Explanatory Statement
Civil Aviation Regulations 1988
Direction — carriage of cabin attendants in hot air balloons
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in the interests of the safety of air navigation.
Under regulation 208 of the Civil Aviation Regulations 1988 (CAR 1988), CASA may give directions as to the operating crew required to be carried on an aircraft having regard to the safety of air navigation. Paragraph 7 and subparagraph 6.1 (a) of Civil Aviation Order 20.16.3 (CAO 20.16.3) were made under regulation 208 and provide, among other things, that aircraft carrying more than 15 and not more than 36 passengers must carry a cabin attendant. The instrument applies to the balloons with nationality and registration marks VH-FLI and VH-OPY.
Because of the design of the balloons and their baskets, CASA does not consider that safety would be compromised if the balloon did not carry a cabin attendant during operations with the full passenger complement of 20.
Conditions include, where 15 or more passengers are carried, the presence of 2 support ground crew, in addition to the pilot, to supervise and assist in loading and unloading of 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 must undergo to qualify for the role of ground crew.
Other conditions require that the passengers be equally distributed between the balloon’s 4 compartments and that all passengers are able to hear the pilot’s instructions. Apart from subparagraph 6.1 (a) and paragraph 7.1, other relevant provisions of CAO 20.16.3 continue to apply.
Legislative Instruments Act
Under subparagraph 6 (d) (i) of the Legislative Instrument 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 document 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.
As a legislative instrument, 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. Previous directions have been issued for the same purpose to the named operator and to others.
The direction has been issued by a delegate of CASA. It commences on 1 July 2006 and stops having effect at the end of 30 June 2009.
[Instrument number CASA 190/06]
Overview
The Civil Aviation Regulations 1988 (CAR 1988) were enacted to ensure the safety of air navigation in Australia. One aspect of these regulations is the requirement for operating crew on certain aircraft, which is outlined in regulation 208. Specifically, the Civil Aviation Order 20.16.3 (CAO 20.16.3) mandates that aircraft carrying more than 15 but not more than 36 passengers must carry a cabin attendant. This requirement is intended to ensure passenger safety and smooth operation during flights. However, following an assessment of the design of certain hot air balloons and their baskets, the Civil Aviation Safety Authority (CASA) determined that carrying a cabin attendant would not be necessary for the safety of these specific balloons, identified as VH-FLI and VH-OPY. Instead, CASA introduced conditions that must be met, such as the presence of two support ground crew during operations with a full passenger complement of 20. This legislative instrument, declared under the Legislative Instruments Act 2003, is subject to disallowance by the Parliament. Despite not undergoing formal consultation, this direction aligns with previous measures issued for the same purpose to the named operator and others, effective from 1 July 2006 until 30 June 2009.
Scope and Application
The Civil Aviation Regulations 1988, specifically regulation 208 and its subsequent direction regarding the carriage of cabin attendants in hot air balloons, applies to the aircraft with the nationality and registration marks VH-FLI and VH-OPY. This direction was made under the authority of the Civil Aviation Act 1988, which empowers the Governor-General to enact regulations for air navigation safety. The regulation and direction pertain to the safety requirements for operating these specific hot air balloons, allowing them to operate without a cabin attendant under certain conditions. This includes the requirement for two support ground crew to supervise and assist in passenger loading and unloading, as well as the stipulation that passengers must be distributed equally between the balloon's compartments and able to hear the pilot's instructions. The direction, which is a legislative instrument, is subject to tabling and disallowance under the Legislative Instruments Act 2003, although in this instance, consultation under the LIA has not been undertaken. The direction is effective from 1 July 2006 until 30 June 2009.
Key Provisions
The main operative sections of the Civil Aviation Regulations 1988, as amended by the direction issued by CASA, pertain to the carriage of cabin attendants in hot air balloons. Specifically, Section 208 of the Civil Aviation Regulations 1988 allows CASA to issue directions regarding the operating crew required on an aircraft for safety reasons. This is further detailed in Paragraph 7 and Subparagraph 6.1(a) of Civil Aviation Order 20.16.3, which previously required a cabin attendant for balloons carrying between 15 and 36 passengers. However, the new direction modifies this requirement for specific balloons, namely those with nationality and registration marks VH-FLI and VH-OPY. These balloons are now permitted to operate without a cabin attendant while carrying the full complement of 20 passengers, provided certain conditions are met.
The obligations and requirements imposed by this direction include the presence of two support ground crew members, in addition to the pilot, when carrying 15 or more passengers. These ground crew members must be positioned at either end of the balloon’s basket and must complete a specified course of training outlined in the operator’s operations manual. Another requirement is that passengers must be evenly distributed among the balloon’s four compartments, and all passengers must be able to hear the pilot’s instructions. These conditions are designed to ensure safety and proper operation of the balloon during flights.
Failure to comply with the conditions set out in this direction can result in various consequences. Under the Civil Aviation Act 1988, any breach of the regulations could lead to enforcement actions by CASA. While the specific penalties for non-compliance are not detailed in the provided text, general provisions within the Civil Aviation Act 1988 and associated regulations typically include fines and potential disqualification from operating the balloon. The exact penalties would depend on the severity and nature of the breach, as well as any relevant case law or additional statutory provisions.