Explanatory Statement
Civil Aviation Regulations 1988
Revocation of directions
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to 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 members on an Australian aircraft. Under the definition in regulation 2 of CAR 1988, operating crew means any person on board with flying or safety duties and includes cabin attendants. Under subregulation 235 (7) of CAR 1988, CASA may give directions for the method of loading people and goods on aircraft. These various directions are contained in Civil Aviation Order 20.16.3 (CAO 20.16.3). Under subparagraph 6.1 (a) of CAO 20.16.3, all Australian aircraft engaged in charter or regular public transport (RPT) operations and carrying more than 15 but not more than 36 passengers must carry a cabin attendant.
Hot air balloon exemptions
This requirement had been made before the advent of the current large passenger balloons and is practically difficult to apply to them. Nevertheless, strictly speaking, the requirement applied to Australian manned balloons and hot air airships (hot air balloons) engaged in charter or RPT operations and carrying more than 15 passengers. For some years, on a case by case basis, CASA had issued directions to particular operators that were in effect exemptions to dispense with the requirement to carry a cabin attendant on balloons provided other safety conditions were met, including for loading and unloading passengers and for their location in the basket during flight.
CAO amendment
In Civil Aviation Order 20.16.3 Amendment Order (No. 1) 2006 and Civil Aviation Order 20.16.3 Amendment Order (No. 2) 2006 (the CAO amendment), CASA replaced this approach by making specific provision for the loading and unloading of passengers of hot air balloons. It is consequentially necessary to revoke the existing directions which are replaced by the CAO amendment. Instrument CASA 354/06 does this.
Legislative Instruments Act
Under subregulations 208 (1) and 235 (7) of CAR 1988, CASA is empowered to issue certain directions about the number of crew members and the loading and unloading of passengers. It may also revoke the directions. Under regulation 5A of CAR 1988, an instrument that affects the operation of a CAO is declared to be a disallowable instrument. When they were issued, the directions to be revoked were considered to be disallowable instruments because they affected the operation of CAO 20.16.3 by adjusting its application to hot air balloons. 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. Thus, when they were issued, the directions were legislative instruments and subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA. The revocation of a legislative instrument is also a legislative instrument similarly subject to tabling and disallowance in the Parliament.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case as the action is merely consequential on the making of the CAO amendment. The policy behind the CAO amendment had been the subject of consultations through the Joint CASA/Industry Technical Committee on Commercial Ballooning.
Office of Regulation Review (ORR)
The instrument will not substantially alter existing arrangements and is regarded as being of a minor or machinery nature. The ORR had previously agreed that the CAO amendment, to which the instrument is merely consequential, may proceed without the preparation of a Regulation Impact Statement (ORR ID: 6315).
Having been registered, the instrument comes into effect immediately after the commencement of the CAO amendment.
The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 84A (2) of the Act.
[Instrument number CASA 354/06]