Explanatory Statement
Civil Aviation Regulations 1988
Permission and direction — helicopter charter operations by NQ Heli‑Worx Pty Ltd
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.
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 of CAO 20.16.3 provides that seat belts must also be worn at certain times.
This instrument applies to helicopters operated by NQ Heli-Worx Pty Ltd (the operator). It allows passengers in a helicopter to be carried on the undercarriage for the purpose of leaving or boarding the helicopter while it is in the hover. 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 him or her to leave or board the helicopter.
The operator has a requirement from time to time, in charter operations of a specialist nature such as film making or sporting activities in remote areas, to emplane and deplane passengers from helicopters that are in the hover. In locations where suitable landing areas are not available, emplaning and deplaning in this manner is a safer option for suitably trained and experienced operators and personnel than attempting to land.
As a condition of the permission, such an operation will have to be carried out in a manner approved by CASA and 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 that Act.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument affects 1 operator only and has been issued at that operator’s request. Similar instruments have been issued to other helicopter operators.
The instrument commences on the day after it is registered and stops having effect at the end of 31 August 2012.
The instrument has been issued by a delegate of CASA in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA 274/10]
Overview
The Civil Aviation Regulations 1988 were enacted to provide a comprehensive regulatory framework for civil aviation in Australia, ensuring safety and efficiency in air navigation. This regulation was introduced to address specific operational needs of helicopter charter operations, particularly those involving activities such as filmmaking or sports in remote areas where traditional landing is not feasible. Under Section 98 of the Civil Aviation Act 1988, the Governor-General was empowered to create these regulations to enhance air safety. This specific legislative instrument, issued by the Civil Aviation Safety Authority (CASA), allows NQ Heli-Worx Pty Ltd to carry passengers on the undercarriage of their helicopters during hovering for boarding or deplaning purposes, a practice deemed safer under certain conditions. The policy objective is to balance operational flexibility with stringent safety standards, ensuring that such practices are tightly controlled and approved by CASA.
Scope and Application
This legislation applies to NQ Heli-Worx Pty Ltd, a specific helicopter operator in Australia, allowing them to conduct charter operations under certain conditions that deviate from standard Civil Aviation Regulations 1988 (CAR 1988) and Civil Aviation Orders (CAO). These conditions include the carriage of passengers on the undercarriage of the helicopter while it is in a hover, and the exemption from wearing seat belts or occupying a seat at heights below 1000 feet above the terrain when the helicopter is hovering, both for the purpose of leaving or boarding the helicopter. These permissions are granted to enhance safety in remote areas where suitable landing sites are unavailable, particularly for operations such as filmmaking or sporting activities. The permissions are contingent on the operations being carried out in a manner approved by the Civil Aviation Safety Authority (CASA) and documented in the operator's operations manual. Additionally, the instrument is a legislative instrument under the Legislative Instruments Act 2003, which subjects it to potential disallowance in the Parliament. The instrument is effective from the day after its registration until the end of 31 August 2012, and has been issued in accordance with the authority granted to CASA under the CAR 1988.
Key Provisions
The main operative sections of the Civil Aviation Regulations 1988 (CAR 1988) under this legislation, particularly subregulation 250(2) and paragraph 3.1 of Civil Aviation Order 20.16.3 (CAO 20.16.3), permit NQ Heli-Worx Pty Ltd to carry passengers on the undercarriage of their helicopters during hover operations for the purpose of leaving or boarding. Additionally, subregulation 251(9) of CAR 1988 allows for the exemption of seat belt use when the helicopter is in the hover, as long as it is within the conditions set out by CASA. These provisions are designed to accommodate the unique operational needs of the charter business, particularly in remote areas where suitable landing zones may not be available. This ensures that the operations can proceed safely, provided they are conducted according to the approved procedures outlined in the operator's operations manual.
The obligations and requirements imposed by this legislation on NQ Heli-Worx Pty Ltd and CASA are significant. NQ Heli-Worx Pty Ltd must ensure that any operations involving passengers being carried on the undercarriage of the helicopter or not wearing seat belts during hover are strictly in accordance with the conditions set by CASA. This includes ensuring that all crew members and passengers are suitably trained and experienced for such operations. CASA, on the other hand, must approve the procedures and conditions under which these operations can take place and monitor compliance to ensure the safety of all individuals involved. The operator must also ensure that all other regulatory requirements, such as the fitting and use of approved equipment (as per subregulation 207(2) and (3) of CAR 1988), are met at all times.
There are potential consequences for non-compliance with the conditions set forth in this legislation. Under the Civil Aviation Act 1988, failure to comply with the regulations can result in various civil and criminal penalties. For instance, non-compliance with subregulation 250(1) could result in fines up to $16,500 for individuals and $82,500 for corporations. Additionally, criminal charges could be laid, leading to imprisonment for up to two years for individuals and six years for corporations. Such stringent penalties underscore the importance of adhering to the regulatory framework designed to ensure the safety of all operations within the civil aviation sector.
This legislation also interacts with the Legislative Instruments Act 2003 (LIA), declaring the instrument a legislative instrument under section 5 of the LIA because it affects the operation of a Civil Aviation Order (CAO). This makes it subject to tabling and disallowance in Parliament under sections 38 and 42 of the LIA. However, in this case, consultation under section 17 of the LIA was not undertaken as the instrument affects only one operator and was issued at their request. Despite this, the instrument is issued by a delegate of CASA in accordance with subregulation 7(1) of CAR 1988, ensuring it is within the regulatory framework and authority of CASA.
The instrument, numbered CASA 274/10, is effective from the day after its registration and ceases to have effect at the end of 31 August 2012. This temporary nature of the permission highlights the need for ongoing assessment and re-evaluation of the operational practices to ensure they continue to meet safety standards and regulatory requirements.