Explanatory Statement
Civil Aviation Regulations 1988
Direction — carriage of cabin attendant in hot air balloon
Subsection 98 (1) 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.
Under subregulation 208 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may give directions about the number of operating crew required to be carried on an aircraft, having regard to the safety of air navigation. CASA gave directions in Civil Aviation Order 20.16.3 (CAO 20.16.3). Subparagraph 6.1 (a) of CAO 20.16.3 provides, among other things, that aircraft in charter or regular public transport operations and carrying more than 15 but not more than 36 passengers must carry a cabin attendant.
This instrument is a direction under subregulation 208 (1) of CAR 1988 that cabin attendants are not required on certain hot air balloons operated by Balloon Aloft Pty Ltd. The instrument applies to the Kavanagh B-350 hot air balloon with nationality and registration marks VH-AKH designed to carry not more than 24 passengers. Because of the design of the balloon and its basket, and subject to certain conditions, CASA does not consider that safety will be compromised by the absence of an aisle or if the balloon does not carry a cabin attendant during operations when carrying not more than 24 passengers.
There are safety conditions. Where more than 15 passengers are carried, 2 suitably trained ground crew must be in attendance to supervise and assist in loading and unloading passengers. These ground crew personnel must be located at either end of the basket and the operator’s operations manual must set out the course of training they have undergone to qualify for the role of ground crew.
Other conditions require that the passengers must be equally distributed between the balloon’s 4 compartments and that all passengers must be able to hear the pilot’s instructions. It is also a condition that the provisions of Civil Aviation Order 20.16.3 that apply to the balloon must be complied with, except subparagraph 6.1 (a) and paragraph 7.1.
Not all of the provisions of CAO 20.16.3 can be applied to balloons. Paragraph 7.1 relates to the provision of an aisle where there is a cabin attendant. The particular balloon is not required to carry a cabin attendant and paragraph 7.1 probably has no practical or legal application to balloons of this kind. To avoid doubt, however, the application of paragraph 7.1 is expressly excluded from the conditions.
Legislative Instruments Act
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. Under regulation 5A of CAR 1988, if CASA has issued a Civil Aviation Order (CAO), and CASA later issues a direction that affects the operation of the CAO, the later instrument is declared to be a disallowable instrument. The instrument affects the operation of subparagraph 6.1 (a) of CAO 20.16.3. The instrument 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 that Act.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument is specifically issued at the request of the operator to whom it applies. A similar instrument would be issued to any appropriate operator with similar balloons who could meet the same safety conditions.
The instrument commences on the day after it is registered and stops having effect at the end of 31 May 2009.
The instrument has been issued by the Manager Operations, General Aviation Operations Group, a delegate of CASA, under subregulation 7 (1) of CAR 1988.
[Instrument number CASA 183/06]
Overview
The Civil Aviation Regulations 1988, enacted to govern the safety of air navigation in Australia, were supplemented by this legislative instrument to address a specific operational need identified by Balloon Aloft Pty Ltd. This direction, issued by the Civil Aviation Safety Authority (CASA), modifies existing regulations to exempt a particular hot air balloon, the Kavanagh B-350 with registration marks VH-AKH, from the requirement to carry a cabin attendant under certain conditions. This was done to balance operational flexibility with safety considerations, recognising that the unique design of the balloon and its basket, when carrying up to 24 passengers, could maintain safety standards without a cabin attendant. The policy objective was to ensure that safety is not compromised while providing reasonable operational allowances to balloon operators. The instrument, which is subject to disallowance under the Legislative Instruments Act 2003, includes specific safety conditions, such as the requirement for ground crew supervision during passenger loading and unloading, and compliance with certain provisions of the Civil Aviation Order 20.16.3, except where they are rendered inapplicable by the nature of the balloon's design.
Scope and Application
The Civil Aviation Regulations 1988 (CAR 1988) provide the framework for the regulation of aviation in Australia, and under the Civil Aviation Act 1988 (the Act), the Civil Aviation Safety Authority (CASA) is empowered to issue directions to ensure safety in air navigation. In this instance, CASA has issued a direction under subregulation 208(1) of CAR 1988 that specifically exempts a certain hot air balloon operated by Balloon Aloft Pty Ltd from the requirement to carry a cabin attendant. This direction applies to the Kavanagh B-350 hot air balloon with nationality and registration marks VH-AKH, which is designed to carry up to 24 passengers. The exemption is based on the design of the balloon and its basket, and is subject to specific safety conditions designed to ensure passenger safety. These conditions include the requirement for two suitably trained ground crew to be present to supervise and assist in the loading and unloading of passengers, the even distribution of passengers across the balloon's four compartments, and the necessity for all passengers to be able to hear the pilot's instructions. The direction also excludes certain provisions of Civil Aviation Order 20.16.3 (CAO 20.16.3) from applying to this balloon, specifically subparagraph 6.1(a) and paragraph 7.1, to avoid any doubt about their applicability in this context. This direction is considered a legislative instrument under the Legislative Instruments Act 2003 (LIA) and is subject to tabling and disallowance in the Parliament. The instrument was issued at the request of the operator and is effective from the day after registration until the end of 31 May 2009.
Key Provisions
The Civil Aviation Regulations 1988 (CAR 1988) provide a framework for aviation safety in Australia, and under subregulation 208(1), the Civil Aviation Safety Authority (CASA) is empowered to issue directions regarding crew requirements on aircraft, taking into account the safety of air navigation. Specifically, subregulation 208(1) allows CASA to direct the number of operating crew members required on an aircraft. This authority is exercised through Civil Aviation Order (CAO) 20.16.3, which includes provisions for cabin attendants on aircraft carrying more than 15 but not more than 36 passengers. However, this particular instrument provides a direction under subregulation 208(1) of CAR 1988 that cabin attendants are not required on certain hot air balloons operated by Balloon Aloft Pty Ltd. This applies to the Kavanagh B-350 hot air balloon, registered as VH-AKH, designed to carry no more than 24 passengers.
The instrument imposes several safety conditions to ensure the safe operation of the hot air balloon without a cabin attendant. Where more than 15 passengers are carried, two suitably trained ground crew members must be present to supervise and assist in loading and unloading. These ground crew members must be located at either end of the basket, and the operator's operations manual must detail the training they have undergone. Additionally, passengers must be equally distributed among the balloon's four compartments, and all must be able to hear the pilot’s instructions. Compliance with the provisions of CAO 20.16.3 is required except for subparagraph 6.1(a) and paragraph 7.1, which have been expressly excluded due to the design of the balloon and the absence of a cabin attendant.
Breaching the conditions outlined in this direction can lead to significant consequences. Under the Civil Aviation Act 1988, non-compliance with safety directions issued by CASA can result in both civil and criminal penalties. Civil penalties may include fines up to $22,200 for individuals and $111,000 for corporations, depending on the severity of the breach. Additionally, criminal offences may arise, particularly if the breach results in serious harm or death, leading to imprisonment for up to five years for individuals and fines for corporations. The Legislative Instruments Act 2003 further governs the legislative process, declaring this direction a disallowable instrument, subject to tabling and disallowance in Parliament. This adds an additional layer of scrutiny and oversight, ensuring that any legislative instruments issued align with the broader legislative intent and safety standards.