Explanatory Statement
Civil Aviation Regulations 1988
Permission and direction — helicopter charter 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 of CAO 20.16.3 provides that seat belts must also be worn at certain times.
This instrument allows passengers in a helicopter engaged in charter 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.
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.
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 is similar to previous instruments issued to other operators.
The instrument commences on the day after it is registered and stops having effect at the end of 31 October 2009.
The instrument has been issued by a delegate of CASA, in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA 43/08]
Overview
The Civil Aviation Regulations 1988 were enacted to ensure the safety of air navigation, and section 98 of the Civil Aviation Act 1988 empowers the Governor-General to make regulations for this purpose. The explanatory statement for the instrument F2008L00099 addresses the need for flexibility in helicopter charter operations, particularly during the process of leaving or boarding the helicopter in a hover or partial hover, which can be safer for suitably trained and experienced operators and personnel. This instrument allows passengers to be carried on the helicopter's undercarriage and permits them to not wear a seat belt or occupy a seat at heights below 1,000 feet above terrain, provided these actions occur during the special operation of leaving or boarding the helicopter. It also acknowledges the requirement for such operations to comply with the Civil Aviation Order 20.16.3, and recognises that the instrument constitutes a legislative instrument under the Legislative Instruments Act 2003, subject to parliamentary disallowance. The instrument was issued by a delegate of the Civil Aviation Safety Authority, in accordance with the Civil Aviation Regulations 1988, and will remain in effect until 31 October 2009.
Scope and Application
The Civil Aviation Regulations 1988, as amended by this instrument, apply to operators of helicopters engaged in charter operations and their personnel. The regulations are designed to enhance safety during specific operational procedures, such as when helicopters are in the hover, allowing passengers to board or leave the aircraft on the undercarriage. The instrument permits these operations under certain conditions, addressing situations where boarding and deboarding in the hover is considered safer by suitably trained and experienced operators and personnel. The regulations cover the geographic and jurisdictional reach of the Commonwealth of Australia, and they specifically affect the operation of paragraphs 3.1 and 4.1 of Civil Aviation Order 20.16.3, which require passengers to occupy seats of an approved type under certain circumstances. The instrument is a legislative instrument under the Legislative Instruments Act 2003 and is subject to tabling and disallowance in the Parliament. It commences on the day after its registration and ceases to have effect at the end of 31 October 2009. Although consultation under the Legislative Instruments Act has not been undertaken for this specific instrument, it is similar to previous instruments issued to other operators.
Key Provisions
The Civil Aviation Regulations 1988 (CAR 1988) contain several key provisions that govern the operation of aircraft in Australia. Subregulation 250(1) (2) of CAR 1988 prohibits the carriage of individuals on the wings or undercarriage of an aircraft, except with specific permission from the Civil Aviation Safety Authority (CASA) for particular flights. This permission can include carrying individuals in parts of the aircraft not designed for crew or passenger accommodation, subject to CASA-imposed conditions (Subregulation 250(3)). Moreover, Subregulation 251(1) requires seat belts to be worn by all crew members and passengers under certain circumstances, such as when the aircraft is flying below 1,000 feet above the terrain, unless CASA directs otherwise (Subregulation 251(9)). Subregulation 207(2) mandates that Australian aircraft must not be used in any class of operations unless equipped with CASA-approved or directed equipment, including emergency equipment, and Subregulation 207(3) specifies that this equipment must be used in accordance with CASA's directions. Additionally, Subregulation 207(4) stipulates that CASA's direction must be solely for the safety of air navigation.
The obligations imposed by the Act and the regulations on operators and pilots are significant. Operators must ensure that no individuals are carried on the wings or undercarriage unless specific permission is granted by CASA. Pilots must adhere to CASA's conditions if permission is granted for carrying individuals in non-designated areas of the aircraft. Furthermore, operators must ensure that all crew members and passengers wear seat belts in certain circumstances, unless CASA provides a direction exempting them from doing so. Additionally, operators must equip their aircraft with approved or directed equipment as specified by CASA. Failure to comply with these obligations could result in significant safety risks and regulatory penalties.
There are potential civil and criminal consequences for breaching the provisions of the Civil Aviation Regulations 1988. Violation of Subregulation 250(1) by allowing individuals to be carried on the wings or undercarriage without permission could result in severe penalties, including fines and imprisonment. Similarly, failure to comply with Subregulation 251(1) and (9) regarding seat belt usage, or Subregulation 207(2) and (3) concerning required equipment, could lead to regulatory action, fines, and potential criminal charges. The severity of the penalties depends on the nature and extent of the breach, but they can include substantial fines and imprisonment for serious or repeated offences. The Act also provides for administrative penalties, such as fines, for non-compliance with certain regulatory requirements.
The instrument in question, CASA 43/08, allows for the carriage of passengers on the undercarriage of a helicopter during charter operations and in the hover, provided specific conditions are met. This permission is intended for suitably trained and experienced operators and personnel where such operations are deemed safer. The instrument is subject to the Legislative Instruments Act 2003 (LIA), which declares it a disallowable instrument due to its effect on the Civil Aviation Order 20.16.3. Consequently, it must be tabled and can be subject to disallowance in Parliament under sections 38 and 42 of the LIA. Notably, consultation under section 17 of the LIA was not undertaken for this instrument, as it is similar to previous instruments issued to other operators. The instrument is effective from the day after its registration and ceases to have effect at the end of 31 October 2009.