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]
Overview
The Civil Aviation Regulations 1988 were enacted to ensure the safety and regulation of civil aviation in Australia. This legislation was introduced to fill the gap in aviation safety standards by providing a comprehensive framework for the operation of aircraft, licensing of personnel, and other aviation-related activities. The Civil Aviation Act 1988 empowers the Governor-General to make regulations for the Act and the safety of air navigation, with the Civil Aviation Regulations 1988 being one such set of regulations. The problem this Act addresses is the need for a unified and stringent regulatory environment to maintain high safety standards in the aviation industry. The Civil Aviation (Safety) Regulations 1988 were enacted by the Parliament of Australia to provide a structured approach to aviation safety and operational standards. The policy objective behind these regulations is to ensure that all aviation activities within Australia comply with safety standards that protect the public and maintain the integrity of the national airspace.
Scope and Application
The Civil Aviation Regulations 1988 apply to all persons, entities, and industries involved in the civil aviation sector in Australia. This includes aircraft operators, pilots, crew members, maintenance personnel, and other stakeholders. The regulations cover a broad range of activities, including flight operations, maintenance, and safety procedures, and are applicable to both domestic and international flights. The Civil Aviation Act 1988 empowers the Governor-General to make regulations for the Act and the safety of air navigation, with the Civil Aviation Authority of Australia (CASA) having the authority to issue directions and revoke them as necessary. The Civil Aviation Order 20.16.3 Amendment Order (No. 1) 2006 and Civil Aviation Order 20.16.3 Amendment Order (No. 2) 2006 provide specific provisions for the loading and unloading of passengers of hot air balloons, and consequently, the instrument CASA 354/06 revokes the existing directions that are replaced by the CAO amendment. The revocation of a legislative instrument is also subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003. The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 84A(2) of the Act.
Key Provisions
The Civil Aviation Regulations 1988 (CAR 1988) contain provisions that allow the Civil Aviation Safety Authority (CASA) to issue directions regarding the number of operating crew members on Australian aircraft (subregulation 208(1)) and the method of loading people and goods on aircraft (subregulation 235(7)). These directions, which were initially used to provide exemptions to hot air balloon operators from carrying a cabin attendant, have been formalised in Civil Aviation Order 20.16.3 (CAO 20.16.3). The recent Civil Aviation Order 20.16.3 Amendment Orders (No. 1 and No. 2) 2006 (the CAO amendment) have introduced specific provisions for the loading and unloading of passengers on hot air balloons, thus making the previous exemptions redundant. Consequently, CASA 354/06 has been issued to revoke these now-redundant directions.
The obligations imposed by the CAR 1988 and the CAO amendment primarily focus on ensuring the safety of passengers and crew during charter and regular public transport operations on Australian aircraft, including hot air balloons. Specifically, under subregulation 208(1), CASA can issue directions on the required number of crew members, ensuring that there are sufficient personnel on board to manage flight and safety operations effectively. Meanwhile, subregulation 235(7) mandates specific guidelines for the loading and unloading of passengers and goods, emphasising the importance of safety in these processes. The CAO amendment further refines these obligations by providing detailed protocols for the safe loading and unloading of passengers on hot air balloons, including passenger location in the basket during flight.
In terms of consequences for non-compliance, the CAR 1988 does not explicitly outline specific offences or penalties for breaching the directions or the provisions of the CAO amendment. However, any failure to adhere to the safety requirements set out in the regulations could potentially result in enforcement actions by CASA, which may include fines, suspension or revocation of operating permits, or other regulatory sanctions. The revocation of a legislative instrument, such as CASA 354/06, is also subject to the tabling and disallowance provisions under the Legislative Instruments Act 2003 (LIA). This means that the revocation must be tabled in Parliament and may be disallowed by either house within the specified period, ensuring that the legislative process remains transparent and accountable.
The revocation of the previous directions and their replacement with the CAO amendment has been handled in a manner that reflects the consequential nature of the change. Consultation under section 17 of the LIA was deemed unnecessary as the revocation is a direct result of the amendment. Furthermore, the Office of Regulation Review (ORR) has determined that the instrument does not substantially alter existing arrangements and is considered minor or of a machinery nature. As such, the ORR had previously agreed that a Regulation Impact Statement was not required for the CAO amendment, and the revocation is treated similarly. The instrument, CASA 354/06, was made by the Director of Aviation Safety on behalf of CASA in accordance with subsection 84A(2) of the Civil Aviation Act 1988, ensuring that the regulatory changes are implemented effectively and in line with legislative requirements.