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 an operator whom CASA considers is capable of conducting them safely.
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 similar in nature to instruments issued to other operators.
The instrument commences on the day after it is registered and stops having effect at the end of 31 July 2010.
The instrument has been issued by a delegate of CASA under subregulation 7 (1) of CAR 1988.
[Instrument number CASA 310/09]
Overview
The Civil Aviation Regulations 1988 were enacted to regulate and ensure the safety of air navigation in Australia. The specific legislative instrument in question, F2009L01194, was introduced to address the gap in safety protocols for helicopter special operations, such as search and rescue, law enforcement, and firefighting, where landing is not feasible or safe. This instrument was issued by the Civil Aviation Safety Authority (CASA) under the authority granted by Section 98 of the Civil Aviation Act 1988. The policy objective behind this regulation is to facilitate safe operations by allowing suitably trained and experienced personnel to board and disembark from the helicopter while it is in the hover, which is deemed safer than live-load winching in certain emergency situations. This regulation permits exceptions to standard seating and seatbelt requirements under specific conditions, provided that CASA has granted the necessary permissions. The instrument is subject to disallowance under the Legislative Instruments Act 2003 and is effective until 31 July 2010.
Scope and Application
The Civil Aviation Regulations 1988, as amended by the legislative instrument CASA 310/09, applies to operators and pilots of helicopters engaged in special operations, such as search and rescue, law enforcement, and firefighting, where leaving or boarding the helicopter is necessary but landing is not possible or safe. This regulation allows passengers to be carried on the undercarriage of a helicopter in the hover for boarding or leaving purposes, and also permits 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 regulatory framework ensures that these operations are conducted safely by suitably trained and experienced operators and personnel, who have been approved by the Civil Aviation Safety Authority (CASA). The instrument is applicable nationally and is designed to facilitate emergency operations by ensuring that the safety of air navigation is maintained. The instrument is subject to disallowance under the Legislative Instruments Act 2003 and will cease to have effect on 31 July 2010 unless otherwise extended.
Key Provisions
The primary sections of the Civil Aviation Regulations 1988 (CAR 1988) outlined in this instrument allow for special operations in helicopters where it is necessary to carry passengers on the undercarriage or permit them to leave or board the helicopter when landing is not possible or safe. Specifically, subregulation 250(2) of CAR 1988 permits individuals to be carried on, or in parts of, an aircraft not designed for accommodating crew or passengers, subject to the Civil Aviation Safety Authority (CASA) granting permission. Subregulation 250(3) further allows CASA to impose conditions on such permissions. Additionally, subregulation 251(1) mandates that seat belts must be worn by all crew members and passengers, although subregulation 251(9) allows CASA to direct otherwise in specific circumstances. Furthermore, subregulation 207(2) and (3) require that Australian aircraft be fitted with approved equipment, and subregulation 207(4) states that CASA must consider only the safety of air navigation when giving directions regarding equipment.
The obligations imposed by this Act on the parties involved include obtaining permission from CASA for special operations, adhering to the conditions set by CASA, and ensuring that any equipment used complies with CASA's approvals or directions. Operators must also ensure that suitably trained and experienced personnel are involved in these operations to ensure safety. The specific conditions set by CASA, such as the necessity for passengers to be carried on the undercarriage or not wearing seat belts when hovering, must be strictly followed. Additionally, operators must ensure that their aircraft are equipped in accordance with CASA’s requirements, including the installation of emergency equipment.
Offences and penalties for breaches of this legislation can include both civil and criminal consequences. The severity of these penalties can vary depending on the nature and extent of the breach. For instance, operating an aircraft in a manner that contravenes the regulations may result in fines or imprisonment under the Civil Aviation Act 1988. Failure to comply with the requirements for equipment or permissions may also result in fines, with the exact penalties depending on the specific breach. Additionally, CASA has the authority to suspend or cancel permits or approvals if an operator fails to adhere to the conditions set forth in the regulations.
This instrument also highlights the legislative framework under which it operates, particularly under the Legislative Instruments Act 2003 (LIA). As a disallowable instrument, it is subject to tabling and disallowance in the Parliament, ensuring that the instrument remains accountable to parliamentary scrutiny. The instrument is effective from the day after it is registered and remains in effect until 31 July 2010. It is issued by a delegate of CASA under subregulation 7(1) of CAR 1988, thereby formalising the legal authority behind its implementation.