Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
CASA 36/20 — Number of Cabin Attendants (Virgin Australia Regional Airlines) Direction 2020
Purpose
The purpose of CASA 36/20 — Number of Cabin Attendants (Virgin Australia Regional Airlines) Direction 2020 (the instrument) is to allow Virgin Australia Regional Airlines Pty Ltd (VARA) to continue to carry at least 1 cabin attendant for each 50, or part of 50, passenger seats, on flights of Airbus A320-200 series aircraft with the certified maximum passenger seating capacity of 168 and Fokker F28 MK 0100 series aircraft with the certified maximum passenger seating capacity of 100 passengers.
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. Relevantly, the Governor‑General has made the Civil Aviation Regulations 1988 (CAR) and the Civil Aviation Safety Regulations 1998 (CASR).
Subpart 11.G of CASR enables the Civil Aviation Safety Authority (CASA) to issue directions in relation to matters affecting the safety of air navigation. Paragraph 11.245 (1) (a) of CASR empowers CASA, for subsection 98 (5A) of the Act, to issue a direction about any matter affecting the safe navigation and operation of aircraft.
Under subregulation 11.245 (2), CASA may issue such a direction:
(a) only if CASA is satisfied it is necessary to do so in the interests of the safety of air navigation; and
(b) only if the direction is not inconsistent with the Act; and
(c) only for the purposes of CASA’s functions.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255 of CASR, it is an offence of strict liability if a person contravenes a direction under regulation 11.245.
Under regulation 208 of CAR, CASA may give directions relating to the operating crew members required to be carried on an aircraft during a flight, having regard to the safety of air navigation.
Subparagraph 6.1 (b) of Civil Aviation Order 20.16.3, as in force from time to time (CAO 20.16.3), was made under regulation 208. It states that if an aircraft engaged in charter, or regular public transport, operations carries more than 36 but not more than 216 passengers on a flight, it must carry at least 1 cabin attendant for each unit of 36 or less passengers carried.
Under Part 1 of the CASR Dictionary, type certificate data sheet (TCDS) means a sheet attached to a type certificate for an aircraft, aircraft engine or propeller that sets out the limitations prescribed by the applicable airworthiness requirements for the aircraft, aircraft engine or propeller, and any other limitations and information necessary for type certification of the aircraft, aircraft engine or propeller.
Subsection 98 (5D) of the Act provides that a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.
Background
The minimum cabin attendant-to-passenger ratio requirement stated in subparagraph 6.1 (b) of CAO 20.16.3 is a unique Australian requirement, which is more onerous than the equivalent requirement applying in other countries. The minimum ratio permitted in Europe, the United States of America and most other countries is for an airline to carry at least 1 cabin attendant for every 50 passenger seats on the aircraft or part of that number. CASA permits operators to adopt the internationally-accepted ratio in certain circumstances, as assessed on a case-by-case basis. The internationally-accepted ratio will apply from the commencement of the Civil Aviation Safety Amendment (Part 121) Regulations 2018 (Part 121 of CASR).
The instrument replaces instrument CASA 46/18 — Number of Cabin Attendants (Virgin Australia Regional Airlines Pty Ltd) Direction 2018 (CASA 46/18) which previously allowed VARA to operate Airbus A320-200 series aircraft and Fokker F28 MK0100 series aircraft with a cabin crew complement consistent with the internationally‑accepted ratio. Several similar instruments have been previously issued to VARA.
Overview of the instrument
The instrument directs that subparagraph 6.1 (b) of CAO 20.16.3 does not apply in relation to the operator to which the instrument applies, and directs the number of cabin attendants that the operator must assign.
The directions given in the instrument regarding the number of cabin crew members required reflects the approach that will be taken when Part 121 of CASR commences, and is consistent with future regulation 121.635 of CASR and the related definition of flight base number to be inserted into the CASA Dictionary by the Civil Aviation Safety Amendment (Operations Definitions) Regulations 2019.
The instrument also includes directions that any proposed revisions of the operator’s operations manual are notified to CASA. This ensures that CASA continues to have oversight over the appropriate risk reduction measures in the operator’s operations manual.
CASA is satisfied it is necessary to issue the directions in the interests of the safety of air navigation.
Documents incorporated by reference
The instrument incorporates by reference CAO 20.16.3 in accordance with section 10 of the Acts Interpretation Act 1901 and section 13 of the Legislation Act 2003 (the LA). The Civil Aviation Order is incorporated as in force from time to time, is a disallowable legislative instrument made under CAR, and is freely available on the Federal Register of Legislation.
The instrument also incorporates by reference the TCDS, for each of the relevant aircraft, as it exists at the commencement of the instrument. In the instrument, this document is referred to as the relevant type certificate data sheet.
The TCDS for each of the relevant aircraft are freely available on the European Union Aviation Safety Authority website at https://www.easa.europa.eu.
The latest version of the TCDS for the Airbus A320-200 series aircraft, as at commencement of this instrument, is TCDS No: EASA.A.064 Issue: 45 – Publication date 20/12/19. This document, as at commencement of this instrument, is available at: https://www.easa.europa.eu/document-library/type-certificates. Search for “EASA.A.064”.
The latest version of the TCDS for the Fokker F28 MK 0100 series aircraft, as at commencement of this instrument, is TCDS No: EASA.A.037 Issue: 07 – Publication date 03/09/18. This document, as at commencement of this instrument, is also available at: https://www.easa.europa.eu/document-library/type-certificates. Search for “EASA.A.037”.
Content of the instrument
Section 1 states the name of the instrument.
Section 2 states the duration of the instrument.
Section 3 contains definitions for the purposes of the instrument, including defining relevant aircraft as meaning any of the following aircraft:
- an Airbus A320-200 series aircraft with the certified maximum passenger seating capacity of 168 passengers, and corresponding cabin configuration, mentioned in the relevant type certificate data sheet
- a Fokker F28 MK 0100 aircraft with the certified maximum passenger seating capacity of 100 passengers, and corresponding cabin configuration, mentioned in the relevant type certificate data sheet.
Section 4 states that the instrument applies to the operator in relation to its operation of the relevant aircraft in charter, or regular public transport, operations.
Subsection 5 (1) directs that subparagraph 6.1 (b) of CAO 20.16.3 does not apply to the operator in respect of its operation of the relevant aircraft.
Subsection 5 (2) directs the operator to assign for duty at least 1 cabin attendant for every 50, or part of 50, passenger seats fitted for each flight of a relevant aircraft.
For Airbus A320 series aircraft, the certification criterion is 4 cabin attendants to a maximum of 168 passenger seats fitted to the aircraft. For Fokker F28 MK 0l00 series aircraft, the certification criterion is 2 cabin attendants to a maximum of 100 passenger seats fitted to the aircraft.
Subsection 5 (3) directs the operator to give written notice to CASA of any proposed revision of any part of the operator’s operations manual that relates to emergency procedures for the relevant aircraft, including in relation to exits. Under subsection 5 (4), the notice must be given at least 14 days before making the proposed revision.
The direction in subsection 5 (3) ensures that CASA will continue to have oversight over the appropriate risk reduction measures included by the operator in its operations manual. These measures are enforceable under CAR.
Legislation Act 2003
The instrument is being registered as a legislative instrument and is, therefore, a legislative instrument in accordance with subsection 8 (3) of the LA, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
The instrument replaces an instrument that was also registered as a legislative instrument.
Consultation
Following the issue of the CASA report that recommended the recognition of the FAA and European Union Aviation Safety Agency of the European Union certification standards in relation to setting the ratio of cabin attendants to passenger seats, initial consultation under section 17 of the LA was undertaken before instrument CASA 46/18 was made.
More recently, CASA consulted extensively with industry and the public about adopting the internationally-accepted ratio of at least 1 cabin attendant for each 50 passenger seats, or part of that number, on a flight of an aircraft engaged in charter, or regular public transport, operations. Adoption of this ratio has been accepted by industry which is aware that it will be the new standard for the operation of aeroplanes under Part 121 of CASR.
The instrument has been issued at the request of VARA and is similar to instruments previously issued for other operators, including Virgin Australia Airlines Pty Ltd and Virgin Australia International Airlines Pty Ltd. In those circumstances, CASA is satisfied that, for section 17 of the LA, no further consultation is appropriate or reasonably practicable for the instrument.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required as the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for directions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on 1 July 2020 and will be repealed at the earlier of the following:
(a) commencement of Part 121 of CASR;
(b) the end of 31 May 2022.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA 36/20 — Number of Cabin Attendants (Virgin Australia Regional Airlines) Direction 2020
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
Instrument number CASA 36/20 allows Virgin Australia Regional Airlines Pty Ltd to operate relevant aircraft for flights with at least 1 cabin attendant for every 50, or part of 50, passenger seats.
The relevant aircraft are:
- an Airbus A320-200 series aircraft with the certified maximum passenger seating capacity of 168 passengers, and corresponding cabin configuration, mentioned in the relevant type certificate data sheet
- a Fokker F28 MK 0100 series aircraft with the certified maximum passenger seating capacity of 100 passengers, and corresponding cabin configuration, mentioned in the relevant type certificate data sheet.
Human rights implications
The legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
The legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority