Explanatory Statement
Civil Aviation Regulations 1988
Permission and Direction — helicopter special operations
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the purposes of 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, unless CASA otherwise directs for the purposes of subregulation 251 (9), when the aircraft is flying at less than 1 000 feet above the terrain.
Subregulation 207 (2) of CAR 1988 provides that an Australian aircraft must not be used in any class of operation 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), paragraph 3.1 of Civil Aviation Order 20.16.3 (the 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 operators to whom the instrument applies. The list of operators includes National Parks and Wildlife Service (ARN 085810). The National Parks and Wildlife Service has changed its name to State of New South Wales acting through the Department of Environment and Conservation (NSW). Schedule 2 is amended to give effect to this change.
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 that Act.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument amends a previous instrument to give effect to a name change, at the request of that operator.
The instrument has been issued by a delegate of CASA. It takes effect on the day after it is registered.
[Instrument number CASA 295/06]
Overview
The Civil Aviation Regulations 1988, enacted by the Parliament of Australia, were introduced to regulate the safety of air navigation within Australia. Specifically, the instrument F2006L02928 amends the existing regulations to allow for certain special operations involving helicopters, where it is deemed necessary for passengers to be carried on the undercarriage or to not wear seat belts at heights below 1,000 feet above terrain during the hover. This is done under the authority granted to the Governor-General by Section 98 of the Civil Aviation Act 1988, and it serves the policy objective of enhancing safety during emergency operations where landing is not feasible or safe. The instrument also updates the list of operators to reflect the renaming of the National Parks and Wildlife Service to the State of New South Wales acting through the Department of Environment and Conservation (NSW). This amendment is subject to the scrutiny and disallowance provisions of the Legislative Instruments Act 2003.
Scope and Application
The Civil Aviation Regulations 1988, amended by this instrument, apply to the operators of helicopters engaged in special operations as defined in the regulations, which include search and rescue operations, law enforcement operations, firefighting operations, or training for any of these operations. The instrument specifically targets entities such as the State of New South Wales acting through the Department of Environment and Conservation, previously known as the National Parks and Wildlife Service, as listed in Schedule 2 of the Civil Aviation Regulations. The instrument permits certain deviations from standard operational safety regulations to facilitate safe passenger boarding and disembarkation in scenarios where landing is not possible or safe, such as during emergency operations or training. These deviations include allowing passengers to be carried on the helicopter's undercarriage and permitting passengers not to wear a seat belt or occupy a seat when the helicopter is in the hover at a height less than 1,000 feet above the terrain. The conditions under which these deviations are allowed are outlined in Schedule 3 of the instrument, requiring adherence to instructions approved by the Civil Aviation Safety Authority. The instrument operates within the Commonwealth jurisdiction and is subject to disallowance in the Parliament under the Legislative Instruments Act 2003.
Key Provisions
The Civil Aviation Regulations 1988 (CAR 1988) contain specific provisions regarding the carriage of passengers on aircraft, particularly in the context of helicopter special operations. Under subregulation 250(2) of CAR 1988, passengers may be carried on or in parts of an aircraft that are not designed for accommodation, provided the Civil Aviation Safety Authority (CASA) grants permission for flights of a particular kind. Subregulation 250(3) further allows CASA to specify conditions under which such carriage is permitted. These provisions are specifically tailored to allow passengers to be carried on the undercarriage of a helicopter engaged in special operations, such as search and rescue, law enforcement, firefighting, or training for these operations, when a landing is not possible or safe. Such operations are detailed in Schedule 1 of the regulations.
These regulations impose several obligations on the parties involved. Operators of aircraft and pilots in command must adhere to the conditions specified by CASA when carrying passengers on or in parts of the aircraft that are not designed for accommodation. Specifically, under subregulation 251(1) of CAR 1988, all crew members and passengers must wear seat belts in various circumstances, including when the aircraft is flying at less than 1,000 feet above the terrain, unless otherwise directed by CASA. Additionally, under subregulation 207(2) and (3) of CAR 1988, Australian aircraft must be fitted with equipment approved or directed by CASA, which must be used in accordance with CASA's directions. In this context, paragraph 3.1 of Civil Aviation Order 20.16.3 mandates that crew members and passengers must occupy seats of an approved type when the aircraft is flying at a height less than 1,000 feet above the terrain, except when special operations are being conducted.
Breaches of these regulations can result in significant consequences. While the specific penalties for violating these provisions are not detailed in the text, it is clear that non-compliance with the Civil Aviation Regulations 1988 can lead to both civil and criminal penalties, depending on the nature and severity of the breach. The regulations are designed to ensure the safety of air navigation, and any failure to comply with these safety requirements can result in enforcement actions by CASA, which may include fines, suspension or revocation of permits, or other legal actions. The Legislative Instruments Act 2003 (LIA) further stipulates that any direction, instruction, notification, permission, approval, or authority issued by CASA that affects the operation of a Civil Aviation Order (CAO) is a disallowable instrument under section 5 of the LIA, subject to tabling and disallowance in Parliament.
This legislative instrument amends a previous instrument to reflect a name change for the National Parks and Wildlife Service, now operating as the State of New South Wales acting through the Department of Environment and Conservation (NSW). Schedule 2 of the instrument lists the operators to whom these provisions apply, ensuring that only suitably trained and experienced operators are permitted to conduct these special operations. The instrument also includes a condition in Schedule 3 that operations must be carried out in accordance with instructions approved by CASA and set out in the operator’s operations manual. This ensures that all activities are conducted in a manner that maintains the highest safety standards.