for helicopter special operations, allowing for exceptions to standard safety requirements. These permissions are subject to CASA's approval and are conditional on the operators adhering to stringent safety guidelines and operational instructions. Failure to comply with these conditions could result in disallowance of the instrument, legal action, and other penalties as prescribed by relevant legislation.